Veterans Affairs Committee on Oct. 29th, 2012

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you very much, Mr. Chair.

Thank you very much, Monsieur Parent, for your report, for your diligence.

I would like to thank your staff as well, because we rely on the work that you do.

[A voice]

We most certainly do.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

I have a couple of questions. I think they should be rather easy to answer.

You indicated in your report that you were concerned and you were critical of the fact that the VRAB set a target of 50% of its decisions being upheld by the Federal Court.

Would it not be much better, and would we not prefer, that the Federal Court's disagreement with a decision by the VRAB would be an exception rather than the rule?

[Guy Parent]

It's a good question.

I alluded to that earlier. What's important is not necessarily the numbers, but if cases are returned for the same reasons over a period of time, that means there are no mechanisms in place to recognize what are the weaknesses or the challenges of the board. For me and our team, what's important is the fact that these weaknesses at that end might even be present at the front end of the adjudication process.

Again, 100% is a target more than a standard, I would think. I know that in all our own performance reports we always put down 80% or 90%. I don't know of anybody who puts 100% and hopes to achieve that.

The important thing is why decisions are returned. We should eliminate these ones. I'll use as an example the recognition of medical evidence at its proper value. That should not return. It should be something that, over a period of time, when the decisions are sent back from the Federal Court, the Veterans Review and Appeal Board, the BPA, and the department should be looking at. They should be saying that they need to clean up that aspect of it. That would eliminate one common denominator.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

In your presentation, you alluded to the importance of the benefit of the doubt, to the humanity of that. In previous testimony, we've heard that when there is uncontradicted evidence, rather than applying that benefit of the doubt, members of the board—the adjudicators—are actually seeking other evidence and going out of their way to find something to create a contradiction.

What are your thoughts on that? What is your experience in that regard?

[Guy Parent]

Again, that's a good question. What's important here, again, is that there needs to be a presumptive judgment that anybody who serves in the Canadian Forces or the RCMP is subject to being hurt by their service; it's the type of work that they do, and that we do, because I was part of it at one time. You know there's going to be an impact on your wellness, and maybe on your health, and on your psychological health as well.

To start from that presumptive judgment that service hurts, then you're already in the right frame of mind and culture to actually look at the evidence in front of you and to say, “Okay, we know that the case in front of us starts there, that people are hurt by service”. The benefit of the doubt, again, is hard to interpret. There is sometimes confusion between the liberal interpretation as is quoted in the act and the benefit of the doubt, but they're one and the same.

I think our legal counsel mentioned that in the benefit of the doubt aspect, you have evidence from both sides, balanced evidence, and then, according to the regulations, you should rule in favour of the applicant. That's not always the case.

[The Chair, Conservative, Greg Kerr]

Thank you very much.

We'll now go to Mr. Lobb for four minutes, please.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Thanks, Mr. Chair.

Mr. Parent, on CPP disability, I'm sure your organization is aware of this, but maybe you aren't. From what I've been able to determine, the hurdle to receive CPP disability is much less stringent than the actual burden for a veteran to receive a disability award. Is this something that you have looked at in your department?

[Diane Guilmet-Harris]

The functioning of the CPP tribunal is somewhat different from that of the Veterans Review and Appeal Board. In that situation, there is a three member panel. There'll be a lawyer, a physician, and a community member on the panel. As well, individuals are not represented by counsel unless they pay for the representation themselves.

It's a more court-like setting, because the lawyers from the government are adjudicating the fact that the person is not entitled to the benefits. It's more similar to a court-like setting than the Veterans Review and Appeal Board. As well, the standard in order to attain a benefit is that they have to be able to show the injury is severe and prolonged. Although some of the principles are similar, it's like comparing apples and oranges.

[Ben Lobb, Conservative, Huron—Bruce, ON]

It may be comparing apples to oranges, but I think there's a lesson to be learned, or at least to be examined down the road, in regard to the fact that the requirement for documentation, in my opinion, and I could be wrong, is much less for the person applying for CPP disability than it is for a veteran in some cases.

Maybe down the road when you're doing your study you could take a look at it, or at least examine it, because there are a lot of similarities in the numbers of people receiving CPP versus veterans, and the actual dollars that are delivered are very similar.

My next—

[Guy Parent]

If I may add something, I did mention already that there will be upcoming reports that will fill the void between the Veterans Review and Appeal Board and the adjudication decision letter. Some of those reports have to do with process and with the rules of evidence. In those reports we will be looking at comparative studies with other processes, looking at that aspect of it.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Further to the point, the whole idea in delivering benefits to the veteran is the benefit of the doubt. It is not the same with CPP disability.

I don't want to mischaracterize any department, any person, or any thing, but the one thing I look at is the actual process, from adjudication to the Bureau of Pensions Advocates, maybe back to the adjudicator, maybe to VRAB.

All of us here, the first time we saw it wondered why the adjudicator wasn't taking more time to look at this instead of kicking it down the field for somebody else. In your opinion, where is the miscommunication here? Why are there these problems? Why do they have to get to you, and why can't they be solved internally?

[Guy Parent]

That's a very good question.

It goes back to not having an instrument to actually have some lessons learned from the process. There are no mechanisms in place. There haven't been, to date, mechanisms in place that review the decisions all the way down and back to adjudication, tracing back the cases that were returned from the Federal Court all the way through the tribunal, then the departmental review including the initial adjudication.

If that was the case, there's the likelihood that within that process, or that mechanism, some things would have been considered critical at the adjudication process that may not be considered critical now. That's what we said before. In some cases, it's worth the time and effort to ensure that the evidence available is presented at adjudication rather than adding it later on to a review or appeal process.

[The Chair, Conservative, Greg Kerr]

Thank you very much. Time does fly.

I want to thank our witnesses very much for coming today. Mr. Parent and staff, you added some valuable information for our committee to review before we put our final report.

We're going to take a brief recess and invite the next round of witnesses.

[The Chair, Conservative, Greg Kerr]

Okay, folks, we'll come back to order.

We're continuing this study of the Veterans Review and Appeal Board. Our final witnesses are the chair and reps from the board itself.

Mr. Larlee, it's good to have you back again.

[John D. Larlee, Chair, Veterans Review and Appeal Board]

Thank you, Mr. Chairman.

[The Chair, Conservative, Greg Kerr]

I gather you're going to give us some opening comments before we proceed.

[John D. Larlee]

Yes, I have some opening comments.

I appreciate the opportunity to be here.

Good afternoon, Mr. Chair.

Accompanying me today are members of the senior management team. Karen Rowell is the director of Corporate Operations, and Kathleen Vent is the acting director of Legal Services.

I want to thank you for the opportunity to return before the committee to address the comments and concerns expressed by committee members and by witnesses over the past few weeks.

I think you will find that we are all working towards the same objectives. The board is honoured to serve a constituency of people who are unique and impressive in their selfless service to Canada. These veterans, members of the Canadian Forces and RCMP, and their families, deserve to be, and must always be, treated with dignity and respect when they come to the board. They have the right to fairness in the appeal process, to openness in decision-making, and to be heard by qualified and impartial adjudicators.

We all agree that our veterans' appeals must be considered with the compassion expressed in the board's legislation. I'm referring, notably, to sections 3 and 39.

Since our last appearance, you have heard from advocates and other interested parties. I followed the testimony and heard inaccuracies presented to this committee. I would like to correct the record by giving you additional context and clarification on the board's commitments to veterans.

My remarks will deal with three important topics: number one, procedural fairness; number two, transparency and impartiality; and, number three, the culture at the board.

Let me start with procedural fairness.

The board's process exists to ensure fairness in the disability benefits system for our veterans, members of the Canadian Forces and RCMP, and their families. Our objective is to give applicants who are dissatisfied with their departmental decisions further opportunities for new and increased benefits for service-related injuries.

Our adjudicators are independent. They look at veterans' applications with fresh eyes and listen to their stories at non-adversarial hearings.

Our members usually ask questions at hearings to make sure they fully understand the veteran's circumstances. They consider, but are not bound by, the department's policies, and make decisions based on the evidence brought forward by the veteran. As our success rates clearly indicate, the board does change decisions to benefit veterans.

Fairness is our mission and we strive for it in everything we do.

Some serious questions have been raised at this committee about how we do our work, in particular with respect to the role of board staff, and the information used by members in decision-making. Let me put these to rest.

Board management and staff respect the independence of members as decision-makers. Their role is to support members in making clear and well-reasoned decisions for veterans. They do this by giving advice to members on the clarity and completeness of reasons and on issues of consistency in the interpretation of the legislation. It is nothing more than feedback intended to improve the quality of the decisions going to veterans.

I know you will agree that veterans deserve decisions that present information logically and accurately, that address evidence and arguments, and that express the reasons for the conclusion clearly and plainly.

Many of our members are lay people with different backgrounds who are based in locations across Canada. They deal with a high volume of cases involving complex matters. For these reasons, they welcome support from experienced staff in our legal and quality assurance roles. Members are free to consider their feedback and accept it, or not. In administrative law, it is quite simple: he or she who hears must decide.

Questions have also been raised about the role of favourability rates at the board. These are not individual rates, as board decisions are made by panels of two or three members. Rather, they are decision outcomes associated with panel members that were provided at the member's request. They are not used for performance feedback. They have never been used to influence board members to be more favourable or less favourable. They were used only as a tool to initiate a conversation about consistency in decision-making.

I hope you will agree that veterans deserve predictability in our decision-making, that similar cases should have similar outcomes. The board has established ongoing training and support structures, adjudicative guidelines, a professional code of conduct, and performance standards, all to fulfill our veterans' expectations that they will be treated fairly and respectfully throughout the appeal process. Together, these tools cultivate consistency while respecting the independence of decision-makers. This philosophy is helping us to attract new members with military, policing, and medical backgrounds, who want to serve veterans by contributing their expertise.

Transparency is the second area that I would like to touch on. You heard from Mr. James Ogilvy of the Council of Canadian Administrative Tribunals that transparency is ensured by a variety of things, including the publication of the results of all hearings. We agree.

It would cost approximately $3.5 million for the board to translate and de-personalize upwards of 5,000 decisions each year for web posting in a timely fashion. This represents one-third of our budget, the bulk of which is spent on conducting hearings and issuing decisions for veterans and other applicants in locations across the country. The reality is that the board would not absorb this cost without compromising service to veterans.

While a third party like CanLII would publish our decisions for free, the obligation to comply with the Official Languages Act and the cost of translation would remain ours.

As you know, we now publish our noteworthy decisions on our website in an effort to enhance transparency. These decisions are informative in that they demonstrate how the board applies the act in individual cases. The full text of the board decision is posted, with certain pieces of personal information removed in order to respect the applicant's privacy. The decision is not otherwise altered or monitored, as has been implied during the committee's study.

I encourage you to visit our website and read some of these decisions. You will also find medical and legal resources used by members, which are posted in the interest of transparency.

We will continue to add information and look for more opportunities to talk about the appeal process with our stakeholders. Another way for tribunals to be open and transparent is to hold hearings in public. The board's hearings are public and we are happy to accommodate observers. We ask interested parties to contact us in advance, out of respect for veterans and the personal matters being discussed, as well as to make the logistical arrangements.

Once again, I would extend an invitation to committee members to observe a hearing. As you heard from Mr. Cal Small from the RCMP Veterans' Association, it would give you an appreciation of the informality of the process, the efforts of board members to understand the veterans' circumstances, and the complexities of the cases that come before us.

The third and final topic I'd like to address is the culture at the board. We are here to serve veterans, members of the Canadian Forces and RCMP, and their families. As in the past, board members are looking for the evidence that will allow them to award new or increased benefits for disabilities related to service. Our evidence requirements have not changed, but the nature of our cases certainly has.

As you heard from the Bureau of Pensions Advocates, applicants are counselled to request an internal or departmental review if they have relevant new evidence after receiving a first decision from the department. The success rates for first applications and departmental reviews are higher now than in the past. This means that veterans are getting good outcomes earlier in the process. As a result, fewer cases are coming to the board, and those that do are less straightforward and more complex than in the past.

Veterans in Canada have access to many levels of redress for their disability benefits decisions. Some see it as a struggle, but many others welcome these opportunities to bring forward new information at any time, and they benefit from these opportunities. Our decision outcomes reflect this, with favourable rulings for veterans in half of review decisions and a further one-third of appeal decisions.

While we understand the perception that the burden of proof is too high, the legislation requires veterans to establish a link between their disability and service. Ultimately, some applicants are unable to make this link. We've heard the message loud and clear that veterans want to know they are getting the benefit of the doubt as required by the board's legislation. We have an initiative under way to train members to more clearly explain how they have applied the benefit of the doubt in every case. As chairman, I will continue to emphasize to members and staff that they must always bear in mind the debt owed to veterans who have served our country so well.

In closing, I would like to recognize the work the Veterans Ombudsman is doing to help us achieve our goal of better serving veterans, members of the Canadian Forces, RCMP, and their families. The board embraced Mr. Parent's recent recommendations and will continue to make improvements to maintain trust and confidence in the appeal process.

I hope that your questions today will give us an opportunity to further clarify our commitment and the nature of the work we do at the board to serve veterans and their families.

[The Chair, Conservative, Greg Kerr]

Thank you very much, Mr. Larlee.

We will start with Ms. Perreault for five minutes, please.

[Manon Perreault, NDP, Montcalm, QC]

I am glad you are here today.

I would like to pick up on some points you raised.

You talked about fairness in the disability benefits system and the need for evidence, of course. Last week, Mr. Leduc appeared before the committee. He told us that the current process to establish a disability diagnosis was much longer than it was when he started working.

No doubt, there's a valid way to establish proof without additional requests for medical information.

He also told us that the policy on hearing loss had changed and that those individuals were subject to a different process.

Could you tell us more about that?

[John D. Larlee]

I will answer the second part of your question in English, as it is my mother tongue.

The hearing loss policy was changed by the department some years ago, and as a result, many cases that had already gone before the board were further reviewed. I would defer to my legal or corporate counsel who have been on the board longer than I have, but I believe it became a more liberal policy of the department, and as a result we felt that the cases that had already been determined should go back to the department for a first decision. Is that not correct?

[Kathleen Vent, Acting Director, Legal Services, Veterans Review and Appeal Board]

Yes. If I can speak to the hearing loss policy, there was a case called Nelson. It went up to the higher courts. Nelson was brought to court because it was felt that the hearing loss policy in place at the time was too stringent in that it set the bar very high for what was constituted a loss of hearing, and people felt that it was unfair. They felt that, according to the strict interpretation of what a disability is in the law, any lessening of hearing should constitute a loss, and therefore be something that's pensionable.

The bar was set higher in policy prior to the Nelson case. As a result of that case, the range of what's considered to be normal hearing has changed. Therefore, more people were actually able, after the Nelson decision and after the policy change in the department, to avail themselves of this process. A lot of cases at that time were sent back to the minister to be adjudicated under the new policy because they had all, of course, come forward to the board under the old policy. As this was new policy, it was something new which the department had not yet evaluated these applicants on, and these matters were sent back to be adjudicated at first level, because, of course, the board is an appellate body.

[Manon Perreault, NDP, Montcalm, QC]

Very well.

Are there specific conditions only in hearing loss cases?

[Kathleen Vent]

Yes. In this case, we're strictly speaking of the hearing loss policy, and where the disability being claimed is a hearing loss.

[Manon Perreault, NDP, Montcalm, QC]

Okay.

Could you answer my first question?