Thank you, sir.
My name is Ron Griffis. I am the national president of the Canadian Association of Veterans in United Nations Peacekeeping.
I would like to thank the committee for inviting our organization here today to speak to the committee's interest with respect to the Veterans Review and Appeal Board. I have discussed these issues with our organization members, and we have arrived at a consensus, which is what I will be stating.
My background is military—initially infantry, and then military police, civilian police, and 22 years with the judiciary.
The Veterans Review and Appeal Board is a quasi-judicial organization that deals with issues pertaining to Canada's military and RCMP veterans and their requests for benefits. I understand the board has an entitlement of 29 hearing officers, and, in a letter dated September 2011 from Mr. Larlee, the chair of the VRAB, I'm informed there are 24 members. Half of them are based in cities across Canada, where they conduct hearings. I further understand one of the board members is on leave because of illness, and I respectfully suggest that he will not be reappointed when his contract expires.
An organization such as the VRAB must have the ongoing respect of all the participants. As in the military and the RCMP, respect for an organization is paramount. Lack of respect promotes disdain for an organization. I respectfully suggest that for an organization such as the VRAB and their officers to receive respect, they must be considered a truly independent board.
The appointment process for new members of the board may be considered reasonable under the circumstances. Their contract is for a set period. The reappointment process is another matter. I respectfully suggest that to secure reappointment to the board, a member must toe the line.
Part of the reappointment process is the satisfactory assessment of the board member by the chair of the board on the completion of the Veterans Review and Appeal Board member’s professional performance assessment. By any stretch of anyone's imagination, the member quasi-judicial officers who hear cases are not independent.
An understanding of the word “quasi-judicial” denotes or is related to powers and functions similar to those of a judge, such as those exercised by an arbitrator or administrative tribunal. How can an officer of the board be independent when their livelihood depends on the renewal of a contract that is dependent on a report that, in essence, reflects how the quasi-judicial officer performs his or her job?
Administrative tribunals must be free from an appearance of bias; that is, a reasonable person must conclude that an administrative decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments, commonly known as a “reasonable apprehension of bias” test. This is derived from the natural justice principle, or the right to be judged impartially.
Independence is one important indicator of whether there is an appearance of bias in an administrative body. Although administrative independence is not required to be as strict as judicial independence, there are certain minimum requirements, such as security of tenure and an independent administrative control. However, administrative independence is not guaranteed under the Constitution and can be ousted by statutory language. Once a court has determined that there has been a reasonable apprehension of bias, the decision in question must be void, as there is no remedy for the damage created by the appearance of bias.
It is unheard of that a judicial officer or a quasi-judicial officer is rated as to the quantity and quality of his or her work. It is reasonable to assume that applications to the VRAB will be those of persons who have had life experiences and may have retired from their careers. At this stage of their lives and careers, it is not too much for successful applicants to expect a situation in which they will be comfortable in their employment and not have to be concerned about the reappointment process that may occur every two years or so. The reappointment process can, and will be, a distraction to the VRAB member.
It is respectfully suggested that members of the VRAB be appointed on a permanent basis, with retirement at 75 years of age. As a result of a permanent appointment, there would be a loyal and dedicated appointee who would do their best at all times to enhance the reputation of the VRAB and, by extension, of the ministry of Veterans Affairs. This type of appointment would also satisfy the veterans, as they would observe a quasi-judicial officer who is truly independent in his or her function.
Section 39 of the Veterans Review and Appeal Board Act deals with the rules of evidence. If I may, I will read section 39:
In all proceedings under this Act, the Board shall (a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and (c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
I make reference to the rules of evidence, taking into consideration the accountability aspect of the VRAB. There is an accountability aspect to the VRAB that presently appears to be non-existent. For example, the hearing rooms are supposed to be open to the public. If I may, I will use in my example the hearing room located in Charlottetown, at Veterans Affairs headquarters. The public does not have access to this room, as per access to other hearing rooms located across Canada. People wishing to attend must identify themselves to the security official in the lobby, sign an entrance form, receive a visitor's badge, and then wait in the lobby until an escort arrives to be escorted to the hearing room that is under lock and key. If the person attending wishes to leave the hearing room for any purpose whatsoever, generally speaking they will not again gain access to the hearing room.
In the reach of procedural fairness rights chapter, chapter 8 of Mullan, Diana Morris indicates that:
Open courtrooms
—or hearing rooms, my words—
force the decision maker to be more careful and reflective in the ways they act and in the conclusions they reach because they are subject to public scrutiny and criticism.
At this time I again refer to a letter I received from Mr. Larlee, dated September 2011. He again states:
While our members are trained in assessing all kinds of evidence, they also have access to independent medical advice under the legislation.
I respectfully suggest that this statement tells me that the hearing officer had access to what might be called a “secret witness” who I cannot, as an appellant or applicant, examine or question. Because it is legislated doesn't make it fair and it doesn't make it just. It is just an affront to the veteran applicant and undermines the basic fundamentals of justice. It appears their decision is based on the hearsay evidence of a nameless and faceless person. How can a secret witness determine one man's fate? How would you like that?
To further quote Diana Morris:
Also, affected parties would be more likely to accept the outcome when they participate in hearings versus a decision being made in secret by a faceless and nameless person. Their participation in the decision-making process would involve being able to confront the actual decision-maker. This also contributes to the belief in participation in the democratic process.
How can we have an act, the Veterans Review and Appeal Board Act, that is not only unfair but grossly unfair to our most vulnerable and damaged citizens as a result of serving their country with pride and honour? How can this be allowed in 2012 in a country called Canada?
The mission statement of the Veterans Review and Appeal Board is flawed. It is, “To ensure fairness in Canada's programs for disability pensions and awards and War Veterans Allowances by providing fair and timely appeals for traditional Veterans, Canadian Forces members and Veterans, Royal Canadian Mounted Police applicants, qualified civilians and their families.”
The current process creates anger, distrust, frustration, and all of that is completely avoidable.
Would you want a nameless and faceless person to determine your fate? Neither would we. We are not asking for a handout; we are asking for fairness in the form of a fair and transparent process. Here is a golden opportunity to make that right.
It is suggested that on a regular basis, the hearing officers fail to apply the doctrine of giving the benefit of the doubt to the veteran. In failing to apply the benefit of the doubt to the veteran, the hearing officer suggests that various notes from medical practitioners, as well as verbal statements from the applicant, are not sufficient to satisfy the board, and therefore they conclude that a case has not been made out.
Going back to section 39, the act states categorically that the board shall—not “may”, but “shall”—accept any uncontradicted evidence presented to it by the applicant. In short, this is a must-do. For the board to state that they do not find the evidence credible in the circumstances is just plain not fair.
The appeal portion of the board must be addressed. When one seeks out the definition of the word “appeal” in the context of the VRAB, various dictionaries refer to a higher authority than the one that a decision is being appealed from. VRAB appeals are decided by people equal in status to those who made the original decision. Taking into consideration that there are only 24 members—and also one on sick leave—it is reasonable that they are friends and colleagues. The question that surfaces at this time is this: on what authority does my colleague of equal status have the right to overturn my decision? What gives him the right to say that I was wrong and he is right? Will friendship play a part in the decision? Will the pending completion of the Veterans Review and Appeal Board members' professional performance assessment play a part in the ultimate decision?
By the same token, if my assessment was poor and my re-engagement hangs in the balance, will this affect my judgment? If my assessment was perfect, will that affect my judgment? Who really knows the answers to such questions?
It is respectfully suggested that an appeal section be created within the board. The board should be staffed by senior long-term members who, by reason of their new appointment to this section, are a step above the regular members, with the appropriate remuneration increase. Their appointment documentation would give them the authority to conduct appeal hearings.
In conclusion, I would be more than happy to answer any questions you might have.
Thank you.