Evidence of meeting #49 for Veterans Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Guy Parent  Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman
Diane Guilmet-Harris  Legal Counsel, Office of the Veterans Ombudsman
Gary Walbourne  Director General, Operations, Office of the Veterans Ombudsman
John D. Larlee  Chair, Veterans Review and Appeal Board
Kathleen Vent  Acting Director, Legal Services, Veterans Review and Appeal Board
Karen Rowell  Director, Corporate Operations, Veterans Review and Appeal Board

3:30 p.m.

Conservative

The Chair Conservative Greg Kerr

Since the seats are filled and everybody's here, we can get started even if it is a minute early.

I remind everybody that we are continuing the study and review of the Veterans Review and Appeal Board. As agreed, we're pleased today to have the Veterans Ombudsman and staff with us. As well, in the second half we'll be hearing from the Veterans Review and Appeal Board, Chair Larlee and staff.

Rather than hold it up any further, I will say, Mr. Parent, it's always good to see you and I await with great anticipation having you educate us today. We look forward to that. Thank you for bringing in your staff.

Go ahead with your opening comments, please.

3:30 p.m.

Guy Parent Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Thank you, Mr. Chair and committee members.

I will first introduce the people who are with me today: Gary Walbourne, director general of operations, as well as deputy ombudsman in my absence; and Diane Guilmet-Harris, our legal counsel at the office.

Thank you for inviting me to appear before you today to share my thoughts on the Veterans Review and Appeal Board.

Your review is very important given the critical role that the board plays in ensuring that veterans and other clients of Veterans Affairs Canada receive the benefits and services to which they are entitled.

In any given year Veterans Affairs Canada makes close to 40,000 decisions with appeal rights to the board. Given the number of decisions, and despite efforts to the contrary, errors can be made. Therefore, it's important to have an independent, specialized body that veterans and other clients of Veterans Affairs Canada can turn to when they are dissatisfied with the department's decisions. An efficient redress process is key to accessibility.

Parliament was of that view as well when it created the board in 1995, entrusting it with the power to change or overturn decisions made by Veterans Affairs Canada if it finds that the laws governing disability pensions and awards were not properly applied.

To fulfill, and I quote, “the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants”, Parliament asked the board to adopt a liberal and generous interpretative approach when making decisions, and specifically directed the board to section 39 of the Veterans Review and Appeal Board Act to draw every reasonable inference in favour of applicants, to give them the benefit of the doubt when weighing the evidence, and to accept any credible, uncontradicted evidence.

More than 20,000 veterans and other applicants are better off as a result of decisions made by the board since its creation.

Yet, as impressive as the statistic is, there is mistrust of the board within the veterans' community and much concern as to whether or not the board is making decisions in compliance with its enabling legislation. I wanted to know if those concerns were founded, and that is why we carried out the analysis of Federal Court judgments pertaining to the board.

As you know, 140 board decisions were challenged in the Federal Court and 11 of those were appealed to the Federal Court of Appeal. In those cases the courts had to determine if the board made its decision in compliance with the Veterans Review and Appeal Board Act and in accordance with the principles of procedural fairness. Since the Federal Court provides an independent judicial assessment on the matter in which questions of law, fact and procedural fairness are handled in cases before them, it made sense to me to take a look at the court's judgment pertaining to the board.

Before I address the findings and recommendations of my report, let me take a moment to discuss the issue of statistics.

Since its creation in 1995, the board has made more than 119,000 decisions, of which 34,000 could have been subject to judicial review. To suggest that there is nothing to worry about because only 140 of those decisions have been challenged in the federal courts does a great disservice to veterans and serving members of the Canadian Forces and the RCMP.

There are many reasons that ill or injured veterans and serving members do not take their cases to the Federal Court including “appeal fatigue” and above all legal costs, which can vary from $15,000 to $50,000. So contrasting the number of Federal Court challenges with the overall number of decisions made by the board over the years is meaningless and misleading. What's important is what the Federal Court says about the cases it reviews.

In fact, I would argue that it is the misguided opinion that it is "only 140 decisions" and that "all else is fine" that explains why board decisions have been returned by the Federal Court for the same reasons over a long period of time. This means to me that neither the board nor the department takes the Federal Court judgments seriously enough.

Up until 2009-2010, the board used a percentage of Federal Court judgments that uphold VRAB decisions as a performance indicator of fairness in the redress process for disability benefits and was satisfied that fairness was assured if the court upheld 50% of its decisions. That is not acceptable. Furthermore, in its 2010-11 performance report, the board did not report against this indicator at all. Instead, it reported on how fast decisions were made.

I'm sure that you have heard the old adage that what gets measured, gets managed. While I encourage both the department and the board to find quicker ways to address the needs of ill and injured veterans and serving members, it should not be done to the detriment of the quality of decisions made.

To get back to my report findings and recommendations, the independent analysis performed by the law firm of Borden Ladner Gervais found that in 60% of the 140 board decisions reviewed by the Federal Court, the court ruled that the board erred in law or fact, or failed to observe principles of procedural fairness.

The five most common errors for which the Federal Court returned decisions to the board for review were: the failure to liberally construe the provisions of the Veterans Review and Appeal Board Act and the Pension Act; the failure to accept the credible uncontradicted evidence; the failure to accept credible new evidence; the failure to give the benefit of the doubt; and the failure to ensure procedural fairness by not providing sufficient reasons for decisions or not disclosing medical evidence considered by the board.

Based on those findings, I concluded that veterans' concerns are founded and that the status quo is not acceptable. Changes are needed. As you know, I made seven recommendations.

Three recommendations address the need for greater transparency and accountability, namely, improved reporting to Parliament, posting all Federal Court decisions on the board's website, and the provision of reasons for decisions that clearly demonstrate the board has met its obligations under its enabling legislation.

Two recommendations called for the establishment of a formal process to review each Federal Court judgment rendered in favour of the applicant for the purpose of remedial action to the way decisions are made, and for the priority treatment of cases sent back to the board for rehearing.

The last two recommendations call for the Bureau of Pensions Advocates to represent veterans before the Federal Court and for legislative changes to allow for benefit retroactivity to the date of initial application in cases where the board makes a favourable decision as the result of a successful challenge in the Federal Court.

The Veterans Review and Appeal Board has put in place a plan to address the first five recommendations, and thank Mr. Larlee for acting as quickly as he has. You may be interested to know that my office has just started a follow-up review to determine if the changes made by the board fully address the shortcomings that we have identified. The report will be released in the next year.

As for the last two recommendations, I am engaged with the minister. He has recently outlined his action plan to further reduce red tape, increase efficiency and provide clarity around decisions. If properly implemented, these actions could reduce timelines in process and reduce the need for veterans to seek relief in the Federal Court. A plan is only that until it is put into action, and I will be monitoring the situation to ensure that the actions taken are indeed addressing the intent of the recommendations.

For me, the matter is quite simple. As long as the Federal Court continues to return a majority of board decisions for errors of fact, law, or procedural fairness issues, I will continue to say that fairness in the redress process is not assured. My report looked at the end result: the board's decisions themselves. Your review of the board's processes and activities is timely and it should address the why questions. Why is the process not functioning as it was meant to? How should the board and the overall VRAB-VAC process be improved going forward?

I humbly suggest to you that there are six key areas that should be looked into: the board's structure; the selection process of board members; workload issues; process by which the board's and the department's decisions are made in accordance with Federal Court judgments on a go-forward basis; quality assurance and efficiency versus effectiveness equation; and very important, the board's operating culture.

In the end, however, it all comes down to culture, and I would like to explain why.

In 1967 the Committee to Survey the Organization and Work of the Canadian Pension Commission, better known as the Woods committee, in addition to providing recommendations for reform, documented the evolution of the administration of veterans' benefits. It showed that from the enactment of the Pension Act in 1919, the intention had always been to have some form of an appeal body for veterans.

Despite major reforms through the years, that goal had not been achieved. Despite that, in 1967, the Woods committee was still adamant that an independent appellate body was essential for maintaining the integrity of the disability process and ensuring that veterans have trust in the system.

The Woods committee went into much detail examining a number of issues that were major concerns not only for veterans, but also for the government. Concerns included staffing levels, the low percentage of appeals granted in favour of the applicant, the need for reasoned decisions, the unfair practice of not disclosing information to the applicant, and the failure of adjudicators to liberally construe the legislation in favour of the veteran.

In 1995 the Woods committee goal of an independent appellate body was finally achieved.

Here we are in 2012 once again discussing the effectiveness of the Veterans Review and Appeal Board in relation to the same issues of processing times, board composition, reasons for decisions, disclosure of information, and liberally construing legislation that has been debated since 1919.

History has shown that although structural change can alter the process to create efficiencies and increase effectiveness, cultural change is what is needed if we want to address the why questions and eliminate the root causes of many of our veterans' concerns.

The first step to cultural change is transparency. On the one hand, veterans need to have full disclosure of information that decision-makers are using to make their decisions, and they need clearly reasoned decisions that are understandable and make sense to them. On the other hand, decision-makers need to have all the information necessary to make decisions at the earliest point in the process.

The second step is quality control of the adjudication process. Measures need to be put in place so that the board and the department work together to improve the quality of the overall process rather than, as is too often the case now, having the effects of expedited processing at the beginning of the application process leading to an increase in the board's workload at the end of the process.

Yes, it's important to move things quickly, but it is much more important to get things right from the beginning. This goes to the issue of why so many decisions are varied at the department's review level and at the board's level. That's the question the department asked McInnes Cooper to address in 2007.

In reviewing the adjudication process, McInnes Cooper found that decisions were varied at the department's review level on the basis of additional evidence that was often in existence at the time of initial application, but was not included with the application. In the view of McInnes Cooper, “The adequacy of claims preparation at the initial application and first-level decision stage is driven by the fact that, whether by accident or design, there is greater focus on turnaround times and/or productivity.”

As for the variance of departmental decisions at the board level, McInnes Cooper identified three contributing factors: personal testimony, spirited advocacy by a pension advocate, and new evidence.

The fact that decisions are varied in favour of applicants at each redress level is often given as evidence that the system is working, but it can also be a sign that there is a problem at the beginning of the process. I am convinced that if more time and assistance were provided to applicants to ensure that all needed information was available before moving forward to adjudication, the board's workload would be greatly reduced and it would be able to concentrate on complex cases.

Moving on to the third step, I would submit that future discussions on matters pertaining to the disability benefits process should look at the entire process, encompassing processes of both the department and the board.

With respect to the fourth step, the effect of not liberally construing the legislation is affecting not only the efficiency and effectiveness of the entire system, but it is adversely affecting the lives of too many of our veterans and their families.

If legislation pertaining to veterans was liberally construed at the front end of the decision-making process, as was the initial intent of legislators such as you, I believe we would not be seeing the problems that we see today at the back end of the process. Educating departmental adjudicators and board members on the meaning and application of the phrase “liberally construing” is critical, even more so given that military service and the documentation of such service often creates difficulties.

In the end, we should be aiming for a more streamlined and effective system that will meet the needs of ill and injured veterans and serving members.

As I stated earlier in my remarks, I firmly believe that the Veterans Review and Appeal Board has a critical role to play. Closing the board would do a great disservice to veterans and serving members of the Canadian Forces and the RCMP, but changes to the board are needed to restore the trust in the organization and ensure fairness in the redress process.

3:40 p.m.

Conservative

The Chair Conservative Greg Kerr

Thank you very much, Mr. Parent.

We will now go to the committee, and Mr. Chicoine for the first five minutes, please.

3:40 p.m.

NDP

Sylvain Chicoine NDP Châteauguay—Saint-Constant, QC

Thank you, Mr. Chair.

Thank you for being with us today. It's always a pleasure to have you here.

I may share my time with Mr. Stoffer a bit later.

Mr. Parent, where do you stand on the board's action plan to implement your recommendations? Are you satisfied with it?

3:45 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

As I mentioned earlier, a plan remains a plan until it is put into action. One of our recommendations was the publication of board decisions. The publication of noteworthy decisions is already under way. But transparency requires that all decisions be published.

Something else I mentioned is the fact that recommendations implemented by the board can also benefit the adjudication process, in many cases. Consequently, some of those decisions could educate the people who do the initial work in the adjudication process on how decisions are used. With that in mind, they could make sure that the documentation was complete and ready for adjudication.

3:45 p.m.

NDP

Sylvain Chicoine NDP Châteauguay—Saint-Constant, QC

Thank you.

Your third recommendation has to do with the benefit of the doubt.

I read the action plan, and I'm having a hard time figuring out how the recommendations will strengthen the application of the benefit of the doubt. That was one of the flaws in the board's decisions.

Do you feel that the action plan does enough to address this shortcoming? Will the application of the benefit of the doubt improve under the action plan?

3:45 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

Our recommendations targeted two areas. The first is the liberal interpretation of evidence. A section in the act states that the evidence must be construed liberally. At the court level and even during the adjudication process, application of the benefit of the doubt has always been a major topic of discussion.

I'll give you an example of liberal interpretation. Let's assume those involved in the adjudication process or the board members have uncontradicted evidence before them. In other words, there is no other evidence contradicting it. In such a case, those handling adjudication should interpret the act liberally because there is nothing to refute the piece of evidence before them.

It is also important to start from the premise that, in 90% of cases, the military or RCMP service affects the member and their family. It affects their well-being; it causes illness or injury. So if you're working from that premise and an injury is proven to be service-related, you should interpret the evidence liberally and render a favourable decision.

However, in situations where conflicting evidence exists, the benefit of the doubt must be applied. When you are confronted with two pieces of conflicting evidence and the decision rests on the benefit of the doubt, you must, under the act, render a decision in favour of the applicant.

I would ask my legal counsel to provide some clarification on the concept of the benefit of the doubt.

3:45 p.m.

Diane Guilmet-Harris Legal Counsel, Office of the Veterans Ombudsman

I will respond in English because my response was prepared.

The concept of benefit of the doubt is enshrined in subsection 5(3) of the Pension Act, section 43 of the NVC, section 35 of the War Veterans Allowance Act, as well as in section 39 of the Veterans Review and Appeal Board Act.

It's applied where it's not practical to determine an issue because the evidence for or against the issue is approximately equal in weight. The issue shall be resolved in favour of the person claiming the benefits. The doubt, however, must be reasonable and derived from a careful analysis of the evidence. The evidence would include witness statements, documents and reports, as well as medical information.

Every reasonable inference will be drawn and any reasonable doubt will be resolved in favour of the applicant. The decision, however, must still be in accordance with the real merits and the justice of the case. It should be applied when the facts of the case are so evenly balanced that a clear decision is impossible. The decision-maker has the obligation to allocate the appropriate weight to the relevant facts in the exercise of the judgment. Benefit of the doubt is not to be used as a substitute for evidence. It is to be applied when the facts of the case are so evenly balanced that a clear decision is impossible. It's a fifty-fifty and you render a decision in favour of the applicant.

3:50 p.m.

Conservative

The Chair Conservative Greg Kerr

Thank you. That's very clear.

We'll now go to Ms. Adams.

October 29th, 2012 / 3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

I'd like to thank the ombudsman for being with us today, and for all of his work with the benefits browser. It was wonderful to launch that with you.

Do you think that having information available on the benefits browser will be of benefit to our veterans in providing additional transparency in the programs and benefits available to our veterans?

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

In fact, that was the intent. Again, we go back to transparency. The more people know about the programs and benefits—the eligibility criteria, how they access these programs and benefits—the easier it's going to be for everybody.

3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

This will help with the appeal process also.

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

Of course, that extends to all the application processes, from initial adjudication all the way to Veterans Review and Appeal Board appeals.

3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

Thank you again for your wonderful work on that.

In your last report you had many comments about the Veterans Review and Appeal Board. Since that time, have you had an opportunity to follow the changes that have been made or announced to the board, and if so, what are your comments about those proposed changes?

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

We are working with the board staff and with Mr. Larlee to solidify any improvement that has to do with our recommendations for our report. We're engaged with them. We will be putting out a full report. Any systemic review that we do is normally followed six months later with a follow-up report, which gives a report card on the plan that was given to us when the report was issued.

3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

As of today, though, could you provide some comments on the progress being made by VRAB?

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

There has been an action plan, which we thank the Veterans Review and Appeal Board for putting forward in a very timely manner. It covers the recommendations that applied to them as a tribunal, as opposed to the ones that were to the minister. We are confident that they're moving in that area, but our report will say in detail whether we're satisfied with it or not.

3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

The NDP has called for the full eradication of VRAB. Do you think it would be helpful to eliminate the independent avenue of appeal available to veterans?

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

The board is an important and critical aspect of the application process. There needs to be an independent organism. If you follow the history, there have never been any questions about whether the board was needed or not, but as with any other tribunal or any other organization, there is always room for improvement.

3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

If VRAB decisions are to be interpreted more liberally, as some witnesses have called for, does that help or hinder uniformity in decision-making at VRAB?

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

You mean a liberal interpretation of the evidence in front of them?

3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

Yes, more liberally....

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

By law the act demands that they liberally interpret the evidence in front of them. It's there; it's the law that guides their work, so I don't see that it would impair them. It should be the culture. The culture is a big aspect. People should assume from the start that military service will affect members and their families, and therefore any evidence on the application should be liberally interpreted. It should assist in their work.

3:50 p.m.

Conservative

Eve Adams Conservative Mississauga—Brampton South, ON

Just to be clear, then, we've heard that one of the challenges facing VRAB is that it's charged with consistently making decisions across the country. We wonder if that type of consistency actually limits board members' flexibility in making decisions in the best interests of veterans.

What are your thoughts on that?

3:50 p.m.

Veterans Ombudsman, Chief Warrant Officer (Retired), Office of the Veterans Ombudsman

Guy Parent

That has to do, maybe, with the culture and collegiality of the board itself. I met somebody on the road in one of my outreaches, a previous member of the board who said that what she missed was that people were never together, and there was no chance to develop an organizational culture. Because boards sit independently in different areas of the country, there is never an opportunity to share expertise, past experiences, and decisions. Obviously, it's a matter of culture.

The board structure and how the board uses its members are things that are very important, but we need to look at the process first. I think if the process is clearly defined and works well, from adjudication to review and appeal, then we can see the best way the board can work, which can be looked at later in the process.