Evidence of meeting #12 for Veterans Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ombudsman.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Jack Frost  Dominion President, Royal Canadian Legion
Pierre Allard  Director, Service Bureau, Dominion Command, Royal Canadian Legion

3:35 p.m.

Conservative

The Chair Conservative Rob Anders

Good afternoon, ladies and gentlemen. We are in for another meeting of the Standing Committee on Veterans Affairs.

Today, we have as our witnesses, Mr. Jack Frost, the president of the Royal Canadian Legion, and Mr. Pierre Allard, director, service bureau, Dominion Command.

Gentlemen, I won't take up any of your time. We're going to allow you about ten minutes each. After that, we're going to open it up to questions.

Mr. Frost, the floor is yours.

3:35 p.m.

Jack Frost Dominion President, Royal Canadian Legion

Thank you very much. Honourable members of Parliament, observers, I've brought along my director of the service bureau, Pierre Allard. He's our pension expert within the Legion, and certainly without his assistance, to be quite honest, I would flounder with very specific pension issues.

Certainly, it's my pleasure to appear today in front of your committee. I appreciate the opportunity to provide you with an update on the views of the Royal Canadian Legion on two topical issues, (a) a veterans bill of rights, and (b) an ombudsman for veterans.

First, I must point out that the Legion executive is still engaged in developing a consensus on a Legion policy that would address all our concerns on these two issues. Also, I'd like to highlight some of our pressing priorities over and above the current focus on a bill of rights and an ombudsman.

Apart from these two issues, we feel very strongly that Veterans Affairs Canada should address the following three issues as a high priority: one, pre-1981 widows or veterans who are deemed not eligible for VIP should be provided these services immediately; two, frail traditional veterans should be provided VIP services immediately, whether or not they are entitled to a disability pension; and three, Canadian Forces veterans should be eligible immediately for access to critical care in the seventeen major long-term care facilities where Veterans Affairs Canada controls access to primary access beds. The need for such services is an urgent priority in view of some of the very serious and long-term injuries suffered by Canadian Forces members in Afghanistan.

In the longer term, access to long-term care primary access beds should be implemented for all Canadian Forces veterans who have served in a special duty area. These priorities frame our immediate advocacy vision.

Let me now address the veterans bill of rights as far as the Legion is concerned. We strongly advocate for a short document focused on identifying the rights of veterans and not the service standards or the turnaround times of the department. The promulgation of a service delivery framework has nothing to do with a veterans bill of rights.

A veterans bill of rights should be short and sweet. It should fit into a veteran's wallet for handy reference. It should identify the basic rights in simple and easy to understand language. Finally, it should be enshrined in legislation. A future ombudsman should have the responsibility to ensure that the said bill of rights is adhered to.

The Legion has advocated for a very long time for an inspector general to monitor the quality of care in primary access beds in long-term care facilities controlled by VAC. An ombudsman should also ensure that the financial resources provided by Veterans Affairs Canada are allocated to the care of veterans. Indeed, this should be a prime responsibility of a veterans ombudsman.

We have also recently explored a number of models for an ombudsman with our provincial presidents and are becoming more comfortable with other roles. Another area where an ombudsman should be engaged is the disability pension award process. A veterans ombudsman could ensure that when applying for disability benefits, veterans are treated with fairness and receive the benefit of the doubt, which in our view is not always supported.

It might be impractical and counterproductive to engage the resources of an ombudsman to investigate at all levels of the disability process until all levels of the field have been subscribed to by the applicant. The VRAB, the Veterans Review and Appeal Board, is a quasi-judicial tribunal mandated to apply a simple, standard review: is there disability, and is there a military nexus that can be associated with that disability? If there is any doubt in reaching this basic and simple standard of review, VRAB should vary favourably the departmental decision. This is not intended to be a cumbersome and adversarial legal procedure, though the mandate of VRAB is enshrined in legislation, the VRAB Act.

You are no doubt aware of the three levels of appeal under VRAB. The chairman describes the reconsideration as an “extraordinary provision”. There is a complication here in that to reach what is called the reconsideration, VRAB has to screen in a request to appear at that level. This is the level at which, through a VRAB interpretation hearing, the first one since 1995, VRAB has now confirmed a new criterion of due diligence for new evidence.

The chairman allowed advocates, either BPA lawyers or Legion service officers, to make oral intervention at the “screening in” to present arguments on why a client's case should be heard at the reconsideration. This was consistent with a decision of the Federal Court by Justice Tremblay-Lamer in Gagné v. Attorney General of Canada and Veterans Review and Appeal Board.

The VRAB chairman also entertained the restarting of the dormant process of interpretation hearings. The Legion accepts that these two steps are very good measures to ensure the process is fair and equitable.

Under section 39 of the VRAB Act, tribunal members are ascribed to consider each case on its own merits and to apply the benefit of the doubt. Section 39 directs VRAB to accept any uncontradicted evidence and to draw a very reasonable inference in favour of the applicant. It says nothing about the criterion of due diligence in introducing new evidence.

Under section 3 of the Pension Act, “disability” is defined as “the loss or lessening of the power to will and to do any normal mental or physical act”. Section 3 of the Pension Act is a statutory provision under the general instructions provided under chapter 2 of its table of disabilities. The minister clearly outlines that the table of disabilities exists only to assist Veterans Affairs Canada and medical officers in fulfilling their responsibilities; it does not offer final or absolute value. Yet VRAB feels it is bound by the subordinate policy of Veterans Affairs Canada's hearing loss policy.

In a recent decision where a veteran was turned away from VRAB for reconsideration for a hearing loss disability because he did not meet the mechanical standards of the hearing loss policy, VRAB viewed its role as an academic one, even though VRAB members acknowledged that the applicant's hearing had been damaged by factors directly related to his military service and thus he could be considered disabled. VRAB did not even entertain awarding a partial pension entitlement, which is well within its adjudicative powers. For your benefit, we've enclosed a copy of the Federal Court decision 2006 FC225, dated March 15. This Federal Court decision has been appealed by the Attorney General of Canada on the basis of a perceived discrepancy between the French and English versions of the Pension Act, a rather tenuous rationale.

By taking a hard-line, mechanical approach on hearing loss rulings, one could argue that VRAB is abdicating its adjudicating responsibilities to provide the benefit of the doubt. One could even conclude that VRAB is creating two sets of tests: one for hearing loss and one for other conditions. The generous intent as set out in section 2 of the Pension Act and section 3 of the VRAB Act demands nothing less than a liberal interpretation.

Why are veterans compelled to go to Federal Court? Is it because VRAB is not as generous and liberal as contemplated in its statutes? If I go back to the previous requirement to screen in a request to appear at reconsideration without the presence of an advocate who could make an oral argument to allow screening in, it follows logically that veterans may have been frustrated to see their advocates barred from a process that gained access to what the chairman calls this “extraordinary provision”. I would argue that many cases that ended up in the Federal Court are cases that have been barred from the reconsideration screening level; however, having allowed an oral representation by an advocate at the reconsideration screening, VRAB is now taking a backwards step by introducing the due diligence criterion in its decision process, which unfortunately comes from a Federal Court precedent.

VRAB seems to be using the precedent from the Federal Court on a permissive basis to change the intent of the VRAB Act and the Pension Act, yet VRAB does not have the right to change the legislation—nor do the judges, for that matter. This is a prerogative of Parliament. Why would VRAB apply a due diligence criterion under new evidence? Would this not actually encourage more veterans to go to the Federal Court to seek redress, and at what cost, in terms of timeframes and legal expenses? The only real test for new evidence should be relevancy, credibility, and reasonableness, in accordance with section 5 of the Pension Act and section 9 of the VRAB Act.

We believe that redress from the Federal Court is a catch-22 process. VRAB, through its one and only interpretation hearing since 1995, ruled on February 1, 2005, that the application of a due diligence principle in assessing new evidence at reconsideration is a legitimate and necessary criterion to be considered as one of the factors in the overall determination of whether to reopen an appeal decision. The interpretation hearing decision has been challenged in the Federal Court by the Bureau of Pensions Advocates in late April 2006, and we're still awaiting the decision of the Federal Court.

VRAB can refuse to consider a previous appeal decision if it concludes that the evidence tendered could, through the exercise of due diligence on the part of the applicant or his representative, have been attained before the appeal decision was rendered. In the end, a well-deserving veteran could be deprived of a disability pension because his advocate, either a Bureau of Pensions Advocates lawyer or a Legion service officer, has failed to exercise due diligence.

Such a restricted interpretation of the legislation is contrary to VRAB's statutory obligation pursuant to section 2 of the Pension Act, which provides that the provision of the Pension Act shall be liberally construed and interpreted, to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.

One should keep in mind that when the Federal Court directs VRAB to reconsider a case, this in no way means that VRAB will now rule favourably. Some Legion clients have indeed resorted to numerous reconsideration hearings to seek fairness, sometimes having expended large amounts of money to seek a favourable juridical review, and have been subsequently turned down again by VRAB.

The reason we've provided this lengthy explanation brings us to a specific role that we feel should be attributed to a veterans ombudsman. Simply said, instead of going directly to the Federal Court, a veteran should have a voice and a choice to request a review of his case by an ombudsman.

This would achieve two goals. First, it would offer veterans an option to seeking redress at the Federal Court, usually at large personal cost. Secondly, it would minimize interference by the Federal Court in interpreting the VRAB Act and indirectly providing misguided rationale to amend the act. Like the Federal Court, the ombudsman should have the power to direct VRAB to reconsider a case with either the old panel or with a new panel. Such an intervention may require an amendment to the VRAB Act. In addition, an ombudsman should play an appeal role in all administrative decisions of Veterans Affairs relating to health benefits and to benefits under the new Veterans Charter where VRAB has currently no jurisdiction.

As I mentioned previously, we have long advocated for an ombudsman to resolve issues related to long-term care. Now we're advocating for a better mandate for an ombudsman with the powers to investigate and report officially to the minister. It would complement the resolution and compliance process.

This concludes our presentation. A veterans ombudsman would ensure greater compliance and accountability and would serve as a court of last resort when all other venues have been exhausted.

We would certainly be ready to answer any of your questions. Thank you.

3:45 p.m.

Conservative

The Chair Conservative Rob Anders

Thank you very much, Mr. Frost.

We are going to go to our rotation. Mr. Cuzner of the Liberals is up first. Seven minutes, Mr. Cuzner.

3:45 p.m.

Liberal

Rodger Cuzner Liberal Cape Breton—Canso, NS

Thank you very much for the presentation.

I did my best to try to follow through with the presentation. I want to bring you back to your opening remarks and a couple of the points you had identified, prior to getting into the issue of the ombudsman.

The first one is the position that the Legion has taken on the pre-1981 widows and veterans with regard to the VIP. I have a constituent you may know and be aware of, Joyce Carter, a great lady, who has been a strong advocate for the VIP. Prior to the last election she was in receipt of correspondence from the then leader of the official opposition that stated upon election the VIP would be immediately extended to cover anybody pre-1981. She has receipt of that correspondence.

Knowing the position of the Legion, has the Legion secured any similar correspondence or had you been reaffirmed at any time from the official opposition at that time that this would in fact take place, that the VIP would be extended?

3:45 p.m.

Dominion President, Royal Canadian Legion

Jack Frost

No, sir, we have no correspondence to that effect from the official opposition of the day that it would be a priority for them to implement. We have no correspondence.

3:45 p.m.

Liberal

Rodger Cuzner Liberal Cape Breton—Canso, NS

You've long advocated that it should be extended to pre-1981.

3:45 p.m.

Dominion President, Royal Canadian Legion

Jack Frost

We've long advocated that and we will continue to do so.

3:45 p.m.

Liberal

Rodger Cuzner Liberal Cape Breton—Canso, NS

When you talk about VRAB and that the decisions of VRAB should vary favourably to the departmental decision, I want to get your sense of the statistics. Are there any statistics that state how often VRAB complies with departmental decisions? Could you shed some light on those types of numbers?

3:45 p.m.

Dominion President, Royal Canadian Legion

Jack Frost

Yes, I can ask Mr. Allard.

3:45 p.m.

Pierre Allard Director, Service Bureau, Dominion Command, Royal Canadian Legion

Generally, the departmental decisions are favourable at about a 60% to 75% rate. If we look at what VRAB does, I would say, and this is off the top of my head, that at the first level of appeal they will probably vary favourably 50% of the decisions and at the second level of appeal they would probably vary 25% of the decisions.

3:50 p.m.

Liberal

Rodger Cuzner Liberal Cape Breton—Canso, NS

There would be an additional 25% on the second appeal.

3:50 p.m.

Director, Service Bureau, Dominion Command, Royal Canadian Legion

Pierre Allard

On the last level.

That reconsideration is where it becomes a little more problematic because of some of the processes that are in place and because some of the veterans seek some recourse from the Federal Court. There are not very many appeals that go to the Federal Court. Again, off the top of my head, I would probably say 20 to 25 every year. Half of those are judged favourably by the Federal Court; half are judged not favourably, and of those, maybe 10 to 12, again, 50%, may be accepted favourably by VRAB and the other six are turned away. So it is not a big problem in that context. It is just that people who do seek assistance from the Federal Court are spending a lot of money and sometimes for nothing.

On top of that, and I think it was pointed out by NCVA last week, some of the decisions that are coming out of the Federal Court are problematic because the judges of the Federal Court, bless their souls, don't necessarily understand the complexity of the VRAB Act. So if the ombudsman was there as an option for people, so they could say, okay, maybe I don't need to go to the Federal Court, maybe I just need to go and seek redress from an ombudsman...I think that would play a very good role in the process.

3:50 p.m.

Liberal

Rodger Cuzner Liberal Cape Breton—Canso, NS

Do you see the role of the ombudsman to weigh in on whether or not the veteran received due process as opposed to adjudicating the case?

3:50 p.m.

Director, Service Bureau, Dominion Command, Royal Canadian Legion

Pierre Allard

We see that role as basically doing exactly what the Federal Court does and demanding or requesting that the VRAB, whether with the old members or with new members, reconsider its decision.

So, no, the ombudsman would not be an adjudicator. We don't see that role for the ombudsman. We simply see he's a person of last resort who looks at a case and says, well, these are the elements of the proof that were presented on behalf of the veteran; maybe you didn't pay enough attention to these circumstances and maybe you should look again.

3:50 p.m.

Liberal

Rodger Cuzner Liberal Cape Breton—Canso, NS

Mr. St. Denis is going to....

3:50 p.m.

Conservative

The Chair Conservative Rob Anders

For a minute and a half.

3:50 p.m.

Liberal

Brent St. Denis Liberal Algoma—Manitoulin—Kapuskasing, ON

Thank you, Mr. Chairman. I have a brief question and in a later round I'll go to another larger question.

First, the previous government started and then the current government finished off the Veterans Charter project. Some of us are newer to the committee--and the Veterans Charter was generally well received.

I respect that the Legion is still looking at what a bill of rights for veterans would look like and an ombudsman. Do you have at least a sense of what a bill of rights might look like versus the Veterans Charter that's now in place?

If there isn't sufficient time now, I'll continue that question afterwards, Mr. Chair.

Do you have any initial thoughts, Mr. Frost?

3:50 p.m.

Dominion President, Royal Canadian Legion

Jack Frost

The charter guarantees are in the pension and health benefit areas. It guarantees specific items, whereas the bill of rights would be a more general document that guarantees that the veteran will receive due justice through the whole process.

3:50 p.m.

Liberal

Brent St. Denis Liberal Algoma—Manitoulin—Kapuskasing, ON

So where the charter is specific to the benefits, a bill of rights would be more global.

3:50 p.m.

Dominion President, Royal Canadian Legion

3:50 p.m.

Liberal

Brent St. Denis Liberal Algoma—Manitoulin—Kapuskasing, ON

Okay, I'll come back to that afterwards.

3:50 p.m.

Conservative

The Chair Conservative Rob Anders

Now, Monsieur Perron, with the Bloc.

3:50 p.m.

Bloc

Gilles-A. Perron Bloc Rivière-des-Mille-Îles, QC

Congratulations, Mr. Frost, on being elected President of the Royal Canadian Legion.

Our colleagues seated opposite have indeed announced their intention to appoint an ombudsman, or to create an ombudsman position, which in itself is not such a bad decision.

Let me give you my definition of an ombudsman. He is a someone who maintains a neutral stand, who is mandated to investigate personal cases of veterans who may have had their rights violated as a result of an administrative, or human error. The ombudsman's job is to ensure that taxpayers are treated fairly by the government. At first glance, my rather simplistic definition has a certain attraction.

Should an ombudsman report to the department, or to the government?

3:55 p.m.

Dominion President, Royal Canadian Legion

Jack Frost

This is a simple answer. In an ideal world, the ombudsman should report to Parliament. That would be the Legion's ideal scenario. Failing that, we believe there could be a parliamentary secretariat, where possibly all ombudsmen--because there's already a DND ombudsman--could report through the secretariat and then to the minister. But it would still come to the parliamentarians.

We would also like to see a panel of veterans groups such as the Legion, the NCVA, ANAVETS, that the ombudsman could come to if he had specific questions about pensions.

Thank you.

3:55 p.m.

Bloc

Gilles-A. Perron Bloc Rivière-des-Mille-Îles, QC

However, the ombudsman is also authorized to conduct investigations. He can call witnesses, both for the government and for the complainant, to report on whether or not the department, an employee or someone else is guilty of an abuse, whether voluntary or involuntary. The ombudsman's role is that of public protector. My concern, first and foremost, is that he must report to Parliament and to parliamentarians, not to the department, because it is difficult to bite the hand that feeds us.

Secondly, what kind of mandate should the ombudsman be given? Should he serve for a five-year, ten-year, two-year, or eight-year term? Do you have an opinion on that?