Inside I'm calm.
What I'm going to focus on is something I'm not alone in my thoughts. I have a number of colleagues who also believe this is true but they are absolutely intimidated and afraid to speak out.
As you can see in my brief—and I'll try not to read it, but I'll speak to it, though—I've provided three excerpts from different places. One is from section 3 of the Veterans Review and Appeal Board Act, which we're told continually by the Federal Court that we should follow. We all know what it says, and I won't read it.
The next one I have presented is what's in the Veterans Review and Appeal Board's introduction to new members. Of particular interest is the last sentence and just a bit before it. It reads, “...decision so that the applicant knows that a full and fair examination of their case took place. In a non-adversarial system, it is essential to remember as a member that all parties in the process are working for the applicant.” That is just about completely gone.
The third one is part of the members' code of conduct. This is found on the Internet. It's also part of the oath of office that we sign. The very last part of it states that we “shall not delegate the duty to decide to any other person.”
Unfortunately what's happened is that our staff are the ones who train us. Our staff were appointed to render fair decisions in accordance with the legislation and in a non-adversarial approach. Our staff do not have to buy into that and they don't. Sometimes the staff come from the department, and therefore they already have a bias toward the departmental policies. That impacts us in our decision-making and it's a huge impact, but I'll get into that in a minute.
I mentioned board management as a group because we really don't know who makes the decisions. The chair has delegated his day-to-day operation of the board to the deputy chair and he has essentially told all members to defer any decision-making to the legal unit. In board management we have the chair, the deputy chair, the director general, and the senior legal counsel, but we don't know who is sending us the decisions because we're not involved in any of the decision-making that impacts us.
The problem that happens is that the staff are empowered and they act as if they are another panel member, which is absolutely wrong. We are the ones who make the decision. We go to the hearing and we hear. The reason for going to the hearing is to gather the testimony and clarify the information we have.
When I first started on the board. our decisions were one or two pages long. We didn't need scads of medical information. For entitlement we only required a doctor's note that provided a diagnosis of a disability, and from that it was our job to make a connection to service, based on the evidence we had. We never searched for information as happens now. If our legal unit came up with a piece of information that was new, we just thanked them and said that was not part of the evidence we had before us.
Today I have witnessed people adding things to the file without even a thought of sending it off to the veteran and the veteran's advocate.
I've witnessed veterans and their advocates being disrespected at the hearings. I've stopped hearings because of it.
It's one of those things that makes it very difficult not to grant everybody a disability because we've changed that non-adversarial system to provide veterans with what the government and the people of Canada have said in their statute that they owe the veterans. The fact of the matter is, people still have to prove and we still need the evidence. However, we've changed that non-adversarial process to a very adversarial process.
Some members do that at the hearing by challenging the advocate and the veterans, rather than just getting clarification on the evidence. I think last week or the week before there was a situation where a veteran with post-traumatic stress disorder felt as if he were being cross-examined. I heard about that story a year before you heard about it. I went to a fellow veteran's funeral and I heard about it there. I brought it back to the board and told the chair, because the chair is responsible. I don't know if anything was done with that information.
It's real. It's live. It's what is going on. I'm not here to say that everything is wrong with the board. I'm not here to say that every member is bad, that every staff member is bad. What I'm here to say is that if we speak about only the good things that are happening, we'll never get to the root of why some of the veterans, after they get their decisions, go out and commit suicide.
It's real. It's real for veterans. We're talking about real people here, not policy.
I realize that I'm starting to run out of time here.
The favourability rate is another one that impacts our impartiality. The impact on our impartiality is that it's become a factor where we were told to remember that we don't have to grant. We were told that by the deputy chair before going into hearings.
It's become such a contentious issue that has frustrated members, because they don't want to know about these favourability rates. We never had them before. We had them by region, but never by the individual. If two of us sit on a panel, and one agrees and one doesn't agree, then the one who doesn't agree gets a favourable rating, which really doesn't work statistically.
The idea behind this is that the board is in trouble. As I mentioned earlier, we didn't need a whole bunch of medical information. Now the staff and some of the members want more and more and more. I don't know why. Our job was so simple before. We took what was before us, listened to the testimony, figured out whether it was credible or not, and made a decision. But we keep being asked for more.
Section 38 of the VRAB Act says that we have the ability to go out and ask for independent medical opinions. We've been directed that we can't do that on our own, that we have to go to the legal unit. If the legal unit looks at one of the medical opinions we have, they will typically come back and give a legal opinion on a medical opinion.
It just doesn't work. I don't think we need to be doctors to adjudicate. I think we just need to be reasonable, and understand why we're there.
Mr. James Sprague, an expert on administrative tribunals, spoke to us. He told us of the importance of our independence and whatever. He told us that, really, in a tribunal itself, we're appointed by the Governor in Council, by the Governor General. We are independent from government in decision-making but dependent on the minister for administrative purposes. We were told that we shouldn't be going to the department for medical advice, but we do.
With respect to performance assessments, for my first three years on the board, I had wonderful, excellent performance assessments, and then all of a sudden they took a downturn. Information that was used before a human rights mediation was used in 2011 on my performance assessment. We don't see what the staff say about us; we get surprised by it.
That's a controlling factor, in my opinion and in the opinion of a number of members.
On the hearing loss policy, which we heard about before, I don't think there's a veteran in this country who's getting a fair hearing on hearing loss, for the simple fact that the policy was changed and we had no opportunity to discuss the department's policy. We were basically told that we would use it. It treats hearing loss differently from any other condition under the Pension Act or the Canadian Forces Members and Veterans Re-establishment and Compensation Act.
A concern we have as well is that we're guided by the Federal Court, but when we get Federal Court decisions, our senior legal adviser, or whoever is tasked to do this, will give any number of reasons that they don't agree with the decisions that come back, saying that we should defer to a new panel. For any decision that comes back that doesn't agree with our decisions, basically, we're given every reason that we shouldn't believe it, but any decision that comes back that agrees with the board, we rarely get any comments on it.
It's just like any decision we write that is not favourable to the applicant. Rarely do we get an opinion that comes back from our staff saying that we've made an error in our decision and we should grant favourably. I can almost guarantee that. I do not recall, in the seven years I've been on the board, ever getting a legal opinion that says that we did not make the decision within the language of sections 3 and 39 of the VRAB Act.
There's a real disconnect. Our staff are the ones who train us.
It doesn't matter who you appoint to the board. I personally don't believe in quotas, having a certain number from the military, or from this or that. I don't believe in that. Personally, I believe you need the right people. But as long as you don't fix the problems that are in a board, that are tainting the members or getting them to grant in a certain way so that they're not pressured in their jobs.... I mean, members have been told, “If you want an easy time on the board, then just listen to what we have to say.”
There is a lot more I could talk about, some of which I wrote in my brief, but I'll just leave it at that.
I'm open to answering any hard questions you folks have for me.