Veterans Affairs Committee on Oct. 22nd, 2012

[The Chair, Conservative, Greg Kerr]

Good afternoon, everybody. We'll bring the committee to order.

I want to say first to the committee members that we'll be doing some business at the end of the Wednesday meeting, so please make note of that.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Is that Wednesday?

[The Chair, Conservative, Greg Kerr]

Yes.

I want to thank all of our witnesses today. We have two busy sessions.

We're continuing the review of the Veterans Review and Appeal Board. We're starting today with witnesses Anthony Saez, executive director and chief pensions advocate, Bureau of Pensions Advocates; and Charles Keliher, director, appeals and legal issues, Bureau of Pensions Advocates.

Gentlemen, I think you understand that we open with about a 10-minute presentation. If you want to introduce any other folks you have with you, that's fine, and then we'll go to the committee for questions.

Thank you for coming. If you're ready to start, we'll begin.

[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.

[The Chair, Conservative, Greg Kerr]

Thank you, Mr. Saez. I'd like to turn to our other witness.

It's Mr. James Ogilvy, executive director of the Council of Canadian Administrative Tribunals.

Welcome, Mr. Ogilvy. We'd like to have your presentation now.

[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.

[The Chair, Conservative, Greg Kerr]

Thank you very much, Mr. Ogilvy.

We'll now go to the members of the committee for questions.

We'll start with Mr. Stoffer, for five minutes, please.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Thank you, Mr. Chairman.

Thanks very much to all of you for coming, gentlemen.

Charles, I'll start with you. You indicate that on average the total is around 12,673 claims completed and claims counselled out. Is that correct?

[Charles Keliher, Director, Appeals and Legal Issues, Bureau of Pensions Advocates, Department of Veterans Affairs]

Yes.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

VRAB itself says that in 2011-12 they finalized 3,636 reviews and review decisions and about 1,072 appeal decisions, for roughly 5,000. You folks have over 12,000.

[Charles Keliher]

That's correct.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Can you explain the difference?

[Charles Keliher]

Sure. Perhaps if you look at the claims completed column and use round figures, you'll see that the figures VRAB gave you come to about 5,000. Ours come to about 7,000. Also, we do about 2,000 departmental reviews a year, which Mr. Saez referred to, where we don't go to VRAB and we divert the case back to the department. That's where those figures would match up. We take about 5,000 to VRAB and 2,000 back to the department. That's where the 7,000 for our column would come from.

On the number of claims counselled out—5,000—they don't get to VRAB, so they wouldn't be part of VRAB's statistics. We track them because they're part of the work we do and, naturally, when we need a budget and human resources, we have to show people what we're doing.

As you know, our service is free. Clients will come to us after they receive a departmental decision, not necessarily because they think the decision is bad or wrong or that they've been wronged, but because we're available. We provide a service. We will review the decision for them and give them our advice and opinion regarding their decision.

Like anyone who engaged counsel would, they would ask counsel for their advice as to whether they should proceed to the courts or to the next level of redress or whatever. In 5,000 cases—that's the counselling-out figure—people have come to us and we've so advised them. I think that will match up all the figures you have.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Thank you for that.

I want to make a slight correction. You are correct in that your service is free to the veteran who's applying, but it's not free to the taxpayer. There is a cost to your service. I've never heard of a lawyer who ever did things for free for that much longer. I just wanted to say that; it's a little pun there, that's all.

[Charles Keliher]

Yes, indeed.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Also, there are two other concerns. One is the benefit of the doubt. We hear that a lot. We've heard from some of your associates throughout the country that the benefit of the doubt in all senses and purposes isn't worth the paper it's written on. Many veterans are frustrated by that because they feel that they have the evidence. A case in point is Ken Whitehead of Nova Scotia, who has allowed me to use his name. He has 3,660 hours of flight time on the Sea King as a navigator, 4,000 hours of flight vibration. He was diagnosed by former Lieutenant-Commander Dr. Heather MacKinnon, whom I'm sure you know. She's a former flight surgeon who served over 20 years in the military.

The first response was he was a navigator on a ship. That's wrong. He was a navigator on a helicopter. Second, her medical evidence, in VRAB's words, was “not credible enough”. When that type of information appears before you folks, what do you do? I know you can't speak to a specific case, but that is one case of many that I've received over the years. They're so frustrated by that because everyone knows if you're leaning over in a helicopter for 3,600 hours, you're going to have a bad back. Everybody knows that. It's not rocket science. You don't need a flight surgeon to tell you that. Yet VRAB denied it on the basis that her medical evidence wasn't credible enough. I know BPA lawyers are very frustrated when they hear that because this happens all the time.

The last question I have for you, before I get cut off by our wonderful chairman, is about when the benefit of the doubt is not applied.

I believe you said it yourself, Anthony, that people can come to you, and if there's information they're missing you'll advise them on what to do. But in all reality, shouldn't it be the front line people who do that? The front line people should tell these folks when they're making a claim what they need to have. But they have to go to get legal advice from you—for free, mind you, but not to the taxpayer—to tell them they need this. That takes a long time before it gets to you. Wouldn't it be more advisable to bypass you folks and have the front line people tell Mr. George or whomever, if they're applying for a benefit, what they need to have? Wouldn't that be more advisable and quicker for the veteran? I'll leave you with that.

[The Chair, Conservative, Greg Kerr]

I'm going to suggest that since he did not give you time to respond in his time allotment—

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

All right, next time.

[The Chair, Conservative, Greg Kerr]

—if you have a quick yes or no it would be fine. Otherwise we have to go into the next round.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Is it five minutes already?

[The Chair, Conservative, Greg Kerr]

Yes, you're over five.

If you want, do you have a quick yes or no to the questions?

[Anthony Saez]

On benefit of the doubt, yes, we agree, sometimes we're frustrated, but I can say that sometimes we're also pleasantly surprised. It depends on whether you win the case or you lose the case. Sometimes you win them; sometimes you lose them. Sometimes we're surprised it wasn't applied the way we thought it should be. Sometimes we're pleasantly surprised that that one worked.

On the evidence up front, I touched on it very quickly in my opening remarks. I'll see if I can explain this very quickly. The process the department has up front is not meant to necessarily catch everything for every file. If you were to have the utmost rigour at that first application level, you would need a level of expertise and you would need a review process that would take so much time and cost so much that you'd probably gum up the system. For most of the applications, most of the required information is caught during that first application process. In fact, I believe the department approves about 70% at first application.

What we do at the next stage is in those cases where it's more complicated, where a person at the first level, an adjudicator, can't get into the legal details, we come in and provide that extra level of expertise where a lawyer looks at it from a legal perspective and tries to move the case forward. If you tried to provide that kind of scrutiny at the very first level, you'd need a much larger machine than you have.

[The Chair, Conservative, Greg Kerr]

Thank you very much. And you did very well with the time you had, so I appreciate that.

Ms. Adams for five minutes, please.

[Eve Adams, Conservative, Mississauga—Brampton South, ON]

If I could turn to both Mr. Keliher and Mr. Saez, we've heard a lot of wonderful things about the Bureau of Pensions Advocates, so on behalf of our side of the House and presumably the opposition, I'd like to offer my sincere congratulations. Thank you for all of the work you do on behalf of veterans.

[Charles Keliher]

Thank you.