Mr. Anthony Saez (Executive Director and Chief Pensions Advocate, Bureau of Pension Advocates, Department of Veterans Affairs):
Thank you, Mr. Chair.
Thank you for inviting us today.
As you said, my name is Anthony Saez. I am the executive director and chief pensions advocate from the Bureau of Pensions Advocates. With me is Charles Keliher. He is our appeals and legal issues director. In fact, he's our chief lawyer.
I believe we distributed a deck earlier, and I'll use it as a general guide, but we'll leave it with you.
The Bureau of Pensions Advocates is a unique organization. It provides legal advice and support to veterans, to members of the Royal Canadian Mounted Police, to merchant mariners, and to eligible family members who wish to appeal or consider appealing a departmental decision around disability or pension.
The bureau has 32 lawyers in 14 offices from coast to coast, so we have offices in most provinces of the country. Most of our offices are based close to large bases and in areas where there is a large number of retired veterans. That's our geographic location.
In terms of what we actually do, a veteran will come to see us, having received a decision from the department.
By the way, you should know that the Bureau of Pensions Advocates represents about 95% to 98% of the people who appear before the Veterans Review and Appeal Board. The reason they come to see us is that, when the department turns them down or makes a decision they don't agree with, the letter they receive from the department says that should they wish to consider appealing the decision, they have available to them the services of lawyers at the Bureau of Pensions Advocates. Usually their first stop is at the bureau.
They will come to the bureau and tell one of our lawyers that they are not pleased with the decision they received from the department. At that point we review the whole file to see what the decision that was made is all about. Then we sit down with the veteran or RCMP member and go over that decision.
We usually offer advice at that point. We might say that we think they have a very good case and that they have a good chance of having the decision overturned at the Veterans Review and Appeal Board, or we might say that based on what we see, there's not much left for them to do. Another thing we do a lot of is say that we noticed that the reason they were turned down is that they were missing a particular piece of evidence, or there was something more that they didn't offer, which we think we can help them with. Instead of going to the Veterans Review and Appeal Board, we would offer to help them get that piece of evidence and send it back to the department. In most cases, that is enough; they don't have to go through the VRAB process when that happens.
On the fifth page of the deck, you'll see our chart of total claims by year. On average, we handle about 12,000 cases a year. The biggest percentage of this work is dedicated to the number of claims that are completed, which is about 7,000 to 7,500.
We also have about 5,000 claims that are what we call counselled out. Counselling out occurs when the veteran comes to us to take a look at the department's decision and when we review it we say that based on our experience, we don't think there is much the veteran can do.
In the end, thanks to the legislation, it's completely up to the veteran to decide whether he or she proceeds to the Veterans Review and Appeal Board or accepts that he or she probably doesn't have much of a shot and decides not to proceed.
In total we handle 12,000 to 13,000 cases a year.
What the bureau has to offer to veterans, above and beyond the service it provides, is a higher analysis of the particular case.
When the department itself makes a decision about a foreign application, sometimes it will deny that application because it's based entirely on the application that is provided by the veteran. Quite often a particular case may involve a much more sophisticated type of analysis that can't be done at that first level, so if the department turns it down, and they come to us, the bureau then has the expertise to take a really close look at that file and examine not just the evidence, but the law as well.
That's an important thing to remember. The bureau is a much deeper level of analysis that is provided to the veteran. We also help the veteran coordinate the gathering of evidence, which they may not have done in the first instance.
In the final analysis, what the bureau offers is probably 32 lawyers who probably know the Pension Act better than most people in the department or in the government because that's entirely what they focus on. They've got a very high level of expertise with regard to that piece of legislation.
I believe that was all I was going to provide as opening remarks, unless my colleague has any comments to offer.
Dr. James Ogilvy (Executive Director, Council of Canadian Administrative Tribunals):
Thank you, Mr. Chair.
I believe I was called here on somewhat different grounds from what most other witnesses would present because I don't come with particular knowledge of VRAB. I would like to make some general remarks about tribunals, what we can expect of them, and then perhaps the questions could enlarge on some particular applications.
I provided a short paper. I'll skip the first page because that is just my background and the background of CCAT, which is the organization I represent. I'd like to go to the rest of the short paper though and highlight a couple of things, four items in particular. Before I do that I would like to apologize for the first page of the principles, which is the first page of the appendix on page 5. Somehow 6 got divided into 6 and 7. When I refer to 7 it should be the one that is numbered 8, I believe, in your package.
The first area I would address is the area of expertise. Tribunals have a different role in the delivery of justice from what the courts have. The expectation is that tribunal members will bring with them expertise in the areas that the tribunal deals with. Secondary to that is their expertise in the law. Although of course the framework within which they work is a legal framework and the framework is a legislated framework, nevertheless the principal skill they must have is in the areas that are of some importance to the subjects they're dealing with.
Many tribunal members are not lawyers. I believe that's the case with this tribunal as with many others. The indication of that is the way reviewing courts regard tribunals. Normally it's considered that there will be two standards of review. One is for the findings of fact, and that's in the areas of information that the evidence applies to, and the other is matters of law.
In findings of fact, the courts normally simply defer to the tribunals and say they're the experts in that area so the courts are not going to step into their shoes and interfere with their decisions in that area. Where the reviewing court will take issue usually is with the way in which a hearing is conducted, what they see as the fairness, and the way in which the tribunal has handled the law. The standard of review for legal issues is correctness.
Tribunals have a special role in that way and they are formed to fulfill that role. Once the tribunal is in place, one of the principal issues, which is the second one I'd like to refer to, is fairness and ethical conduct. Fairness could be tied in with objectivity. Ethical conduct is the manner in which witnesses and counsel are treated by the tribunal, the way in which colleagues are treated within the tribunal. It should be remembered that in any tribunal the rule of natural justice applies and should be paramount. Simply stated, the rule of natural justice is just the right to be heard by an impartial decision-maker. There are two elements. One of them is the right to be heard, and the other is when one is heard it is by an impartial decision-maker.
Ethical issues are more pervasive in tribunals than one might expect. It's not just an add-on or a plug-in; it's something that has to apply all the way through. The relations between an appellant and a tribunal need to be treated with respect.
Respect is mutual, of course, or reciprocal, as it should be. Leading up to the hearing, it's helpful to have a tribunal that provides information on the way its procedures work. During a hearing, the process must be seen as fair and balanced.
There is a problem sometimes in tribunals with descent into the arena. It's inappropriate for members of a tribunal to take sides and start arguing with witnesses or counsel. The distance should be maintained, and that's something that we would say would be applied to any tribunal. I'm speaking generally about the principles of conduct of a tribunal.
The third area is transparency. Transparency is ensured by a variety of things. At the tail end of the process, transparency often can be best served by the publication of the results of all hearings. In a situation where the tribunal deals with individuals, as this one does, of course the results have to be depersonalized. Nevertheless, for the sake of researchers, for the sake of people following along who will have similar cases in the future, it is certainly worth having decisions published on the website or in some manner. These days, typically, it is on the website.
In connection with that, I'd like to make some remarks about the relationship between the tribunal and its constituency. The constituency of a tribunal is not determined one by one. It's not that the tribunal has a relation with an individual who comes before it. The tribunal has a relation, indeed, with that individual in deciding a matter that affects that individual, but it has a relation with the broader community of which that person or that organization is representative, or perhaps even just a member.
This is tied to the idea of transparency. When an individual goes before a tribunal and the decision handed down goes only to that person, it doesn't serve the community's needs. It serves only the relationship with that one person. In order to provide the best outcome of the relation, transparency is important to maintain. It's also tied to the idea of consulting. When we're doing our training, we make sure to emphasize that decisions have to be made on the basis of the evidence presented.
For example, when it's a labour relations issue, it's inappropriate for a tribunal or panel member to step outside the room and call cousin George who happens to know about certain things in the snowplowing industry. Cousin George should stay out of the picture. This goes for experts as well, medical experts, legal experts, and so on. All of that consultation should be above board, and if there is information drawn from sources other than the witnesses or the appellants, then the other sources should be brought into the process transparently.
Finally, I will refer to independence. This is my fourth item. Tribunal members are appointed federally, provincially, even municipally on a wide variety of bases. One of the things that varies greatly is the length of terms. When terms are short, tribunal members tend to look over their shoulders at what's going to provide the best chance of reappointment. That's a crude way of putting it, but there is some truth to that.
Security of tenure is an important element in the bolstering of the idea of independence of tribunals and tribunal members. Tribunal members and the tribunals themselves should make a point of exercising independence in the way they operate as well and not worry about who might think what about their decisions. As long as the decisions are properly made and based on the evidence, there should be a good chance that they will stand.
To go back to the matter of decisions for a moment, I indicated that decisions must be made on the basis of evidence presented. That evidence, of course, can be public knowledge of a variety of things. It's not just the testimony that's presented in the hearing room. The reviewing courts, up to the Supreme Court, have made it very clear that decisions must be explained. A decision is not good enough without cogent reasons. Reasons are a real hobby horse of reviewing courts, quite frankly, and they will very frequently go against a decision that is not supported by adequate reasons.
Weaving this back through the discussion, when I was talking about the constituency, I was talking about the constituency being not just the individual who appears before the tribunal, but also the broader constituency. The constituency is best served not only when the decisions are made public or made accessible in some manner, but also when the reasons are given, are adequate, and are undeniably leading to a particular conclusion.
Those are a few points. Since I have no particular knowledge of VRAB, I made some what I confess are shallow comments based on my reading of the website, but I think that's all I need to say for introductory remarks. Thank you very much for the opportunity.
Mr. Harold Leduc:
Inside I'm calm.
What I'm going to focus on is something I'm not alone in my thoughts. I have a number of colleagues who also believe this is true but they are absolutely intimidated and afraid to speak out.
As you can see in my brief—and I'll try not to read it, but I'll speak to it, though—I've provided three excerpts from different places. One is from section 3 of the Veterans Review and Appeal Board Act, which we're told continually by the Federal Court that we should follow. We all know what it says, and I won't read it.
The next one I have presented is what's in the Veterans Review and Appeal Board's introduction to new members. Of particular interest is the last sentence and just a bit before it. It reads, “...decision so that the applicant knows that a full and fair examination of their case took place. In a non-adversarial system, it is essential to remember as a member that all parties in the process are working for the applicant.” That is just about completely gone.
The third one is part of the members' code of conduct. This is found on the Internet. It's also part of the oath of office that we sign. The very last part of it states that we “shall not delegate the duty to decide to any other person.”
Unfortunately what's happened is that our staff are the ones who train us. Our staff were appointed to render fair decisions in accordance with the legislation and in a non-adversarial approach. Our staff do not have to buy into that and they don't. Sometimes the staff come from the department, and therefore they already have a bias toward the departmental policies. That impacts us in our decision-making and it's a huge impact, but I'll get into that in a minute.
I mentioned board management as a group because we really don't know who makes the decisions. The chair has delegated his day-to-day operation of the board to the deputy chair and he has essentially told all members to defer any decision-making to the legal unit. In board management we have the chair, the deputy chair, the director general, and the senior legal counsel, but we don't know who is sending us the decisions because we're not involved in any of the decision-making that impacts us.
The problem that happens is that the staff are empowered and they act as if they are another panel member, which is absolutely wrong. We are the ones who make the decision. We go to the hearing and we hear. The reason for going to the hearing is to gather the testimony and clarify the information we have.
When I first started on the board. our decisions were one or two pages long. We didn't need scads of medical information. For entitlement we only required a doctor's note that provided a diagnosis of a disability, and from that it was our job to make a connection to service, based on the evidence we had. We never searched for information as happens now. If our legal unit came up with a piece of information that was new, we just thanked them and said that was not part of the evidence we had before us.
Today I have witnessed people adding things to the file without even a thought of sending it off to the veteran and the veteran's advocate.
I've witnessed veterans and their advocates being disrespected at the hearings. I've stopped hearings because of it.
It's one of those things that makes it very difficult not to grant everybody a disability because we've changed that non-adversarial system to provide veterans with what the government and the people of Canada have said in their statute that they owe the veterans. The fact of the matter is, people still have to prove and we still need the evidence. However, we've changed that non-adversarial process to a very adversarial process.
Some members do that at the hearing by challenging the advocate and the veterans, rather than just getting clarification on the evidence. I think last week or the week before there was a situation where a veteran with post-traumatic stress disorder felt as if he were being cross-examined. I heard about that story a year before you heard about it. I went to a fellow veteran's funeral and I heard about it there. I brought it back to the board and told the chair, because the chair is responsible. I don't know if anything was done with that information.
It's real. It's live. It's what is going on. I'm not here to say that everything is wrong with the board. I'm not here to say that every member is bad, that every staff member is bad. What I'm here to say is that if we speak about only the good things that are happening, we'll never get to the root of why some of the veterans, after they get their decisions, go out and commit suicide.
It's real. It's real for veterans. We're talking about real people here, not policy.
I realize that I'm starting to run out of time here.
The favourability rate is another one that impacts our impartiality. The impact on our impartiality is that it's become a factor where we were told to remember that we don't have to grant. We were told that by the deputy chair before going into hearings.
It's become such a contentious issue that has frustrated members, because they don't want to know about these favourability rates. We never had them before. We had them by region, but never by the individual. If two of us sit on a panel, and one agrees and one doesn't agree, then the one who doesn't agree gets a favourable rating, which really doesn't work statistically.
The idea behind this is that the board is in trouble. As I mentioned earlier, we didn't need a whole bunch of medical information. Now the staff and some of the members want more and more and more. I don't know why. Our job was so simple before. We took what was before us, listened to the testimony, figured out whether it was credible or not, and made a decision. But we keep being asked for more.
Section 38 of the VRAB Act says that we have the ability to go out and ask for independent medical opinions. We've been directed that we can't do that on our own, that we have to go to the legal unit. If the legal unit looks at one of the medical opinions we have, they will typically come back and give a legal opinion on a medical opinion.
It just doesn't work. I don't think we need to be doctors to adjudicate. I think we just need to be reasonable, and understand why we're there.
Mr. James Sprague, an expert on administrative tribunals, spoke to us. He told us of the importance of our independence and whatever. He told us that, really, in a tribunal itself, we're appointed by the Governor in Council, by the Governor General. We are independent from government in decision-making but dependent on the minister for administrative purposes. We were told that we shouldn't be going to the department for medical advice, but we do.
With respect to performance assessments, for my first three years on the board, I had wonderful, excellent performance assessments, and then all of a sudden they took a downturn. Information that was used before a human rights mediation was used in 2011 on my performance assessment. We don't see what the staff say about us; we get surprised by it.
That's a controlling factor, in my opinion and in the opinion of a number of members.
On the hearing loss policy, which we heard about before, I don't think there's a veteran in this country who's getting a fair hearing on hearing loss, for the simple fact that the policy was changed and we had no opportunity to discuss the department's policy. We were basically told that we would use it. It treats hearing loss differently from any other condition under the Pension Act or the Canadian Forces Members and Veterans Re-establishment and Compensation Act.
A concern we have as well is that we're guided by the Federal Court, but when we get Federal Court decisions, our senior legal adviser, or whoever is tasked to do this, will give any number of reasons that they don't agree with the decisions that come back, saying that we should defer to a new panel. For any decision that comes back that doesn't agree with our decisions, basically, we're given every reason that we shouldn't believe it, but any decision that comes back that agrees with the board, we rarely get any comments on it.
It's just like any decision we write that is not favourable to the applicant. Rarely do we get an opinion that comes back from our staff saying that we've made an error in our decision and we should grant favourably. I can almost guarantee that. I do not recall, in the seven years I've been on the board, ever getting a legal opinion that says that we did not make the decision within the language of sections 3 and 39 of the VRAB Act.
There's a real disconnect. Our staff are the ones who train us.
It doesn't matter who you appoint to the board. I personally don't believe in quotas, having a certain number from the military, or from this or that. I don't believe in that. Personally, I believe you need the right people. But as long as you don't fix the problems that are in a board, that are tainting the members or getting them to grant in a certain way so that they're not pressured in their jobs.... I mean, members have been told, “If you want an easy time on the board, then just listen to what we have to say.”
There is a lot more I could talk about, some of which I wrote in my brief, but I'll just leave it at that.
I'm open to answering any hard questions you folks have for me.
Mr. Cal Small (National President, Royal Canadian Mounted Police Veterans' Association):
Thank you, Mr. Chairman.
Good afternoon, ladies and gentlemen.
I'm Cal Small, president of the RCMP Veterans' Association. It is a pleasure to be with you this afternoon. If you don't mind, I will read what I have in order to keep within the time limit.
At the time I accepted your invitation I was to have been accompanied by Mr. Bill Gidley, who until the end of July of this year was the executive director of the association, and as recently as two weeks ago was a national advocate. I might add that Mr. Gidley appeared before this committee on April 3 of this year. A couple of weeks ago Mr. Gidley found it necessary to resign his position due to health issues. It is regrettable that he could not have joined me here today, because he was the one who took all the phone calls, all the emails related to matters concerning veterans affairs and the Veterans Review and Appeal Board. In other words, Mr. Gidley was the person in our association most familiar with the issues of interest to this committee.
The main focus of the RCMP Veterans' Association during the last few years has been to ensure our retired members are aware of the services offered by VAC and how these services can be obtained. To accomplish this we have had meetings with the Minister of Veterans Affairs, with the Veterans Ombudsman, with the Canadian Legion and with senior officials from the Department of Veterans Affairs. The Canadian Legion service officers are not only prepared to help our retired members prepare and submit their applications to VAC, but have also trained three of our veterans in order that the association might be in a position to provide these services to its members. This was done on the assumption that retired members would find it easier to communicate information pertinent to their application to somebody with a similar background.
On October 7, 2009, past-president of the association, Mr. Dale Lively, Mr. Bill Gidley and I, as well as the late Peter Martin, former deputy commissioner of human resources for the RCMP, met with Mr. Greg Thompson, former Minister of Veterans Affairs. Among the many issues discussed was the need to have some RCMP veterans sitting on VAC committees, and in particular the need for a retired member on VRAB. Mr. Lively strongly felt that a retired member as an adjudicator would be an asset and that he or she might have more empathy with the RCMP member client and would probably be in a better position to appreciate the context related to the disability in question, and would give the board a little more credibility as well.
On November 4, 2009 the same group met with Mr. Brian Ferguson, senior assistant minister, Veterans Affairs in Charlottetown, P.E.I. and the senior staff. Again, among many other topics discussed, the lack of RCMP representation on VAC and VRAB committees was again discussed. The point was made that it would be difficult for board members, who 97% of the time dealt with military clients and issues, to appreciate and understand many of the problems associated with policing.
I am pleased to note that a retired member of the RCMP is currently one of the VRAB adjudicators. This year, Mr. John Larlee, chair of the Veterans Review and Appeal Board, has provided an opportunity to past-president Tim Hoban, Bill Gidley and myself to witness VRAB hearings. Speaking for myself, I was struck by the informality of the process, by the efforts of the adjudicators to ensure they understood the issues and, finally, by the complexities of the cases. I was not aware of the decisions made in the cases that were heard.
Finally, I am aware of the various issues and criticisms concerning the composition of VRAB, the adjudication process, as well as the board's independence relative to VAC. I don't believe, however, I am in a position to offer anything more in the nature of constructive criticism than has already been received by this committee.
The main concern of the RCMP Veterans' Association is that its members be aware of the medical and psychological issues that could qualify them for benefits from VAC, that they know the process sufficiently well to be able to access these services, and finally receive fair and transparent hearings at the various levels.
Again I would like to thank you very much for including the RCMP Veterans' Association in these hearings.
S/Sgt Abraham Townsend (National Executive, Staff Relations Representative Program, Royal Canadian Mounted Police):
Thank you, Mr. Chair.
Good afternoon, committee members.
As introduced, my name is Abe Townsend. I'm a member of the RCMP, but I'm not here representing the organization. I'm here representing the 24,000 regular and civilian members.
I've been an elected representative since 2004. The SRR program, staff relations representative program, is the official labour relations body for our members.
While our members perform their duties as safely as possible, injury, both physical and psychological, is an unfortunate consequence of service, and subsequently, our members are entitled to disability, and in the case of death, to survivor benefits as well.
At present, there are approximately 9,500 clients, of whom 3,100 are still serving, the remainder being either retired or survivors.
I make reference to the numbers reluctantly, because each and every number represents an individual, an individual with a family, likely, that has suffered loss through service.
I look at the Veterans Affairs stats, and 75% are approved in the first instance. Of those that go to appeal, 60% are approved on appeal. Now, you've jumped the first hurdle, you've jumped the second hurdle, and 25% at the appeal board are approved. You continually jump hurdles, and we're continually getting approval, albeit in a diminishing way.
Members whom I talk with who have gone through this express frustration that the further you go in this process—they use words like “discouraging” and “distant” and “disheartening”—the more it becomes very litigious and removed from the individual, albeit that it's their case going forward.
I'd like to believe, and I do believe, that those who designed the current process had the best of intentions to balance the individual's needs against the greater community's. Sometimes when I look at the bureaucracy that has grown from this, I wonder whether that balance needs to be reassessed and adjusted so that it truly does serve the disabled veterans, whether CF or RCMP veterans or serving members, in a little more balanced way.
Those are my opening remarks.
Ms. Irene Mathyssen (London—Fanshawe, NDP):
Thank you, Mr. Chair.
I thank the witnesses very much for being here and helping with this study. I, too, would like to say I appreciate very much your candour and the integrity that you bring to these hearings.
I'll start with Mr. Leduc. I want to get very clearly on record some bits and pieces—and Mr. Casey alluded to this—in regard to the situation where a Federal Court decision overturns a VRAB decision.
We heard some contradictory testimony here. In one case we heard that the appeal board could ignore the court. Another witness said that if a judge is telling you to fix this and get the decision right, you'd better do it—“I've given you an order.”
There does seem to be a resistance by VRAB, based on what you've said, to listen to the court and, instead, to listen to the legal advice they receive.
The other piece I wanted to ask you about is the add-in evidence. We've heard a statement from the chair of the Veterans Review and Appeal Board that hearings are not adversarial and no one is ever arguing against the veteran. Yet you've suggested that this legal advice, or those who are supporting the board members in their decisions, are actually adding evidence or bringing in additional evidence.
My question is for clarification in this regard. Does the appeal board say that the court may have said one thing but the board is not going to listen, that they're going to listen to the legal advice they get? On the add-in evidence that very clearly goes against the veteran, contrary to what the chair has said, is it something that we should be very concerned about in regard to the way the board operates?