Veterans Affairs Committee on Oct. 22nd, 2012

[Irene Mathyssen, NDP, London—Fanshawe, ON]

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?

[Harold Leduc]

I can only speak from my experience, and what I've given you is my experience.

I don't know that anybody blatantly comes out and says that they're not going to listen to the Federal Court. I don't think that happens. I think what happens is that people simply don't agree with the decision. People don't agree with our decisions either, and that's fine. The fact of the matter is that it's the culture of the board. I think the culture of the board is simply one of denial right now, for the most part. It's tough to work there if you're going to grant favourably. It is pure and simple.

The non-adversarial part doesn't only happen with the staff. I've also witnessed colleagues saying, “I've read the evidence, and this is how I see it. Now you tell me why I should be persuaded from that view.” Well, that's adversarial.

Through the legislation, we have the ability to make inquiries, to clarify the evidence, but we don't have the right to cross-examine. That's an adversarial process. There are fine lines.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

You've indicated that you'd like to see an inquiry in regard to the board, some kind of an investigation. What would you like?

[Harold Leduc]

Personally, I would like to see somebody go through our decisions. The board has complete authority to review our own decisions on our own motion, because we know there are some people who have absolutely deferred their decision-making to the.... I could provide a list of names in camera. I could also provide a list of board members who would be the appropriate people to review those decisions.

I would like to see an investigation, first of all, of our documentation. I've read some of it. It's right. It guides us appropriately. Then I would like to see how we apply that. I would like to see an investigation of how the decisions are made and how they go through the different filters and things, how we are appointed to make decisions and yet forced, as we've heard earlier from the gentleman sitting in this chair.... We are independent decision-makers and shouldn't face any interference, but there is interference daily.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

That would be different from having a concrete set of rules or parameters, so that decisions are always consistent, so that someone coming with this body of evidence would be assured that no matter who was hearing the case there would be a consistency and a fairness to it.

[Harold Leduc]

Consistency is absolutely important, but we need to have consistency by everybody's singing from the same song sheet and understanding the legislation and our guiding values.

Right now, they're trying to achieve consistency by forcing us, through favourability rates and other things, to make decisions that are coming down to a certain level.

[The Chair, Conservative, Greg Kerr]

Thank you very much.

Mr. Lobb, go ahead, please.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Mr. Leduc, with the introduction for the new VRAB members—and you put it right in there—the whole idea is reasonable doubt or the benefit of the doubt.

In our constituency office, people come in all the time. I've been doing this now for four years, so we've had a couple of people roll through who have come in about a Canada pension plan disability. The one thing I can't understand is, it seems to me that we're asking more of our veterans than we are of people who get Canada pension plan disability. Can you shed some light on this? Where are we coming from on this one?

[Harold Leduc]

I think I mentioned it earlier. When I first joined the board, we only needed a doctor's letter that said the person had a certain diagnosis and it's on for more than six months. That establishes a disability under the Pension Act. All we did from that was hold a hearing, look at the documentation, and find whether we could make a link to service. When we couldn't, sometimes we'd weigh the evidence that was before us and we'd assess whether it was credible or not.

You've got to be a Philadelphia lawyer just to figure it out, because the veterans have a higher burden now than they did before, and I don't know why, because the rules haven't changed. They absolutely have not changed. It's the people and the steps.

I think, and this is only a personal opinion, the previous chair kept a tight grip on his staff because he had five years as a board member out in the field, and then he was the deputy chair, and then the chair.

It is unfair to the current chair that he was parachuted into the job with absolutely no experience. I don't think he even had experience in the public service. It's tough to deal with staff, because they're steady, and we're the ones who keep moving in and out.

[Ben Lobb, Conservative, Huron—Bruce, ON]

The other thing I want to ask you about is this idea of a favourability rate. We had the department come in, and they swore up and down that their adjudicators on the department's side do not receive or have ever seen a favourability rate. We'll take them on their word for that. I'm almost certain that VRAB came in here during the same meeting and made claims of the same account, but I can't remember their testimony.

Is this favourability rate something that is strictly internal or is this something that VRAB has talked about in public? What are your thoughts on the favourability rate?

[Harold Leduc]

It's a very secret thing. At first, when I joined the board in 2005, the favourability rate was done by region, and it changed around 2007 or 2008 to favourability rates being aimed at a person.

You can't do it. If you and I were sitting on a panel and you agreed and I didn't, I would get a favourable decision against my name. It doesn't work that way, because that's what the law says.

[Ben Lobb, Conservative, Huron—Bruce, ON]

The only time I would personally be interested in a favourability rate would be if somebody's favourability rate was only 5%. We'd want to know why they're against the veteran time after time.

[Harold Leduc]

We have that, but the ones who are questioned are the ones with the higher favourability rate.

[Ben Lobb, Conservative, Huron—Bruce, ON]

That's very helpful. I hope that when VRAB comes back, they may be able to shed some light on this.

I certainly would like to see, if it's possible, the outcome of this to maybe look at more of the way we look at CPP disability. Obviously, people are injured or they were injured somewhere along the line. They present a doctor's note or two and they can receive compensation until 65. I hope that—

[Harold Leduc]

Sir, we only have to follow the rules. They're clear.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Okay.

Mr. Chair, how am I for time?

[The Chair, Conservative, Greg Kerr]

We're so impressed, we're going to give you another minute.

[Ben Lobb, Conservative, Huron—Bruce, ON]

I appreciate that.

The next question I have for you is on the publication of results. I'm not sure how many results there could be since 1995. It could be close to 100,000 by now. Is there value for taxpayers' dollars to publish all of these results?

[Harold Leduc]

Through Can LII, absolutely, for the simple reason that you're only getting a vetted version of what should be out there. I'm sure you won't see one of my decisions out there. I'm very sure of it.

The reality is that they should be out there, because I've not granted some as well as I've granted some, and I made some errors.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Okay, let's say it's 100,000 results. In what form would you like to see them? Obviously some of it will have to be redacted for privacy issues, but as far as who the person was on the review team, everything else, that part should—

[Harold Leduc]

The name of the members should be on there because I tell you, when the members saw their names on some of the decisions that came out in the media, they paid close attention and they changed the way they did business for a while.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Okay. I hope some day, if you're back before the committee, you will feel good enough that you can put those medals back on. It would be nice to see.

[Harold Leduc]

Thank you very much. That will be up to the minister and the Prime Minister.

[The Chair, Conservative, Greg Kerr]

Thank you very much, Mr. Lobb.

Mr. Zimmer, close it out please.

[Bob Zimmer, Conservative, Prince George—Peace River, BC]

Thank you for coming today. My questions will be addressed to Harold and if I have time, to you folks as well.

One thing I would like to say is a sincere thanks for your service. I've had uncles and cousins who have served and those medals don't come cheaply. We definitely respect you.

I know you've had seven years of experience and I guess for us we really do want to fix whatever's wrong with VRAB.

What would be your two recommendations? I'm sure there are more, but perhaps you could boil it down to two. You talked about some today already. Give us a good few that you would recommend we go ahead on.