Veterans Affairs Committee on Oct. 29th, 2012

[The Chair, Conservative, Greg Kerr]

Thank you very much.

We'll go to Mr. Casey for five minutes, please.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

Mr. Parent, thank you for your work in this matter. It's clearly something that cries out for attention. I think the fact that you've done such a thorough job in your report has set us on the right path.

I want to ask you about something that has happened since you wrote your report. The report is dated in March. Just last month there was a decision of the Federal Court in the Timothy Gilbert case. I expect you're familiar with it.

[Guy Parent]

I have the expert here.

[Sean Casey, Liberal, Charlottetown, PE]

Between you and your expert you would know that Timothy Gilbert is a veteran who appealed to the Federal Court. The Federal Court accepted his appeal and sent it back to the Veterans Review and Appeal Board with directions. It had an unfavourable ruling. It went back to the Federal Court, and they sent it back again. It wasn't bad enough that the Federal Court told VRAB they got it wrong once, it was twice.

The court in the decision that was released just last month said that the second decision was unreasonable. The appeal panel misunderstood its role and failed to redetermine the matter in accordance with the directions provided by Justice Barnes. When Justice Barnes heard the first appeal, he sent it back to the appeal panel and told them to do one of two things: either resolve the uncertainty with regard to a medical report in favour of the veteran, or seek clarification as is contemplated under the act. The appeal panel did neither of these things, rendering the decision unreasonable.

I want to ask you about the Gilbert decision in view of the fact that this decision came out after you wrote your report.

I also want you to factor in some pretty disturbing evidence we heard from a former board member, Harold Leduc, on October 22. He said that a concern they have as well is they're guided by the Federal Court, but when they get Federal Court decisions, their senior legal adviser, or whoever is tasked to do this, will give any number of reasons why they don't agree with the decision that comes back saying they should defer to a new panel. He said that any decision that comes back that doesn't agree with their decision, they're basically given every reason why they shouldn't believe it.

I'm interested in your comments on the culture of the board considering what happened since you've written your report in the Gilbert case and the troubling evidence we've heard from Harold Leduc.

[Guy Parent]

I think we can start off with the Gilbert case. I'll let Diane address that aspect of it and then I'll talk about the board itself.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

[Diane Guilmet-Harris]

Unfortunately, the Gilbert case is not an atypical case. If you go through our report, there are a number of clients mentioned in that report, but probably the most flagrant one would be Mr. Bradley who has gone to the Federal Court five times. He has won at the Federal Court and the matter has been returned to the board.

One of the issues is that it is the nature of judicial review. What the court does is it simply assesses whether or not the board has respected the principles under section 18 of the Federal Courts Act. Although they send strong directions to the board, the board is an independent tribunal and is tasked with assessing the evidence and rendering the decision that they choose to render based on the evidence before them.

It is certainly something, when you look within our report, that we've made comments on, and it is something that we will be looking at when we render our follow-up report.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

[Guy Parent]

I'll take that a point further. Certainly the Federal Court cannot force the tribunal to review or to change decisions or anything like that. I'm not a lawyer; I'm just a simple SAR tech, but I would think there needs to be some kind of respect in a common law society where the adjudicator is the first level and they make decisions, and then the board makes decisions. When I talk about transparency, that's what I mean. The adjudicator should pay attention to decisions of the board because they might affect his decisions in future. The same applies all the way up to the Federal Court and appeals court. We expect that this is what happens. There has to be some respect in the review process.

The other part of that is why we say that published decisions are important because they are a learning tool for everybody: for the other board members, for the veterans who are applying for decisions, and for the adjudicator who looks at the initial application.

Certainly when we do a follow-up report to a systemic review report, we'll look at everything that happened in between that was not contained in the report. That will be looked into at that point in time as well.

[The Chair, Conservative, Greg Kerr]

Thank you very much. That does put us over time.

Now we'll go to Mr. Zimmer, for five minutes, please.

[Bob Zimmer, Conservative, Prince George—Peace River, BC]

Thank you, Mr. Chair.

Thanks to the witnesses for coming today, and also thanks to all the veterans who are in the room today and past and present members of the military. Thanks for your service.

To talk about your report, I'd like to refer to your first recommendation. That one stood out to me as a good recommendation. You referred to “remedial measures to attain the 100% target”. That's an awesome target to have. We should aim for that for our veterans. Although tough to achieve, it is admirable, and we should strive for that.

I want you to go over those seven recommendations, especially for us people who are new members on the committee and for the members in the room and for the public. Could you summarize those seven recommendations, please?

[Guy Parent]

Certainly. That's a good question.

I mentioned a bit of it in my opening address. Basically, in the first recommendation we said that as a measure of performance the board was using the percentage of decisions returned from the Federal Court. I agree with you that 100% is a target. Certainly we put these targets out there and they are almost impossible to reach, but the point on that one is that over the period of time in both cases that went to Federal Court they came back for the same reason. What was important there were the common denominators. We certainly would be looking in future to make sure that any decisions returned to the board eliminate some of those common denominators so they are not returned for the same reasons over a period of years, and so that there is a lesson learned from the court judgment so that the board in the future looks at these types of common factors. That was one of the important ones.

The second one had to do with the Bureau of Pensions Advocates and the board working together when a decision is returned from the Federal Court, to make sure if there are any changes that need to be made in the process, or in giving the Federal Court cases priority in reviewing, so that people who have been waiting for four or five years already don't again encounter a lengthy delay.

The third recommendation, which is based on the first report we published in the ombudsman's office, has to do with the reasons for decisions. There must be clear transparency. The individual who applied for benefits must know exactly what evidence was used by the board to arrive at the decision at which the board arrived. That is very important. In fact, we have an upcoming report that will be out in two months or so that has to do with the use of evidence by the department, so it will certainly address the heart of that recommendation.

The fourth one had to do with the publishing of the decisions. Again I go back to my point on cases of interest, that when they're defined by the board as cases of interest, they're not quite what we intended. We intended for transparency's sake that all decisions, as other tribunals do in Canada in a quasi-judicial tribunal, should be published for everybody to benefit.

The fifth recommendation had to do with the Bureau of Pensions Advocates representing clients in Federal Court. Again, this is because they have been representing clients from the department review to the veterans review process, to the veterans appeal process, and in many cases they brief pro bono lawyers as to the particulars of the case. There is a certain bond that is created between a pension advocate and a client, so that would be comfortable for the client as well.

The sixth recommendation had to do with service standards. We talked about that already.

The seventh recommendation had to do with retroactivity. In some cases retroactivity is applicable to the date of application, where in other cases it's applicable to the date of the decision. We think there is an unfairness issue there that needs to be looked at.

[Bob Zimmer, Conservative, Prince George—Peace River, BC]

Right. Thanks for your work on that too. We appreciate it.

Following up on Ms. Adams' question about what VRAB did in response to your recommendations, what changes do you know of that they've agreed to make based on your recommendations? Can you fill us in on that?

[Guy Parent]

That's a good question as well.

We know that decisions are now published. Some cases of interest are now being published on the Veterans Review and Appeal Board website, which is a start. That's heading in the right direction.

We know also that they're working with the Bureau of Pensions Advocates to review cases coming back from the Federal Court and monitoring cases so that they are given some priority.

That's about where it stands.

[The Chair, Conservative, Greg Kerr]

Thank you very much, your time is up. If we can get Mr. Stoffer back, we'll give him a couple of minutes. The clock is running.

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

Thank you very much for coming, folks. There are a couple of things.

I want to be very clear on what our private member's bill says about the elimination of the VRAB. What it says quite clearly is we would eliminate it and replace it with peer-reviewed medical evidence in consultation with veterans and their organizations.

We would have a system in place where a person could get medical evidence. To protect the integrity of the system, to make sure they're not cheating it, they would have, similar to the CPP, another doctor verify the first doctor's medical evidence that indeed the person has a particular issue and that it may-—it doesn't have to be, it may-—be related to military or RCMP service. A benefit should flow from that, based on consultation with veterans and their organizations.

That is really what the bill says. I just wanted to put that on the record; I didn't want you to comment on that.

In your opening statement, sir, you said that more than 20,000 veterans and other applicants have been better off as a result of the decisions made by the board since its creation, yet the board has made 119,000 decisions. That would mean 99,000 people would have been rather ticked off at the board's decisions. If only 20,000 have been helped and 119,000 decisions have been made, you can make the reference that 99,000 people are not happy with the board's decisions.

I'd like you to comment on that. Having said that though, you're doing a study on the VRAB yourself, an internal one. Am I correct?

[Guy Parent]

We are following up on the report that we published. It will also be a public report.

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

Very good.

With respect to the previous report you did and the report you're doing now that's being released in the new year, how many people and how much time have you placed on those studies or that inquiry?

[Guy Parent]

Most of the work on the first report was done by a private firm that was contracted by the office.

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

How much time was spent?

[Guy Parent]

I will ask Diane to answer. She is working on the upcoming follow-up report, and she was involved in the publication of the first one, so she has those details.

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

Basically, what I'm asking is, how much time did it take for the private firm to look into the VRAB and then for your follow-up? Is it eight months in total? Is it two years?

[Diane Guilmet-Harris]

When I came into the job in April 2009, one of the first things I did to educate myself was to pull all of the Federal Court decisions with the VRAB. Because of the lack of information it was my best source in order to educate myself about how the VRAB worked.

When those decisions started coming through and I looked at them, I started seeing that there was a pattern of return and coming back and forth, so I raised the issue with the DG and with the ombudsman and told them that it might be worthwhile to do this study.

With two students, we pulled all of the Federal Court decisions. We married up the Federal Court decisions with the decisions from the VRAB when they came back so that we could study the rate of success. All of that information was given to Borden Ladner in September 2011. They spent maybe six to eight weeks with a team of four lawyers working on them. They came back to us within that period with a draft report. It was reviewed in the office. We tweaked things a bit in areas we were concerned about or where we felt there was further explanation required. It went through the full review process within the office, and it was published this year.

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

My question quite clearly is how much time have you been studying various aspects of the VRAB, including the report that is coming out in a year? Has it been a total of two years? Has it been six months? Has it been eight months? I'm just trying to figure out how much time you have spent studying various aspects of the Veterans Review and Appeal Board.

[Gary Walbourne, Director General, Operations, Office of the Veterans Ombudsman]

On the first report we spent about eight months in total, including the contract work that was done off-site and our own staff work. On the second report, we figure it will take us about three months with about three full-time equivalents working on it full-time.