Mr. Chairman, I wish to take this opportunity to thank the committee for allowing me to make one more appearance before the end of my term as the Veterans Ombudsman.
[Translation]
I was invited to appear before the committee to explain the activities of the Office of the Veterans Ombudsman.
[English]
I would also like to use this occasion to reflect upon lessons learned in the almost three years that I have served as Canada's first Veterans Ombudsman.
For example, in the recent case of the Dyck family, I firmly believe that the way Brian, Natali, and little Sophi Dyck were mistreated illustrates everything that is contemptible and wrong about the way Veterans Affairs Canada treats our veterans and their families.
[Translation]
Brian Dyck served in the Canadian Forces for more than 10 years, especially during the first Gulf war.
[English]
In a subsequent career as an Ottawa city police officer, he fell victim to ALS, or Lou Gehrig's disease, a fatal disease whose cause is unknown today.
The United States government has determined that people who have served in their military have a much higher propensity for early-onset ALS than the general population. The chances of military personnel who served in the first Gulf War contracting early-onset ALS are even greater.
The statistical evidence is so compelling that the U.S. Department of Veterans Affairs has ruled that any military person who served in the Gulf War who contracts ALS will immediately receive full benefits. If Bryan Dyck had served in the U.S. forces, their DVA would have launched immediately to support him and his family.
Not so in Canada. To the contrary, in fact, in a letter dated May 27, 2010, the deputy minister of Veterans Affairs Canada went to great lengths to describe why our Canadian system does not support veterans who contract early-onset ALS.
The Office of the Veterans Ombudsman recognized the reasons were completely fallacious, reflecting not the letter of the law as it was intended to support our veterans, but overly restrictive policies and practices deliberately imposed by senior bureaucrats and central agencies to preserve the public purse. The Office of the Veterans Ombudsman therefore undertook to ensure that all Canadians shared the Dyck family's great sorrow and hardship as Brian died a slow and painful death before their very eyes.
I also wanted Canadians to witness first-hand how Veterans Affairs Canada was cheating the Dyck family out of the veterans’ services and benefits they deserved. At the same time, we urged the family to have the department's decision reviewed by the Veterans Review and Appeals Board.
Here is a quick chronology. The Office of the Veterans Ombudsman petitioned the Veterans Review and Appeals Board to expedite the Dycks' hearing, which they did on September 8; the Prime Minister intervened on Friday, September 17, pledging to provide help to Canadian war veterans fighting this deadly disease; the board rendered a decision in favour of the Dycks on Monday, September 20, although they reported to Global News they had made their decision before the Prime Minister's announcement; Brian Dyck died tragically on October 8; and on October 15, the Minister of Veterans Affairs Canada announced that Canadian veterans diagnosed with ALS will no longer have to fight for health and financial benefits.
Several issues are particularly disturbing in this case.
First, the deputy minister herself justified the decision to deny the Dycks their benefits. She explained that the statistical evidence in the U.S. studies is not sufficient proof in Canada. Paraphrasing her rationale, she argued that our adjudication process requires that a veteran either display symptoms of ALS while in an operational theatre or be able to prove a direct relationship to military service. However, when the case came under serious scrutiny, the board readily reversed the department's decision, based on the findings of those very studies. This demonstrates how truly arbitrary and susceptible to undue influence the system is.
Second, had the department applied the “benefit of the doubt” clause as it was intended, they would have approved the Dycks' application in the first place. Promoting this case as an intervention on behalf of veterans suffering from ALS conceals the reality that many thousands of veterans continue to be disadvantaged by their excessively high burden of proof. The minister's announcement on October 15 was self-serving and cosmetic, demonstrating a preference to mask the symptoms of a severely diseased system rather than bite the bullet and effect substantive change that, once and for all, will ensure our veterans will be treated fairly.
Mr. Chairman, I have been asserting since my press conference on August 17 that the culture of Veteran Affairs Canada and the Veterans Review and Appeal Board has to be changed, and this case is clear proof that it does.
Up until now, I have placed the blame for the poor treatment of our veterans squarely on the shoulders of senior bureaucrats. While I am more than committed than ever to the substance of my accusation, parliamentarians are also deserving of the shame for the shoddy treatment of our veterans.
What we are witnessing today are some very good lessons in very poor leadership. Leadership is not a position. It's the relationship with followers that is defined by trust, confidence, and loyalty. The leader of a group of lost children trying to find their way out of the woods is not the child at the front of the line. The leader is the child with an idea of how to get out of the woods and the courage to try. A leader without vision, and the moral courage to pursue that vision, is nothing but a manager.
Shame on Veterans Affairs Canada for preferring to manage this crisis they find themselves in and maintain the status quo. Shame on Veterans Affairs Canada for blaming the rank and file for the deplorable way our veterans and their families are treated.
Veterans, departmental staff, and board members need leaders they can trust and have confidence in, leaders with a vision of how to fix this terrible system and the courage to challenge the institutional rot and obstructionism. The insurance company culture of denial must be forever eradicated from Veterans Affairs Canada and the Veterans Review and Appeal Board.
In case you do not have a vision to initiate enduring change in the culture of these organizations, today I will offer you my priority to-do list.
First, as we speak, members of the CF and the RCMP are sacrificing their lives for the government agenda, yet veterans have very little influence on the system that looks after them. Relationships with the major associations are superficial at best.
Therefore, veterans deserve dedicated representation inside the machinery of government. The government should legislate the Office of the Veterans Ombudsman so that parliamentarians cannot exert undue influence and bureaucrats cannot manipulate or obstruct it. I have proposed a drafting instruction, which is included at flag three of my presentation.
Second, the standard of proof that the department and the Veterans Review and Appeal Board expect veterans to meet is interpreted as per the balance of probabilities in civil tort. This is wrong. Legislation intends a much lower standard in the so-called benefit of the doubt. A more accurate interpretation is enclosed at flag four, based on much of the writings of this report I have beside me, the Woods committee report, which goes into a great deal of depth on the philosophy about the way we have treated and should be treating our veterans.
Third, the Veterans Review and Appeal Board is the only federal tribunal that fails to make its decisions public. Therefore, it should be directed to start publishing its decisions forthwith, and former decisions should be admissible as evidence in the appeals process.
Fourth, the Veterans Review and Appeal Board currently employs the same staff for both reviews and appeals. This collective approach lends itself to undue influence and potential bias. Therefore, the board should be compelled to have dedicated and separate review members and appeal members.
Fifth, veterans who wish to appeal board decisions before the Federal Court must do so at their own expense. The Bureau of Pensions Advocates should be empowered to represent select cases in the Federal Court when it is felt there is potential to serve the greater good.
Sixth, the Veterans Review and Appeal Board has been selective in how it adheres to decisions of the Federal Court. They should be compelled to conform to those decisions that are advantageous to veterans and their families.
Seventh, the department's capacity to conduct research is very limited and has had little impact on improving the treatment of our veterans. Veterans Affairs Canada should therefore be directed to be more proactive in effecting research that benefits the veterans community by partnering with other organizations and by adopting research conducted by allied nations.
Eighth, the government's commitment to keeping veterans programs and services current and relevant is simply woeful. Therefore, the department must be mandated to actively and frequently update programs and, when required, to urge the government of the day to make amendments that reflect leading-edge knowledge, best practices, and lessons learned, to advantage veterans and their families.
Ninth, the department's aversion to taking risks is excessive, and the control measures they employ cause an unacceptably poor standard of service for veterans. Therefore, Veterans Affairs Canada should be compelled to decentralize decision-making to the levels and locations where it will best advantage veterans and applicants.
Tenth, departmental adjudicators will not communicate directly with veterans and applicants to ensure that applications are accurate and complete, which causes unacceptable turnaround times, confusion, and wasted effort. Therefore, Veterans Affairs Canada should be directed to engage directly with veterans and applicants, as is the practice with other service providers of government.
Eleventh, the inefficiencies in the system can cause the adjudication process to literally take years, but the retroactivity upon approval is limited. Government should mandate that retroactivity be applicable to the date of first application.
In conclusion, these are only a start. They are some positive steps towards destroying the insurance company culture that fails to fulfill the obligation of the people and Government of Canada towards the veterans who have served this country so well and to their families.
These are measures that the government of the day can effect with a sweep of the hand, in the same way that it recently injected $2 billion into the system. Without substantive and enduring cultural changes to the system that mistreats our veterans, however, any promises of improvement are as shallow as Brian Dyck's final breaths.
Merci.
:
Mr. Chairman, first, I appreciate the comments by the honourable member.
I would like to emphasize that the people within the system are not the problem. Many employees of the department and members of the Veterans Review and Appeal Board have come to us complaining about the system that ties their hands. They are the ones who have to deal with our veterans and give them the unfortunate news.
I could characterize the processes. My 11 priorities are focused very much on processes. It starts from the application process, when, if an application is incomplete, rather than phone the applicant, or the veteran, or the pensioner—I hesitate to use the terms “client” and “claim”, because this is not an insurance company—as would happen with employment insurance, they mail it back as incomplete, with letters that many veterans find incomprehensible. It starts at that level.
The degree of interaction that the members of Veterans Affairs have with the veterans--particularly the higher management--should be changed. They should become more sensitive to the impact of what they're doing and how it affects the veterans.
Within the Veterans Review and Appeal Board, once again, I've highlighted the major changes in process that should take place. I would submit that perhaps there would be financial implications for the board, but these are simply changing processes, such as publishing their decisions. The board has told me that it will cost them $4 million to effect this. What is the cost of fairness?
I would also say that these things have to be attacked comprehensively. If I had been given the fullness of time, it was my intent to work with both of these organizations to change the situation. But I would submit that if the department had been doing its job and if it had been exercising the benefit of the doubt since 1923 when it was first started, as described in chapter 8 of this book in great detail, then, first of all, the number of complaints that make it to the Veterans Review and Appeal Board would be much lower. I have submitted to the deputy minister that the 60% overruling rate that the Veterans Review and Appeal Board brags about is a 60% failing on the part of the department.
We should be looking at things comprehensively from stem to stern.
:
Mr. Chairman, I would be only too pleased to.
What I would say is too prevalent in the “benefit of the doubt” as it's interpreted by the department and the Veterans Review and Appeal Board is that it's too legalistic. And when the only tool you have in the drawer is a hammer, you tend to make the work fit the hammer. As for the lawyers and their definition, I found it striking that it was much more akin to balance of probabilities, although it doesn't say so much, than it is to the letter of the law and of course the interpretation that exists in here.
I'll say two things.
First of all, when I first read their interpretation, I saw that what is missing is the definition of “inference”, although there's all sorts of talk around the subject. But I had a young summer student do an academic investigation and a paper into the definition of “inference”, and it came back conclusively from numerous sources, fully attributed, that an inference is not a measure of truthfulness, it is a measure of sound logic and reasoning. In fact, it could be incorrect or not truthful.
The second piece is that there's no definition of what a “doubt” is. I've gone to great lengths to include that in my paper, because as we know, in criminal courts and in fact in civil litigation, lawyers will go to great lengths to try to create that doubt. When we ask adjudicators for their definition of “benefit of the doubt”, they'll go, “Well, fifty-fifty, and then we'll give the benefit of the doubt”. That's not it at all.
As is pointed out in the Bible, if you will, or the Torah or the Koran, just so I don't insult any particular group, it makes very clear that the case should be judged based on the evidence that's presented in the absence of any contradictory evidence. Then, if it's reasonable to believe the claim of the individual—and I say “claim” in the literal sense—they should rule in favour of the applicant.
In fact, they say that the preponderance of evidence, as I use in my example in the final paragraph of the paper that I submitted to you, could indicate that there were alternative sources to a disability that refute the claim of the individual. But in paragraph 3 of the “benefit of the doubt”, they're very clear in saying that any doubt—any doubt—is to be resolved in favour of the claimant.
I don't know if that expresses it, sir.
:
Mr. Chairman, I couldn't agree more.
As I've said, the board must make efforts to become completely transparent. That's the nature of a democracy and it's one of the principles of natural justice. It's not that justice is done; it's the perception that justice is done.
Right now, there is an overwhelming perception within the veterans community that they're being cheated, and I have to say after three years that I've seen the evidence. I've challenged the department and the Veterans Review and Appeal Board to educate me to the contrary, but it's quite clear that it should be changing.
Interestingly, not only do other tribunals publish their findings, but when veterans, at their own expense, take their appeal to the Federal Court of Appeals, it will publish all the information. So there are ways around this.
The board also suggests that translation becomes a problem. There are ways around this. There is no excuse for that feeling amongst our veterans.
I would not for a second suggest that all the claims veterans make are justified. I have actually confronted veterans and explained the laws of the land to them.
However, I would submit that because of this feeling of being cheated that is so prevalent within the community, we've gone from where we no longer simply have veterans advocates but veterans activists. They are people who make it their sole job in life to attack and to discredit the department. Indeed, there have been individuals who have tried to discredit the Office of the Veterans Ombudsman--one who testified before you here.
To make matters even worse, we're seeing a day of protest on November 6. The fact that I had to do what I did on August 17 just to satisfy my conscience, and the fact that veterans are standing up and being counted on November 6, I find that very, very distasteful, but that's the state of affairs right now in terms of the natural justice they're facing.
If I could just go on to another issue, I remember that when the Veterans Charter was first implemented, one of the concerns I had was the lump sum payment that comes out. What happens all too often is that veterans are injured and then are looking for an income stream to keep them going for a period of time, sometimes for life--and more often than not for life. They're broken, and it's a matter of getting back together again or trying to survive under the circumstances they've been exposed to, through really no fault of their own, but just as part of what they do.
Now, one of the concerns I had with a lump sum payment was that when someone gets a lump sum, the intent is for them to take the money, go off into private life, start up a business or invest it, and go on. Again, these people need help. I mean, these are our veterans, people who we have relied on, and people who are relying on us now. We're giving them a lump sum and sending them off.
That was my concern. It's almost like a buyout. You mentioned the insurance mentality. That was the concern I had. What I was told was that they would get financial advice when they got that money so that they would be able to invest it, so they would be able to do something. My concern was that, sure, but they might go out and buy a new truck, or buy a new car, or spend it on something that wouldn't be there for them down the road.
What experiences have you seen as far as a lump sum payment goes, as far as it goes in providing revenue or providing an income stream for the long term, for the lives of those veterans?
Thank you, Mr. Stogran.
I'm the only one of the committee members here who was here in 2006 when we first started down the road of the Veterans Charter. I was very optimistic. I felt it was an action that needed to be started. I felt, maybe as you do now, that veterans were not given the respect they deserved or were not taken care of by the Government of Canada and a grateful nation.
But we had witnesses in during the time that we put together that charter, and the stakeholders told us what the needs were, and we incorporated those in the charter. We worked hard to put something together that was beneficial to the veterans. We knew it wasn't going to be perfect, but we had to get started. On the criticism of the charter, quite frankly, I have a little bit of a problem with it, because we did start it and we got the ball rolling. You can criticize it, but at least you have something to criticize now.
It was the same with the ombudsman. We decided that we needed an ombudsman to deal as an advocate for veterans because we felt they were not getting a fair shake, as you said, from the department. We put together your position and I was very optimistic; I thought it was a good thing for veterans. I really did have a heart to help veterans.
So there are issues here that we're learning about, and I thank you for the input and, as my colleague said, for the great suggestions you have now forwarded about how we can improve what we started. But ultimately we did start, and we had the best intentions for helping veterans. I think everyone on this committee is committed to continuing this, and that's why you're here today, sir.
One of the things you mentioned during your testimony was that you didn't really have a reporting person or connection to the deputy minister, the minister, or the Prime Minister's Office. I find that in a job description when I'm hired: I have somebody to answer to and to whom I bring my reports and my concerns. I find it difficult to believe that you didn't have something in writing that gave you the job description and said who you would report to and what your duties were as the ombudsman.
Was there anything such as a formal draft of a job description or your duties and your role as ombudsman and who you reported to?