Veterans Affairs Committee on March 30th, 2010

[Rob Oliphant, Liberal, Don Valley West, ON]

I mean the reporting of cases with either identifying or non-identifying information.

[John D. Larlee]

We do not publish our decisions, out of privacy considerations, and that is the present state. We provide on our website and through our reports, both to Parliament and in communications in our brochures, information about our process and our statistics on a regular basis.

[Rob Oliphant, Liberal, Don Valley West, ON]

You say there has been a steady increase since 2006, with the new veterans charter, in the volume of applications. In the board's understanding, is that related primarily to the increase in the number of injuries that are being sustained by veterans coming from Afghanistan or is it related to the change to lump sum disability awards?

[John D. Larlee]

The change in volume in decisions, and I think you're referring to the number of operational stress....

[Rob Oliphant, Liberal, Don Valley West, ON]

I'm quoting you:

Since the introduction of the New Veterans Charter in 2006, the Board has seen a steady increase in the volume of applications for review and appeal of disability award decisions. I'm trying to ask: has the board done a study? Is it simply that we have more people now in the system seeking awards because of increased injuries? We can't get details reporting on injuries—that is very easy—but are there more people, or is there more dissatisfaction with the lump sum award?

[John D. Larlee]

No. With respect to that question, Mr. Chair, it's the changing dynamics of the applicants to the redress system of our board. It's that there are fewer and fewer of the traditional veterans and more of the Canadian Forces members and veterans that has made that change in the number of review and appeal decisions.

[Rob Oliphant, Liberal, Don Valley West, ON]

I'm still not getting it. I'll try to—

[John D. Larlee]

If you want short answers, sir, let me ask Ms. Sharkey, Mr. Chair, to address those numbers.

[Dale Sharkey, Director General, Veterans Review and Appeal Board]

I can explain very quickly. In 2006 there was a large increase in first applications with the department. Our workload is sometimes dependent on the increases that come in to the department and flow through, like a bubble that goes through the system.

[Rob Oliphant, Liberal, Don Valley West, ON]

That's exactly what I'm asking. Was it a bubble of people or a dissatisfaction with the level of awards those people were getting?

[Dale Sharkey]

I would say it was a bubble of people that moved through the system. We've seen an increase go through the system. It resulted in an increase over about two years, and the increase is slightly going down now. We're seeing that in this current fiscal year.

[The Chair, Conservative, David Sweet]

Thank you very much, Mr. Oliphant and Ms. Sharkey.

Now we go on to the Bloc québécois pour sept minutes.

Monsieur Vincent.

[Robert Vincent, Bloc, Shefford, QC]

What a coincidence, Mr. Chair, that it comes to me this way. I have a few questions, of course.

In your opening statement, towards the end of page 2, you mentioned the benefit of the doubt and presumption. In my view, when you talk about presumption or the benefit of the doubt.... A little further on, it reads: “The laws also require that applicants provide sufficient credible evidence of the existence of a permanent disability and of the relationship to service.”

If I understand correctly, there is no presumption. There is one, provided that the applicant establishes sufficient credible evidence. Furthermore, there has to be a relationship between the applicant's disability and his or her service, as well as medical evidence of that relationship. So there is no presumption. So, in order for a case to succeed at your level, it requires proof on a balance of probabilities, is that right?

[John D. Larlee]

Mr. Chair, I would like to talk briefly about the law, if I may. The presumption of doubt in favour of the client is always there; it is in the legislation and is applied in every case. But before the panel can apply that benefit of the doubt, the client has to provide evidence of his or her disability, on the one hand, and of the relationship between the disability and his or her service, on the other. Then, once the evidence is before the panel, our members, whether at the review or the appeal level, apply the legislation and the benefit of the doubt.

Our board does everything it can for our veterans, Canadian Forces members and RCMP members. It applies the legislation and the benefit of the doubt to try to achieve the best outcome for every client.

[Robert Vincent, Bloc, Shefford, QC]

When you say that decisions are not published, that means there is no case law. That means that someone who has no connection to your board or its services or a lawyer who is paid by you to represent a veteran... If someone hired me to argue a case before your board, I would not be entitled to see the case law or have access to it, because it is not published. Is that right?

[John D. Larlee]

Mr. Chair, if I may, I would first like to explain to Mr. Vincent....

I want to correct you. It is the Department of Veterans Affairs that provides free legal services to individuals who apply to the department for disability pension benefits. Clients have the right to hire their own counsel, a representative. The Royal Canadian Legion and the War Amps also provide legal representation and assistance to individuals who apply to the board for it.

[Robert Vincent, Bloc, Shefford, QC]

How do you access the case law? When you argue a case, you need the case law in order to know what the board decided or what line of thought or reasoning it used to reach its decision. Without access to the case law, the board can render whatever decision it wants. There is no line of authority. How do you know what line of authority was used in relation to a given decision without access to the case law?

You say it is an ethical issue, that you do not want to divulge people's names. You will see that all the other boards post their decisions on the Internet. Why does the Veterans Review and Appeal Board not provide access to decisions? I can understand the desire to protect clients. All over Canada, the decision in every file, every case, can be accessed on the Internet, but you do not post yours. How can someone know what line of authority your board uses?

[John D. Larlee]

Mr. Chair, to clarify, perhaps I'll note that we take our lead from the Federal Court. The Federal Court is always making rulings, on everything from the benefit of the doubt, and under judicial review sends cases back to us to rehear them. We have hundreds of cases from the...that give us the jurisprudence to lead us through our responses.

There are privacy issues. Pension awards, pension decisions, are so much related to individuals. Each individual case is treated on its merits, and the decision reflects that. Until a method is found to be able to provide decisions without that kind of information, for the time being we have to protect privacy matters. But as far as jurisprudence is concerned, there's much jurisprudence, not only for the Bureau of Pensions Advocates that represent but for private members who represent individuals at these hearings and on appeal.

[Robert Vincent, Bloc, Shefford, QC]

When a decision is rendered, there are two avenues for redress: an administrative review, I imagine, and an appeal board. With appeal boards, it is always the same people hearing the case—you say you have 25 members. If the applicant has already been heard once, other members out of the 25 will hear the case the second time. The second time, there are no witnesses, just arguments.

[John D. Larlee]

Mr. Chair, I would point out that we have 25 members, and 12 of them are in Charlottetown. They work mostly on appeals.

I would point out to Mr. Vincent that the 3 members on the appeal panel are not the same individuals who sat on the review panel. We make sure that there is no conflict of interest, that it is not the same...

[Robert Vincent, Bloc, Shefford, QC]

But it is still the same group of 12 people.

[The Chair, Conservative, David Sweet]

Monsieur Vincent, that's time.

You can complete your answer, though, Mr. Larlee.

[John D. Larlee]

No, it is not the same group of 12 people. Most of the cases heard by the 12 people in Charlottetown are appeals. Most of the cases heard by the 13 other members, who are spread throughout the country, are reviews. That said, there is a lot of sharing. The members in Charlottetown also travel to hear cases, because we do reviews and appeals. What I want to make clear is that members who heard the case the first time are not on the panel when the case is heard the second time.

[The Chair, Conservative, David Sweet]

Thank you, Mr. Larlee.

Now on to Mr. Stoffer for five minutes.

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

Thank you, Mr. Chairman.

I thank all of you, including the folks behind you, for coming today. I greatly appreciate the information. And thanks to your father as well for his service. I appreciate that.

Sir, of the 5,000 review and appeal decisions, how many of them were successful for the client, what percentage?