:
Thank you, Mr. Chairman. Good afternoon, ladies and gentlemen members of the Committee.
[English]
I would like to make a few remarks before we get to a question period.
Since the inception of the Canadian disability pension system at the end of World War I, a constant feature has been the existence of an independent appeal mechanism so that soldiers and their dependants who were dissatisfied with the disposition of their claim can appeal.
The Veterans Review and Appeal Board fulfills that function today. The board and its function is sometimes greatly misunderstood.
[Translation]
I welcome this opportunity to appear before you today to discuss the Board's mandate and clarify its role in the disability compensation process. I will focus my remarks on a few subjects that are of key importance to the Board and of interest to the Committee.
[English]
As you know, the Veterans Review and Appeal Board is an independent, quasi-judicial tribunal and we operate at arm's length from the minister and report directly to Parliament through the Minister of Veterans Affairs.
One of our greatest challenges is breaking the misconception that we are part of the department. Let me be perfectly clear that veterans who come before the board can count on a completely independent review of their disability claims. We do not write the legislation, nor do we develop the programs. We are focused entirely on providing an independent redress system to ensure that veterans are treated fairly and receive the compensation benefits to which they are entitled under the law. It is no small job.
In 2005-06 the board adjudicated 6,594 claims on reviews and appeals of claims of disability pensions under the Pension Act, and a handful of final appeals on war veterans allowances cases under the War Veterans Allowance Act. In 2006-07 the board expects to be rendering decisions on claims for disability awards under the new Canadian Forces Veterans and Members Re-establishment and Compensation Act.
We carry out this tremendous workload with a team of full-time board members who are split between our headquarters in Charlottetown and major cities across Canada. Our members are well supported by an experienced staff of 80 located in our Charlottetown headquarters.
As you know, the disability compensation decision process consists of three levels. The first level is on the application to the department for benefits and the subsequent decision is made by an adjudicator in head office, working from the files and documents submitted by the applicant. From time to time the board is the subject of public criticism because a veteran or a group of veterans did not receive a benefit they had sought.
I would like to point out to the committee that when the board issues a ruling, that ruling is based on whether or not the correct decision was made by the department. When you receive a negative board decision from an upset constituent about a board decision, please remember that this decision is not a decision based on rules made by the board, but instead it is a decision that reflects the fact that the board has found that the Minister of Veterans Affairs has properly applied the legislation created by Parliament.
For those who are not satisfied with the department's decision, there are the review and appeal levels, which are the sole responsibility of the Veterans Review and Appeal Board. The board provides the first and only opportunity for veterans to tell their story and explain their case before the people who will make the decision on their claim. This oral testimony, as well as the testimony of their witnesses, plays a critical role in providing the evidence that can result in the board varying the departmental decision.
In 2005-06, 58.7% of reviews resulted in a variation of the decision of the department. These days the vast majority of applicants appearing before the board are former or still-serving members of the Canadian Forces, followed by active service veterans, RCMP, and their survivors and dependants.
Having been a board member myself, I can speak firsthand of the demands board members face. The change in our applicant profile from the traditional war veteran to the younger Canadian Forces member presents new challenges for the board. The files are larger, and generally the more voluminous the file the more complex the arguments.
As well, with the introduction in April 2006 of the new Canadian Forces Members and Veterans Re-establishment and Compensation Act and a new table of disabilities, the intricacies of the claims are expected to increase rather than diminish. Representatives and applicants have access to more information than ever.
Board members must remain abreast of new issues challenging the Canadian Forces and RCMP, advances in medicine and information constantly becoming available and presented at hearings. The direct consequence is that members require more time to hear and decide on a claim and the medical and legal issues are very often less straightforward than they were in past years.
Another criticism that the board frequently faces is that we are too formal, too court-like. As an administrative tribunal we make every attempt to operate as informally and as expeditiously as we can. In fact, our legislation tells us to do this.
In practice, this means that hearings are much less formal than in a court of law. However, our hearings are legal proceedings where applicants have the opportunity to be represented and make their case. The process is not adversarial, as there is no one at the hearing representing the other side; that is, presenting evidence that the applicant is not entitled to a disability compensation. The board members may question the applicant and representative to clarify issues. After all, if the issues were that clear, it is unlikely there would be an appeal.
Our hearings are not held in court rooms; they are in boardrooms and hotel facilities. Our members make every effort to make the applicants feel comfortable. They can appreciate how apprehensive applicants may feel about coming to their hearings and how matters of a personal nature may have to be addressed. For those applicants who would rather not appear, there are other options, such as proceeding by way of a written submission, or having their representative present their case in their absence. For those who are elderly or too sick to travel, we are pleased to accommodate their participation by telephone hearings.
In 2005-2006, the board held 887 review hearing days in 34 locations across Canada from Victoria to St. John's to allow applicants access to their hearing and to allow them to give testimony.
[Translation]
As mentioned earlier, the Board carries out two levels of appeal. Following the review level, if an applicant is still not in agreement with his or her decision, an appeal can be filed with the Board. I often encounter the misunderstanding that the same Members who heard a case at review may hear that case at appeal. That is not the case at all. It is spelled out clearly in the legislation that three new Members, who did not participate in the previous decision, will sit at the appeal level. The appeal hearing is an entirely new proceeding, new evidence can be presented, and each appeal is decided as if the case was being heard for the first time.
[English]
I sometimes hear the question, “Why can't claimants attend their appeal hearings?” In fact, appellants are welcome to attend, at their own expense, their appeal hearings. However, the legislation states that no oral evidence may be heard at appeal. Only documentary evidence and oral argument may be presented to the board.
Most appeal hearings are held in Charlottetown, and representatives are welcome to make arrangements via teleconference for their clients to listen to the proceedings, should they so desire.
I would like, for a moment, to direct my remarks at some of the rather unique aspects of the disability compensation system. For example, there are no time limits on any of the levels of redress. The board frequently receives appeals on decisions made up to 50 years ago.
Also, even though the VRAB Act states that a decision of an appeal panel is final and binding, there is an extraordinary provision that allows applicants to apply for a reconsideration of their decisions if they have new evidence, or if they can demonstrate that there was an error in law or fact in the appeal panel's decision.
The reconsideration is not another level of appeal. The claimant is simply asking the same panel to take another look at the decision based on the aforementioned reasons.
A complaint that I sometimes receive, as does the minister--and you may have heard it from your constituents--is that the board did not give the veteran the benefit of the doubt, as stipulated in legislation.
Adjudicating is not an easy job. The cases of the men and women who come before the board are often compelling. These men and women have served their country well and honourably in times of both war and peace. However, as a tribunal, we do not have the power to disregard or change the legislation. Members must decide appeals on the basis of the evidence available to them and the legislation as it stands.
The best interpretation of the “benefit of the doubt” can be found in Federal Court decisions such as Hall v. Attorney General of Canada. The decision reads:
While the applicant correctly asserts that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn, and any reasonable doubt resolved in his favour, he still has the obligation to demonstrate that the medical difficulty from which he now suffers arose out of or in connection with his military service; that is, the causal linkage must be established.
Everything is far from perfect in our system, and that is why we are always striving to improve our methods of operation. In the last few years we have undertaken a number of initiatives to improve service to applicants and to show Canadians that we are taking a fair, balanced, and serious approach to our responsibilities as the court of last resort in the veterans’ redress system.
As you know, a nationally advertised process inviting Canadians to make application for appointment to the board has been put in place. As well, in 2005 we conducted a client satisfaction survey with applicants who had received a decision from the board. The results have identified areas where we can improve our services, and we are in the process of developing an action plan to address those.
We recognize that applicants require more information about the process. We have been improving communications through fact sheets and our website, and we are developing a brochure that will provide appellants information on the review and appeal process.
We have also worked very hard to meet our service standard of issuing written decisions within 30 days of the hearing. This year, although our numbers are not yet final, we issued 90% of review decisions in 31.6 days and 90% of appeal decisions within 30 days after the hearing.
Most of our applicants are represented by lawyers who are independent from the board. Once we have been notified that the representative is ready to proceed to a hearing, we schedule the case for the applicants for as soon as possible.
You must remember that the time it takes for representatives and applicants to prepare their case is entirely out of our control. We monitor the age of claims and communicate frequently with representatives to ensure that cases do not stagnate in the system.
[Translation]
As I stated earlier, we know the system is not perfect but we are striving to improve it in areas where there are deficiencies. I am, however, proud of the work of the Board and I am thankful for the support given to this Board and its predecessors by the government, by Veterans' groups, and by the people of Canada.
[English]
I am also proud of the efforts made by the members of the board and the staff who support them. They are a sympathetic, dedicated, and motivated group of people. Sometimes we don't realize what a generous, open, and proud tradition of service we have in this country. We on the board realize what those who serve do for Canada, and we do the very best we can for them.
Thank you, gentlemen.
:
As the chairman mentioned, we established an appointment process in December 2004. Through various means of advertising since that time, most recently nationally in newspapers, we've been using the process to assess proposed members on the basis of competency and experience. It's a transparent and professional process.
It involves three stages. The first stage is something called a screening committee, where we have independent individuals who go through all the applications looking at a series of experience requirements and education requirements. Those individuals who meet the requirements are invited back for a formal written assessment to assess certain elements of knowledge, skills, and abilities. If they are successful at that stage of the process they are invited for an interview, where they are once again assessed on ability and knowledge, followed up with reference checks.
All of the information about our process can be found on our website, including the names and biographies of the individuals who participate on both the screening and interview committees.
Once the interview committee has found individuals to be qualified, they are put into a pool of qualified candidates, and based on the operational requirements of the board the minister will draw from the pool for appointments and make recommendations to the Governor in Council. I believe we gave the clerk a chart, which could be distributed, that simplifies this process in very few words.
The next chart is simply a summary of the decision-making process. It shows a bit about the volumes. As you can see, there are various levels of decision-making, so individuals have quite a few opportunities to come back to request a review of their decision: going through the department, there's an opportunity for them to have a departmental review; there are two levels of redress with the board; and then an opportunity to come back to have their decisions reconsidered on the basis of new evidence or if there is an error in fact or law. There is no limit on the number of times or the amount of time that can transpire for returning to the board, should they have new evidence. At the end of the day, they can go to Federal Court to request a judicial review.
We've given you a bit of an overview on the volumes of cases. For example, the department makes around 36,000 decisions, which we call first decisions, on disability pensions and is soon to be involved in awards. They have a 60% favourable rate; in other words, they've made decisions that are in favour of the applicant.
At the board we receive around 4,870 requests for review hearings. As you can see, not all dissatisfied applicants decide to pursue a review or appeal. We vary approximately 59% of those decisions in favour of the applicants once again.
If individuals are still dissatisfied with their disability pension or compensation decision, they can request an appeal hearing. In both of these stages it's a right of appeal. They do not have to demonstrate grounds upon which they wish to appeal; they just have to be dissatisfied with their decision. We receive about 1,510 appeal applications per year and vary around 38% of those in favour of the applicants. We receive approximately 205 applications for reconsideration yearly and reconsider 122 of them. Based on the criteria to reconsider, most of those turn out to be favourable. In any given year, we average about 25 cases at federal court.
We're not a party in federal court. It is the Attorney General and the applicant who are actually in Federal Court.
With respect to board members, we usually have about 29 board members. There are two types of board members, and it's always complicated to explain these. We're limited to 29 permanent members and any number of temporary members, based on our workload. The only difference between permanent and temporary is the eligibility for appointment tenure and the length of time for which someone can be appointed.
All members hold office during good behaviour, and it's important to note that this is a full-time occupation. Our members work full-time at the Veterans Review and Appeal Board and cannot hold another occupation while they're working for us.
We have a little map here that shows the current distribution of our members. We tend to have members located in cities where most of our work is. It's very gruelling work to be travelling around the country to hearings, and naturally we try to locate members where we have the greatest volume of workload. That tends to be in the Vancouver-Victoria areas. We're short members now, but also Edmonton, Montreal, Ottawa, Toronto, and Quebec City. In the Maritimes we serve Halifax, St. John's, and New Brunswick out of Charlottetown with our members.
You've probably noticed a trend there. Our greatest volumes tend to be in areas where we have significant Canadian Forces populations, since that's the majority of our clients right now.
We'll be back talking about main estimates, so I won't go into details on the budget, but we have about a $9.4 million budget, and as mentioned before, the majority of our budget is devoted directly to operational support around hearings. We report annually through Parliament with both performance reports and plans and priorities.
Our breakdown of appellants is a bit different in terms of clientele from that of the department. Most of ours tend to be Canadian Forces. Over 75% are Canadian Forces, and the remaining smaller number tends to be World War II veterans and a small number of survivors, and about 7% within that 25% would be RCMP.
Pretty well everybody is represented by the Bureau of Pensions Advocates and about 5% are represented by the Royal Canadian Legion service officers at both review and appeal levels. We do see some private solicitors or some applicants who may choose to represent themselves, but if they choose to have someone represent them it's at their own cost, as opposed to the free service provided by the Bureau of Pensions Advocates and the Royal Canadian Legion.
As I mentioned to you, our favourability rates are indicated here, and overall about 59% are varied in favour of the client at review and 38% are varied in favour of the client at appeal.
The chairman mentioned that at review, the first level of redress is the first opportunity that appellants have to appear before the individuals who actually are making a decision in their claim, so they have the opportunity to give testimony and to bring in witnesses to provide testimony. Most applicants attend their review hearings. That's probably the unique difference in adjudication between what happens in the department and what happens at the Veterans Review and Appeal Board.
We hold hearings just about every week of the year, and we have about 34 different locations that we travel to. In fact we'll go wherever there's a significant volume of cases to be heard. All of our hearings are taped. The decisions are all in writing and sent to the appellant, hopefully within 30 days of the hearing. We found in our survey--which we're soon to be releasing--that most appellants feel they've been treated with courtesy and respect, that they've had an opportunity to tell their story at an independent review, and that they had a reasonably good feeling about the hearing.
By the time a case gets to appeal the issue has become very fine and narrow, and the hearings tend to be much shorter. They're held in Charlottetown, and as mentioned, applicants do not usually attend the hearings. A large number of our hearings at appeal are written submissions. We do some by video conference and certainly, as the chairman mentioned, if an applicant really wants to hear their hearing we can plug them in by telephone for that.
Once again, decisions are sent in writing and these decisions are final and binding; however, they can apply for a reconsideration.
With the aging veteran, we have fewer and fewer war veterans allowance cases yearly. We do a handful--less than 50. Basically that's because once a veteran reaches age 65 the war veterans allowance ceases. It's an income replacement program for the veteran, basically.
There are no time limits, as mentioned. We hear very old appeals heard by agencies that existed many years ago and oftentimes people don't appeal right away. However, we know that the Canadian Forces members and former members tend to appeal much more quickly than the traditional World War II veteran did in the past, so we're seeing their cases go through far quicker.
Lastly, the board also has authority to give an award called a compassionate award. It is basically for individuals who've been refused an award under the Pension Act or the new veterans charter act and they've exhausted all levels of redress. The board, under certain types of criteria, can grant a compassionate award and fix the sum.
Lastly, I mentioned Federal Court. Fortunately, we only have about 25 cases per year that we see and we certainly pay a great deal of attention to the direction and information that comes back from the Federal Court. We are a very busy board. I think we're the third-largest board in terms of volume of cases heard per year. In the last number of years we've been hearing over 6,000 cases. We are projecting to see that continue, if not grow somewhat.
I think the chairman already talked about a service delivery standard performance as well as the benefit of the doubt, so that's a very quick summary.
I'd be happy to answer any questions.
:
We swapped, but if I don't use up all my time, it will go back to Anthony.
Thank you, Mr. Chair. Thank you, witnesses, for being here.
Among the many very interesting points that have come up this afternoon, what stood out to me was your reference on page 4 of your notes: “The change in our applicant profile from the traditional war veteran to the younger Canadian Forces members presents new challenges for the Board”. We've all had many conversations with veterans from the Second World War, and it brought into sharp focus a conversation I've had a few times with one of my elderly constituents in the little town of Massey in my northern Ontario riding.
He, for years and years, has been trying to get his disability claim for a knee injury recognized and accepted. He described for me the context, so when I read this, I thought there sure is a change in the context from the early days of World War II to these new recruits going in. Often--most times--they are teenaged boys or, I should say, young men. He described being injured in training. He had an injury to his knee. I believe he's had surgery and I'm not sure about a knee replacement, but it bothered him his whole life.
He recounted the peer pressure--in fairness it was a challenging time--to just go ahead and put up with the pain and go out marching, and the pressure not to be seen as a wimp or as a weakling, which of course he was not and is not. He suffered through it, but to pay the price, in his mind, later on.
This is not to question the decisions on this particular case, because I'm not going to give you his name, of course, but are the board members trained to make that paradigm shift from the 1940s to today? When they're dealing with cases now, as you mentioned yourself, Mr. Marchand, the appellants are much more knowledgeable about the rules and their rights. When you're a young teenaged man in the 1940s--or maybe shortly after the war, in the late 1940s or early 1950s--making these claims, your degree of sophistication is much lower. I know this is acknowledged, but is it actually in the training for board members? Are they told, when they're dealing with somebody from World War II, to look at it this way? Not that you're being unfair to somebody from modern times, but it was a different time. I would like your comments on that. I find it interesting.
:
I have to go and sit in the NDP spot? I don't think so.
I had the opportunity to visit Charlottetown last summer, and I saw the operations. I was very impressed with the amount of feeling that goes into it. A lot of caring goes into the decisions. They're not taken haphazardly.
When you have an appeal, though, I guess one of the points that was brought up earlier was the fact that it's another generation. It's not the generation that maybe you know, that I know, that it's okay to do this over the phone, or it's okay to do this via video conference. It's the personal touch, and that's a concern that keeps coming up over and over again in the riding: “I talked to the guy on the phone and I don't know what he looks like.” That eye contact means a lot.
Now, failing to have that, we can look at the people who are on the board and the representation they give. I looked at the map on page 12, the one that shows the distribution of the members. If you can't relate to that person because you can't see them, sometimes it helps to know that they're from the same region you're in, or the same area, so that there is that bit of understanding. According to the distribution on the map, we have 19 members, but the west is not represented at all. There are none from Alberta, none from Manitoba, none from Saskatchewan. Ontario, which is probably the most populous province, only has four. There are eight out on the east coast, five in Quebec, two in British Columbia, and none in the territories. There are ten spaces that have to be filled.
What are the timelines for filling those spaces, and how representative will they be of the Canadian population, spread across? We are one strong and united country, but we do have regional differences, and it would seem that someone from that area would be able to relate better to someone they know. Is that anything that comes into consideration, as opposed to just a very cold bureaucratic front that people come up against?
I'm looking for that connection between the person who's representing and the person who's being represented.