Veterans Affairs Committee on June 16th, 2016

[Colin Fraser, Liberal, West Nova, NS]

Are they full-time lawyers on staff? They don't do other work as members of the bar.

[Anthony Saez]

That's correct.

[Colin Fraser, Liberal, West Nova, NS]

They are paid a salary then, I take it, and are not retained in some other capacity working for a private law firm. Is that right?

[Anthony Saez]

That's correct.

[Colin Fraser, Liberal, West Nova, NS]

On the level of independence then, they are members of the provincial bar where they are working as lawyers for the bureau, is that right?

[Anthony Saez]

That's almost right. They all are members of a provincial bar. Because they're working for the Government of Canada, they don't have to necessarily be a member of the bar in the jurisdiction in which they're practising, but yes, they are all members of their respective law societies and subject to that law society's rules and regulations and values and ethics.

[Colin Fraser, Liberal, West Nova, NS]

Right, I understand.

If there's some question about the independence of lawyers, for example, in your mind that would be answered by the fact that they have a professional responsibility to the bar society of which they are members and therefore subject to all of the rules and regulations that go along with that, including resolutely advocating for your client and maintaining the solicitor-client relationship, including confidentiality? Is that right?

[Anthony Saez]

That's exactly right and, in fact, that's in the legislation itself. The law says we must do that, and certainly for advocates to be lawyers with the Bureau of Pensions Advocates, they must be licensed. They can only be licensed by their respective bar societies if they are following the rules and regulations laid out by that bar society. This doesn't happen very often at all, but should it happen in a case that the duty owed to the client as set out by the bar society is in conflict with any rules or regulations established by the Department of Veterans Affairs, the duty to the client wins out every time.

[Colin Fraser, Liberal, West Nova, NS]

On that same line, I'm wondering about the filing system that the bureau would have with regard to the client files. Are they maintained in a similar fashion to a private law firm, for example, in respecting that relationship?

[Anthony Saez]

Yes, that's correct. There's a firewall between us and the department, and the department has no access to our files. In fact, based on how we work and register claims that come in, the department doesn't even know that a particular veteran is a client of the Bureau of Pensions Advocates.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

Can you help me understand then what happens with files after they are closed? Are those dealt with subject to the bar society, for example, and they have to be maintained accordingly?

[Anthony Saez]

Exactly.

Because we have offices across the country, we've taken the strictest standard for records conservation and that, I believe, belongs to the Province of Quebec where they have—don't quote me—I think about an eight-year rule. So all of our files across the country are kept for that period.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

I'm a lawyer. When I was in private practice I know that sometimes difficulties arose between the lawyer and the client, and for whatever reason there was a difference of opinion and perhaps the solicitor-client relationship would break down and that usually necessitated, perhaps, another person taking on the file.

I'm wondering if that occurs at the bureau and if it's treated in a similar fashion where, in appropriate cases, the file would be transferred.

[Anthony Saez]

Yes, in the end we're all human beings and that happens, not very often, but once in a while it might happen. It might happen because there's a difference of opinion between what the lawyer believes is the best strategy and what the client wants to do.

Sometimes there are issues of people presenting with psychological issues, and it may be more difficult for them to establish a relationship with a particular advocate, so we will, without hesitation, change the advocate for them to make sure they find the right fit.

[Colin Fraser, Liberal, West Nova, NS]

Would that happen at their request, for example?

[Anthony Saez]

Yes.

[Colin Fraser, Liberal, West Nova, NS]

So if somebody were to be given advice by the lawyer that their case really didn't have much merit—which, I'm sure would inevitably happen from time to time in any tribunal-type system where somebody would feel aggrieved and want to take it to the tribunal—and if the client or the veteran was not satisfied with that advice and it caused them some strain as they wondered whether that lawyer would actually resolutely advocate on their behalf, then a fix for that situation could be to transfer the file to someone else. Has that happened?

[Anthony Saez]

Yes. Generally most people who are advised that their claim isn't very strong will take the advice. In some cases, they don't take the advice and they instruct us to proceed and, generally, they are still satisfied with their lawyer.

If an issue does arise, though, it will spark us into action to perhaps get them a new lawyer. Occasionally, their issue isn't necessarily with the individual lawyer. It might be with the bureau, generally, because perhaps they have a philosophical issue with it. Again, that doesn't happen very often, but on the rare occasion that it happens, we turn to the Royal Canadian Legion. After the bureau, the Royal Canadian Legion is probably the one that represents most clients.

[The Chair, Liberal, Neil Ellis]

Thank you.

Ms. Mathyssen.

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

Thank you very much, Mr. Saez. It's good to see you again. I appreciated the opportunity to meet you in St. John's.

I have a couple of questions. First of all, are the kinds of cases you receive in the bureau and cases that would have a chance before the veterans review board largely because of missing documentation or evidence? What would be sort of the average or usual case that you would undertake?

[Anthony Saez]

That's a good question.

Sometimes I'm asked by people why we have to deal with 10,000 files a year, because that's a lot. They ask why the department gets it so wrong. In fact, it's not that the department is getting it wrong. The department is adjudicating based on the information the client is able to provide, and then it makes its ruling based on that.

The bureau offers a more enhanced, deeper look at the file, something that the adjudicators at first instance certainly couldn't do. If they did, they'd probably gum up the whole system.

We're offering that extra level of scrutiny, and not just from the point of view of purely facts. When adjudicators adjudicate, they can only look at the facts as presented in the application form. We also consider points of law. We also have the benefit of being able to bring the client and witnesses to provide oral testimony before the board members, which obviously can't be done during the application process.

I think this enhanced level of scrutiny is the focus of our work.

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

Thank you.

There's an interesting saw-off here. One of the things we hear from veterans is that they're rejected initially by VAC. You said that the caseworker or the adjudicator can't take an in-depth look because it would gum up the works. It has been suggested that in the case of an application from which documentation is clearly missing, the caseworker could simply make a telephone call and say, “I cannot process this as is because you've forgotten something” and it could be something quite simple.

[Anthony Saez]

I think as of about eight or 10 months ago, the department did start to do that. It is actually calling clients with those questions. In a departmental review, when we send something back to the department and we say to the client, “You know what? We can help you find this little piece of paper that you're missing, and the department will probably grant you this instead of it having to go through the Veterans Review and Appeal Board”. The evidence that we're dealing with there is the kind of stuff that at first application the department wouldn't necessarily be aware of. It's what I mentioned earlier—something that the client forgot about, or that they didn't think was important to bring up. It's the kind of information the department wouldn't necessarily have available to it, but when we start to scratch the surface, we can identify it and send it back to the department.

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

Thank you.

You say you have 30 lawyers and an individual advocate might have anywhere from 300 to 350 cases and be required to dispense of 195 per year. That means that there's a considerable waiting list. Does this lead to frustration on the part of both the veteran and the advocate? Do you have enough lawyers? Could you use more lawyers? Is there any difficulty securing lawyers? Is it hard to attract enough lawyers to this job?

[Anthony Saez]

That's a good number of questions.

I'll start with attracting lawyers. It can be a challenge, depending on where you need them and depending on what the linguistic profiles for the positions are. We have made it simpler to find lawyers with the appropriate linguistic profiles by establishing the initiative that I mentioned in my opening remarks, the advocates without borders initiative. Before, essentially, the bureau was 15 separate legal offices working within their own silos in their own cities. By breaking down those silos and by creating the same business processes across the country, standardizing business processes, we're now able to move files around so that they can be dealt with in an office that might not be quite as busy as another office, in an office that has the lawyers who have the linguistic profile necessary for that particular file.

From that perspective, the advocates without borders initiative has allowed us to work more effectively with the same number of lawyers.