Veterans Affairs Committee on May 31st, 2016

[Thomas Jarmyn]

It's difficult for me to say. The reason I say that is we have no time limits in our system, so I sit, on a regular basis, on reviews. When I was sitting at the beginning of May, I had a week where I saw a case in which the department had rendered a decision in 2004. The veteran didn't do anything with respect to the case. It was brought forward as ready to schedule in late 2015, and then it was brought onto our schedule shortly after that. But in the same week, as well, I had a case where the veteran had applied for benefits in September 2015. The department had rendered the decision in late 2015, and the case was noted as ready to schedule shortly after that, and we heard it. Unlike a civil court, nobody is ever ruled out of time.

[Colin Fraser, Liberal, West Nova, NS]

Section 39 of the Veterans Review and Appeal Board Act talks about the benefit of the doubt provision. I've also heard of the presumptive model, which I believe is the same thing. Is that right, or is that something else?

[Thomas Jarmyn]

No, it's not really. A presumptive model says if these conditions exist, then something flows. Benefit of the doubt is a way of evaluating the evidence, and as the Federal Court of Appeal has said, we still look at it. Veterans still have the burden of proving their claims, but in determining whether or not they have met that burden, we give them the benefit of the doubt with respect to the evidence.

[Colin Fraser, Liberal, West Nova, NS]

So there would only need to be one arbiter, one person on the board who would agree that the appeal should be allowed in order to have it approved?

[Thomas Jarmyn]

That is one way in which the benefit of the doubt manifests in our system, yes, but it's also in other ways too.

[Colin Fraser, Liberal, West Nova, NS]

I just want to pick up on something Mr. Clarke asked, which I thought was a good question. I want to understand the way that precedential value goes. These cases are decided. Are the actual facts of the case understood and reported somewhere so that another veteran who may have a similar circumstance can expect a similar decision from the department the next time?

[The Chair, Liberal, Neil Ellis]

You can have 30 seconds on that one.

[Thomas Jarmyn]

If you look at our decisions on the CanLII website, typically there are three sections. One is an overall introduction of the claim. The second is an evidence and argument section that says what the veteran said, and what the advocate argued as the basis of claim. Then there is the analysis and reason section leading to the conclusion, the decision section.

[The Chair, Liberal, Neil Ellis]

Ms. Mathyssen.

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

I wanted to ask some sensitive questions with regard to sexual harassment in the military and how it is dealt with by the VRAB. Certainly that is sensitive testimony. Women are coming forward. They are very vulnerable, and I wonder if there are women on the panel who would hear such testimony. How do you determine that panel? Is specific thought given to how this particular situation will be handled?

[Thomas Jarmyn]

As with civil courts, we assign panels to particular weeks. When I assign a panel, I don't sort of pick and choose the cases it's going to hear. They're assigned to a location and the advocate is responsible for bringing that forward.

There is one exception with respect to that. There are situations where panellists are in obvious conflict, and if I know a case is going to be on the docket and I know that a particular member has had significant involvement which may give rise to a bias, I'm not going to assign the member to that week.

All of our panellists and all of our members have been trained with respect to these issues. I've heard cases ranging from harassment all the way to sexual assault and the consequential entitlement flowing from those. We are aware of the sensitivity of those issues, and our members most recently have just received training to update them with respect to that. I'm confident, and our surveys suggest that applicants are comfortable in testifying about these matters.

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

I understand that quite recently about 19 sexual assault cases have been turned down by the VRAB. Have you any idea how many successful cases have been heard and how women have been affected in those situations and what compensation was received?

[Thomas Jarmyn]

I don't know what recent event you are referring to or the source of the number of 19 individuals who have been denied. I'm unclear about that. We don't track claims on that basis as a typical rule. The question we ask is whether or not the sexual assault occurred in the course of military service and, further to the Federal Court case in Cummings, whether or not the military was exercising significant control over the activities of the veteran at the time of the assault.

Sometimes they are, and sometimes they aren't. I can't say much more than that.

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

Okay. With regard to the fact that you don't track the claims, is there any concern about that? I'm thinking in terms of hearing about more and more of these kinds of situations, not just in the military but among RCMP veterans. It would seem to be something of which we should be much more aware than we are.

[Thomas Jarmyn]

First of all, as with a court, we are not a policy-making or operational body. I don't know what the Department of Veterans Affairs does on the initial intake in the categorization of those claims. They would seem to be better placed to track the overall population of these sorts of claims, because of course they grant entitlement. They see the entirety of the applications as well, as opposed to my board, which sees a very small proportion of the overall claims in general.

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

Thank you.

Are there performance bonuses for VRAB staff? If so, can you tell me what the criteria for a bonus might be, how many staff would receive the bonuses, and how much that might be?

[Thomas Jarmyn]

I don't know what the actual numbers are. I'm just embarking upon that process in terms of dollars for that year. As with other executive public servants across government, there are staff who do receive bonuses. Those bonuses are performance pay, related to board operations, such as for meeting our service standards, taking steps to integrate technology, and those sorts of things. There are performance agreements with individual public servants that set out those criteria, and it's on that basis that performance pay is awarded.

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

Okay. Is there any concern about the optics of this, the appearances of such bonuses, and how they might be perceived?

[Thomas Jarmyn]

No. Performance pay is tied to objective, observable criteria related to board operations, the meeting of our service standards, and the improvement of our technology. Those sorts of things, I think are consistent with what is being done across government, and consistent with a culture and an organization that's continually trying to improve service. That's what I do every day.

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

Okay. Thank you.

Now we've talked at length about making sure that decisions are fair and equitable, and have the benefit of the doubt. I wonder what kind of oversight there is for VRAB. Who watches the watchers? Who ensures that the decisions are indeed fair and equitable? What's your measuring stick?

[The Chair, Liberal, Neil Ellis]

Sorry, we're down to about 30 seconds.

[Thomas Jarmyn]

There are two people or two groups who do it: you folks together with the Canadian public generally—that's why we make our decisions available for everyone to read—and the Federal Court. Both supervise our operations.

I'm confident that we've taken significant strides in the past five years to improve the quality of the work that we do. Every day I ask myself if we are doing better today than we did yesterday and how we are going to do better tomorrow.

[The Chair, Liberal, Neil Ellis]

I just have one clarifying question on the bonuses. Who actually votes to pay out the bonuses? Is it your board that looks at the performance bonuses and says, “Okay, we're going to put our hands up and pass these bonuses”?

[Thomas Jarmyn]

The chair, as the chief executive officer of the board, makes those decisions.

[The Chair, Liberal, Neil Ellis]

He alone, or the whole board?