For more than 15 years, thousands of veterans and serving members
of the Canadian Forces (CF) and the Royal Canadian Mounted Police (RCMP)
suffering from illness or injuries related to their years of service have
turned to the Veterans Review and Appeal Board (VRAB) to appeal disability benefit decisions made by Veterans
Affairs Canada (VAC).
However, in recent years, veterans’ organizations have expressed
public criticism of VRAB activities. Some criticism was also raised by the Veterans
Ombudsman in his report on VRAB entitled Veterans’ Right to Fair
Adjudication, which he submitted to the Minister of Veteran Affairs in
March 2012.
Although VRAB has been implementing a number of measures to improve
the way it operates and provides services — some of them in response to the
Veterans Ombudsman’s report — veterans, veterans’ organizations and others have
continued to voice concerns about the Board’s activities.
The House of Commons Standing Committee on Veterans Affairs
(referred hereinafter as the “Committee”) decided to undertake a review of the
Board’s activities. In the course of this study, the Committee received testimony
from a number of witnesses, including representatives of the Office of the
Veterans Ombudsman, VAC, VRAB, and several veterans’ organizations. The
Committee would like to thank all the witnesses who contributed to this study.
It is hoped that this report reflects, as faithfully as possible, the views
they have expressed on VRAB activities.
The purpose of this report is to give the Government of Canada a
pulse of what the veterans’ community thinks about VRAB and to offer a few
recommendations as to how to improve the Board and the services it provides to veterans
and serving members of the CF and RCMP. The report is subdivided into six main
sections. The first gives background information on the roles and
responsibilities of VRAB. The second provides a brief explanation of how the
review and appeal process for disability benefits functions.
The final sections look at some of the issues of concern with VRAB identified
by witnesses and offer suggestions as to possible ways of improving VRAB and
its public image.
VRAB is a quasi-judicial tribunal that operates independently of
VAC. It was established by Parliament in 1995 “to provide veterans … with an
independent avenue of appeal for disability decisions made by Veterans Affairs
Canada.” VRAB has the following mandate:
The Veterans Review and Appeal Board has full and
exclusive jurisdiction to hear, determine and deal with
all applications for review and
appeal that may be made
to the Board under the Pension Act, Canadian Forces Members and
Veterans
Re-Establishment and Compensation Act – Part 3, the War Veterans
Allowance Act, and other Acts of Parliament. All matters related to appeals
under this legislation are authorized under the Veterans Review and Appeal
Board Act. The Board also adjudicates duty-related pension applications
under the authority of the Royal Canadian Mounted Police Pension
Continuation Act and the Royal Canadian Mounted Police Superannuation
Act.
The Board’s mission is “to ensure fairness in Canada’s programs for disability pensions and awards and War Veterans Allowances by
providing fair and timely appeals for traditional veterans, Canadian Forces
members and veterans, Royal Canadian Mounted Police applicants, qualified
civilians and their families.”
VRAB offers two levels of redress to applicants. The first level of
redress is the review hearing. If the applicants are dissatisfied with the
results of the review hearing, they can then access the second level of
redress, an appeal hearing. These will be explained in more detail later in the report.
VRAB is legislated to be composed of up to 29 permanent members
appointed by the Governor in Council, including a Chairperson and a Deputy
Chairperson. There
are currently 25 permanent VRAB members. These individuals come from a wide
range of professional backgrounds; they include members of the CF and, for the
first time, a member of the RCMP, as well as former lawyers, health care
professionals, private sector employees, federal and provincial public servants. The Governor in Council can also appoint temporary members “whenever, in the
opinion of the Governor in Council, the workload of the Board so requires.” However, no temporary members have been appointed since 2006.
VRAB members hear applications for review and appeal relating to
decisions on disability pensions, disability awards, and other allowances. They
are supported in their functions by a VRAB staff of approximately 85 people.
VRAB members, both permanent and temporary, are appointed by the
Governor in Council on recommendations made by the VRAB Chair. The selection
process consists of a public advertisement, an initial screening, a written
test, an interview and reference checks. According to VRAB, the Chair is
“accountable for the implementation of the selection process to qualify VRAB’s
decision-makers.” VRAB maintains that the selection process was developed “to be
transparent, professional and based on competency to ensure that only highly qualified
candidates will be considered for appointment.” Candidates are “assessed
against criteria that reflect the degree of knowledge, skills and abilities
required to effectively carry out the role of a Member of the VRAB.”
VRAB explains how the selection process functions as follows:
The Screening Committee will include a retired
professional with background relevant to the work of the Board, the Chair or
Deputy Chair of the VRAB, and a human resources expert. This committee will
assess the application form and curriculum vitae of each candidate to determine
who should proceed to a written assessment of specific skills and abilities.
The written assessment results of each candidate will be reviewed by the same
committee to determine whether the candidate should be considered further in the
selection process. The Interview Committee will include a retired senior
executive and a retired professional with backgrounds relevant to the work of
the Board, as well as the Chair of the VRAB and a human resources expert. The
Interview Committee will interview candidates identified by the Screening
Committee to further assess the skills and abilities of each candidate. Members
of both the Screening Committee and Interview Committee will be selected in
consultation with the Minister of Veterans Affairs. The Minister will be
consulted on any changes to the committees and it is anticipated that the
membership will change over time to include representation from various
locations in Canada.
All members are required to affirm their impartiality in all aspects of the
Member selection process. Once the assessments are complete, the Chair of the
VRAB will provide a
pool of candidates found qualified by the Interview Committee to the Minister
of
Veterans Affairs.
The pool of candidates is expected to meet “VRAB operational
requirements, gender, diversity, geographic needs and linguistic requirements.”
VRAB notes that the Minister of Veterans Affairs is ultimately responsible for
drawing candidates from the pool of candidates provided by VRAB and to
recommend them to the Governor in Council for appointment as VRAB members.
VRAB emphasizes on its web site that Board members are “not public
servants” and that all of them “must meet pre-defined experience and education
criteria and be assessed against competency-based selection criteria to ensure
they have the skills and abilities to do the work of a member and to maintain
the confidence of applicants in the appeal system.” VRAB maintains that “the
Board’s membership … strives to include a cross section of experience and
education including medical, legal, military, police, public service and other
life/work experiences.” It also notes on its web site that “all members receive
specialized training on legislation, administrative law, the weighing of
evidence, military issues, medical conditions, the conduct of hearings and
decision writing.”
According to the Veterans Review and Appeal Board Act,
permanent Board members are “appointed for a term not exceeding ten years” and
are “eligible to be reappointed.” Temporary Board members, on the other hand,
are “appointed for a term not exceeding two years” and are “eligible to be
reappointed for one additional term.”
In all, 13 of the 25 VRAB members “work out of major cities and
conduct review hearings.” The remaining 12 members “conduct appeal
hearings at VRAB’s Head Office in Charlottetown,” Prince Edward Island. VRAB review hearings are usually done by
two VRAB members and are conducted at about 30 locations across Canada. Appeal
hearings, on the other hand, are conducted by three members. VRAB emphasizes
that members conducting appeal hearings must not be involved in the review
hearings.
The role of VRAB members consists of “hearing, determining and
dealing with all applications made to [VRAB] by veterans, Canadian Forces
members, serving or released members of the Royal Canadian Mounted Police, and
their families.” VRAB members have “the jurisdiction to affirm, vary or reverse
the decision being reviewed or appealed.” According to VRAB, members are
required to “make a full and fair examination of the information available
prior to and at the hearings,” to “conduct hearings where they listen to
testimony and arguments and weigh all the evidence,” to “interpret and apply
the legislation based on the evidence presented,” and to “render written
decision which give the reasons for their rulings.” VRAB further notes on its web site that, as part of their work, members:
- must, at all times, be impartial, objective and free of bias;
- prepare for hearings by reading the documented evidence;
- conduct review and appeal hearings in the official language of
choice of the applicants;
- convene hearings in one of approximately 30 locations across
Canada – in person, by videoconference or by teleconference;
- listen to the testimony of applicants who are permitted to give
oral evidence at review hearings;
- consider new evidence submitted at the hearing;
- weigh all evidence to determine whether there is sufficient
credible evidence to support the claim;
- interpret and apply the legislation based on the evidence
presented;
- conduct a thoughtful analysis of all the available information in
reaching a decision, considering both the favourable and unfavourable evidence (i.e., testimony, documentary evidence, medical evidence);
- deliberate the merits of the claim;
- make each decision based on the merits of the claim, bearing in
mind the requirement to resolve any doubt (must be reasonable and must derive
from a careful analysis of the documentary and medical evidence) in favour of
the applicant;
- write clear reasons for decisions within specified and short time
frames; and
- may, on occasion, request independent medical advice relating to
a claimed condition.
When a veteran or serving member of the CF or RCMP believes that he
or she has sustained a service-related disability, the person must first submit
a formal application to VAC. The department has the authority under the Pension
Act and the New Veterans Charter to provide disability benefits.
According to Rick Christopher, Director of the Disability Programs and Income
Support at VAC, the applicant must meet two criteria in order to receive a
disability benefit: they must “suffer from a disability” and that disability
must “be related to their service.” As Mr. Christopher told the Committee,
“evidence that an applicant meets these two criteria is often a combination of
medical documentation, military service records, and testimonials from colleagues,
commanding officers, or others.” VAC’s team of disability benefit officers provides direct support to applicants
and helps ensure that his or her claim is as complete as possible, before it is
submitted to the department. Applicants can also obtain assistance in
completing their applications from the Royal Canadian Legion or other veterans’
organizations. Service Canada can also review application forms to ensure that
they are completed appropriately.
Once an application is completed and submitted to VAC, it is
assigned to one of the department’s 46 trained disability adjudicators, who
assess the information to determine whether the individual is entitled to
disability benefits. According to Mr. Christopher:
These decisions are based on the merits of the
case and the weight of the evidence. However, in the absence of compelling
evidence to the contrary, the benefit of the doubt always flows in favour of
the applicant. The benefit of the doubt is applied when there is an equal
amount of supporting and non-supporting evidence.
… Once entitlement is established, an assessment
is made to determine the extent of the disability, based on the degree to which
the condition impacts health and quality of life.
… Once the assessment is completed, a monthly
or lump sum payment is processed. Decisions are communicated to veterans in
writing.
… Both favourable and unfavourable decisions are
communicated by letter. The letter outlines the reasons for decision, redress
rights, possible next steps and the support available for exercising these
rights.
VAC’s service standard calls for disability benefit applications to
be processed within 16 weeks, 80% of the time. It stood at 83% in October 2012.
VAC reported that in fiscal year 2011-2012, 73% of the more than 20,000
applications for disability benefits reviewed by VAC were assessed as
favourable and payment schedules were initiated. Mr. Christopher emphasized to the Committee the fact that VAC is continuously
trying to improve service delivery and how it communicates decisions to
veterans.
As an example, VRAB has re-designed and reworded in plain language
15 of its “high-volume disability benefits letters” and has decommissioned
about 250 letters “that are no longer being used or may be duplicated or a
little more confusing.” The overall aim of the department is to make it as
clear, simple and straightforward as possible for veterans to understand why
they have or have not been awarded a disability benefit. In cases where benefits are not approved, the letter indicates why the decision
was made and the options available to that person.
There are two options available to applicants dissatisfied with a
decision. They can either request a departmental review or they can proceed
directly to VRAB. In the case of a departmental review, a new adjudicator is
assigned to the case to ensure a fresh set of eyes and to avoid any form of
bias. A departmental review can be triggered when an error in fact or law is
found, or when new evidence is presented for consideration. According to VAC,
the turnaround service standard for departmental reviews is 12 weeks, 80% of
the time. In fiscal year 2011-2012, there were 2,213 departmental reviews
conducted and
81% of them were completed within 12 weeks.
Applicants who are still dissatisfied with the results of the
departmental review can then proceed to VRAB.
Leading up to the VRAB review and appeal process, applicants can
access legal services from VAC’s Bureau of Pensions Advocates. Canada is unique
around the world in providing this type of free legal counsel to veterans. This organization is mandated to provide free legal advice and support to
veterans who wish to have a departmental decision on disability benefits or
pensions reviewed or appealed. The Bureau of Pensions Advocates consists of 32
lawyers operating from 14 district offices across Canada.
These lawyers assist applicants with the preparation of applications for review
and appeal. They also represent applicants at VRAB hearings. The Bureau of Pensions Advocates handles on average about 12,000 cases per year
and represents about 95% to 98% of the people who appear before VRAB.
The rest of the applicants either chose to represent themselves,
acquire private counsel, or seek representation from the Royal Canadian Legion.
According to Andrea Siew, the Royal Canadian Legion’s Service Bureau Director,
the Royal Canadian Legion is the “only veteran service organization that
assists veterans and their families with representation to the [Veterans Review
and Appeal] Board.” The Royal Canadian Legion has 22 service officers located
across Canada who provide free representation at all levels of the VRAB process
for veterans who are not satisfied with VAC decisions.
The first level of redress offered by VRAB is the review hearing.
According to the Veterans Review and Appeal Board Act, VRAB
has “full and exclusive jurisdiction to hear, determine and deal with all
applications for review that may be made to the Board under the Pension Act or the Canadian Forces Members and Veterans Re-Establishment and
Compensation Act [New Veterans Charter], and all matters related to
those applications.” It can rule on a “decision concerning the amount of an
award under the Pension Act” or “the amount of a disability award, death
benefit, a clothing allowance or detention benefit under Part 3 of the Canadian
Forces Members and Veterans Re-Establishment and Compensation Act.”
Generally speaking, if VAC does not approve a claim submitted by a
veteran for a disability pension or award, or if it approves the claim but not
to the veteran’s satisfaction, the veteran can request a review. John Larlee,
Chair of VRAB, told the Committee that between 10% and 15% of the decisions
made by VAC every year are appealed
to VRAB.
When VRAB receives an application for review, it immediately
notifies the Minister of Veterans Affairs and retrieves a copy of the decision
and all relevant records, including transcripts of the proceedings and all
evidences submitted, from VAC. VRAB then notifies the applicant of its receipt
of the material from VAC and the date on which the review will be heard.
In the review hearing, veterans may present their arguments in
person or through a representative before a panel made up of two VRAB members. Veterans
are generally represented at Board review hearings by lawyers of the Bureau of
Pensions Advocates or by service officers of the Royal Canadian Legion, at no
personal cost. Some of them also hire private lawyers to represent them at
their own expense. VRAB review hearings are held at approximately
30 locations across Canada, but can also be conducted through teleconference
and video conference. Review hearings are the only time in the review process when
applicants have the opportunity to appear and testify in person before VRAB
decision makers. According to Mr. Larlee, the “review hearing is often a pivotal moment for
veterans” for it is “their chance to finally appear before decision-makers and be heard.”
After the hearing, VRAB members meet to make a decision. The review
panel can “affirm, vary or reverse” the decision under review; refer “any
matter back” to Veterans Affairs Canada for reconsideration; or can refer “any
matter not dealt with in the decision” back to Veterans Affairs Canada. In the
absence of a majority decision, “the decision most favourable to the applicant”
is normally selected by VRAB. A written decision is then sent to the applicant
by mail. It should be noted that VRAB may reconsider its decision if an
apparent error of fact or law has occurred.
The second level of redress offered by VRAB is the appeal hearing.
If the veteran is not satisfied with the decision from the review
hearing, an appeal hearing can be requested. Unlike the review hearing, the
veteran cannot testify in person and must either name a representative to make
arguments for them or make a written submission. The appeal panel is made up of
three VRAB members who were not involved in the review hearing. Appeal hearings
are usually held in Charlottetown. Veterans may attend at their own expense,
but may not participate. They can, however, submit written statements and new
evidence. The appeal panel can “affirm, vary or reverse the decision being
appealed,” “refer any matter back to the person or review panel that made the
decision being appealed for reconsideration, re-hearing or further
investigation,” or “refer any matter not dealt with in the decision back to
that person or review panel for a decision.” Decisions of an appeal panel are
final and binding, unless “they contain an error of fact or law, or new
evidence comes to light at a later date.”
Since its creation in 1995, VRAB has made more than 119,000
decisions.
In 2011–2012, for example, VRAB finalized 3,636 review decisions and 1,072
appeal decisions. According to VRAB, the Board ruled favourably in 50% of the
review decisions and 29% of the appeal decisions. According to the VRAB web
site, the Board “has committed to issuing written decisions to applicants
within six weeks of their hearing. In 2011-2012, 82% of review decisions and 86% of appeal decisions met this target.”
In the event the VRAB review and appeal process is unsuccessful,
veterans may take advantage of four other possibilities under the Veterans
Review and Appeal
Board Act.
A first possibility is a reconsideration of VRAB appeal panel
decisions. According to section 32 of the Veterans Review and Appeal Board
Act, a VRAB appeal panel can, “on its own motion, reconsider a decision
made by it … and may either confirm the decision or amend or rescind the
decision if it determines that an error was made with respect to any finding of
fact or the interpretation of any law.” A VRAB appeal panel can also reconsider
its decision “if the person making the application [i.e., the veteran] alleges
that an error was made with respect to any finding of fact or the
interpretation of any law or if new evidence is presented to the appeal panel.”
A second possibility is a judicial review by the Federal Court of
Canada.
If applicants have exhausted all their VRAB redress options and are still
dissatisfied, they can request a judicial review by the Federal Court of Canada
if they believe an error was made with respect to the interpretation of a law.
A number of cases are heard each year by the Federal Court. In 2011-2012, for example, a total of 22 applicants requested a judicial review
by the Federal Court. The Federal Court issued 14 decisions that same year.
Seven “upheld the Board’s decision while the other seven returned the
application
to the Board for a new hearing.” In
all, 140 decisions (0.1% of the more than
119,000 VRAB decisions) have been reviewed by the Federal Court since the
creation of VRAB in 1995 and 11 were subsequently appealed to the Federal Court
of Appeal.
A third possibility is an appeal to the Tax Court of Canada. If the
VRAB appeal panel’s decision concerns income or the source of income of the
applicant or their spouse, an appeal can be made to the Tax Court of Canada, as
per section 33 of the Veterans Review and Appeal Board Act.
A fourth possibility is an application for a compassionate award. In
accordance with section 34 of the Veterans Review and Appeal Board Act,
an applicant who has been “refused an award under the Pension Act, or a
disability award, a death benefit, a clothing allowance or a detention benefit
under Part 3 of the Canadian Forces Members and Veterans Re-Establishment
and Compensation Act” can apply to the VRAB for a compassionate award if
all procedures for review and appeal under the Veterans Review and Appeal
Board Act have been exhausted. Applications for compassionate awards are
normally “heard, determined and dealt with” by a VRAB panel of three members
designated by the Chair. VRAB can “grant a compassionate award if it considers
the case to be specially meritorious and the applicant is unqualified to
receive an award under the Pension Act, or a disability award, a death
benefit, a clothing allowance or a detention benefit under Part 3 of the Canadian
Forces Members and Veterans Re-Establishment and Compensation Act.” In such
cases, VRAB can fix a reasonable sum for the award, but it may not exceed the
amount to which the applicant would have been entitled to if his or her claim
had been upheld under the Pension Act or the Canadian Forces Members
and Veterans Re-Establishment and Compensation Act.
In his testimony, James Ogilvy, Executive Director of the Council
of Canadian Administrative Tribunals (CCAT), told the Committee that “all
administrative tribunals, adjudicators and staff affiliated with CCAT and
operating in any Canadian jurisdiction” — including VRAB — must abide by the
following CCAT Principles of Administrative Justice:
Administrative Justice:
- requires that Tribunals be independent in matters of governance
and that adjudicators be independent in decision-making;
- requires that Tribunals, adjudicators and staff be impartial and
free from improper influence and interference;
- requires that Tribunals, adjudicators and staff be without
conflicts of interest and act in a manner which precludes any conflict of
interest;
- requires that adjudicators and staff be qualified in their
subject matter and administrative justice processes;
- requires that adjudicators and all participants treat each other
with dignity, respect and courtesy;
- should ensure that the dispute resolution process is accessible,
affordable, understandable and proportionate to the abilities and sensibilities
of users;
- should be transparent and accountable;
- should apply the rules of natural justice;
- should be expeditious both in process and in rendering decisions,
with reasons to be given where appropriate;
- should where possible, provide an opportunity for informal
dispute resolution;
- should minimize any disadvantages to unrepresented parties;
- should provide consistency in procedure and adjudicative outcomes.[45]
But while VRAB maintains that it abides by all of these principles,
many veterans and veterans’ organization hold a different view. However, Ronald Griffis, National President of the Canadian Association of
Veterans in United Nations Peacekeeping, gave important context that should be
considered by the veterans’ community:
There are thousands upon thousands of veterans who
have had a good response and a good deal with the VRAB — thousands. Only they
receive their benefit and they’re happy with it, you never hear from them. Yes,
there are thousands who have been successful.
That being said, in the Canadian Peacekeeping Veterans
Association’s view, veterans are not being treated with the “respect, dignity,
fairness and courtesy” they are entitled to under the first article of the Veterans
Bill of Rights when they are dealing with VRAB. It finds it “difficult to believe that VRAB can properly serve our veterans
when our veterans have little, if any, faith in the current VRAB structure,
modus operandi, attitudes or ability to meet its legislated responsibilities.”
Similar views on VRAB and its activities were expressed by
representatives of other prominent veterans’ organizations, including the Army,
Navy and Air Force Veterans in Canada and the Royal Canadian Legion.
The Army, Navy and Air Force Veterans in Canada, in particular,
told the Committee that its “position, shared by others, is that systemic and
decision-making problems at this administrative tribunal are having negative
emotional, physical, and financial impacts on veterans and their families.” In
its view, a number of things need to be reviewed and changed in order to
improve VRAB and the services it provides veterans and serving members of the CF
and the RCMP. This includes the way the Board currently operates, its processes
and service standards, its level of transparency, its sharing of information
with applicants, its application of the benefit of the doubt, the number of its
decisions overturned at the Federal Court level, the length and cost of the
review and appeal process for veterans, and veterans’ representation on the
Board.
The Royal Canadian Legion echoed the Army, Navy and Air Force
Veterans in Canada on a number of issues of concern. Its representative spoke
of the need to revisit and improve the composition and selection of Board
members, the way the review and appeal process currently works, the number of
VAC decisions that are revised by VRAB, the high burden of proof on veterans, how
the benefit of the doubt is applied, the Board’s level of transparency and how
videoconferencing technology is being used at review hearings. According to the
Royal Canadian Legion witness, “the Government
has an obligation to ensure that veterans have access to a fair and transparent
adjudication process.”
The Committee also heard from Harold Leduc, a reputable former VRAB
member who has served his country with distinction. His record on the Board
stands for itself, as he so aptly stated for the Committee where he noted he
acted independently and stands behind each of the thousand decisions he has
made. Mr. Leduc’s testimony echoed the concerns expressed by the veterans’
organizations. In his view, the way VRAB operates is “not providing the fair and
impartial hearings that Parliament [wants] for our veterans.” He spoke, among other things, of VRAB management and staff interference in
Board members’ decisions, of veterans and their advocates being disrespected at
review hearings, of the whole review and appeal process being adversarial, of
favourability rates impacting the impartiality of Board members, of the Board’s
independence being compromised by regular consultations with VAC for medical
advice, and of disregard for Federal Court orders.
Chief Warrant Officer (Retired) Guy Parent, Veterans Ombudsman,
also enumerated issues of concern with VRAB. He suggested to the Committee a
number of key areas that should be reviewed for possible improvements,
including, among other things, the Board’s structure, the selection of Board
members, issues related to workload, processes, quality assurance, and the
operating culture of the Board. The most important, in his view, is the issue
of culture: “In the end … it all comes down to culture,” he told the Committee.
“Although structural changes can alter processes to create efficiencies and
increase effectiveness, cultural change is what is needed if we want to address
the ‘why’ questions and eliminate the root causes of many of our veterans’
concerns.”
Yet, despite all the concerns with VRAB expressed by the witnesses
who appeared before the Committee, none believed that the Board should be
abolished. All were of the opinion that VRAB has an important role to play in
supporting veterans and ensuring that they and their families receive the
benefits they are entitled to for injuries sustained in the service of Canada.
In the opinion of Andrea Siew, Director of the Service Bureau at the Royal
Canadian Legion, VRAB plays a “critical role” as “an independent avenue of
appeal for disability benefit decisions made by Veterans Affairs.” She
emphasized to the Committee the “need for an independent administrative
tribunal that the Veterans can turn to when they are dissatisfied with
decisions.”
Jerry Kovacs of the Army, Navy and Air Force Veterans in Canada
echoed such views: “We do not believe that VRAB should be abolished,” he told
the Committee. “It is a higher quasi-judicial authority that, if it functions
properly, and effectively, ensures that veterans receive a fair shake.”
That being said, many of the witnesses that appeared before the
Committee — particularly those from veterans’ organizations — urged for significant
changes to VRAB. They maintained that there are significant problems with the
way the Board currently operates and that measures need to be implemented as
soon as possible to improve its functioning and how it deals with veterans and
serving members of the CF and the RCMP.
It should be noted however, that VRAB does not agree with all of
the issues of concern raised by several of the witnesses who appeared before
the Committee. On the last day of testimony for this study, VRAB Chair John
Larlee, referred to “inaccuracies presented to this Committee” by previous
witnesses and sought to provide “clarifications.” Mr. Larlee told the Committee,
among other things, that VRAB continuously strives for fairness and
impartiality in everything it does, that it treats all veterans, members of the
CF and the RCMP, and their families with dignity and respect when they come to
the Board, that Board management and staff respect the independence of Board
members as decision makers, that favourability rates have never been used to
influence Board members to be more favourable or less favourable, that all
evidence used in hearings is shared with applicants and their representatives,
that the Board does not regularly consult with VAC for medical advice, that the
Board does not disregard Federal Court orders, and that there is no culture of
denial at the Board.
Mr. Larlee also spoke to the Committee about initiatives underway
to improve VRAB and its services and assured the Committee that his
organization “will continue to make improvements to maintain trust and
confidence in the appeal process.”
The Committee applauds VRAB for moving forward with measures to
improve its services and the way it operates. This is certainly a step in the
right direction. However, evidence received during this study suggests that
more can and needs to be done to improve the Board’s operation and restore
veterans’ confidence in VRAB.
The Committee recognizes that there are conflicting views amongst
the veterans’ community in regard to VRAB and how it serves veterans. On one
hand we heard that thousands of veterans do have a good experience with VRAB
and their stories are not made public, yet on the other hand, we heard stories
of a lack of trust in VRAB. It is ultimately clear that VRAB’s public image plays an important role in
veterans having faith in it as an independent avenue of appeal. Whether the
silent majority is, as some have suggested, largely content with VRAB or
whether veterans have lost trust in VRAB, it is clear that VRAB’s public image has
been damaged and needs to be restored.
The Committee agrees with all witnesses that there is a need for an
independent tribunal like VRAB, but that its structure and its way of doing
business should be reviewed and improved. The following sections look at some
specific areas of concern that the Committee feels should be addressed in the
near future.
One of the main issues of concern raised by witnesses appearing
before the Committee pertained to the issue of fairness. According to James
Ogilvie of CCAT, fairness is an important aspect of any tribunal. As he
explained, individuals appearing before a tribunal have the “right to be heard
by an impartial decision maker.” Tribunals
have a responsibility to be objective and ethical in the manner in which they
treat people appearing before them. According to Mr. Ogilvie:
The relations between an appellant and a tribunal
need to be treated with respect. Respect is mutual, of course, or reciprocal, as it should be. Leading up to the
hearing, it's helpful to have a tribunal that provides information on the way
its procedures work. During a hearing, the process must be seen as fair and
balanced ... It's inappropriate for members of a tribunal to take sides and
start arguing with witnesses or counsel.
The distance should be maintained, and that's something that we would say would
be applied to any tribunal.
VRAB assured the Committee that it treats all veterans and serving
members of the CF and RCMP with utmost fairness. According to John Larlee:
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 clearly have the right to
fairness in the appeal process, to openness in decision making, and to be heard
by qualified and impartial adjudicators.
… 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 ... Fairness is our mission and we strive for it in everything
we do.
However, some witnesses maintain that the VRAB process is not
always fair.
One issue raised pertains to favourability rates. Harold Leduc, for example,
spoke of the existence of favourability rates at VRAB which, in his view, are
affecting the impartiality of VRAB members as decisions makers. VRAB maintains that favourability rates are used only as tools “to initiate a
conversation about consistency in decision making” and “have never been used to
influence Board members to be more favourable or less favourable.” Regardless
of who is right or wrong, the Committee firmly believes that favourability
rates should not influence VRAB decisions. It thus recommends:
Recommendation 1
That the Veterans Review and Appeal Board review its processes as
to ensure the independence of Board members and their decision-making.
The Committee holds the view that evidence-based decisions are the
best way to ensure that VRAB is making decisions consistent with the guidelines
governing quasi-judicial tribunals to ensure fairness for all veterans.
However, many witnesses raised concerns with the burden of proof on veterans.
Many believe that it is too onerous on veterans and that it can be unfair. The
Royal Canadian Legion, for example, told the Committee that the burden of proof
on veterans is too high and restrictive.
The application process is not complex, but it is not as simple as
saying that I was injured during my service. It's an evidence-based system that
requires proof that the injury or disability arose out of, or was directly
connected to, service, and the onus is on the veteran to show how that the
injury or disability is related to their service and the performance of their
duties.
The burden of proof is very high. There may be an incomplete
diagnosis or an incorrect diagnosis. Medical information such as X-ray reports,
CT scans, pulmonary function tests, physical fitness tests, your unit employment
record, accident reports, boards of inquiry, witness statements, etc., are all
required, especially in complex cases that go before the board.
… This is not a passport application package in which an error or a
piece of missed information simply results in the package being returned. An
unfavourable or incomplete decision creates a negative atmosphere and an
untrusting environment. The approach or culture that ‘if you are injured, we
will look after you’ seems to have disappeared.
The burden of proof is too high.
According to Harold Leduc, the burden of proof on veterans did not
used to be that onerous.
When I first joined the board [in 2005], we only needed a doctor's
letter that said the person had a certain diagnosis … That establishes a
disability under the Pension Act. All we did from that was hold a hearing, look at the documentation, and find
whether we could make a link to service. When we couldn't, sometimes we'd weigh
the evidence that was before us and we'd assess whether it was credible or not … Veterans have a higher burden now than they did before,
and I don't know why, because the rules haven't changed. They absolutely have
not changed. It's the people and the steps.
VRAB, however, is not of the opinion that the burden of proof is
too high. “While we understand the perception that the burden of proof is too
high,” John Larlee told the Committee, “the legislation requires veterans to
establish a link between their disability and service.”
While the Committee recognizes the need for veterans to provide
evidence to substantiate their cases, which in turn ensures consistency in
VRAB’s decision making, witness testimony suggests that the burden of proof on
veterans may have become too high. The Committee believes that veterans should
expect uniformity in the evidentiary procedures that apply to VRAB hearings and
is concerned at the potential consequences if, in fact, the evidentiary
requirements are too onerous. With this in mind, the Committee recommends:
Recommendation 2
That the Veterans Review and Appeal Board review the evidence
requirements to ensure that they are consistent with the practices of the
quasi-judicial tribunal industry standards.
One of the ongoing problems with existing VRAB standards of proof —
according to the Royal Canadian Legion — is that many veterans don’t understand
why they have to provide concrete evidence of their injuries in order to obtain
their disability benefits or even how VRAB comes to a specific decision.
I think there might be a lot of misinformation out there about the
Board. The evidence requirements are so stringent … You have to provide all of
the evidence and you have to have the specialists' reports to confirm that you
have that injury.
… I ask for statements from veterans. Was
there a board of inquiry? Where is the … report of injuries? Do you have your
unit employment record? There's a lot of evidence required. The veteran just
says, “But I was injured.” Yes, but we need to do the evidence. There's a
thought process that says, “That's a lot of evidence that's required; why do I
need all that? I'm a veteran; the government, the country, should be looking
after me.” That's where that perception comes from. We
need to get past that.
… We always tell the veteran to make sure we have the best possible
evidence.
We don’t take a case before the Board without all of the available evidence.
According to witnesses, there seems to be a misconception of the
evidence requirement. As the Committee was told on several occasions, injured
veterans often don’t really understand the need to provide evidence for their
illness or injuries, and this, in turn, is prompting dissatisfaction and a
negative image of the Board. VAC and VRAB need to be more proactive in explaining
to the veterans’ community what they do and why veterans need to provide
evidence of their injuries in order to obtain benefits. As Jerry Kovacs of the
Army, Navy and Air Force Veterans in Canada told the Committee, veterans “must
know how to prepare their cases, what documents are required, and how others
are treated in similar situations.” One of the VRAB witnesses that appeared before the Committee concurred: “I
think there are issues with evidence, especially first instance. Anything that
can be done by all of the organizations to help the veterans get better
evidence at first instance would be assistive.” The Committee believes that more extensive VAC and VRAB outreach initiatives,
particularly at the first stages of the process, would be helpful in helping
veterans understand the type of evidence they need to provide throughout the
process. It therefore recommends:
Recommendation 3
That VAC and VRAB continue to be proactive in employing outreach
initiatives aimed at reaching out to the veteran community to explain what is
required in terms of evidence when appealing departmental decisions pertaining
to disability benefits.
Another issue of concern raised by witnesses, and which is linked
to the burden of proof, pertains to how the benefit of the doubt is applied by
VRAB members. According to the Royal Canadian Legion, the “most misunderstood”
part of the process has to do with VRAB’s interpretation and application of Section
39 of the Veterans Review and Appeal Board Act, the so-called “benefit
of the doubt” clause. Section
39 requires that the Board, in weighing the evidence, look at it in the best
light possible and resolve doubt so that it benefits the applicant. Section 39
states:
In all proceedings under this Act, the Board
shall:
(a) draw from all
the circumstances of the case and all the evidence presented to it every
reasonable inference in favour of the applicant or appellant;
(b) accept any
uncontradicted evidence presented to it by the applicant or appellant that it
considers to be credible in the circumstances;
(c) resolve in
favour of the applicant or appellant any doubt, in the weighing of evidence, as
to whether the applicant or appellant has established a case.[69]
However, Andrea Siew of the Royal Canadian Legion and several other
witnesses raised issues with the way the benefit of the doubt clause was being
interpreted and applied by VRAB members. According to Ms. Siew:
Section 39 of the VRAB Act regarding rules of evidence
granted very liberal rules; however, over time this has become a very legal
interpretation. The spirit of the legislation has evolved to a workers'
compensation insurance approach rather than a social safety net approach.
… What are the evidence requirements? What is meant by ‘every
reasonable inference in favour of the applicant’?
… Who determines what credible evidence is? The Board’s own
adjudicative guidelines describe in detail the requirement for medical evidence
to be considered. It’s very instructive and restrictive. Not only is the burden
of proof on the veteran, but the evidence requirements are so complex and so
restrictive that many veterans can't obtain the type of evidence that is
required. They don't have access to the medical professionals and specialists or
can't afford to obtain the necessary reports and, therefore, will decline to
proceed to appeal when advised of the evidence requirements.
Ray Kokkonen, National President of the Canadian Peacekeeping
Veterans Association, shared similar views. “I think … that the benefit of the
doubt is being applied incorrectly. It’s much too strict and gives no benefit
of the doubt to the veteran in very many cases.” Similarly, Ronald Griffis, National President of the Canadian Association of
Veterans in United Nations Peacekeeping argued:
The current process creates anger, distrust, frustration, and all
of that is completely avoidable … We are asking for
fairness in the form of a fair and transparent process …
It is suggested that on a regular basis, the hearing officers fail to apply the
doctrine of giving the benefit of the doubt to the veteran. In failing to apply
the benefit of the doubt to the veteran, the hearing officer suggests that
various notes from medical practitioners, as well as verbal statements from the
applicant, are not sufficient to satisfy the board, and therefore they conclude
that a case has not been made out … For the board to state
that they do not find the evidence credible in the circumstances is just plain
not fair.
While it is understood that decisions made by tribunals should be
evidence based, James Ogilvie of CCAT did emphasize to the Committee that
“tribunals can have a somewhat more relaxed view of the evidence presented to
them than the courts have.”
As he explained:
It doesn't mean that any old thing that's said in a witness'
statement is acceptable, but the tribunal members have the opportunity to weigh
what they hear and determine whether it is reasonable and likely to be true,
and apply the idea of benefit of the doubt to that evidence, and give the
appellant the benefit of the doubt for the evidence provided. It's not loose, but it is somewhat less stringent than it
is in civil and criminal courts.
Several witnesses were of the opinion that the “benefit of the
doubt” clause needs to be reviewed. “It’s very difficult to understand,” said Andrea
Siew of the Royal Canadian Legion, “and it needs to be simplified … If there’s
one thing that needs to be done, it is to make how the benefit of the doubt
clause is to be applied very clear.”
The Committee believes that one of the possible reasons why VRAB
lost the trust and respect of some veterans pertains to the fact that some veterans
feel that they are not getting the benefit of the doubt with regard to the
evidence they present to the Board.
The Committee is encouraged by the fact that VRAB has an initiative underway to
train its members to more clearly explain how they apply the benefit of the
doubt in every case, but feels that more needs to be done. The Committee
believes that the way the benefit of the doubt is interpreted by VRAB members
should be reviewed as to ensure that its application is simpler and clearer, as
well as consistent. It therefore recommends:
Recommendation 4
That the Veterans Review and Appeal Board, moving forward, will
interpret and apply Section 39 of the Veterans Review and Appeal Board Act (the
benefit of the doubt clause) as it was intended and clearly explain how this
was done in all of its decisions and to the stakeholder community.
The Veterans Ombudsman estimates that VRAB reviews between 10% and
15% of the decisions made by VAC every year and modifies about half of them. In 2011–2012, for example, VRAB finalized 3,636 review decisions and 1,072 appeal
decisions. It ruled favourably in 50% of the review decisions and in 29% of the
appeal decisions.
The variance of departmental decisions at the VRAB level is of concern to the
Veterans Ombudsman. In his view, it “suggests … that there is a need for the
Department to determine why so many decisions are varied at the Board level and
to consider ways to improve decision making at the Department’s first
adjudication and review levels.” As
the Veterans Ombudsman told the Committee:
This goes to the issue of why so many decisions are varied at the
Department’s review level and at the Board’s level … The fact that decisions
are varied in favour of applicants at each redress level is often given as
evidence that the system is working, but it can also be a sign that there is a
problem at the beginning of the process. I am convinced that if more time and
assistance were provided to applicants to ensure that all needed information
was available before moving forward to adjudication, the board's workload would
be greatly reduced and it would be able to concentrate on complex cases.
The Veterans Ombudsman also brought up some of the concerns he had
with the small number of VRAB decisions overruled at the Federal Court level.
According to the Veterans Ombudsman, VRAB has made over 119,000 review
decisions since its creation in 1995, of which 34,000 could have been subject
to judicial review at the Federal Court. However, only 140 VRAB decisions have
been reviewed by the Federal Court. “To suggest that there is nothing to worry about because only 140 of those
decisions have been challenged in the Courts does a great disservice to
veterans and serving members of the Canadian Forces and the RCMP,” he told the
Committee. In his view, “there are many reasons why ill and injured veterans
and serving members do not take their cases to the Federal Court, including
‘appeal fatigue’ and above all legal costs, which can vary from $15,000 to
$50,000.”
The Veterans Ombudsman also addressed the results of his March 2012
report entitled Veterans’ Right to Fair Adjudication: Analysis of Federal
Courts Decisions Pertaining to the Veterans Review and Appeal Board. The
report looked at the 140 VRAB decisions that have been challenged in the
Federal Court and the 11 that were subsequently appealed to the Federal Court
of Appeal. The Veterans Ombudsman made seven recommendations in his report. He told the Committee that VRAB has put in place a plan to address the first
five recommendations and that he is currently engaged with the Minister of
Veterans Affairs in addressing the last two recommendations.
Indeed, VRAB has accepted the Veterans Ombudsman’s recommendations,
and John Larlee told the Committee that the Board has put several measures in
place in response to the Veterans Ombudsman report.
… We placed a priority on decisions being returned by the Federal
Court. We have established a task force with the Department of Veterans Affairs
to deal with decisions coming from the Federal Court to identify any items that
can be addressed. We have also established a working group to work on
guidelines with our members in order to provide more plain-language and clear
decisions … Those are to be in place by the end of
the year.
With respect to the operation of the board, the board functions very
well. We deal with many decisions. We have a very detailed instruction process
for our members. Once they proceed and are appointed to the board, we have a
12-week training period. Before the board members sit on a case, they receive
instruction on legal issues, administrative law, and the interpretation of
medical opinions and evidence. As a result, I'm very confident that we have
very knowledgeable and well-qualified administrative adjudicators.
At the same time, the Veterans Ombudsman told the Committee: “As
long as the Federal Court continues to return the majority of Board decision
for errors of fact, law or procedural fairness issues, then I will continue to
say that fairness in the redress process is not assured.”
The proportion of decisions overturned at each level of the process
has raised concerns with veterans about the overall fairness of the process,
which many of them regard as overly time consuming, adversarial and alienating.
According to Staff Sergeant Abraham Townsend from the RCMP’s Staff Relations
Representative Program, several members of the RCMP have expressed frustration
with the current process. He compared it to a hurdle race and referred to it as
“layers of frustration.”
I look at the Veterans Affairs stats, and 75% are approved in the
first instance. Of those that go to appeal, 60% are approved on appeal. Now,
you've jumped the first hurdle, you've jumped the second hurdle, and 25% at the
appeal board are approved.
You continually jump hurdles, and we're continually getting approval, albeit in
a diminishing way. Members whom I talk with who have
gone through this express frustration that the further you go in this
process—they use words like “discouraging” and “distant” and
“disheartening”—the more it becomes very litigious and removed from the
individual, albeit that it's their case going forward.
The Committee acknowledges that the whole process can be difficult for
veterans, but members feel that it is more desirable to ensure as many levels
of redress are available to veterans rather than reducing or abolishing redress
options as sought by some parties. The Committee firmly believes that by reviewing
and improving certain aspects of the system at the first level decision stage
there might be more positive results at the front end. The Committee recognizes
that, in many cases, the very fact that VRAB is overturning decisions in the
first place is an indication that the appeals process is working effectively.
The Committee ultimately believes that VAC should continue to review decisions
made by VRAB in an effort to avoid the necessity of an appeal to the greatest
extent possible.
As such, the Committee recommends:
Recommendation 5
That Veterans Affairs Canada review its internal processes and
policies in an effort to reduce the number of decisions that are overturned by
the Veterans Review and Appeal Board to the greatest extent possible.
According to the CCAT, tribunal members must maintain their
independence. “Political interference is a non-starter,” Committee members were
told. VRAB Chair John Larlee emphasized the independence of the Board when he appeared before
the Committee. “Our independence is crucial,” he said. “It means that we are
not bound by the departments’ [VAC] decision or policies.”
On this issue, one witness, former VRAB member Harold Leduc, told the
Committee that some members of the VRAB staff have been VAC employees and that
they have influenced VRAB member decisions. According to Mr. Leduc, sometimes
“people from the department transferred as employees over to VRAB.” This is
problematic, said Leduc, as “they already have a bias toward the departmental
policies” and “that impacts us in our decision-making and it's a huge impact.”
As an example, he explained that at one point in time, VRAB’s policy advisor
and trainer came from the policy group at VAC. He also said that VRAB sometimes
goes back to the department for clarifications. “That should never happen,” he
said. “We have our own expertise. We’re Canada’s experts in this stuff, so we
should be able to figure it out on our own. That’s where the influence comes
in.”
The Committee believes that, regardless of their background and
previous employment history, VRAB should ensure that all of its employees and
members understand that, as a quasi-judicial tribunal, VRAB operates at arm’s-length
from VAC.
The Committee therefore recommends:
Recommendation 6
That the Veterans Review and Appeal Board should examine its hiring
and management practices and its conflict of interest and ethics policies, and
ensure that adequate training is offered to ensure that the Board operates
independently as prescribed by the Veterans Review and Appeal Board Act.
Another issue raised by witnesses pertained to VRAB’s area of
expertise and the professional background of its Board members. When he
appeared before the Committee, James Ogilvy of the CCAT noted that tribunals
such as VRAB “have a different role in the delivery of justice from what the
courts have.” As he explained, “the expectation is that tribunal members will
bring with them expertise in the areas that the tribunal deals with” and that
“secondary to that is their expertise in the law.” While the “framework within
which they work is a legal framework and the framework is a legislated
framework,” he added, “the principal skill they must have is in the areas that
are of some importance to the subjects they're dealing with.” As such, many tribunal members need not be lawyers. They do need a degree of
expertise in their tribunal’s specialized field. Accordingly, VRAB members
should have a relatively good grasp of veterans’ issues as well as military and
police culture.
“The idea of expertise,” Mr. Ogilvy told the Committee, “is to
establish common language and make it possible to communicate with the
witnesses or with the appellants and make judgments on fact that recognizes the
exigencies of that particular field on endeavour.” He explained: “It seems clear that the one thread connecting all who appear
before VRAB is military or police service. It makes sense, then, that the Board
should have a number of members with that background.”
The Committee commends the Government of Canada for placing a
priority on candidates who have a military or medical background and encourages
continued efforts in this regard.
While the proportion of Board members with military and police
experience has improved in recent years (of the eight members with CF or RCMP
backgrounds, for example, five were appointed in 2011 and 2012), many witnesses believed that there was still room for improvement. They
stressed the great value of having individuals with life experiences similar to
those of veterans as VRAB members and urged that the number of Board members
with military or police background be more balanced. “It’s important that
members understand the exigencies or service,” Andrea Siew of the Royal
Canadian Legion stressed to the Committee. “The Board should be balanced, the
composition of the VRAB should accurately represent the experience of our Veterans.” As she further explained, “it's important to have a balanced Board with both
military and non-military experience.” The ultimate aim should be to have “a
very balanced Board” with “a larger makeup of relevant operational [military or
police] experience.” Cal
Small of the Royal Canadian Mounted Police Veterans’ Association agreed: “there
would be some value if the composition of the Board was somewhat different” and
that there “would be some benefit to having some military, some RCMP.”
I think if a Board member had that type of
experience [military or police], it would be more easy for him to put things
into context. I think that without that context, it may be somewhat lacking if
you're just reading a file or listening without being able to put the injury or
whatever into a proper context.
Similarly, Staff Sergeant Abraham Townsend of the RCMP’s Staff
Relations Representative Program noted:
Who knows our work better than we do? Whether
you're a veteran of the RCMP or a veteran of the CF [Canadian Forces], we're a
collection of honourable people who can adhere to principles of law in making
decisions about the experiences we've shared with others.
… I think what is fundamental is that the mix
should predominantly be those who walk in the shoes of those being judged, for
lack of a better word.
According to the Army, Navy and Air Force Veterans in Canada, “a
veteran should be on every VRAB panel.” It
should be recalled that VRAB decisions are usually made by panels of two of
three Board members. While most witnesses agreed that the number of VRAB
members with military or police backgrounds should be increased and that the
balance, between members with relevant service experience and those without,
should be adjusted, only one proposed an actual number as to what the ideal
balance should be. Harold Leduc, a former VRAB member, who appeared as an
individual, told the Committee that, in his view, “at least 51% of the Board
members should have had some kind of service, whether it’s RCMP, military, whatever,
because you need at least one person on each panel that will have walked in
that person’s boots so that they have empathy.” In other words, he believes that at least 13 of the 25 current VRAB members
should have military or police backgrounds.
Although there was consensus among the witnesses that VRAB members
with military or police experience should be increased, some expressed a desire
to have more RCMP representation on the Board. At the moment, only one of the eight
VRAB members with military of police experience is a retired member of the
RCMP. He was appointed in 2011. The remainder are veterans of the CF. “We’ve
always struggled because we’re the minor client of Veterans Affairs,” Staff
Sergeant Townsend told the Committee, but there “should be some RCMP
representation” on the Board. The witness from the Royal Canadian Mounted Police Veterans’ Association
concurred, highlighting for the Committee some of the benefits of having
individuals with RCMP background as VRAB members:
If the Board is listening to a case involving an
RCMP member, I rather suspect that if the [VRAB] member listening to the case
is from the RCMP, he might bring to the hearing a different set of values from
those that somebody who wasn't very familiar with the
RCMP might.
In his testimony before the Committee, VRAB Chair John Larlee acknowledged
the merit of having veterans among its members: “The makeup of the Board, with
our retired police, RCMP, and military members, enables us as a group … to have
input from them in our training sessions. It gives us a more robust and more
knowledgeable work environment. They assist us in providing us with information
that is very beneficial when we are travelling the country conducting hearings.
I think … we have a very good cadre of members who become expert in the field.”
The Committee agrees with the witnesses that VRAB needs a balanced
composition that adequately reflects military and police experience. The
Committee applauds the recent 2012 appointments of three new members with
military experience. This is certainly a step in the right direction.
Another possible area of improvement pertains to the training of
Board members. One way of ensuring that a tribunal’s decisions are consistent
across Canada is “ongoing training within a tribunal which has national scope,”
explained CCAT Executive Director James Ogilvy, “to make sure that their
members are trained on an ongoing basis.”
Training is essential, as “many of the people, even lawyers, in fact, who come
to tribunals in a decision-making role really are not accustomed to that kind
of role. Training in how to manage the process can be very important.”
In order to enhance VRAB members’ and staff knowledge of military
and police culture, the Committee believes that there should be continuous
training in those areas.
As an expert Board that deals with veterans and serving members of the CF and
RCMP, we feel it is important that VRAB members and staff fully understand who
their veterans are. Training aimed at enhancing knowledge of our country’s
military and police culture would allow VRAB to gain greater respect from the
veterans’ community.
We recommend:
Recommendation 7
That VRAB training efforts ensure that VRAB members and staff are
more familiar with military and police culture.
Transparency is another important area where improvement is needed,
according to many witnesses. As James Ogilvie of CCAT told the Committee,
transparency is important for any tribunal. Publishing decisions and results,
he told the Committee, is a significant part of the process, one that not only
reinforces the tribunal’s relationship with its witnesses, but also the broader
community.
Transparency often can be best served by the
publication of the results of all hearings.
In a situation where the tribunal deals with individuals, as this one does, of
course the results have to be depersonalized. Nevertheless, for the sake of
researchers, for the sake of people following along who will have similar cases
in the future, it is certainly worth having decisions published on the website
or in some manner. These days, typically, it is on the website.
As Mr. Ogilvie further explained, publishing decisions also
ensures that the decisions made by the tribunal are consistent across the
country. “If decisions are published,” he said, “they become exemplars” and can
be of educational benefit. “It’s far easier to determine what precedents there
are if you’re either a member of a tribunal or a member of the public, or an
appellant, if the material is readily available,” explained Mr. Ogilvie.
While VRAB endorses the need for greater transparency and started
to post some of its noteworthy decisions on its web site in the summer of 2012,
most witnesses are of the opinion that more needs to be done.
CCAT, for example, acknowledged that “VRAB posts significant
decisions on its website,” but told the Committee that this was “far short of
the total number of cases heard” and that “in keeping with the reference to
transparency … this practice would be enhanced by providing more complete –
possibly full – postings.” The Committee was told that this “could promote
greater confidence in its procedures.”
The Veterans Ombudsman echoed CCAT’s position. “The first step to
cultural change [at VRAB] is transparency,” explained Guy Parent. “On the one
hand, veterans need to have full disclosure of information that decision makers
are using to make their decisions, and they need clearly reasoned decisions
that are understandable and make sense to them. On the other hand,
decision-makers need to have all the information necessary to make decisions at
the earliest point in the process.” It should be emphasized here that one of the seven recommendations that the
Veterans Ombudsman made in his March 2012 report on VRAB was that the Board be
“sufficiently resourced so that [it] may publish all of its decisions on its
web site.”
Veterans’ organizations heard by the Committee shared this view. As
a case in point, the Royal Canadian Legion maintained that “posting all
decisions is full transparency.” In its opinion, making all decision public
would not only increase VRAB’s transparency, it would also “enable veterans who
are preparing appeals to be aware of the evidence requirements similar to their
own.” In other words, it could have important educational benefits by helping
veterans know exactly what they need to provide VRAB in terms of evidence when
preparing their cases.
VRAB, however, told the Committee that one of the main reasons why
it has not been able to post all of its decisions on its web site is due to
financial reasons, specifically the high costs associated with the publishing
process.
Jerry Kovacs of the Army, Navy and Air Force Veterans in Canada suggested
that, as an alternative, the Canadian Legal Information Institute (CANLII),
which is funded by law societies across Canada and publishes legal decisions on
their web site for free, be called upon to publish VRAB decisions: “Concerns
that VRAB has about the cost of publishing decisions are mitigated by the fact
that there are some law societies across Canada [i.e. CANLII] who are willing
to publish all of them — all of them — for free.”
VRAB responded by clarifying its position, indicating that the main
reason that deterred it from posting all its decisions on the web pertained to
the high costs of translation and de-personalizing the documents. These costs
would still have to be absorbed by VRAB even if an organization such as CANLII
agreed to publish all decisions for free. VRAB told the Committee that it would
cost about $3.5 million to have the more than 4,000 decisions it provides every
year translated and de-personalized for web publication in a timely manner.
“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,” said VRAB Chair John Larlee. “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.”
The Committee firmly believes that translating and de-personalizing
all VRAB decisions so that they can be posted online will cost too much for
little in return. Instead, the Committee would like to recommend first, that all
decisions that have been sent to the Federal Court or that are reviewed a
second time by VRAB should be posted on the web site, and second, that for the
sake of transparency, VRAB engage a reputable and independent external
organization to assist it in selecting decisions to be posted on the web. The
purpose would be to ensure that a good, unbiased representation of decisions is
made publicly available instead of spending millions of dollars translating and
de-personalizing all VRAB decisions.
The Committee recommends:
Recommendation 8
That all Veterans Review and Appeal Board decisions sent to the
Federal Court or that are reviewed a second time by the Veterans Review and
Appeal Board be published on the web within the
next year.
Recommendation 9
That a reputable and independent organization be hired to assist
the Veterans Review and Appeal Board in selecting key decisions to be posted on
its web site.
The Committee agrees with witnesses that VRAB has an important role
to play as an independent quasi-judicial tribunal. VRAB should continue to move
forward on this action plan and should adopt the recommendations made in this
report.
The Committee was pleased to learn from this study that VRAB is
already implementing a number of measures to improve its services and
transparency, some in response to the March 2012 report by the Veterans
Ombudsman. As John Larlee told the Committee:
First, we communicate decisions to veterans more quickly. Thanks to
new technologies and other improvements, the board processes requests for
review about 20% more quickly than five years ago. We have reduced processing
time by 50% in the case of appeals. We are also looking for other ways to set hearing
dates more quickly, and that includes providing veterans with the option to
have their hearing by videoconference … The board is currently carrying out a
project for restructuring the business processes in order to find ways to
reduce red tape and make the process faster and easier
for veterans.
A second area of improvement … is our focus on issuing fair and
well-reasoned decisions for veterans. This begins with the board's merit-based
selection process, which ensures new members are qualified to hear and decide
cases. The criteria include a preference for members with a military, medical,
policing, or legal background, in recognition of the work we do and the people
we serve.
Our excellent training program for new members combines practical
teaching and support from experienced staff. All members also receive ongoing
and specialized training from medical, legal, military, and lay experts on a
variety of topics.
… We have also taken swift action to
address recommendations from the Veterans Ombudsman and suggestions from our
stakeholders. For example, we have established a team to improve the quality of
decisions by ensuring they are well organized, clearly expressed, and written
in plain language. We will implement these improvements by the end of the year.
Our third area of focus is in working to serve
and honour veterans by listening to them and acting on their feedback. Veterans
have told us they want greater access to our decisions. In May [2012], we began
publishing the board's most relevant and instructive decisions on our website.
These noteworthy decisions help veterans and the public better understand our
work and make applicants aware of decisions made in cases similar to their own.
We are also committed to building and maintaining our communications and
partnerships with our stakeholders.
The Committee encourages VRAB to continue reviewing and improving
its services. We feel that this is a step in the right direction and should
continue.
The Committee was also pleased to learn that the Veterans Ombudsman will
continue to study the way VRAB activities are conducted in the near future.
That being said, the Committee is concerned with some of what it
heard about VRAB and believes more work is needed on VRAB to communicate with
the veterans’ community. It is clear that there are conflicting views on some
of these issues, as witnesses and VRAB have had different opinions on how VRAB
serves veterans. Witnesses said that the public never hears about those who are
served well by VRAB and the redress process. VRAB should work diligently to
implement the recommendations made in this report.
VRAB should work to improve and find ways to enhance procedural
fairness, procedural communications, all the while ensuring VRAB’s independence
is paramount. The government should continue searching for candidates to sit on
VRAB who have military and possibly RCMP experience.
The Committee hopes that the recommendations made in this report
will help the Government of Canada and VRAB come up with reasonable solutions
to some of the Board’s challenges. VRAB has a critical role to play in
supporting veterans and serving members of the CF and the RCMP, and ensuring
that they and their families obtain the disability benefits they are entitled
to for illness and injuries sustained in the service of Canada.
The Committee is confident that with a more streamlined and
effective system in place, veterans’ trust in VRAB will be restored. In
conclusion, the Committee recommends:
Recommendation 10
That the Veterans Review and Appeal Board bolster its data
collection processes so it can properly track its activities.
Recommendation 11
That the Veterans Review and Appeal Board begin publishing an
annual report to Parliament.
Recommendation 12
That the Veterans Review and Appeal Board reduce its decision time
frame to 16 weeks from the moment a veteran schedules a hearing with the
Veterans Review and Appeal Board.
Recommendation 13
That Veterans Affairs Canada and the Veterans Review and Appeal
Board both review the present report of the House of Commons Standing Committee
on Veterans Affairs, as is required when a report is tabled in the House of
Commons, and that they both provide an update on their progress in implementing
the recommendations made in this report one year from its tabling in
Parliament.