My Initial Reaction was Wrong

When I started practising bankruptcy law, every time a client came to see me about a bankruptcy, I use to pull out the statute and read the definition of a bankrupt. The reason for this was that I wanted to make sure that the client met the criteria in the law and not what I thought those criteria were.

It is something I should have remembered when I was thinking about the decision of the Commissioner in the matter of Dominic Leblanc, who is a public office holder, and the Arctic Surf Clam license issued to Five Nations Clam Company (the ‘licensee’). In that decision Mr. Leblanc was found to be in a conflict of interest because he participated in the decision to award a licence to a company which would have employed the first cousin (Gilles Theriault) of his spouse as the general manager.

My first reaction to this decision was that it was overbroad. Mr. Theriault was the son of Mr. Leblanc’s spouse’s mother’s brother. Mr. Leblanc told the Commissioner that he had only seen Mr. Theriault at family gathering approximately ten times over fifteen years and that they were not close. He acknowledged that he knew that Mr. Theriault was a cousin of his spouse. However, Mr. Leblanc and Mr. Theriault had known each other for many years as Mr. Theriault was active in the fishery. The relationship outside of the context of family was plainly longer and stronger. How could this constitute a conflict?

Mr. Leblanc then argued that even if Mr. Theriault was a relative he did not have any knowledge of his compensation arrangements with the licensee and therefore he did not know whether the decision would further Mr. Theriault’s private interests.

As with all matters of administrative law the answer is in the statute. Unlike a number of aspects of the Conflict of Interest Act or the Lobbying Act the answer here is pretty clear.

  1. The Act defines ‘relatives’ as “Persons who are related to a public office holder by birth, marriage, common-law partnership, adoption or affinity are the public office holder’s relatives for the purposes of this Act”.

Mr. Theriault plainly is a relative of Mr. Leblanc.

  1. Section 4 states that “…a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests.”

As the general manager of the licensee Mr. Theriault was going to benefit from the granting of the license. The granting of the license would further the private interests of Mr. Theriault. Mr. Leblanc, in exercising the power to grant the license, was furthering the interest of a relative. The Commissioner found that Mr. Theriault’s inclusion on the license application as the General Manager meant that Mr. Leblanc knew, or reasonably should have known, that Mr. Theriault would benefit from the grant of the license.

  1. Section 6 states “No public office holder shall make a decision or participate in making a decision related to the exercise of an official power, duty or function if the public office holder knows or reasonably should know that, in the making of the decision, he or she would be in a conflict of interest.”

The granting of the license was a ministerial decision under the Fisheries Act.

The basis of my belief that the decision was overbroad was the issue of the status as a relative. I thought of relative in terms of family members and potentially my own cousins.

But the language of the Act is clear. First of all it includes a definition of ‘family’ in section 2(2) of the Act. By implication relatives go beyond that. Second it clearly states that ‘relatives’ are persons related to the public officer holder by “…marriage…or affinity…” Mr. Theriault was the cousin of Mr. Leblanc’s spouse – he is related by marriage. Alternatively, the Commissioner found that Mr. Theriault was related to Mr. Leblanc by affinity.

There is no requirement for the intention to grant an actual benefit. Mr. Leblanc did not have to intend that Mr. Theriault gain from his decision to grant a license. However, he knew that Mr. Theriault was his a cousin of his spouse. The mere fact that the decision could advance Mr. Theriault’s interests was sufficient to put Mr. Leblanc in a conflict of interest.

One can argue about the wisdom of the provisions establishing these circumstances as a conflict. Parliament has plainly chosen to cast a broad net in attempting to avoid public office holders having any appearance of conflict. However, the language in the statute is clear and there is no doubt that Mr. Leblanc should have recused himself from the decision.

Author: Tom Jarmyn