Merci beaucoup. Thank you, Mr. Chairman.
In accordance with a procedure I established for myself many years ago, I never read a brief. I do, however, bring along some notes. I provide the committee with notes in both French and English, and I would use these notes for my ten minutes to explain what we mean by an ombudsman.
In the first page there are the names of the 25 organizations that make up the national council. Now just to get right to the meat, our understanding of today's meeting is that we would have an opportunity to ask your committee to consider the appointment of an ombudsman who would make final decisions in respect of applications to benefits available under the Department of Veterans Affairs legislation. This was a matter of extensive review recently, certainly within the last six to eight months at meetings with the staff from the Prime Minister's Office, as well as the staff of the minister's office. So they are both briefed on how we believe an ombudsman could be used, and the rationale therefor.
I'll just go right along and answer any questions when I'm finished, if that's okay.
There was a favourable reference during the recent election campaign to an ombudsman. That generated interest among the public, and it also generated interest among the media. It's the first time in my experience when the whole question of an ombudsman has been front and centre as an alternative to the various tribunals that operate now under the Department of Veterans Affairs. As the chairman has mentioned, we will make reference to the Woods committee, the committee to examine the work and organization of the Canadian Pension Commission. That committee sat for three long years, between 1963 and 1965. I had the privilege of being the secretary of the committee working under Mr. Justice Mervyn Woods, who was sitting on the bench in a court of appeal in the province of Saskatchewan.
There are a few outstanding questions that people have about ombudsmen. I'll try to answer them as I go along.
Firstly, I have made reference to the Woods committee. I should make reference also to Judge Walter Lindal, who was a member of the Woods committee. He has now passed on. He was a leading expert, world-renowned expert on the work of ombudsmen. I travelled to Sweden with him as part of my work with the committee. I found that Judge Lindal had a very firm grasp of why an ombudsman probably would be a good alternative.
The alternative is that the Woods committee was looking towards a new appeal body. It would be a question of whether they put in something like the Veterans Review and Appeal Board, or on the other hand they said no, we should go the ombudsman route.
If you're looking for a reference, I've put in my report an interpretation by a very senior legal expert in the United Kingdom, the best expert we could find on this whole question of an ombudsman. I'll just read it, as it's short: “The Council”—that is, an ombudsman—“is an advisory and consultative body only, having itself no adjudicatory or executive powers, and it is in no sense a super tribunal, nor a court of appeal from tribunals.” It is an extra body sitting out there with tremendous knowledge of the whole pension process, with contacts with the minister and Parliament, and you'll see how the appointment would be made.
I certainly would take the liberty of saying, having spent three years of my life going into the adjudication of the Canada Pension Commission, that without question the system works, and I can't think of a better system or system that is fairer—fairer for the government, fairer for the applicant, fairer for the advocates who are working in the system.
Incidentally, Mr. Garner's definition of an ombudsman is also world-renowned. I have yet to be at conferences where the whole question of an ombudsman comes up and Mr. Garner's name is not known. I mean, he is an expert, no question.
On page 3 of my notes, if you're following them—and it's really not necessary—I touch on some things that people wonder about. First is the time required to establish an ombudsman. We were trying to think, in the Woods committee, of a better system than that of the Pension Commission and the Pension Review Board. When we studied the whole question of the ombudsman, we came to realize that if the system worked, it would be an excellent alternative to a lot of hide-bound tribunals and what not that we have had going back to 1924, and none of them have really been fully satisfactory.
One of the things that always comes up is whether it is adjudication. Yes, an ombudsman can adjudicate. He can advise. He can go back to the minister and say, “I think you should do this”, or “you should do that”. He can go back to the advocates and say, “I think you should do this”, or “I think you should do that”.
The question comes up, what about administration? A lot of the problems that we've seen in pension administration in the fifty-some years in which I've been involved have been from interpretation of administration. In other words, how many people should be appointed to do this or do that? How much on the administrative end should you put forward, as opposed to at the adjudicative or legal end? The ombudsman would be fully equipped to deal with that kind of administration.
Adversary proceedings? No, no, not at all. An ombudsman does not serve as a person acting on behalf of the applicant or the government, and certainly does not become involved in adversary hearings.
The working relationships are threefold. In the first one, he would have a good working relationship with the Minister of Veterans Affairs. Secondly, he would have a very good role to play in the machinery within the department, normally called, say, the veterans bureau.
With regard to veterans organizations, the same thing applies. If it's going to be an isolated situation where an ombudsman runs off into his corner and doesn't tell the veterans organizations what he's doing, it would be, in our view, a great mistake. He should have complete access to what the veterans organizations are doing, and they should have complete access to saying he's right or he's wrong or let's get at his policies and see if they could be made better or what not.
So he'd have a good working relationship with the minister, with the veterans bureau, and with veterans organizations.
In essence, Mr. Chairman and ladies and gentlemen, he is an independent agent under the Minister of Veterans Affairs. That would be his role. The procedure of the ombudsman would generally be considered effective only when the applicant has exhausted all of the essential means available to him to prosecute his case.
The ombudsman would be empowered to carry out his own investigations, and at this point you might easily say, “Well, this man is going to be a one-man band and he's going to have an awful lot on his plate.” Not necessarily, but he has to have access to the departmental records; he has to be able to carry out his own investigations if necessary; and when it comes to advice, he has to be absolutely open to let the applicant know why decisions were made and to report to the minister, etc.
On the question of reconsideration, it always comes up as a big item in adjudication of veterans pensions. What they really want to know is, “Okay, you turned me down. Do I have reconsideration?” The ombudsman would have the power, on reconsideration, to look again at a case. So the door is never really shut in the ombudsman's role.
I'll try to wrap this up as quickly as I can. There's not too much more.
The ombudsman would have to publish quarterly reports to Parliament. His reports would be open; they would be accessible to the public; they'd be published as public documents, in both languages, of course. Where they have successful ombudsmen, he's considered an agent of Parliament.
In general terms, the ombudsman should prevail upon the commission to do its job. He should not, however, do the job for the commission. After a trial period of two years, the commission should establish a review of the ombudsman so that he doesn't say, “I have a job for life, and I'll prosecute it in my own way.”
Now, as to an appointment, it's interesting that with every ombudsman we studied, the appointment is made by the Governor in Council on the recommendation of Parliament. It would be considered a non-political appointment. He could be removed for cause, of course. He could secure medical and legal advice if necessary.
As to a title, we realize that it would be very important to use a title that everybody would understand. And once you mention “ombudsman”, people get the general idea that you have a superpower on your hands who has all these powers at his disposal. But you'll notice that there are checks and balances in any system that sets up an ombudsman.
Refusal to investigate--I would say, Mr. Chairman and gentlemen, that one of the aggravating aspects of our pension system is the person who insists on his case going forward. At the moment the Canadian Veterans Review and Appeal Board really has to look at the case if it's referred to them. An ombudsman would be given the power to say, “Just a minute. You've exhausted all of your remedies; you've had a fair shake at this thing, and it would not be in the public interest to take this case any further.” Naturally, there are drawbacks to that in a highly charged political situation where the man can go to his member of Parliament, we'll say, and have him take up his case, but don't forget that the member of Parliament has already had a hand in the appointment. It doesn't necessarily solve all things, as we know, but the refusal to investigate is essential.
That, Mr. Chairman and gentlemen, is my rough submission. It's a distillation of all the points that you will find in Judge Lindal's report, which came out in 1976. There is one other document to which I would make a quick reference because it received a lot of publicity at the time that the Woods report came out, and that's under the heading “General Comment”.
I would still say that two things are in our present pension legislation that an ombudsman would not touch. One of them is the spirit and intent. As an advocate on behalf of veterans, I'm here to say that I think the spirit and intent of the Pension Act has been well and duly carried out. I think there have been problems, naturally, but generally the spirit and intent is there.
The other thing, of course, is the benefit of the doubt. The benefit of the doubt is very difficult to explain. For one thing, the benefit of the doubt only applies in legal cases. You can't have somebody basing his case on the fact that his papers were lost, or something like that. There is a procedure for that, but it's not under benefit of the doubt.
The other thing is the traditions of the office. Where they have been established, the Woods report found that the traditions of the office carried a tremendous amount of weight. Once the ombudsman reported--the ombudsman had to report--it was full stop. The media could see what was happening. The ombudsman has a report, and it's only when the ombudsman is finished his work that the whole question of where do we go from here comes up.
I've tried to explain that in this general comment because it was a general statement as to how things should happen. Now, the Woods committee did not recommend an ombudsman as its first port of call. It recommended the establishment of a pension review board, and that review board would have all the powers of interpretation, adjudication, referral to a higher court, etc.
On the other hand, if you take the benefit of the doubt and you shake it up, you find that it really is only intended to apply in civilian cases. That's why probably a lot of people think it works. But after 60 years or so, I can tell you that nobody I know of ever got a pension based on the benefit of the doubt. I mean, he got somebody to look at his case, but he didn't get a pension based on that. It is not a basic piece of legislation that can be adjudicated and upon which the veteran could get his case reviewed and perhaps approved.
Thank you, Mr. Chairman.
I noticed that we were given ten minutes. I think the committee was wise. We haven't watched the clock, but to try to say what the ombudsman is and do it in ten minutes.... I've done the best job I can. But I can answer any questions on it.
The Woods report was in 1976, but under no circumstances have I ever forgotten my lessons, based partly on law, partly on equity, partly on fairness, and partly on everything that goes into making sure that the veteran really does get a fair shake once his pension application is in the mill.
Thank you.
