Veterans Affairs Committee on Oct. 26th, 2010

[Col Patrick Stogran]

Mr. Chairman, I couldn't agree more. The programs and benefits to our veterans have been systematically dismantled since the Woods committee submitted this report.

I would say that the commitment and sacrifices that a so-called peacekeeper makes today are absolutely no different from the commitment and sacrifices made by our veterans of World War I, World War II, and Korea. They put their lives on the line, in short, and the families suffer all the fears, anxieties, apprehensions, and sorrow that we today as a nation suffer with the 150-plus killed in action coming home.

The only thing that has changed in terms of commitment is, first, the commitment of our government—and these are successive governments of the day—to the conflict in which we send people into harm's way, and, secondly and most contemptibly, their commitment to veterans, which manifests itself in the long-term care question and the lack of vision and strategic outlook that exists within the department today about how we will treat such things as early-onset dementia.

We have a case now that I can speak about in the first person singular, concerning a member of my regiment some eight years my senior who is a complete invalid from dementia. Studies in the United States that once again have not been investigated in Canada indicate that PTSD sufferers have a much higher propensity for early-onset dementia. Right now we're trying to get this individual into Camp Hill, but the facilities just aren't there. I really wonder where our veterans will be 20 years from now, particularly our Afghanistan veterans, with the intensity of operations they've been conducting since 2006.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Mr. Kerr.

[Greg Kerr, Conservative, West Nova, NS]

Thank you very much, Mr. Chair.

Mr. Stogran, it's good to see you again.

We have talked before about many issues. I want to say first that it hasn't been easy for you the whole way around, as the original and the pioneer in the ombudsman's job, but I want to commend you for the work you've done.

There's lot of stuff in your report that is very candid, and we have to hear it. Whether we agree with all of it or not is a matter of time, as you well know, but one thing that strikes me most, I guess, is that the processes themselves have to change. I think you said before that it may not be a deliberate attitude, but that processes themselves have blocked people.

Do you want to expand on that part of it? As an example, we could never interfere with the appeal board, but certainly we can change the process. I'd like to hear more about that, if I could.

[Col Patrick Stogran]

Mr. Chairman, first, I appreciate the comments by the honourable member.

I would like to emphasize that the people within the system are not the problem. Many employees of the department and members of the Veterans Review and Appeal Board have come to us complaining about the system that ties their hands. They are the ones who have to deal with our veterans and give them the unfortunate news.

I could characterize the processes. My 11 priorities are focused very much on processes. It starts from the application process, when, if an application is incomplete, rather than phone the applicant, or the veteran, or the pensioner—I hesitate to use the terms “client” and “claim”, because this is not an insurance company—as would happen with employment insurance, they mail it back as incomplete, with letters that many veterans find incomprehensible. It starts at that level.

The degree of interaction that the members of Veterans Affairs have with the veterans--particularly the higher management--should be changed. They should become more sensitive to the impact of what they're doing and how it affects the veterans.

Within the Veterans Review and Appeal Board, once again, I've highlighted the major changes in process that should take place. I would submit that perhaps there would be financial implications for the board, but these are simply changing processes, such as publishing their decisions. The board has told me that it will cost them $4 million to effect this. What is the cost of fairness?

I would also say that these things have to be attacked comprehensively. If I had been given the fullness of time, it was my intent to work with both of these organizations to change the situation. But I would submit that if the department had been doing its job and if it had been exercising the benefit of the doubt since 1923 when it was first started, as described in chapter 8 of this book in great detail, then, first of all, the number of complaints that make it to the Veterans Review and Appeal Board would be much lower. I have submitted to the deputy minister that the 60% overruling rate that the Veterans Review and Appeal Board brags about is a 60% failing on the part of the department.

We should be looking at things comprehensively from stem to stern.

[Greg Kerr, Conservative, West Nova, NS]

Could I follow through? You mention benefit of the doubt. I was going to go to your tab detailing that. You spent a lot of time on it. You've raised it before in conversation. Would you like to broaden it a little in terms of what you think is missing in the benefit of the doubt approach?

[Col Patrick Stogran]

Mr. Chairman, I would be only too pleased to.

What I would say is too prevalent in the “benefit of the doubt” as it's interpreted by the department and the Veterans Review and Appeal Board is that it's too legalistic. And when the only tool you have in the drawer is a hammer, you tend to make the work fit the hammer. As for the lawyers and their definition, I found it striking that it was much more akin to balance of probabilities, although it doesn't say so much, than it is to the letter of the law and of course the interpretation that exists in here.

I'll say two things.

First of all, when I first read their interpretation, I saw that what is missing is the definition of “inference”, although there's all sorts of talk around the subject. But I had a young summer student do an academic investigation and a paper into the definition of “inference”, and it came back conclusively from numerous sources, fully attributed, that an inference is not a measure of truthfulness, it is a measure of sound logic and reasoning. In fact, it could be incorrect or not truthful.

The second piece is that there's no definition of what a “doubt” is. I've gone to great lengths to include that in my paper, because as we know, in criminal courts and in fact in civil litigation, lawyers will go to great lengths to try to create that doubt. When we ask adjudicators for their definition of “benefit of the doubt”, they'll go, “Well, fifty-fifty, and then we'll give the benefit of the doubt”. That's not it at all.

As is pointed out in the Bible, if you will, or the Torah or the Koran, just so I don't insult any particular group, it makes very clear that the case should be judged based on the evidence that's presented in the absence of any contradictory evidence. Then, if it's reasonable to believe the claim of the individual—and I say “claim” in the literal sense—they should rule in favour of the applicant.

In fact, they say that the preponderance of evidence, as I use in my example in the final paragraph of the paper that I submitted to you, could indicate that there were alternative sources to a disability that refute the claim of the individual. But in paragraph 3 of the “benefit of the doubt”, they're very clear in saying that any doubt—any doubt—is to be resolved in favour of the claimant.

I don't know if that expresses it, sir.

[Greg Kerr, Conservative, West Nova, NS]

That's pretty clear.

Thank you.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Ms. Zarac.

[Lise Zarac, Liberal, LaSalle—Émard, QC]

Good afternoon, thank you for being here with us today. Like my colleagues, I congratulate you for your good work. All the consultation that you conducted shows the efforts that you are ready to expend to ensure a better quality of life for veterans and to find better solutions to their problems.

I was not a member of the committee when you testified on April 22 last, but I got the notes and read them. And in answer to a question that a colleague asked you about the end of your mandate, you replied as follows: "Mr. Chair, my first mandate will end on next November 11, but I expect that it will be renewed.”

You seemed very confident when you made these statements. I would like to know what made you believe that your contract would be renewed and what happened afterward between that date and the month of August, to cause it not to be renewed.

[Col Patrick Stogran]

Mr. Chairman, any confidence that I may have exhibited regarding my renewal was certainly not confidence; it was basically that I didn't care at the time. As an army officer, you do the mission and you worry about the consequences later.

I wouldn't begin to speculate on the actual reasons for my dismissal. Suffice it to say that I would challenge the minister's suggestion that, after three years from start-up, it's time to inject new ideas into the Office of the Veterans Ombudsman when we haven't even stabilized the old ideas. It's going to set the office back at least a year.

[Lise Zarac, Liberal, LaSalle—Émard, QC]

You made a few suggestions regarding the choice of your successor, and among other things, you said that it should be a veteran. I would like to know what you would recommend to your successor. What would you recommend to him?

[Col Patrick Stogran]

Mr. Chairman, I think the first recommendation would be.... If I've done one thing right in the past three years it has been to put veterans as the absolute priority in establishing and maintaining their trust, confidence, and loyalty, and reaching out to them, not spending time in the office.

My second priority is to attain and maintain the trust and confidence of my staff. They really know their business, and I would submit that in the fullness of time, if they're allowed to carry on as they are, especially if they have the powers they desperately need through legislation, they will be in a position to effect tremendous change on the culture within Veterans Affairs and the board.

[Lise Zarac, Liberal, LaSalle—Émard, QC]

You're talking about the powers that they need. Do they have these powers now?

[Col Patrick Stogran]

Mr. Chairman, I'd say categorically not. In fact, in the deputy minister's policy statement regarding the sharing of information with the Office of the Veterans Ombudsman, she clearly states that she will determine what information she will release to me so as not to constrain my ability to comment publicly. Fundamentally, that's controlling the message.

I don't know if the committee will remember, but initially I was very optimistic about my mandate in the order in council I was given, for two reasons. First, every member of the department and the Veterans Review and Appeal Board expressed to me their complete loyalty and dedication to veterans. Second, I cannot for the life of me understand how anyone couldn't have that kind of commitment to our veterans.

I found halfway through my third and final year, particularly among central agencies and senior management within the department, that the commitment was a thin veneer. I'd be the first to say that the order in council, that optimism, is now completely gone. In the absence of a legislated mandate, this could happen all over again.

[Lise Zarac, Liberal, LaSalle—Émard, QC]

Do I still have time?

[The Chair, Conservative, Gary Schellenberger]

No, you're pretty much done.

Mr. Storseth, please.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you, Mr. Chairman.

Mr. Stogran, I'd like to thank you for the service and commitment you've made to our country in serving in the Canadian Armed Forces and to our veterans in the last three years with your services as the Veterans Ombudsman. I know that my office has had dealings with your office, and you've certainly done a good job of establishing the Office of the Veterans Ombudsman.

I'd like to talk to you about comments you've made in reference to the insurance company mentality within Veterans Affairs, where more focus is put on saving money than on caring for veterans. Could you discuss your conversations with public servants that have led you to this conclusion, along with any examples?

[Col Patrick Stogran]

Mr. Chairman, suffice it to say that in the early days of my tenure as Veterans Ombudsman, I encountered several members who shall remain nameless, several senior members of both the board and the department, who expressed to me that they have an obligation as public servants to preserve the public purse. I didn't hear that once or twice; I heard that numerous times from policy writers through to.... I'll just leave it at that.

I have to fall back on the benefit of the doubt. I know that my staff has been hearing about this for at least two years now. Not only were the interpretations wrong, but when we submitted observations to the department, we received letters back from the department, from the minister, basically just describing the process as it exists. Our aim in providing our observations to the department was to try to engage in a discussion to break down this legalistic balance of probabilities approach to treating our veterans.

So it's an accumulation of many of those kinds of encounters. I think the penny really dropped for me at one point. Well, I'll say at a couple of points. I was once told that it was Treasury Board that they can't get past. The conversation went on to the effect that there was a time when the department could go to Treasury Board and they would do anything for the veterans. Those days are gone. In one particular instance—this was the turning point at two and a half years where I said, “I'm not going to be able to break this culture”—I was talking with a deputy minister regarding the treatment of widows, and I basically said, “The department is cheating widows of World War II.” The response I got is that the department cannot go to Treasury Board to ask for more money for programs.

To me, if the deputy minister is not prepared to let these kinds of issues leave the department and in fact argue on behalf of our veterans, I dare say then it's clear that the senior bureaucrats are in that position for one reason, and one reason only, and I would say that's to enforce the rules that have the culture the way it is today.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

You talk about examples and programs. We at this committee have heard about the lump sum payment being kind of iconic in the issue of the insurance mentality. Would you agree that's one of the iconic issues that has been raised throughout the last couple of years, that lump sum payment?

[Col Patrick Stogran]

Mr. Chairman—

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

I mean, you also raise a good issue with the reasonable doubt clause as why.

[Col Patrick Stogran]

Mr. Chairman, I would submit that the entire new Veterans Charter is clearly an attempt—and once again it transcends the government of the day—to unload the financial liability, the long-term financial burden, that the government carries with injured, wounded veterans, and I wouldn't have been speaking this way.... I certainly wasn't a conspiracy theorist early on, but when I observed for almost three full years that nothing was leaving the department in terms of engaging our elected officials on what should be changed as a matter of urgency, I was convinced that it's not just the lump sum issue, it's that entire charter.

I take it one step further: the social contract, as I describe in my paper on benefit of the doubt. Traditionally in legacy legislation, the first clause, one of the first paragraphs in all legislation, reads to the effect that any authority stemming from the legislation in question should be liberally construed and interpreted such that the recognized obligation of the people and government to their veterans and their families could be fulfilled. That is absent in the new Veterans Charter.

When I challenge the department, they suggest that's looked after in the Interpretation Act of 1985. What is not looked after in the Interpretation Act of 1985 is the acknowledgement that the people in the Government of Canada have recognized an obligation to look after their veterans. I think that characterizes the charter.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

Your time is up.

Mr. Vincent.

[Robert Vincent, Bloc, Shefford, QC]

Thank you, Mr. Chair.

Welcome to the committee and congratulations on your work. I took note of what you said in your presentation regarding the review and the appeal being made by the same persons—this is not the first time that I've heard about this. I think that the legal principles to be followed for all appeals by veterans should be based on accepting his claim.

Previously, I used to represent CSST workers who had been victims of accidents, before all the tribunals. The first question I put to the Minister of Veterans Affairs was about why the decisions of the Veterans Appeal Board were not published. I asked how we could get access to the jurisprudence that would apply to a given case, how we could find out what decisions are being made.

Did you know that this is the only tribunal that does not publish anything? All other tribunals have publications available on Internet. Now, because of the culture of secrecy of the Veterans Appeal Board, no decision is accessible. Thus, how can we go about finding out about the tribunal's preferences in this case or that case? No one can find this out, because the decisions are not being published.

With all this in mind, do you believe that appointing different persons to this tribunal should be the first thing to do for the Minister of Veterans Affairs? At this time, the same persons are in charge of reviews and appeals.

These decisions should at least be published so that we can know what is in them and find out what led to them. We could find out what reasons led to rejections. Moreover, if we can have access to cases that have been turned down following a review, and if we can know more or less what led to the decision, we could adjust our aim and fill in the gaps when making appeals. Currently, we cannot find out anything, there is nothing that we can take away.

What do you think?

[Col Patrick Stogran]

Mr. Chairman, I couldn't agree more.

As I've said, the board must make efforts to become completely transparent. That's the nature of a democracy and it's one of the principles of natural justice. It's not that justice is done; it's the perception that justice is done.

Right now, there is an overwhelming perception within the veterans community that they're being cheated, and I have to say after three years that I've seen the evidence. I've challenged the department and the Veterans Review and Appeal Board to educate me to the contrary, but it's quite clear that it should be changing.

Interestingly, not only do other tribunals publish their findings, but when veterans, at their own expense, take their appeal to the Federal Court of Appeals, it will publish all the information. So there are ways around this.

The board also suggests that translation becomes a problem. There are ways around this. There is no excuse for that feeling amongst our veterans.

I would not for a second suggest that all the claims veterans make are justified. I have actually confronted veterans and explained the laws of the land to them.

However, I would submit that because of this feeling of being cheated that is so prevalent within the community, we've gone from where we no longer simply have veterans advocates but veterans activists. They are people who make it their sole job in life to attack and to discredit the department. Indeed, there have been individuals who have tried to discredit the Office of the Veterans Ombudsman--one who testified before you here.

To make matters even worse, we're seeing a day of protest on November 6. The fact that I had to do what I did on August 17 just to satisfy my conscience, and the fact that veterans are standing up and being counted on November 6, I find that very, very distasteful, but that's the state of affairs right now in terms of the natural justice they're facing.