Veterans Affairs Committee on Oct. 22nd, 2012

[Sean Casey, Liberal, Charlottetown, PE]

Does that not put you in a pretty darned difficult spot to give us constructive advice on what's wrong with the board and how we address the concerns that are raised in the ombudsman's report?

[Anthony Saez]

What I can tell you is we're in a unique position at the bureau because of the legislation that created us. If you look at the last page of the deck, it makes clear who it is we are responsible to. Unlike most civil servants who have as their masters, if you will, their supervisor and their deputy minister and their minister, the bureau is in a unique situation. As I said earlier, the bureau is a unique organization among Canada's allies. We're in a unique situation within the Department of Veterans Affairs because the legislation itself talks about the fact that the relationship we have with veterans is that of solicitor-client. We have a solicitor-client relationship with our veterans. That in and of itself means that our boss, if you will, is the veteran. The veteran says, “You told me that my case probably doesn't stand much of a chance, but I don't care, I want you to do it”, and we do it.

The second reason we are different is that it's very clear that in addition to having our concerns over veterans being our boss, we're also held to a certain standard that goes beyond the standards which the department might try to impose on us, and that is, the standard set by the respective bar associations of each of our members. If they don't adhere to the values and ethics imposed upon them by their respective bars, they will lose their licence. The long way to answer your question is, we are held to a certain standard by the solicitor-client privilege that we have with our client and by the responsibilities that are imposed on us by our respective bar association. That's why I say we feel very comfortable in knowing what our responsibilities are.

[Sean Casey, Liberal, Charlottetown, PE]

Okay, if you're that comfortable, what's wrong with the board? How is it they get it wrong so much? Is it personnel? Is it structure? Do they not understand what the appropriate burden of proof is? Why do we have the Veterans Ombudsman saying there is a 60% overturn rate when the Federal Court looks at those cases?

Let's have it. My feeling is that you are hampered in giving me candid advice because you're employees and you are going to be back before the board next week and they're going to say, “That's the guy who ripped us at committee,” but go ahead, rip away.

[Anthony Saez]

The first thing I'd say is that, as you probably know, we don't represent clients at the Federal Court, so we're not involved in that process. The clients go—

[Sean Casey, Liberal, Charlottetown, PE]

The court keeps getting it wrong according to the board, the client.

[Anthony Saez]

The client goes either by himself or herself. The client goes pro bono. There is a lot of pro bono work being done by a number of law firms across the country, or they hire their own lawyer. That's a process we're not involved in. The only process we get involved in at Federal Court, as the bureau, is one that represents not a single client by himself or herself, but a larger issue, an issue that affects many clients at the same time.

That's why I say we're not really involved at that level.

[Sean Casey, Liberal, Charlottetown, PE]

Would we receive more detailed, more critical advice, if we were to invite, say, someone who had retired from spending a career representing veterans before the board, someone who was in your role last year or the year before and they're not restricted by the fact that they have to go back to work next week and appear in front of that tribunal that they criticized here this week?

[Anthony Saez]

I understand, and I appreciate your concern about how this might affect our relationship with the board. What somebody else might tell you, I can't really speak to. You may find they say something different, but they may not.

[The Chair, Conservative, Greg Kerr]

Thank you very much. That's our time there.

Mr. Lizon, for five minutes, please.

[Wladyslaw Lizon, Conservative, Mississauga East—Cooksville, ON]

Thank you very much, Mr. Chair, and thank you, witnesses, for being here today.

My first question is for Mr. Ogilvy. You mentioned in your opening remarks that a decision made by tribunals should be based on evidence presented. I would like you to elaborate on the issue of benefit of the doubt which is part of the discussion here in relation to some cases, or many cases that are brought to VRAB.

[Dr. James Ogilvy]

You recognize that I will respond in a general way about tribunals generally.

[Wladyslaw Lizon, Conservative, Mississauga East—Cooksville, ON]

Yes.

[Dr. James Ogilvy]

The point of my comment was that extraneous information, information obtained by means other than seeking the evidence for a particular case, is inappropriate.

To get to the point of the benefit of the doubt, I think the expectation of exactness is not as great with a tribunal as it is with a civil or criminal court. In other words, we often hear of cases being won or lost on technicalities and so on. Tribunals can have a somewhat more relaxed view of the evidence presented to them than the courts have, and that applies generally to tribunals. It doesn't mean that any old thing that's said in a witness' statement is acceptable, but the tribunal members have the opportunity to weigh what they hear and determine whether it is reasonable and likely to be true, and apply the idea of benefit of the doubt to that evidence, and give the appellant the benefit of the doubt for the evidence provided.

It's not loose, but it is somewhat less stringent than it is in civil and criminal courts.

[Wladyslaw Lizon, Conservative, Mississauga East—Cooksville, ON]

Thank you.

How does a tribunal like VRAB ensure that the decisions are consistent across the country? Are there guidelines or rules that tribunals, such as VRAB, must follow in executing their mandate?

[Dr. James Ogilvy]

There are principles, such as the ones that are attached to your package. There are many sources of general principles. They support but do not guarantee consistency of decisions. There are two elements to that, I would say. There are two ways of approaching it. One of them is ongoing training within a tribunal that has national scope. The Immigration and Refugee Board and the Parole Board are other tribunals that have had this issue. They're both national. They have hearings in different cities, and they try to make sure that their members are trained on an ongoing basis.

I noticed that VRAB has an internal training unit, which is a very positive thing. I would also argue that publishing decisions is an important element. If decisions are published, they become exemplars. There is no precedential requirement. Decisions don't have precedential value in tribunals, but typically a tribunal will see how they decided a similar case two months ago or two years ago, and use that as a guide. It's precedent de facto, not precedent that's forced on them.

It's far easier to determine what precedents there are, if you're either a member of a tribunal or a member of the public, or an appellant, if the material is readily available.

[The Chair, Conservative, Greg Kerr]

Thank you very much. That's your time.

Now we go to Ms. Morin.

[Marie-Claude Morin, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you.

I would first like to thank you for coming to see us today. We are happy to welcome you.

My questions go to the witness representing the Council of Canadian Administrative Tribunals.

We often hear about political appointments to and departmental interference in the board. Do you consider that this board is completely independent of the department?

[Dr. James Ogilvy]

I will answer in English, if I may, madam.

[Marie-Claude Morin, NDP, Saint-Hyacinthe—Bagot, QC]

That's fine.

That's no problem for me.

[Dr. James Ogilvy]

Thank you. I am much more comfortable in English.

[Marie-Claude Morin, NDP, Saint-Hyacinthe—Bagot, QC]

And I am much more comfortable in French, so I understand.

[Dr. James Ogilvy]

It's a deal.

This issue is often raised in connection with tribunals. There's no guarantee that any selection process will be perfect. But in my experience with federal tribunals, political interference is a non-starter. Certainly, that was the case in my own tribunal when I was at the CITT, and I think it's more common than that. It's simply understood that this element of independence must be guaranteed.

The selection of individuals is still a process that goes through cabinet, I understand. Names may be brought forward. Selection processes differ from tribunal to tribunal. I can't speak to that question with any expertise. Really, my knowledge of this is anecdotal, rather than general.

[Marie-Claude Morin, NDP, Saint-Hyacinthe—Bagot, QC]

As an independent organization, have you made any proposals for changes to the board or the department in the past?

[Dr. James Ogilvy]

I'm sorry, I missed the first part of your question.

[Marie-Claude Morin, NDP, Saint-Hyacinthe—Bagot, QC]

As an independent organization, have you proposed any changes to the board or the department?