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37th PARLIAMENT, 2nd SESSION

Subcommittee on the Status of Persons with Disabilities of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities

EVIDENCE

CONTENTS

Tuesday, April 1, 2003

0910

The Chair (Ms. Carolyn Bennett (St. Paul's, Lib.))

Mr. G. Peter Smith (Commissioner, Office of the Commissioner of Review Tribunals (Canada Pension Plan/Old Age Security), Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS)))

0915

0920

Ms. Anna Mallin (Chair, Regulation and Legislation, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS)))

Mr. G. Peter Smith

The Chair

Mr. G. Peter Smith

The Chair

Ms. Cheryl Forchuk (Chair, Core Policies, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS)))

0925

0930

The Chair

Ms. Anna Mallin

0935

The Chair

Mr. G. Peter Smith

Ms. Anna Mallin

0940

Mr. Bernie Clayman (Senior Advisor, Regulation and Legislation, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS)))

The Chair

Mr. Rob Merrifield (Yellowhead, Canadian Alliance)

0945

Ms. Anna Mallin

Mr. Rob Merrifield

Ms. Anna Mallin

Mr. Rob Merrifield

Ms. Anna Mallin

Mr. Rob Merrifield

Ms. Anna Mallin

Mr. G. Peter Smith

Mr. Rob Merrifield

Ms. Anna Mallin

Ms. Cheryl Forchuk

Ms. Anna Mallin

Ms. Cheryl Forchuk

The Chair

Ms. Cheryl Forchuk

0950

The Chair

Ms. Anna Mallin

The Chair

Ms. Anna Mallin

The Chair

Ms. Anna Mallin

The Chair

Mr. Rob Merrifield

Ms. Anna Mallin

The Chair

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ)

Ms. Cheryl Forchuk

0955

The Chair

Mrs. Judi Longfield (Whitby—Ajax)

1000

The Chair

Hon. Maria Minna (Beaches—East York, Lib.)

The Chair

Ms. Anna Mallin

Mr. G. Peter Smith

Ms. Anna Mallin

Mrs. Judi Longfield

Ms. Anna Mallin

1005

Mrs. Judi Longfield

Mr. G. Peter Smith

Ms. Anna Mallin

Mrs. Judi Longfield

Ms. Anna Mallin

Mrs. Judi Longfield

Ms. Anna Mallin

Mrs. Judi Longfield

The Chair

Ms. Anna Mallin

The Chair

Mr. G. Peter Smith

The Chair

Mr. Guy Arseneault (Deputy Commissioner, Office of the Commissioner of Review Tribunals (Canada Pension Plan/Old Age Security), Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS)))

1010

The Chair

Mr. Guy Arseneault

Mr. G. Peter Smith

The Chair

Ms. Maria Minna

Mr. Bernie Clayman

Mr. Guy Arseneault

Mr. Bernie Clayman

1015

Ms. Maria Minna

Ms. Anna Mallin

The Chair

Mr. Guy Arseneault

Mr. Bernie Clayman

Ms. Maria Minna

Mr. Bernie Clayman

Ms. Cheryl Forchuk

Ms. Maria Minna

The Chair

Mr. Lyle Smordin (Chair, CPP/Disability Insurance, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS)))

1020

1025

Mr. Chris Spiteri (Senior Advisor, CPP/Disability Insurance, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS)))

1030

1035

Mr. Lyle Smordin

The Chair

Mr. Lyle Smordin

Mr. Chris Spiteri

Mr. Lyle Smordin

1040

The Chair

Ms. Madeleine Dalphond-Guiral

Mr. Lyle Smordin

The Chair

Mr. Chris Spiteri

Mr. Lyle Smordin

The Chair

1045

Mr. Lyle Smordin

Ms. Madeleine Dalphond-Guiral

The Chair

Mr. Guy Arseneault

Mr. Lyle Smordin

Mr. G. Peter Smith

Mr. Lyle Smordin

Mr. G. Peter Smith

The Chair

Ms. Maria Minna

1050

The Chair

Mr. G. Peter Smith

Ms. Maria Minna

Ms. Cheryl Forchuk

1055

Ms. Maria Minna

The Chair

Ms. Anna Mallin

Ms. Maria Minna

Ms. Anna Mallin

The Chair

Mr. G. Peter Smith

The Chair

Mr. G. Peter Smith

1100

The Chair

Mr. David Baker (Lawyer, As Individual)

1105

1110

The Chair

Mr. David Baker

The Chair

1115

Ms. Allison Schmidt (As Individual)

1120

1125

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

1130

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

1135

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

1140

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

1145

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

1150

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

The Chair

Ms. Allison Schmidt

1155

The Chair

Ms. Allison Schmidt

The Chair

CANADA

Subcommittee on the Status of Persons with Disabilities of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities

NUMBER 009

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 1, 2003

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Ms. Carolyn Bennett (St. Paul's, Lib.)): I'm pleased to call this meeting to order.

As you know, the CBC is with us. Obviously, it's an indication of how important they and The Fifth Estate find this issue of CPP disability.

We are very pleased to have the Office of the Commissioner of Review Tribunals of the Canada Pension Plan with us.

Maybe we will start with the commissioner, if he would first introduce the panel. I think you then had a question for us about how to proceed.

It's a delight for us to be here. It appears as though we have been cooperating rather fully with the subcommittee in its extremely important work—its extremely important work—in reviewing the Canada Pension Plan disability program. I have just counted that this will be the fourth time that we have been here, perhaps particularly significant given that today is April 1. If my dear mom were still with us, I would of course be proud and phone her to say, “Well, I'm appearing tomorrow at a House of Commons committee”. She would have said, “Somehow or other, dear, I would have found that appropriate on April Fool's Day and all”.

Unfortunately, she's not here to catch me. She used to have this slogan for all her children: “Don't beat your arm patting yourself on the back”. This would have been one of the times.

I'm very pleased that this is our fourth time joining you, Madam Chair, and your colleagues. I think our first presentation was last May, when we made a presentation overviewing highlights of our operations. We then participated in a very stimulating round table. Then last February, my dear colleague and deputy commissioner, Guy Arseneault, who is a former member of Parliament, for those of you who might not remember a term or two ago, brought our client satisfaction survey to table with you. There was a brief discussion, and we were happy to have made that available to you.

Now, for the first time, we are particularly pleased to bring before you those who actually conduct the hearings; in other words, the people closest to those who are appealing to us—our clients, CPP contributors, Canadian citizens, and landed immigrations. You don't have to be a Canadian citizen to apply for a Canada pension; you just have to have worked in Canada. It's a very important thing that sometimes people don't remember.

Given that it's the first time we have brought these people before you, it's a bit of an historic occasion from our perspective as a small agency. So I'm very pleased that we have five actual, real-life, community-based adjudicator/mediator people here to report to you on their canvassing of their colleagues. Earlier, we had hoped to have six of them here.

Last August, we asked three relatively senior panel members to chair three task forces, and they are now here today. What they're presenting to you today are the results, in the form of conclusions and recommendations, from those internal consultations. By this, I mean that they consulted other panel members. These were not public task forces. Quite assuredly, I would think it is not proper for adjudicators or members of quasi-judicial bodies to conduct public hearings. I want to stress this point: the recommendations they're presenting to you are the result of their task force leadership consultation with other panel or tribunal members. At the moment, these members number about 280 across the country, although this number changes every day. Some people don't realize the extent and number of our part-time panel members.

May I introduce them in the order that I'm going to suggest they present, Madam Chair. Then I'll ask you a process question. You may want to seek the advice of your colleagues on it.

We'll first be calling upon the chair of the core policies task force, Dr. Cheryl Forchuk, who has a PhD in nursing and is a specialist in psychiatric nursing. She sits as a medical member in various parts of southwestern Ontario, but particularly in Brant, Norfolk, and Middlesex counties near London, Ontario. We will be asking Cheryl to present a brief opening statement in a minute.

¿ (0915)

Following Cheryl will be a chair. I regret to report to you, Madam Chair, that all of the rest of the task force present are lawyers. I don't know where that leaves us on April Fool's Day.

Some hon. members: Oh, oh!

Mr. Peter Smith: But we'll let them comment on that. However, Cheryl is highly capable of handling them all.

Anna Mallin is a chair in Toronto. She chairs mostly Scarborough and North York, or in that general part of Toronto. But on various occasions she has helped us out across the country. She is a lawyer. One of her non-tribunal specialties is the law of new intellectual property.

Is that a fair way of summarizing it, Anna?

¿ (0920)

Ms. Anna Mallin (Chair, Regulation and Legislation, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS))): Yes.

Mr. G. Peter Smith: Also with us, with the reddish tie, is one of our “senators”. I hope you don't mind here in the House that we sometimes do call him senator, because he's a very senior and respected person among our panel members. He is Bernie Clayman from Toronto, who sits mostly in North York. He has been a long-serving panel member, and a wonderful thorn in the side of us on the staff, reminding us on a constant basis, “You're not doing that right. You should be doing that better. You should get that document to us faster. You should tell the department this”. Being a seasoned panel member is a good reason for him to be here, to maybe provide some advice to the members of the committee.

These are the two representatives of what was dubbed the “legs and regs” task force. We had better explain quickly that it was the legislation and regulations task force. In other words, it looked at the current CPPD legislation and regulations and what should be changed. So the recommendations from that legislation and regulation task force are partial answers to that question.

Our third panel member of the task force is represented here by two gentlemen. The more distinguished-looking one—which is not a comment on his colleague's newly grown goatee—is Lyle Smordin of Winnipeg, a noted Winnipeg lawyer and litigator. He is also a member of other part-time quasi-judicial bodies and has served in a variety of such capacities, including duties on federal boards and commissions. As you will note when he presents, he is a broadcaster as well. He started his career when he was in law school with the CBC, as a lot of people did in the summer when they were studying.

Lyle will be presenting third, and he's assisted by Chris Spiteri, who is an Ottawa lawyer and part of a firm that does a variety of things. I know that one of his specialties when he is not being a tribunal chair, at which he's rather adept, and a very compassionate and sensitive chair, is doing a lot of company start-ups, whatever that means, and of course other things that lawyers do. I think it's mostly in the high-tech area, but I'm not sure of all those details, and it's really none of my business.

Those are your panel members, and of course we also have Guy Arseneault, the deputy commissioner.

Madam Chair, may I raise something regarding the subject matter of the first two task forces, core policies and legislation and regulations? As they are quite complementary, my suggestion is that the two task forces make opening remarks, one after the other. Then you might wish to pause and take questions on those, and then later do the presentation by the insurance task force, because its mandate is very narrow and quite separate from the other two. But I'm certainly in your hands, and we'll abide by whatever you suggest.

The Chair: Okay.

Mr. G. Peter Smith: Members, do you think that is appropriate? Thank you.

Would you mind, then, calling on Dr. Cheryl Forchuk.

The Chair: Go ahead, Cheryl Forchuk.

Ms. Cheryl Forchuk (Chair, Core Policies, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS))): Thank you for the opportunity to speak with you today.

In looking at the issues, our group had four major theme areas in terms of the recommendations, and I'm only going to briefly highlight. We don't have time to go into all of them, but the one issue is around eligibility and a lot of this really talks about what is the definition of disability.

We had some recommendations around the appeal process, some around the benefit payments, and some discussion around the relationship between CPP and other programs. To understand where we're coming from in the recommendations, I want you to very briefly consider two brief vignettes.

I want you to think about Mary. Mary had worked for 10 years before beginning signs of a recurrent illness. It could have been cerebral palsy, it might have been schizophrenia, or it may have been a cancer that kept coming back. But as a result, after her 10 years of employment she took a year off and then went back to work.

A couple of years later she had to go off again, and in the next few years the periods of wellness became shorter and the periods of illness became longer. Eventually she could no longer work. She will never qualify under the four-to-six rule. If she had simply remained off work rather than trying to go back, she would qualify. It was her persistence in going back to try during those period of wellness that means she will never be eligible. That would not be the case if only she had refrained from working during those periods of wellness.

John worked in heavy labour. He had a progressive back problem or a progressive illness. He had two years of long-term disability from work and then was offered some retraining, because he was a very bright person. He struggled through school for a year. This meant taking some courses through the Internet and sometimes taking the tape recorder and leaving it in the class and picking it up later from a classmate. Sometimes, during periods of wellness, he worked with a very flexible faculty.

Unfortunately, John will never qualify because going back to school represented a capacity for work. Because that was after that two-year period of being off work, he will not qualify. If only John had not been so persistent in trying to go back to school, he would have qualified. Because he went back to school, he won't.

When we look at the issue of eligibility, various illnesses have different trajectories or different patterns. We have some illnesses that become progressively worse; someone has it and then it's basically a downward slope. We have some illnesses that are catastrophic; someone is working at a particular level of wellness, maybe they get hit by a car or whatever, or they have a stroke, and boom, they can no longer work.

Many illnesses have this episodic nature, where there are ups and downs. Over the course of the illness, those periods of wellness may become shorter and periods of illness longer. So a number of our suggestions within this are really trying to address the concerns of that third group.

In some ways, what that four-out-of-six rule does--you have to work for four of the previous six--is to actually introduce a kind of systematic discrimination against certain illnesses. So when you look over our recommendations, you will see that a lot of them address those issues.

We had some specific suggestions around that, for example, to have several criteria, to keep the four-out-of-six rule but also to look at issues; for example, if someone worked for a third of the contributory period--which means from when they first started working until the time they apply--but no less than three years, or if they worked 10 years at any time. We think some of these suggestions would help address the issue of both episodic illness and the other kinds of patterns of illness and disability.

The other issue is around the educational dropout, actually looking at the dropout generally, so that people are not penalized by trying to go back to upgrade themselves, trying to see if they can find other employment. We know with the parental dropout, the child rearing dropout option, what happens is that essentially those years are dropped out of the calculation so they don't count. If a woman or a man takes years off to raise young children, it doesn't count against them in the calculation. What we're suggesting is a similar kind of dropout applied to someone going back to school.

¿ (0925)

Again, what we really want to do is encourage people to do their best to return to work if at all possible and not to put up roadblocks or penalties around that.

In introducing that, then the issue of partial years becomes very important, because many academic programs start in September. But we think the use of partial years would also help resolve some long-standing issues around the child rearing dropout because of using calendar years rather than partial years. If a child is born, say, January 14, that whole year is still counted in; it's not until the following year that it would be dropped out. Very many women at that point may in fact be returning to work, so they in essence lose the entire benefit of the child rearing dropout by not counting the partial years. So we think that looking at the partial years would help both the educational dropout that we're proposing as well as the current child rearing dropout.

Some of our suggestions around the appeal process itself actually very much overlap with what Anna is saying, so I'm going to leave those for her.

We had several suggestions around the payments; for example, retroactivity going from the date of disability, and incentives for trial returns for work, so that people, again, attempting to return to work are not in essence penalized and losing their benefits if they try for a number of months and then it doesn't work.

I know the issue of the disability tax credit has certainly been controversial. One of the things we have heard and are suggesting is that if someone does qualify under CPP as having a serious and prolonged illness, that should automatically qualify them for the disability tax credit, rather than their going through different kinds of criteria, a different kind of screening, and being forced through yet another maze. We recognize that it truly is a maze. There are numerous definitions of disability out there, an absolute patchwork quilt of disability programs. Ultimately we have to pull that together, but as an interim measure certainly we can look at there being some consistency between federal programs.

Again, looking at this patchwork quilt, one of our other suggestions is--and again, I know this is controversial in terms of privacy issues, but I think there are ways of dealing with it so that it does not infringe on someone's privacy--to look at a common CPP-EI database; for example, even having common fields within the databases so that we can actually track trends.

We feel this would help ultimately with early intervention if we have an idea of what situations that we're seeing in the EI database are then going on to CPP, and looking at that as common. Then maybe we can be more proactive in certain situations, and perhaps even target research funds to certain areas to help look at early intervention, look at strategies that can help so that they don't continue on, so we have less of a disconnect again between federal programs.

As well, in terms of some infrastructure we're suggesting under A20, we look at an advisory body to give ongoing policy input. This would give a voice to various stakeholders, including disabled persons, in looking at the overall vision and planning. Again, if they also had access to some of the information, the broad information that was coming through, such as this common database, this could help in looking at targeting certain areas around policy decisions, around targeted research decisions and program decisions.

Ultimately, we raise the question that has been raised before about a national disability plan and we think that's certainly the ideal. We recognize it's a long way off, but we're thinking that by bringing in some of these suggestions we are making, they would be steps along the way to that ultimate goal of a more national cohesive disability plan.

So these are just highlights of some of the discussions that we have. There's certainly much more detail within the report. There are other suggestions within the report, but these are basically the highlights of what we are suggesting.

¿ (0930)

The Chair: Thanks very much.

Anna.

Ms. Anna Mallin: The legs and regs task force focused on process and on the progress of an applicant through all of the stages, from initial application for CPPD, through reconsideration, through a review tribunal hearing, and on to the Pension Appeals Board. Our general view was that this process could be shortened, and it could be made more efficient and effective for the applicant and the appellant and more cost-effective for the taxpayer.

The other underlying theme of our discussions was the desirability of helping an appellant get more information earlier in the process. Currently an appellant does not receive the reasons for a minister's decision denying them disability benefits, the detailed reasons specific to that appellant, until just before a review tribunal hearing. This means that they get the detailed reasons specific to them about four or five weeks before a hearing.

If this review of the minister's reasons reveals a real hole in their case that they can fix, they have very little time to go to get the additional information. For example, a minister's submission might suggest that there is no recent MRI, or no full psychiatric report, or something of this sort, which may be quite available to the appellant but they just haven't gotten it. So they don't have the time at this point to arrange this. This may lead to a review tribunal hearing being adjourned or the applicant not presenting full information and then having to go on to the Pension Appeals Board to make their case fully.

We think it might make much more sense if the department were encouraged to provide detailed applicant-specific reasons to the applicant at the time of reconsideration so they know the case they have to meet when they go on to a review tribunal, so they have a better understanding.

I should explain that in fact the department has been very helpful in providing ministers' submissions to appellants and to tribunals with the hearing file. It used to be that the tribunal and the appellant only got the material on the date of the hearing, just before the hearing, which meant that the appellant was trying very hard to read three or four pages of dense material, or trying to understand it just before going into a hearing, and not being able to understand what was wrong with their case.

So there has been a tremendous improvement. We want to compliment the department on that. But we think there could be further improvement in moving back earlier into the process this provision of information to the appellant.

We also think it might be useful if the department were encouraged to get more information themselves through encouraging the adjudicators to have face-to-face meetings with the appellant. Very frequently you have a hearing file that has lots of medical information in it. The medical information doesn't leap off the page and explain why this person is incapable of working. You see several diagnoses and you say, what's here? Then the person walks into the hearing room in person and it all comes clear.

We think if the appellant had a chance to talk to somebody face to face earlier on in the process, perhaps at the reconsideration stage, in fact many more disability pensions would be granted at the departmental level and would never have to go on to appeals. Indeed, we hear quite a lot of frustration from appellants, who say thinks like: I never got to talk to anybody; how could I explain what's going on? It's not in the paper. This is what is happening. We would like to encourage, as one of our major recommendations, that there be an ability for fixing face-to-face meetings before review tribunal stage, earlier on in the process.

In support of this, we had this whole theme of wanting to get information to people earlier. At the OCRT level there's a very good counselling function, where people are given some information about the process they're going to have to meet, what they're going to have to do. But we feel that frequently this could be improved and we perhaps want to give the commissioner some tools to improve this understanding of the appellants.

¿ (0935)

We wanted to suggest that the commissioner be empowered to require certificates of readiness from appellants to indicate that they really have given some thought to all of the information necessary to make their best appeal. Have they, for example, visited a psychiatrist in the last five years? Is there a psychiatrist's report in the file? Has one been tabled? Have they visited an orthopedic surgeon? Is there a report in the file about a visit to an orthopedic surgeon? This is the kind of checklist, and we think empowering the commissioner to require these kinds of certificates might enable this improvement.

If the appellant has more information earlier in the process, our other major recommendation is that it may be unnecessary to have a second level of de novo hearing at the level of the Pension Appeals Board. Currently, because the appellant isn't well informed, necessarily, the review tribunal stage is the time at which their case comes together. So if they're unsuccessful, they then know what the whole process is about and feel the necessity to go on to a Pension Appeals Board hearing, where a good number are granted.

We suggest that if there was more information earlier in the system, there would not be a necessity for this additional stage of hearing, and this of course would reduce costs to the taxpayer, would reduce stress and worry on the part of the appellants, and allow the appellants to get on with their lives in a shorter period of time.

Our task force also has a number of technical recommendations, and I'll highlight several where we feel that for technical reasons the process could be made better. For example, there is no formal settlement mechanism that allows the commissioner to accept a settlement between the department and the appellant in a formal fashion.

For example, let us imagine that a review tribunal is scheduled, and just before the review tribunal hearing, a new medical report is received and it's absolutely definitive; there's no question that this particular appellant can't work. The department agrees and says, yes, we want to reverse our original decision; we want to grant the appeal, grant the disability benefits. But there may be a question as to the date of commencement of the disability benefits. The appellant may think they should get the disability benefits back to the day when they stopped work, and the department may say, depending on the nature of the file, no, they think the date should be somewhat later; for example, the date of the car accident that happened shortly after the person stopped working.

Because of the informality of the present process, there may not be actual agreement between the appellant and the department as to all details, and we feel there should be some way of causing agreement to happen, rather than having an appeal then that comes forward on the date of onset of the disability payment. Again, we think the system could be streamlined and made more efficient this way.

There's also no formal mechanism for withdrawing an appeal at a hearing. This sometimes happens. A person may suddenly get better; the new medication has worked. There may be any number of reasons for an appellant wanting to withdraw at the hearing, and there's no formal mechanism for doing that. We have a number of other rather detailed mechanical suggestions in our task force report and they're there for you to see. If you have any questions on them, we'll be happy to address them.

But those are the points that I wish to bring to the attention of the subcommittee. Thank you.

The Chair: Thank you very much. Is it--

Mr. G. Peter Smith: I believe Mr. Clayman was to follow up with a couple of....

Ms. Anna Mallin: He speaks to one particularly dear to his heart and dear to all of our hearts, I think.

¿ (0940)

Mr. Bernie Clayman (Senior Advisor, Regulation and Legislation, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS))): Thank you.

As part of this task force suggestion of early information, my remarks address the issue of appellants who do not speak, do not understand, and do not read either official language and have received all correspondence from HRDC and all telephone contacts with HRDC in only the official languages.

As Peter said, most of my hearings have been held in North York, and Madam Chair, as you are aware, in that area many of the people who come before us were not born in Canada and have this illiteracy and official languages problem. Notwithstanding that they have spent their working careers in Canada at manual jobs, such as sewing machine operation, construction work, and that sort of thing, they have in fact carried on their working careers by speaking to their co-workers and supervisors in their native languages.

Notwithstanding this problem, no translator is supplied by HRDC until they get to the review tribunal stage. The effect is that while they are entitled to present their best case--and you'll see that in our task force report--how could they prepare their best case when they have little understanding of anything that has transpired up to that point in time? They probably don't know they need medical reports indicating the severity of their disability at the time of the hearing, medical reports indicating the severity of their medical problems at the time they last satisfied the contributor requirements, and suddenly, as they come through the door of the review tribunal, lo and behold, for the first time there is a translator to explain the issues to them.

In that situation, where it becomes apparent that they didn't understand the issues, the review tribunal really has no alternative but to adjourn the hearing to give them the opportunity to get the medical evidence, which they now understand is necessary. I understand that the cost of adjourning or setting up a review tribunal is about $900. It is absolutely wasted money. If they had been better prepared and understood the system....

It seems to us--and you will see this in our report--the supplying of a translator at an early stage and throughout the process where necessary would be cost-effective and a greater fairness to the appellants.

While my remarks are based on my experiences in North York, they are applicable to all areas of the country where there is a significant new Canadian or immigrant population.

I think the level of understanding is best illustrated by an experience I had. An appellant was sent what is called “the blue book”, which contains all correspondence and all medical reports to date from HRDC to the appellant. At the same time, she got a letter saying, if she wished to rely on new medical evidence, she should make three copies of the new medical reports for distribution to the three members of the tribunal. She wanted to rely on the medical evidence in the blue book, so she went to Kinko's and had three more copies of the blue book prepared at a cost of $50. Absolutely, that was her understanding.

On page 23, the last paragraph, you'll see that we sum up our position, that in fairness and cost-effectiveness in these areas, early translators must be made available to the appellants in order to give them a fighting chance of winning at the tribunal.

Thank you.

The Chair: Thank you very much.

We will move to some questions from the committee to the first witnesses. Is everybody still okay with that?

Mr. Merrifield, welcome.

Mr. Rob Merrifield (Yellowhead, Canadian Alliance): Thank you.

I'm just sort of catching up on the entire issue, but my first question would be on the appeal process. You talked about that. Would face-to-face meeting deal with the language barrier problem at the same time, if that was something that was brought in at an earlier stage?

¿ (0945)

Ms. Anna Mallin: I would think so, and I would hope that departmental adjudicators are encouraged to have face-to-face meetings, and if there is any suggestion that there is an understanding problem, that a suitable translator be provided at that stage. Indeed, I think it would be very beneficial. At the level of the adjudicators, this could be even more informal. There could be a much greater explanation of what the process is.

So, yes, I think it would be very valuable.

Mr. Rob Merrifield: But that would be the way to deal with both problems, if there really is a face-to-face meeting, because the only way it could take place is if the language barrier were overcome.

Ms. Anna Mallin: That's right. We heartily agree.

Mr. Rob Merrifield: In essence, one would deal with the other.

The other thing with the appeal process is.... I'm just wondering. You have the three levels of appeal. Could that be collapsed? I mean, is that a clumsy--

Ms. Anna Mallin: That's exactly what we're suggesting, that it be collapsed into two levels, the reconsideration phase and the review tribunal phase, and then have no further appeal to the Pension Appeals Board. So, yes, that's precisely what we're suggesting, the collapse.

Mr. Rob Merrifield: And that would deal with a much more streamlined, a much more efficient.... Would there be a cost saving if we did that?

Ms. Anna Mallin: I believe there would be, but there's a balance here. There would be additional costs to the department of doing more work on the file in order to develop the applicant's specific reasons for denial at the reconsideration phase, so there'd be a little more emphasis and effort there, while there would be less emphasis and effort in the final appeal stage. So it's not an absolute saving, because there would be more costs moved to the front end of the system.

Mr. G. Peter Smith: Madam Chair, may I contribute briefly to that?

I think the chair knows, and other members, that we have often challenged the department to put us out of business. If they put us out of business, they put the PAB out of business.

Mr. Rob Merrifield: I have one further question. As a panel member, can you explain to us why you reverse such a large portion of the HRDC decisions when it comes to granting a disability pension to someone the department has already turned down?

Ms. Anna Mallin: Yes, we think the department was wrong.

Ms. Cheryl Forchuk: Could I address that one?

Ms. Anna Mallin: Yes.

Ms. Cheryl Forchuk: Quite often, when we look at the book with all the medical reports prior to the meeting, I certainly have had the experience of looking over it and saying, yes, I can well understand why the department would have turned this down, because the evidence they have before them is these medical reports with often huge gaps. There's very seldom anything around the actual employability issue at all, within them. That's one of the things we stress in our report, that the definition speaks to whether or not the person can have any regular gainful employment. Yet the medical reports are often silent on this issue. But when we see the applicant in person, it is often very clear and we can ask very specific questions around the employability issue.

What we're suggesting is that the department should have some of the same advantages of that face-to-face meeting and, as well, within these records that we look at issues specific to employability. So although we may disagree, we're looking at different kinds of evidence when we come to make our decision. We are both hearing the person as well as having the medical information, whereas with the current system the department only has those pieces of paper. In fact, if we only had the pieces of paper, we might well support them. We might come to the same conclusion, very often would come to the same conclusion. But we have the benefit of that additional information.

The Chair: Are you saying that the medical forms aren't asking the right questions, or are you saying that there isn't the expertise within the department to make medical decisions about employability based on the medical information provided by their own doctors?

Ms. Cheryl Forchuk: What I'm saying is that the information that the client has sent in tends to focus on their medical history but is silent on the issue of employability, they may not have had any specific assessment of their employability. Even if they've been asked those questions, they may not have understood the implications. If you ask the average person what is a serious and prolonged illness, they tend to think of illness and do not think of the definition within the legislation that links that to employability. So the kinds of information is very different. But as well, because we have the benefit of the face-to-face meeting, we actually see the person versus the department only seeing the pieces of paper. We're making the decision based on different things.

¿ (0950)

The Chair: Ms. Mallin.

Ms. Anna Mallin: I might add, it is the difference between diagnosis and a person's capacity to work.The diagnosis names an illness; it doesn't tell you what the effect of it is. Indeed, one of our other recommendations is to encourage the department to do much more in the way of providing information on functional capacities evaluation, functional abilities tests, etc. We need more information that focuses on a person's capacity to function, as opposed to a diagnosis of illness.

The Chair: Is that an education problem of physicians in terms of--

Ms. Anna Mallin: No. A physician's task is to make a diagnosis, treat the patient, and give a prognosis.

The physician isn't focusing on, for example, if this person has sciatica, can they work as a sewing machine operator? They don't do the kind of testing that says, what can this person do? Can this person lift 10 pounds? Can this person walk half a mile? Can this person bend and pick something up? That's not what their job is. That's the job of somebody else that does a functional capacities exam.

The Chair: What we heard from the Medical Association is that a lot of doctors are pretty uncomfortable being asked to make that employability assessment, in the same way that we don't like taking away a person's driver's licence. In terms of the ongoing doctor-patient relationship, some of us think that if we were asked whether this person should be expected to work, we could actually say yes or no. But whether or not we should be asked that question is what the committee has been struggling with.

Ms. Anna Mallin: I think that doctors should not necessarily be asked that question. It's the province of someone of a different department of expertise to make evaluations as to someone's physical capacities.

The Chair: Mr. Merrifield.

Mr. Rob Merrifield: It seems to me that when you're making decisions like this, you should have as much information as you possibly can prior to the decision being made. I think that's the concept.

Ms. Anna Mallin: Indeed, it's the tribunal's function to make this decision about a capacity to work.

The Chair: Madame Dalphond-Guiral.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Madam Chair.

I'm very happy to see you here, all seven of you. This is a large group, but the thing that makes me happiest is to know that there is a nurse among you. I admit here that I am preaching for my own bailiwick, since I was a member of that sisterhood for a long time. I think that nurses have an empathetic perspective on people and politics that is also reflected in their judgment calls, and that is probably the most important quality. I am very happy to welcome you, Ms. Forchuk in particular.

Among the elements being focused on in particular, you referred to eligibility, of course, and the famous definition.

I have been sitting on this committee for a long time; I am almost the most long-standing member. I am like this gentleman here; we arrived together. The problem relating to the definition has always been an enormous problem because this is a framework definition, and when definitions change while they involve the same person, it becomes extremely difficult; we can then see cases like that of people who receive the disability pension but are not eligible for tax credits, which is absurd.

Currently, we are trying to brainstorm. Do you think it is possible that experts, competent people, health care professionals, people who are very close to those who live with a serious disability, will arrive at an intelligent definition? I think that is the first thing that needs to be done.

I heard you talk about Mary who was not eligible because—oh, catastrophe—she was courageous. This is an aberration in our system, this punishing of people who are courageous, rather than supporting them. So I think that what we have here is really a values problem. Perhaps this is all rhetorical, but this is what strikes me the most.

There you have it; you now have the floor.

[English]

Ms. Cheryl Forchuk: Yes, I think it's a critical issue in terms of the definition, and that's why I specifically brought forward the situation of Mary. She's obviously a combination of several people we have seen.

I should mention my own interest, how I initially even ended up participating in the panels. Peter Smith mentioned my background in mental health, and a number of years ago I was a public health supervisor in a mental health program in the Hamilton area. We had a lot of people with very long-term mental illnesses, and often one of the big issues facing this population was poverty and the fact that they were not on adequate levels of support.

We went through our caseload, trying different ways to ensure they were getting adequate financial support. Particularly with women like Mary, they often had worked a number of years prior because the illnesses are slow and get into this intermittent pattern. One of the things that amazed me was that we rarely would have anyone eligible for CPP despite years of employment. We would often go and find that with the provincial program, because it was a different definition, they might be able to get it or maybe not. It was some of those initial discussions, actually, that led me to have discussions with my MP about, why is it these people are never eligible despite having contributed for a number of years and obviously being clearly disabled--at least, under my understanding of it?

It was a few years after that I was asked if I wanted to be a member of the review tribunals. I felt it was one of those put-up-or-shut-up kinds of scenarios. When I was later asked to chair the core policy committee, I certainly brought that bias with me.

I think what we need to do in defining disability is take into account those different kinds of illness trajectories I talked about. The definition needs to include this issue of episodic illness, and many illnesses are episodic in nature. Even with some of those progressive illnesses there are brave people who will continue to try; they'll try to go to school and they'll try to go back to work. The current system focuses on this progression as the model, not only in the definition of “severe and prolonged”, because it can happen in severe and prolonged, but it has to be continuous to the date. So if you have a period where you are a bit better, you lose. It has to be continuous.

But also, so people can work during the periods of wellness, which maintains their maximum health and their maximum dignity, we need a mechanism where they can, during those periods of illness, quickly go back on disability again without having to run into that.

What we think the definition should be has to include this idea of episodic illness as well as the serious and prolonged. When we looked at the definitions--and it's not just Canada that has this problem--we looked at definitions from the U.S. and we looked at definitions from countries around the world, and we did see that many definitions did include this idea of episodic. That is certainly one of the things we need to look at as well.

I'm also sure that many people, aware that it does not include episodic, are not as brave and choose to not even try because they recognize it's going to threaten their financial stability. What does that do to a person's health if we take away their hope?

That's again what we do by having this one model. We put them in a very difficult position because we take away.... If they try and fail, they are really going to lose quite a lot in terms of their financial stability, so many people don't try.

We think it's going to help many people by including this. That's the overall concept of episodic. What we have here are some specific ways we might be able to accomplish that in terms of some of the smaller suggestions. But the bigger concept is, let's recognize that disability is not always this steady progression or this catastrophic event. Sometimes it's a process that has ups and downs, and those ups and downs might not fit the nice, neat pattern that would allow four out of six years of contributions.

¿ (0955)

The Chair: Thanks.

Judi.

Mrs. Judi Longfield (Whitby—Ajax): Thank you. I want to thank you all for coming, and I appreciate your expertise.

One of the things I noticed quite quickly when I set up my office and began to listen to constituents is that it appeared that almost everyone who made an initial application was denied. I'm sort of struggling as to why it appears that the initial application process does not lay out the checklist of things that are needed in terms of providing that functional capacity assessment, making it clear to applicants the kind of information they need.

Frequently they would come in, and after we had reviewed it, just as you've said, you'd look at the documentation they had and some of them would end up saying, gee, based on that, I'd turn it down as well. I'd say, where is this and where is this? Well, they'd say, I didn't know I needed that; no one told me I needed that. They seem to go through successive letters without anyone saying, well, if you just had that....

I'm concerned about how we put out an upfront checklist so even my staff, when they're assisting people in preparing these initial applications, can make certain they act as an advocate and say, now, don't forget to get this. I want to know, who should make the functional capacity assessment and how could I steer a constituent who was looking at making an application to get that information initially, hopefully to see that we've got agreement on the initial application?

I'm going to have all my questions together just to leave it.

I'm also concerned about streamlining if we don't beef up and put some real teeth in the other two levels. What I wouldn't want to happen is to streamline for the sake of making it a little faster but to have rejection at the end. I appreciate that when they finally get to the Pension Appeals Board, it's often the only time they actually see a satisfactory resolution. I don't want to put you out of business too soon until I know the other two steps are appropriately taken care of.

Also, I'd like to know, if everything goes perfectly in terms of the initial application, the reconsideration, the review tribunal, and the Pension Appeals Board, how long it would take. Then could you address the issue of retroactivity.

À (1000)

The Chair: Can I just interrupt as the chairperson for two seconds. I think we're going to lose Mr. Merrifield. We just have to quickly pass this budget before we lose quorum so we can, after this terrific panel, call other wonderful witnesses next week and the week after.

Hon. Maria Minna (Beaches—East York, Lib.): I move adoption of the budget.

(Motion agreed to)

The Chair: Thank you very much. We're a tiny, perfect committee.

Some hon. members: Oh, oh!

The Chair: Go ahead.

Ms. Anna Mallin: You may have to help me remember each of the pieces of your question. With regard to length of time, perhaps Peter can help us here. I believe that the average length of time from initial application through the Pension Appeals Board can range between a year and a half and three years. Is that a fair range?

Mr. G. Peter Smith: There have been improvements lately. I say “improvements lately”, but it's still not ideal. We particularly have got our timeline down really quite dramatically since we got rid of our backlog. What we're hearing now is appellants saying, we don't want to go as fast as you want us to go. It's a flip of what it was three years ago, interestingly.

Ms. Anna Mallin: Let us explain why. It takes a long time to get specialists' reports. They may not be able to assemble the medical information quickly, so there's a real concern because we don't want to push them on before they're ready.

Mrs. Judi Longfield: That sort of deals with my first question: how can we make certain that on the initial application we have everything that's needed?

Ms. Anna Mallin: If I can, I'll address that.

First of all, the review tribunal and the OCRT can't do too much about that. The department maybe needs to be encouraged to provide more information in its forms, etc.

One thing we can do, and it's indeed part of our recommendations, is propose that this checklist be posted on the OCRT website; that there be a handbook for appellants' representatives to help them with the procedure, to help them assemble information; and that yes, we get that information out there as fully as possible. I'm in hearty agreement about that. Of course, it would help MPs' staff in knowing how to advise clients. If we can make that information available on websites, it'll be there.

Now, you had other questions.

À (1005)

Mrs. Judi Longfield: I was worried about the streamlining--not streamlining for the sake of streamlining, that we needed to beef up the reconsideration in the review tribunal, and I think part of that response is that if we have the appropriate checklist, the gaps are filled before it gets there, so there might be the opportunity....

Mr. G. Peter Smith: May I just briefly, Madam Chair, comment on Ms. Longfield's very insightful representation that it's not streamlining for the sake of streamlining.

There are indeed suggestions around, somewhat in contrast with Anna's task force, that there should be two decision points. One complete, fully developed file by the department--fully developed--one full and proper appeal, is maybe a more radical proposal that has been around. It would mean a collapsing of the two stages of the department into one where the file is “fully developed”. That would be the language they use in the department.

That then leaves us, presumably, a much smaller number of de novo appeals, reducing the PAB to doing something it could do extremely well--matters of law only. It could take appeals on questions of fairness and due process and so on. This actually takes it a step further than Anna's recommendation and that of her task force. I know they discussed different options--

Ms. Anna Mallin: Which we don't object to. It's just not the option we thought was the most viable.

Mrs. Judi Longfield: My last question is, who is capable of making the functional capacity assessment? Where would one go?

Ms. Anna Mallin: I think that should be at the departmental level, because they see the person earliest and they have the resources of companies and groups that do functional capacity evaluations. There are outside businesses that do precisely that, test people. I have whole sets of job descriptions: could this person do the job of purser on a ship, mail clerk, computer engineer--these sorts of evaluations.

Mrs. Judi Longfield: So would you recommend that the initial application include that functional capacity assessment?

Ms. Anna Mallin: No, because it's very expensive to do, and to have the applicant try to arrange it is too awkward, too costly. They probably couldn't manage the process of getting it arranged.

There are many applications that may be denied for purely technical reasons--they don't meet the contributory requirements, or they're working at the time of the application. There is a whole series of things that indicate perhaps they should be denied at that very initial application stage without further ado. That's one of the reasons we would retain the initial application going to reconsideration. We think, of the funnel of cases coming in, a significant number get weeded out at that point for very good technical reasons.

But I should mention that we don't have the statistics at hand. Our staff person was unable to get information, for example, on how many applications are made initially, how many of those initial applications are granted or denied, and how many applications that are denied go on to reconsideration, etc., how this all works out as it goes through the system. We just don't have those figures at hand.

Mrs. Judi Longfield: Madam Chair, I'm going to ask if we could get those. I think it would be extremely helpful.

The Chair: I think they're on our committee website, actually.

Ms. Anna Mallin: Are they? I didn't see it.

The Chair: It seems to be consistent; it's about 53% that are turned down.

Mr. G. Peter Smith: We do have some recent data for you, if you would like, Madam Chair. But we will undertake to make sure.

I know the department very kindly has made available regularly to us the data on all four stages. I don't know why we couldn't get it to you, unless maybe there was some difficulty in the short term.

The Chair: It was the first question I ever asked in an HRDC meeting, because even as a physician, I was of the view of Ms. Longfield, that 100% were turned down. I think my first question was, are 100% turned down, or does it just seem like that?

À (1010)

The Chair: Yes.

Mr. Guy Arseneault: --and another 28% at reconsideration.

Mr. G. Peter Smith: It's somewhat logical, Madam Chair, that those who have succeeded will not appear in their MP's office in tears, generally speaking. So you get a kind of skewed sample.

The Chair: I was thinking about it going out from the GP's office with what I thought was my hugely valuable signature and being sort of disregarded 60% of the time.

Some hon. members: Oh, oh!

The Chair: Ms. Minna.

Ms. Maria Minna: Thank you, Madam Chair.

I want to ask three questions.

To some degree this is déjà vu for me. Long before I became a member of Parliament I started dealing with immigrant settlement programs--I don't care to say how many years, maybe 30 years or so ago. The issues are no different today from what they were then. It's rather sad, given the latest statistics by Statistics Canada as to what Toronto looks like today in terms of how many.... I'm using Toronto as an example, but that doesn't necessarily reflect the whole of the country. Of the population of Toronto, 60% or more were born outside of Canada, and therefore there is a great need.

I remember having arguments and discussions with EI, CPP, and I forget what else to provide interpretation for immigrants when they go for services. I kept getting told, we're only obliged to provide the two official languages, thank you very much, and good-bye.

I'm glad you brought this up. It creates an injustice in the system, and it costs money at the end of the day because these people then have to go and get lawyers. For those who come to my office, we're able to help the ones who speak my language and two or three other languages I have in my office. Usually they've been at a lawyer's office where they've spent $5,000 or $10,000. It's a little bit like the consultants on immigration. In order to get the translation of things that are not all that complicated, they go to consultants and what have you, or some of them have been to insurance companies, which know nothing about the technical stuff, and they've given them all the wrong information. By the time they get to my office it's a total disaster. So I suspect that when you get them, they're in that shape as well.

Mr. Clayman, maybe you could tell me where you would start with the translation. I'm this person who doesn't have the language capability. Exactly what would you do from the time I want to apply, even to the point of getting me the information as to how to start?

Mr. Bernie Clayman: You have two problems. Obviously we can't have a translator of every language in every office across the country. That's number one.

While the goal may well be to get them the translations as early as possible, going back a step, translators are made available to them at the review tribunal hearing upon request. It seems to me that the department is admitting this lack of understanding by supplying that translator at that time. But surely, as soon as a request is made to have a translator available at the review tribunal hearing, warning bells should go off, and that translator should be brought in at the time of that request at the latest. That does not happen. If they had been brought in at the time of request, at least the minister's submission, which is the minister's explanation as to why it was granted, would have been translated to them possibly 30 days ahead, and they could have got updated medical reports as they then understood the situation. So at the latest, it should be at the time of request for a translator at the review tribunal hearing. The earliest, it seems to us, and it's set out in the task force report, is when counselling occurs.

Guy, how far in front of the hearing is the counselling?

Mr. Guy Arseneault: Once they receive the blue book there is contact, and it's ongoing.

Mr. Bernie Clayman: So it's about five or six weeks ahead of the review tribunal hearing. Counselling should be made available in an understandable language, obviously.

From a practical point of view, I don't see how you have translation available in parts of the country that don't need it for the occasional person who does need it. I don't know how you work that.

À (1015)

Ms. Maria Minna: One way of addressing that, for instance, is the organization I volunteered at. It provides services in 42 languages. This is just a not-for-profit agency; it is not a government organization. It has a much smaller budget than any government agency, and it can provide services in 42 languages.

I'm using it as one example in one city. There are many others across the country in Vancouver, Montreal--you name it.

There is a recommendation that you obviously might make and certainly I would like to make. Why couldn't the department have a fee-for-service arrangement with one of these organizations so applicants could have an individual to assist them with the interpretation in the preparation of documents, even before they start their application process? This would be to help them understand the procedure and their obligations, responsibilities, and what have you, not to get them medical benefits but to guide them as to what their obligations are at the outset, at least.

Again, this is something that's been going on for decades, actually. The Government of Canada, generally in CPP and EI and GIS and what have you.... I digress here, but this is another reason why the guaranteed income supplement is under-prescribed, as we all know. But the different departments refused to participate on a fee-for-service basis, resisted working in partnership with organizations in the field who do work with these groups of people all the time. I'm wondering whether that wouldn't be a better way of starting, so that then you have a continuum.

Ms. Anna Mallin: If I may respond, I would heartily agree. I would hope that eventually we, and perhaps the department, could develop OCRT website materials in a variety of languages that might be of assistance to advocates and translators, as well as appellants, in explaining what's going on. I think your suggestion is excellent.

The Chair: Mr. Arseneault.

Mr. Guy Arseneault: If I could respond just quickly, I think it's an excellent idea. Actually, we are in the process of pursuing some of those ideas with regard to community-based groups, gathering information about them, to see who would be available to do that.

Advocacy counselling could take it even a step further. As much as we counsel, we cannot counsel by giving advice on how to proceed; we're advising on the actual process. We have to be independent and very neutral, as opposed to some of these community groups, who could actually assist and develop the file to a certain extent. There are some individuals who don't qualify at all and will never qualify; they should know that ahead of time, and maybe someone can tell them that. We can't. We have to accept them at a tribunal.

Mr. Bernie Clayman: I want to make it clear that it is the department dealing with these applicants at the early stage, not the review tribunal.

Ms. Maria Minna: I understand.

Mr. Bernie Clayman: Okay. So it's only when we come into the picture that we deal with it, but we are asking for a change in procedure at the department level to have the early translation.

Ms. Cheryl Forchuk: I was just going to say, again, that I think part of our recommendation around the face-to-face contact early on in the consideration is very important. Even if we have some things available on the web or in translation in terms of the client population I work with, people with chronic mental illness, approximately 25% don't even have a phone, let alone access to a website. The kind of solution they're going to need is a person to talk to.

Ms. Maria Minna: I have just one question.

The Chair: Maybe what we need to do is to hear the testimony of Mr. Smordin and then we'll go back around again.

Mr. Lyle Smordin (Chair, CPP/Disability Insurance, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS))): Thank you, Madam Chair.

First of all, let me say it's a pleasure to be here and share our experiences with you. It's a great opportunity to do so, and on behalf of my own task force members, who have put in many long and diligent hours, I thank you for this opportunity. This presentation is a compilation of the ideas and the debate that went on in our committee over a number of months, several meetings, and many long-distance telephone conferences.

I want to set the table first by talking about the relationship between CPP and the private disability benefits offered by insurance companies. In effect, to set the table, we have to say, what do employees do when they come into a company? They sign up for an insurance plan that gives them major medical, dental, and eye glass coverage, life insurance, and long-term and short-term disability. While there is a contribution by the company for whom they work, there is a large contribution by them, especially when it relates to long-term disability. They themselves are funding long-term disability. If they ever become disabled, they would expect to achieve a non-taxable benefit for which they paid over the years of their employment.

Now, what happens when they become disabled? First of all, with respect to short-term disability, the issue becomes your being disabled for a short period of time. You fell, you hurt yourself, you had an accident, or whatever, and you're collecting short-term disability. Then, of course, long-term disability would commence once the short-term disability term ended. We have to look at the two different tests between CPP and the private insurers.

Generally, for the private insurers, if you can't do your job to about a 60% level--and I'm quoting from one of the plans--then you're disabled. That's their test. Then, the second step is for them to say, well, you know, you should be applying to CPP. In our study, we have not been able to find where it says CPP should be the first payer, but the insurance company says, we think you should apply.

The problem becomes one of the tests: 60% of what you are doing at the present time when you're working or, according to our CPP legislation, a severe and prolonged mental or physical disability which renders you incapable regularly of pursuing any--and I emphasize the word “any”--substantially gainful occupation. You can make $1,000 a year as a part-time parking lot attendant. This is a very severe and much more stringent test. So we have that problem.

Now, going back to the agreement--this is all in our paper--the employee has no ability to opt out, no ability even to have what we've talked about, an informed consent. Employees are going to work; they don't think they're going to be disabled. They're more interested in the eye glasses and the drugs for the family, and they really don't look at the implications of this aspect.

So then they get a letter from the insurance company saying it has received a copy of their declaration letter from the Canada Pension Plan. The insurance company says, we have instructions and--“encourage” is a weak work--we recommend you appeal; instructions for appealing are included in the letter, so you'd better get with it. Then it says, and this is a quote, “If we do not hear from you within three months regarding the status of your appeal, we will estimate the CPP disability benefits you may be eligible to receive and deduct them from your current disability benefits.” Bear in mind that CPP is taxable; the benefit they were getting is non-taxable. So if they don't do anything, they are the losers.

À (1020)

Another insurance company says, it's our position the appellant has a duty to mitigate losses by making all reasonable efforts to apply for and obtain CPP disability benefits. By the way, that means going as far as the review tribunal, at least. Should So-and-so not pursue his application, then the amount of his pension will be adversely affected by the fact that he will not have contributed to the fund for several years. The insurance company is going to penalize him. The agreement they have signed says, if I do not comply with any of the terms of this agreement, I agree that the insurance company has the right to withhold or reduce my benefits until the amount of CPP benefits to which I may be entitled has been exhausted. The insurance company is going to deduct even before the appellant is the loser.

It goes on and on. But those examples are taken from letters issued directly to appellants, saying, we recommend you appeal; but if you don't, you're dead, because we're going to cut you off.

How does this then impact on appellants? It impacts because, if they go to the review tribunal and they are successful at that stage, then they get a CPP benefit, which is taxable, and the balance or the difference is non-taxable. They are paying tax on something they didn't envisage needing to pay tax on when they paid their premiums many years prior.

We talked about the length of time it takes to get to this stage, however, and what happens as well when the tribunal says, well, I guess you are disabled and the date we're picking for your disability is from your minimum qualifying period--everything needs to work technically, but I don't have to go into that--July 1999. It's been almost three years since July 1999.

Now what happens, for a very practical reason, is that HRDC issues a cheque through the assignment they've signed directly to the insurance company for, say, $24,000. It happens in November. People drawing these benefits open their mail in February--and remember they've been getting non-taxable money for all these years--and there's a T4 from the Canada Pension Plan for $24,000 to be added to their income, which in their minds they didn't receive. The insurance company got it.

One of our prime recommendations is that what occurs be a tax-neutral situation. In other words, that lump sum should at least be staggered over a few years, and most certainly the insurance companies should only receive the net amount after the tax has been paid. This operates as a tremendous disability on top of another disability that these people have suffered.

I'll ask Mr. Spiteri to make a few remarks regarding his input on our committee.

À (1025)

Mr. Chris Spiteri (Senior Advisor, CPP/Disability Insurance, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security (CPP)/OAS))): I should say, in reviewing this and seeing the way that the first-payer principles with the insurer came into place back in the 1990s, I think the legislators were truly acting in good faith. I think they were acting in the best interests of the disabled applicant. The difficulty is that this is an issue of money, and it's a substantial amount of money for the insurer.

When I started doing this some years ago, what struck me was the first problem, which was that the insurers, in pressuring the insured, the disabled, to apply for CPP, were sending people to a process who simply shouldn't have been there. They simply didn't qualify under the CPP plan.

The test, as you heard, under the CPP plan is that you have to have a condition that is so severe that it prevents you from engaging in any type of occupation on a regular basis. Under the private insurance plans, the general rule is that the condition has to prevent you from engaging in an occupation that you are substantially qualified to perform. They are two very, very different tests.

So what I was seeing was that a number of people were being put in a position--and many of these people had less than a high school education--a very difficult situation where they had to go and argue their case, and they shouldn't have been there.

I spoke at that time to a colleague who was in the insurance profession, and I said, why are you doing this? It doesn't make sense. He said, well, if we don't do it to everyone, we'll have to increase premiums. We rely on that money that comes in from CPP.

That's when it started striking me that the money is the issue here. This is what it's all about. For the insurance company, the CPP payments, which offset their private disability benefits, is a bit of a bonanza for them.

That leads to the second issue--and Mr. Smordin touched on it--which is the insured who comes before the panel on the insistence of the private insurer. What happens to them? The system that we have has fundamentally created classes of people, and it's these classes of people that create a fundamental unfairness. In essence, in virtually every case where someone is in receipt of a disability insurance payment from a private insurer, each time these people are approved for a Canada Pension Plan disability pension, they lose. They win, but they lose.

Here are the classes of people.

The first class of person, which we can call the winners, are the people who are only in receipt of private insurance long-term disability benefits. These are people who have paid into a group insurance plan. They've started collecting their short-term disability benefits, and they subsequently move at the two-year mark to collect long-term disability benefits.

For the sake of argument, let's just take a number; say they're receiving $1,500 a month in non-taxable private insurance disability benefits. Those persons are not in receipt of a Canada Pension Plan disability pension. They would have had to go through the hoops. There would have been pressure to apply. They may have applied. They may have come as far as the panel, and they would have been denied. So that's $1,500 a month, tax free.

The second class of people have fulfilled exactly the same requirements. They could even have the same condition. They are persons who have paid into a group insurance plan. They've started collecting their short-term disability benefits, and then they've moved into the long-term disability class. They were receiving $1,500 a month without a taxable consequence. They are pressured to apply for CPP and appeal, and they're granted.

The consequence of that is now--again using numbers that I'm just pulling--if a person is to receive $750 from the Canada Pension Plan as a disability benefit, that $750 would be offset as against the $1,500 that he or she was receiving from the private insurer. So the private insurer pays $750, and CPP pays $750. On the surface--and as I said, I think the intentions were all very good--there's $1,500 going to that recipient. But it's not $1,500, because the $750 received by CPP is taxable. So whatever that translates into...take a 26% tax equation on that. For the sake of argument, let's say it's $1,350 or $1,400. You have two classes of people now, both of them having paid in for their private insurance disability benefits and the two of them receiving very different amounts.

À (1030)

Might I add in this, of course it doesn't happen. There's only one person who is going to pay tax, and that's the recipient in this case. But the insurer is getting a real benefit. They are no longer paying $1,500; they are getting a $750 per month benefit, but of course they're not paying any tax on that. It's the disabled person, the person who needs the money most, who ends up paying the tax consequence.

So I would refer to that class of people, class B, as one of the losers in that. They've won, but they've lost.

It doesn't really relate to this discussion, but the extension of that, for our benefit here, is that the people who are in receipt of social assistance, workers' compensation, or provincial disability benefits also fall into this second losers class, because when they're approved for their CPP benefits--because it's also an offset against the provincial disability or against the workers' compensation--they may be put in a position where they actually lose other benefits that they were getting under the provincial plans. They may, for instance, lose their drug cards, and this is significant for people who don't have much income.

The third class of people, of course, is the people who simply apply for CPP, have no entitlement to private disability benefits. They receive their CPP disability benefits, and they're taxed on it.

Those are your three classes of people. For our purposes, it's the first two classes that cause us significant concern, because these are people who contributed to both the Canada Pension Plan and to their private insurance plans, yet these two classes are created where one group is getting less as a result of the offset.

It's interesting to note, and I just touched on it, that from our perspective--and I think all of us have seen it here--it's extremely frustrating to see these people come forward before the panel and they simply don't know what the effect is going to be of a positive decision of the review tribunal. They're simply unaware that what will happen is, at the end of the day, they're going to be penalized or they're going to have to bear tax consequences that they weren't bearing prior to this, prior to the hearing.

You have to remember that many of these people are not well educated. They have less than high school. They're unfamiliar with the system. They're unfamiliar with the rules regarding insurance and social assistance. They are, of course, unwell. These people are disabled, they're frightened, and they don't have a great deal of money. They have been pressured by their own insurer to come before the panel, and it's an intimidating process for many of these people. Despite how unintimidating we may try to make it, it is an intimidating process. They're simply unaware of the tax implications; ergo, that's why, at the end of the day, I say these people oftentimes appear to be winners, but they turn out to be losers, because it's just less for them.

Thank you.

À (1035)

Mr. Lyle Smordin: Let me quickly sum up, if I can, in one minute the recommendations that we're making.

First, we ask that--

The Chair: Mr. Smordin, before you do that, you've only dealt with the private insurers. Did your committee look at the public insurers like workers' compensation and social assistance? Certainly there are other people being pressured to appeal by public insurers.

Mr. Lyle Smordin: Yes, there are.

We didn't, because we found the relationship between the insurance companies and CPP to be such a daunting task that we weren't able to get into it.

The other thing, of course, is that it's a federal issue. Where you're dealing with workers' compensation, you're dealing with each individual province. That would have taken us several years, and we knew there was a rush to get to this committee. So it's your fault. You wanted us to come forward.

But seriously--

Mr. Chris Spiteri: Can I just add to that, too?

There are differences. I was just advised yesterday that in Alberta workers' compensation benefits aren't offset by Canada Pension Plan benefits. So there is a provincial legislation versus provincial legislation issue there altogether, whereas in this case, with the private insurer, this relationship comes about not as a result of legislation but as a result of an understanding that was developed in the early 1990s as between the insurance industry and HRDC.

Mr. Lyle Smordin: It was an agreement, by the way. We're recommending that that agreement, which can be cancelled by the federal government, should be cancelled by the federal government. They entered into a contract with 36 insurance companies way back in the early 1990s that allowed them to do that. Then, of course, the legislation is permissive because it says you “may” be an administrator, or the government “may”, under section 65.... That is also a particular problem.

So we're saying review that agreement and take a look at the fairness of cancelling it. Examine the reason CPP was put in as the first payer, which we, of course, feel it should not be. Review the assignments of the retroactive disability payments, which the uninformed recipient has to sign, and provide independent legal advice when one is signing the agreements.

I've talked about the offset and that before, but the other issue is the cost of the appeal. As has been outlined by my colleagues, people who.... It doesn't mean you don't speak either of the official languages. There are a lot of people we see who may have a grade 5 or 6 education and they don't understand what the doctors have said, they don't understand what CPP has said in their letters. They come uninformed as well. They should have legal counsel or representatives. They've been forced by an insurance company...hey, let the insurance company pay. Let the insurance company allow them a fund to hire counsel or a representative to advocate their appeal. I know later in your agenda we have a very capable representative who does appeals and is not a legal counsel, but is quite adept at doing them.

There is another area that causes us a great deal of concern. Remember one thing, if I can put the lawyer's hat on for one last moment, the contracts that are signed between the insurance companies and others are contracts of “utmost good faith”, not simply “sign here”. They have to have absolute honesty or trust, and we find that is again one of the things that are failing in the system.

Are there any questions?

À (1040)

The Chair: Thanks very much.

Madame Dalphond-Guiral.

[Translation]

Ms. Madeleine Dalphond-Guiral: Thank you, Madam Chair.

I'm not easily shocked, but I have to admit that the situation that allows private insurers to recover money on the backs of all disabled people who have not had the opportunity of contributing to a private system is plainly indecent. I dare hope that the situation will change, because there must be some way of putting a stop to that. This makes no sense whatsoever.

I would like to ask you a question on a topic which was not broached, or perhaps I did not hear it. When you are recognized as a disabled person who is entitled to benefits, there is a certain monitoring that takes place. I would like to know how frequently this monitoring occurs. I remember situations where this took place every six months, and this became fairly horrid. I even remember saying to a neurologist that I could fill out the forms myself, that he did not have to sign them in advance. It was ridiculous.

There are, indeed, certain situations where monitoring is logical, for diseases where things may improve, but there are a large number of cases where we know that things will not improve. So why do we need these kinds of obligations, where forms must be filled out so that the person does not lose his or her benefits; it does not make sense.

[English]

Mr. Lyle Smordin: I know the private insurance companies very vigorously regulate people. I've seen experiences where the private insurance companies, aside from the CPP, have said to somebody who is collecting long-term disability, you know, it's been a long time. You really didn't have that severe an injury. You fell at your desk or something happened to you. We'd like you to go back and see a doctor. Then they have said, sorry, you're no longer eligible, so good-bye. We think you can go back to work; you're just either malingering or not bothering to go back to work.

I understand the CPP department also has an ability to reconsider people, but I have only heard of that being applied in an instance when I had a hearing and one of the neighbours, because he didn't like the guy, ratted on him and said, I know this guy is on CPP, but my God, he just finished building a fence and re-roofing. He shouldn't be on disability. They revoked his disability, and then he applied again to the review tribunal I was on.

I hope that answered the question.

The Chair: Maria had a question, but am I hearing you say that at the review panel you feel you are doing some of the assessment work that would normally be done by an insurance company? So you're a bit of a bargain for the insurance companies.

Mr. Chris Spiteri: Not us, but the department or the whole structure of CPP is a bonanza for the insurance industry. If the system is changed, they'll threaten to increase premiums if they don't have the offset coming to them.

Mr. Lyle Smordin: That's the only avenue that they have. As you see, they force people to appeal—people who are perhaps disabled by their test, but not disabled enough by the CPP test.

But the other way they can get back at you is by indicating that, well, if you're going to do that kind of thing, then we are simply going to raise the premiums, and people will not be able to afford to pay their disability policies.

The Chair: So what benefit was it to the government to make this agreement to begin with? Secondly, regarding the agreement disclaimer that employees are asked to sign, is the employer scot-free on this despite the fact that the employer picked the plan?

À (1045)

Mr. Lyle Smordin: Yes, that's the area we think should be examined. The employer has entered into an agreement. Frankly, it didn't make any difference; they weren't really looking at disability. Take, for example, how many people in your plan go to the dentist as opposed to people who become disabled. The difference is astronomical—85% or 90% of the people in the plan go to the dentist, and get eyeglasses, and probably even more. But only 1% ever become disabled. So to the employer, that part of the plan didn't really matter.

[Translation]

Ms. Madeleine Dalphond-Guiral: I simply want to apologize for having to leave. There are those who claim that members of Parliament do not work; here's proof to the contrary. I have another committee at 11 o'clock, the Standing Committee on Citizenship and Immigration. I'm sure you will understand that that is also an important committee. So, I'll say good day to you, for now.

The Chair: Good day.

[English]

Mr. Guy Arseneault: I think it's important to answer the question on why the government got into that, and the insurance company answers to that. In years past, the insurance company wouldn't pay until the appellant had a decision from CPP. So the insurance rationalization was to say, well, we'll pay it, but you pay us back. And the government was saying the same thing. So in all fairness, I think that aspect will have to be looked at as well.

Mr. Lyle Smordin: What Mr. Arseneault said is true. In principle, it was good idea, but they didn't factor in the difference between taxable and non-taxable.

Mr. G. Peter Smith: To put this into some kind of financial context, the department has provided us—and we've done our own calculation in connection with the actuary for the CPP—with amounts that are past due after a review tribunal grants the benefit, which Mr. Smordin and Chris described. It is a relatively small matter, but these are the so-called retroactive payments provided for under an amendment made to the Canada Pension Plan Act by the previous government. They amounted to about $60 million the last two years. That's one kind of offset, if you will, or that's the retroactive cheque.

The real cash, if you will, is in the form of the monthly offset, which is not provided for in legislation. It is simply not interfered with by the Canada Pension Plan or by the government.

Is that a fair summary?

A voice: It is.

Mr. G. Peter Smith: Our estimate of the annual value to the disability insurance provider is about $500 million—and it could be $800 million. I have put these figures to various people around the system and have not had them denied, but I have not had them confirmed either. Just to get the facts down, if we possibly can, I will soon be writing to the chief actuary, who had previously confirmed our estimate of $60 million for the so-called retroactive...to see if somehow or another between the chief actuary's office and our office we can get to the facts about what is a virtual benefit, in effect. Maybe we can call it that. I don't whether Lyle or Chris would agree that we use that language. It is a virtual benefit because it is subtracted from the monthly cheque of the disability insurance provider.

Mr. Lyle Smordin: It's a virtual world, so we use the word “virtual”.

Mr. G. Peter Smith: I thought that would help, as well as Guy's point. Absolutely, what people were saying back in 1991 was if we don't get some kind of payback on this, we're going to abandon these clients. Some people have said that's what the insurance companies said then. So the previous government--at a time of recession, I remind you, the early 1990s--said, my God, we can't have this kind of uproar in group insurance plans, therefore we'll go along with this.

I will still continue to make inquiries, including the Tory ministers at the time, but I haven't managed to get them on the phone yet to ask the question, what the hell happened?

The Chair: I'm going to have to go to the panel, with huge regret. Maybe Maria has a question.

Ms. Maria Minna: I have a brief question, since I was in line.

First, I'm appalled at what I just heard with respect to the insurance. Basically, CPP is subsidizing the insurance companies.

A witness:Correct.

Ms. Maria Minna: And the recipients are paying taxes, so everybody's a loser except the insurance company. It's an obviously disgusting arrangement that we have.

My understanding, naive as it is, is that if I'm an employee and I pay into a private insurance plan together with the employer or on my own, it is one plan separate from the CPP plan, which I also pay into, and the two shouldn't cross over. I should be receiving money from both without being penalized in one or the other. I paid both. They have different criteria, and how there is this private arrangement to basically--excuse the bad language--screw me between the government and the insurance companies is disgusting.

I want to put that on the record, because I worked with workers' compensation clients for years prior to becoming an MP and I've seen how they upload everything so they always give the lowest possible disability decision, in Ontario anyway--I'm talking about Ontario--and then advise people to apply for CPP and hopefully what have you.

But in this case, this is pure robbery. It should be changed. I think, Madam Chair, we really need to make a very strong analysis of this and a strong recommendation. I'm not even sure it's moral, let alone legal, and it should be changed. That's my reaction to that one.

À (1050)

The Chair: It seems, Maria, that we should ask these panellists here, before we call the insurance panel here, if they had any questions they wanted us to ask of them. Then I'm sure Mr. Young and Mr. Kerr would be more than happy to provide the committee with a series of questions, if you thought there were specifics.

Mr. G. Peter Smith: Have they agreed to appear? I think that would be very important.

Ms. Maria Minna: I have one final question that is away from this, because this one I understand. It's clear.

I want to go back for a moment to the previous discussion, and that has to do with the functionality of disability and getting a proper.... One of the major problems when I was dealing with workers' compensation situations was the fact that what was used was a medical model, in the sense that the doctors would say, you have a back problem, go do light work. And I don't know how you would interpret long and sustained disability, but that's also quite severe.

At what point does an individual, at least after the first application, get a proper functional occupational therapist or whatever...? Because it's different for everyone. You can have a bad back and somebody says, you're able to do some work, you're able to earn a minimum wage or what have you. That may be easy, but even if you're pushing a broom around, you may only be able to do it for an hour at a time and you have to take a break. How many employers will hire you for that?

My question is this. What I see with CPP, and I saw it with WCB as well, is the same sort of malaise, where the real substantive understanding of what the body, or mind, or whatever the disability is really in fact able to do.... And I go into some of the chemical types of illnesses, some of which have not yet been recognized. Fibromyalgia is one of them, chronic syndrome, what have you. There are certain other areas we haven't even addressed. Is there communication between your level and the department to find a way to begin to really help applicants and to have experts within the department to do a proper evaluation on real disabilities, not just the medical model, with all due respect to the doctors around the table? They tend to say, is he eligible to do medium to light work? You tell me what that means. I've gone through the gamut for 20 years and I know what the pitfalls are.

Ms. Cheryl Forchuk: I think the focus has to be on function, as we're saying, and I think our recommendations on that face-to-face meeting and asking the questions, and having the person understand early on what the process is and what the issues are, is really important.

As well, even within the medical problem you can get three different specialists, and individually it doesn't add up to a disability, but it's when these various things are all added together that all of a sudden the person can't work. So even within the reports the people may say mild this, mild that, but the combination prevents.

The kinds of questions we often focus on at the tribunal very much focus on function. How does this affect you on a day-to-day basis? What are the kinds of things you can still do? I think some of these kinds of questions could also be asked within the department if they were having those face-to-face meetings early to get an idea of how this actually affects you on a day-to-day basis. And I think that's the kind of information.... If you have people coming into your constituency offices and they're running around collecting these medical reports, I would also be suggesting to them to also focus, in their letters and their explanation, on how this actually affects them on a day-to-day basis, because that's the kind of information that gets at these kinds of capacity assessments.

Short of their going to the very expensive route, which will be required for some people, of really having that full capacity assessment, where they can actually measure the amount of weight, and the amount of time, and how long they can sit or stand, at the earlier level some of that information that comes has to relate to capacity and to function.

À (1055)

Ms. Maria Minna: Anna, did you want to comment?

The Chair: Anna, go ahead.

Ms. Anna Mallin: Tribunals find themselves very much assisted by the Villani decision, where we can shift the focus from whether or not this person is capable of working and turn it around and say, is this person employable? Given what we've heard, do we think a real world employer would in fact employ somebody who is, for example, going to their diabetes specialist every two weeks, has problems with phlebitis and is going to see the phlebitis specialist weekly, has to go to physiotherapy three days....

So we find that this decision and the guidance provided there has been extremely helpful in allowing us to deal--

Ms. Maria Minna: It all comes down to where the onus is... [Inaudible—Editor]

Ms. Anna Mallin: Yes, it does. It minimizes the number of appeals.

The Chair: I can't thank you enough. I think we could have been here all day in terms of how much you've learned from the hard work of your subcommittees but also what I think everybody feels by just listening to you, that you're compassionate and the way that you really have done your jobs with amazing.... I think any one of us would have felt comfortable being an appellant before you, and we think that's a good thing. Thank you so much.

We are in a bit of a time constraint now in terms of the next panel. We need to get them to the table as quickly as we can because we've--

Mr. G. Peter Smith: While they're doing that, Madam Chair, can I take just a second to recognize our staff in the audience.

The Chair: Sure. As long as your panel is standing up and leaving as you're talking.

Mr. G. Peter Smith: The three lawyers who acted as support people to the task forces are Tina Head, Chantal Proulx, and Caroline Rutter, who's soon to be a mom, and another senior staff person is Hélène Racine. I'd thank them for their assistance to the task forces. You can see how proud Mr. Arseneault and I are of these people and why this is.

Á (1100)

The Chair: Thank you so much. That's great, thank you so much.

We're going to have people coming and going from across at the heritage committee, so maybe you want to begin, David, because I know you have to go and then Allison can continue, if that's okay.

Mr. David Baker (Lawyer, As Individual): If I can briefly introduce myself then, I'm David Baker. I've worked for 20 years as the director of the Legal Resource Centre for Persons with Disabilities, called ARCH, and I'm in private practice in Toronto.

I'll try to be very focused in what I have to say. My job is made easier by the fact that my colleague here is extremely knowledgeable and I'm sure will be able to carry the ball after I leave. I also am aware of a presentation that was made to you, I believe on February 12, by the CPP disability working group from the Ontario clinic system.

Maybe I could start by saying that I have absolutely no qualms in endorsing every single recommendation in their report to you, but I would draw particularly to your attention, because I think it's relevant to what I will be focusing on, recommendation (t) in terms of contribution periods, where they recommend that for persons who have paid in for 15 years there should not be the contribution period available to disentitle a person from receiving CPP; recommendation (u), in which they make particular reference to the issue of caregivers, which I will be addressing; and recommendation (v), where they talk about persons with recurring chronic or intermittent disabilities--and there's obviously massive discrimination against persons with such disabilities, particularly people with emotional disabilities, and it's a group that suffers tremendously from the disentitlement provisions--and then finally, the reference to the impact on rehabilitation of the contribution periods. Those are recommendations that I think are of the greatest importance.

What I wanted to focus on is the issue of unpaid caregivers, persons who are providing care to a disabled, usually a blood relation but not always. As you are probably aware, under the Canadian Pension Plan, as of 1972, there was a dropout provision provided to those providing care to children under the age of 7. There's no limit on the number of children, so there can actually be a very substantial dropout for either spouse, or intermittently both spouses, whenever a child is born to a family. This is handled automatically and is administered, without most people's knowledge, to their benefit.

In 1972 there was a tremendous battle over whether that went far enough. The Province of Ontario, for one, indicated that the government should have gone further and extended the caregiver dropout to all those providing care to another person without payment. The Canadian Labour Congress agreed. The Canadian Advisory Council on the Status of Women agreed. Many women's organizations lined up to support that position.

We currently have a case before the review tribunal. I'm not here to discuss the merits of the case, I'm really here to talk about the policy underlying the absence of a caregiver dropout that would include the groups I'm speaking of, that is, people caring for elderly parents, or sons or daughters with disabilities, in particular.

What I'd like to do, if my paper has been handed around, is just highlight the points I'm trying to make by referring first to page 8. Essentially what I try to do in the paper is demonstrate that for people who are receiving institutional care there are huge subsidies within both the provincial health care system and also the federal income tax system, but that for people who are receiving care in the community there are virtually no subsidies whatsoever, or those that exist are woefully inadequate and put people who are providing care in particularly difficult positions.

Á (1105)

In the paper, I make reference to the recent federal-provincial agreement with respect to health care and to its home care provisions. I express frustration and disappointment that the focus of those provisions and the compassionate care announcements under employment insurance will essentially focus on what I call transitional care, or the movement of people out of hospitals into their homes, and palliative care at the end of a person's life. But they will do virtually nothing for those who are providing care on an ongoing basis to a relative. In many cases, that care goes on year after year without any financial recognition.

My conclusion is that the effect of the new federal initiatives will be to move people out of acute care hospitals more quickly, and that more people will die in their own homes. Those are both very laudable goals, because they are shared by the recipients of care and their caregivers. I point out that if those goals are achieved, as we expect they will be, it will save the federal and provincial governments—who are contributing to the costs of health care—enormous amounts of money. But I am pointing out that the changes will impose additional demands and burdens on caregivers, which unfortunately go unrecognized.

The discussion about these issues has not really begun in this country. This is most unfortunate, and it puts us behind most other developed countries. We have an aging population. At the same time, more women than ever before are choosing to work outside the home, so where are these caregivers going to come from? How are we going to be able to meet people's needs?

I'm concerned that we haven't gone far enough in recognizing the needs of unpaid caregivers, in particular. I've mentioned the history of the absence of a caregiver dropout. As for the recommendation that there be a caregiver dropout, let me just say that we now have formal endorsements from the Canadian Labour Congress, the Council of Canadians with Disabilities, the Canadian Association for Community Living, the Older Women's Network, and the Canadian Association of Retired Persons. The Canadian Caregiver Coalition has provided its endorsement in principle. Its board will meet this coming weekend to provide formal endorsement. On April 10, there is a meeting of national seniors groups to consider a recommendation for them to all join in endorsing this change.

In terms of where things stand at the present time and why I welcomed the opportunity to come to talk to your committee on this issue, I've received communication from the Assistant Deputy Minister of Human Resources Development Canada indicating that they are reviewing their position on this issue and will not formally state the government's position until April 21. I don't really expect that your report will be out before then, but I do mention that the government position is not fixed at this point. I hope that the government will review its position in relation to the need and appropriateness of there being a caregiver dropout.

In the particular case of the woman I represent, she dropped out of the workforce after marrying late in life. Not having a child herself, she cared for her stepson for six months when he was dying of renal cancer. He would have been in an acute care setting had he not been at home. For six and a half years she cared for her mother, who was dying of diabetes and other complications. Again, she was at least eligible for chronic care, if not more. Every day that she was home caring for her stepson or for her mother, she was saving the government somewhere between $600 and $1,500 a day. She was administering very heavy care to her relations. She was obviously making a major contribution to the well-being of not only her relations but also the community at large. For her pains, she had her Canada pension reduced by a total of 20%. She became disabled as a consequence of caring for her mother and was not eligible for CPP disability.

So it certainly relates to your work whether there should be a dropout connected with eligibility periods. That is something I hope your committee would take into account.

Á (1110)

The point again is that if she were providing care to a child under the age of seven, she wouldn't have had her pension reduced at all. She would not have been disentitled to CPP disability, and her position in life would be significantly different.

In my paper I point out that things are handled very differently in other countries, particularly European countries, although a number of American states are doing this as well. I have particular information about Rhode Island. My sister, who has two multiply disabled daughters over the age of 21, has emigrated to England because of the inadequacy of services here. I feel a sense of frustration that I was not able to assist her.

I think that's really a statement on where we are in relation to caregivers in this country. We have not begun to take this seriously. Yet we are talking about increasing the number of people leaving hospitals more quickly, being more seriously ill, and being left in the care of caregivers. I hope the committee will be able to address at least this portion of the issue.

My paper attempts to look at other issues. I'll be speaking to others about those issues later in the day.

Perhaps I can leave things there. I'd be happy to answer any questions.

The Chair: I have one small question. Does this have to be in the legislation, or could it be in the regulations? Do the provinces have to agree?

Mr. David Baker: The provinces do not have to agree in this particular situation. Your previous witness was from the review tribunal, which is where this matter currently resides. If the government were to consent to an order, that could be done without any federal-provincial discussion or agreement. It would simply be, in effect, an amendment to the Canada Pension Plan, because it is discriminatory. I've indicated that I'm not here to discuss the aspects of the plan that I say are discriminatory. But that would be the mechanism through which it could be amended on May 21. That's what these groups are working cooperatively to urge the government to do.

The Chair: I know you have to go, Maria. We have all these committees meeting at 11 o'clock. We're grateful that you've been able to come at all. Thank you for your input.

We'll go ahead with Allison, and then David will still be with us.

Á (1115)

Ms. Allison Schmidt (As Individual): I'd like to thank you for allowing me the opportunity to present today. Unfortunately, I do not have a typed copy of my submission since my laptop, which was checked in as a fragile item by Air Canada, did not survive the trip from Regina.

I've had the chance to review the previous submissions made to the committee by other witnesses, and I indeed support the recommendations that have been made.

I would like to take the time allotted to me to try to give the committee an idea of my personal experiences as an advocate dealing with the various appeal processes through the Canada Pension Plan. I thought a lot about what I wanted to say today, and in the lexicon of a popular TV psychologist, I intend to tell it like it is. My hope is that the committee will hear my concerns and will understand that each time an application or appeal is denied, it translates to a human being faced with an often negative, life-changing experience.

That being said, I don't know if the panel knows how I got here today. I worked in Saskatchewan at a law firm that sued insurance companies for bad faith claims. After reviewing many files, I began to notice that a large number of these individuals were being denied CPP disability benefits. This was in 1997. I felt that many of the denials were due to incomplete information on the claim application or a lack of medical information. I also saw that many individuals were being denied just basically due to a lack of information about the program.

After repeated attempts to get information from HRDC and experiencing the frustrations of such endeavours as an able-bodied person, I thought that these individuals must have an advocate to work their way through the voluminous amount of red tape. So on March 15, 1998, I opened the Disability Claims Advocacy Clinic. I'm beginning my sixth year as I stand before you. It strikes me how naive I was when I left that law firm and embarked on this journey. What also strikes me is the ingrained and systemic denials applicants are faced with by adjudicators at HRDC.

I had the benefit of attending the round table meeting here in May 2002 with the subcommittee, and I came away from this meeting in many ways discouraged. I felt that you could debate the definition of disability ad nauseam, but it did not change the fact that approximately 60% of individuals applying for CPP disability benefits were being denied.

I was not sure how to get across to the subcommittee the frustrations I have personally experienced dealing with the system, and there have been many, without sounding like a bitter shrew. So I thought you would be better served by hearing about the example of a client of mine I helped through the vast sea of bureaucracy.

Foster is my oldest file. I met him in the fall of 1999. His wife contacted me to help with the application for disability benefits. Foster, a 57-year-old caretaker of an apartment block in Regina, had had two strokes, which left him unable to be competitively employed. Foster was prepared to be denied, as his doctor had told him that almost everybody is denied the disability benefit the first time around. Some five months later this prediction eventuated. Foster received what I call the standard denial: he was not able to work at his usual job, but the information on his file showed that he could still do some form of light work suitable to his condition and limitations on a regular basis.

We appealed for a reconsideration, and I prepared a lengthy submission outlining why he qualified for benefits, using the CPP adjudication guidelines. Three months went by, and we received notification that Foster's reconsideration had been denied. The department recognized that Foster had limitations, but based on a medical report that stated he was probably capable of sedentary employment not requiring a lot of manual dexterity and due to the fact that he was caring for himself, living independently, and able to drive an automobile, he was capable of doing some type of work. Foster took this in his stride, having little faith that he would be successful in his appeal.

Approximately 12 months after his application was made, Foster and his wife were forced to declare bankruptcy. Foster's wife was disabled from severe diabetes and the complications arising from such, and they were living off her disability benefit, surviving on little more than the basic necessities.

Á (1120)

In August 2000 Foster's appeal was accepted by the commissioner, and in March 2001 we attended a review tribunal. Having known Foster for 18 months, I noticed that he was having difficulties with cognitive processes, including most severely his memory. His wife described to me his change in personality and that depression was beginning to set in. Unfortunately, the review tribunal panel denied his benefits as there was no objective evidence to support his cognitive decline.

I was aware that in order to support this, Foster required a neuropsychological assessment. I met with the family physician, and we arranged for an intake assessment at our local rehabilitation facility. Foster waited almost six months to get this appointment, only to be told that a third-party request for a neuropsychological assessment would cost $1,000, obviously completely out of the financial reach of a man who had nothing. Foster told me to give it up. He felt that it was useless to continue with the appeal.

After some phone calls to his doctor, it was arranged that Foster could have a cognitive screening by an occupational therapist. The report arrived in January 2002, and Foster and I met with his family doctor to discuss the findings. The report stated that Foster had difficulty forming new memories, that his right- and left-hand dexterity was below average, and that his right-hand strength was borderline. Foster was unable to manage verbal instructions, and his frustration at his level of ability had reduced him to tears. The overall impression was that Foster had significant memory impairment and required that proper supports be put in place in order to ensure no further progression of his impairment.

Twenty-one days after his MQP, a letter was written in support of Foster by his physiatrist, who asked the family doctor to refer Foster for a neurological opinion to ensure that there were no other underlying neurological processes causing his cognitive decline. In the meantime, I withdrew the application for the leave to appeal and requested a section 84(2) hearing to the OCRT office and submitted the new medical reports as new facts.

The minister's position on this appeal stated that there were no new facts and that the occupational therapist had speculated on Foster's cognitive status by using a limited screening tool, and that indeed Foster had declined an assessment by a qualified neuropsychologist. A paper review by the review tribunal also declined his appeal, stating they were not satisfied there were any new facts. Again Foster asked me to give it up, but after three years and knowing Foster was disabled, I asked for a personal hearing.

Foster had contributed to the CPP plan for 32 years. It seemed wrong that a man of his age had been bankrupted by this system. So I asked Foster for one more shot at a section 84(2) hearing, this time to occur in person. This time I was armed with a neurologist's report that indicated that Foster had been diagnosed with multi-infarct dementia, and I had also contacted the physiatrist who indicated to the department that Foster had experienced additional strokes since his last assessment and that the physical findings showed a progression of weakness, spasticity, and that his cognitive and physical abilities had deteriorated. The specialist stated that Foster was unemployable.

The minister again refused to reverse their decision, stating that only recently Foster was considered unemployable and that he had declined a neuropsychological assessment.

Foster was despondent. He told me he had had enough. He wanted no more of it. He was turning 60 later that month and told me that, after three years of poverty, he was taking his early retirement benefits. I begged Foster to appear before the panel one last time.

I knew the only way to ensure success was to get Foster an assessment from a neuropsychologist. I arranged for this assessment and paid for it out of my own pocket. The neuropsychologist's findings and recommendations stated that Foster had severe cognitive deficits in verbal learning, word fluency, information processing, and fine motor skills, constant with what is commonly found in dementia. The deficits Foster had would make it difficult to cope with new or normal situations, and Foster was not suitable for any type of competitive employment or training situations.

On February 10, 2003, Foster was advised that the review tribunal had accepted his appeal. To date, Foster has not been told whether the minister intends to appeal, and he has not received any notification from the department as to when his benefits will commence.

Á (1125)

Foster's individual circumstances are unique, but the process he went through is typical. Foster's example also highlights many of the barriers faced by the appellants making their way through the system. These include the length of time from Foster's application, and to date he has not received any benefits; the inherently complicated and overwhelming appeals processes that often result in the appellant giving up in defeat; the adversarial and ingrained denial mentality of the adjudicators at HRDC; and the barriers to accessing the necessary medical reports. They're cost-prohibitive, especially specialized reports. Obtaining basic medical evidence is also challenging, obtaining the support of the family physician and engaging them in the appeals process. Forcing applicants into bankruptcy is unacceptable. Training people like Foster is also unacceptable.

In the last five years, I have recouped almost $1 million in retroactive payments for individuals who had been denied benefits by HRDC. Typically, these reversals occur at the review tribunal stage. I can count on one hand the number of times the department has reversed its decision. In my experience, a reversal from the department occurs when I've threatened exposure of the client to the media or written to the minister herself directly.

I've recently been told that there is no quota for approvals, but I dispute that. Why else would individuals who clearly meet the criteria be repeatedly denied? That is the question I would like answered. Why is it so difficult to obtain a benefit one is entitled to receive?

I know this is an issue constantly faced by members of Parliament. I have seen the statistics and heard all the rhetoric about the strict criteria--and I agree that it should be strict--but why is the definition so inconsistently applied and so many people denied?

My work takes me across the country. I often receive 10 phone calls a day from people who have been denied. It has been implied by HRDC bureaucracy that I am taking advantage of disabled people. I believe the discussion went along the lines of my stringing people along so I can receive more money on a bigger payout. My response to this is that I did not wake up one morning and decide to take advantage of disabled people. If the legislative criteria were applied correctly and the process not so intimidating, maybe there would be little need for someone like me.

I have much more to say, but time is passing, so I'll stop here and let the committee ask me what they want to know.

The Chair: Allison, thank you so much for coming and for all the work you're doing.

Clearly what you're describing is something that you think is systemic in a culture around it, not necessarily what's written. If you were writing our report, what would it say?

Ms. Allison Schmidt: I would ask, why is it necessary to deny so many people? I certainly understand a need to be consistent and a need to be careful in how pension disability benefits are awarded, but daily I'm faced with reports that clearly indicate that a client or an appellant is disabled, and still the decision has not been reversed. I have had many, many screaming matches with adjudicators saying that they need to read the file.

Regarding file development, I thought that was a very interesting point that the panel made.

I spent some time researching CPP disability through the Freedom of Information Act, and out of 469 files in the Manitoba-Saskatchewan region that were received in one month, 389 of them were denied; 357 of them were denied without any file development--no phone call, no medical reports, nothing. The statistics are out there, and I have them in my office, if you would like to see them.

In my opinion, how can that be? How can you just stamp a file and send it on?

The Chair: In what the commissioner described as a fully developed file.... You're saying the files aren't fully developed.

Ms. Allison Schmidt: No.

The Chair: I guess what we've also heard this morning is, do you see that a fully developed file, to your mind, would include a face-to-face meeting?

Ms. Allison Schmidt: I have hesitation with face-to-face meetings. Number one, a lot of times I see observation sheets in the file. The adjudicator will say, so, how do you feel today? Well, I don't feel too bad. Are you able to do your grocery shopping? Yes. Can you take a drive down the street? Sure. What does your doctor say? Oh well, I'm not really sure about that. Do you think you could work? Well, it depends on the day and it depends how I feel. Then the denial letter says you said you can work.

So I would have a big hesitation about having people present at that meeting without any indication of the CPP adjudication criteria. Half the time, they don't even know what their doctors have said. They don't know what they've said until they get the blue book.

Á (1130)

The Chair: Who are the adjudicators and what are their qualifications?

Ms. Allison Schmidt: I believe they're registered nurses. Some of them may have university degrees.

My background is in psychology. I believe there is a huge need for advocates within the mental health profession. Last month I dealt with a woman who had schizophrenia. She was 57 years old, I believe, and thought she could not attend the hearing because aliens were going to come and pick her up there. Her psychiatrist told me there was no way that woman could go to that hearing.

An aboriginal lady who lived up in Meadow Lake, Saskatchewan, had been on medication for 20 years. Finally I sent the minister's submission to the psychiatrist and said, here, what do you think of this? It said that she could take care of herself; she had tried to go to school, but it lasted four weeks at a time; she said in her clinic notes that she felt okay. Those were the three reasons she was denied disability benefits.

The psychiatrist wrote a letter to me saying she thought the submission was ridiculous, and there was no way this woman could work. Flo was her name. I was in Saskatchewan in Moose Jaw attending review tribunal hearings. I phoned Nancy Lawand and said, Nancy, you guys are way off base on this file. The hearing was in Cold Lake, Alberta. It was going to take me eight hours to drive there to attend this hearing on behalf of this lady.

The department asked me if I could do it by telephone. I said, no, I can't do it by telephone; the woman has a mental illness, and they're the ones who need the help the most. Between review tribunal hearings, two hours before I was to leave, I got a phone call from the department that the file had been reversed. That was probably the fifth one in five years. It's a bit stunning, isn't it?

The Chair: Yes.

Obviously there are cases where they don't get it, in terms of whether it's schizophrenia, etc. You can't send somebody into a hearing without their being coached on what to expect. Lawyers don't send their witnesses into court without a little practice session, and that kind of thing. That's the kind of work you're doing.

Other than you, who else is doing that? Is there something you would expect us to have in our recommendations to help Canadians who don't live near you--a resource?

Ms. Allison Schmidt: Other than me, there is a B.C. coalition in Vancouver. There are various community-based organizations that do some work. There are the constituency assistants of members of Parliament. But I don't think very many people other than me have invested a great amount of time in this. There may be some out east. I know there is a woman who deals with specific things like multiple chemical sensitivities, but on a broad spectrum.

The Chair: There are two things. We were worrying about flexibility, re-entry, and all of those things. You're saying that some of the straightforward cases are just not being dealt with appropriately.

Ms. Allison Schmidt: Foster's file number is 0099. I'm currently working on 0260. I will say to you categorically that there are files I could give to any idiot on the street and they could figure them out.

The Chair: In terms of other supports we could give, should members of Parliament's assistants get better training in this? Is that the appropriate job for them? Should GPs get better training in this? Where else could we find the resources to get people what they need, or is it actually within the department that the problem lies?

Á (1135)

Ms. Allison Schmidt: If the department continues to deny the percentage of claimants they do--unfairly, I think--then there should be some recourse for appellants to obtain the assistance they need to put a case together, to put an appeal together, to understand the legislation.

I had a woman who had been gored by a cow--and it was actually one of the first times the tribunal reduced me to tears because I was so very frustrated. The department said she had worked after her MQP. She had had massive strokes and was demented. She couldn't think past anything.

The department said, “This woman worked after her MQP”; and as you know, if you show work capacity after the date you last qualified.... She worked 22 hours and made $200 or $250. That's not work, according to the criteria they're supposed to follow when they adjudicate claims, which I think is never done. I don't think they follow those adjudication guidelines at all. Until Villani v. Canada came about there was absolutely no argument for personal experience. Although they say they follow the guidelines, I don't agree with them.

I have the benefit of dealing with people at the front lines. They come into my office. I hear their stories. I know what they've been through. I meet with their doctors. I talk to their families. I try to arrange functional capacity evaluations.

That is something else I take issue with. Those functional capacity evaluations occur for four hours in one day. They don't occur day in, day out.

The Chair: Some of them are pretty old fashioned, right?

Ms. Allison Schmidt: Frankly, if you're dealing with a government that is paying your bill, and you're liking that bill being paid, are you going to... It's like biting the hand that feeds you. I find that a lot with--

The Chair: The independent medical assessors.

Ms. Allison Schmidt: Yes.

The Chair: If they pass too many people, you think they'd lose the contract.

Ms. Allison Schmidt: Of course they would.

In Foster's case, the physiatrist who wrote the letters was often contracted by HRDC to conduct these independent medical examinations. I would get his reports, read what he said, see the denial of the claim, and send the denial plus the letter to the doctor, saying, look, this is what they're doing; what do you think of that? That probably isn't ethical, but...

Á (1140)

The Chair: Do you think family physicians could play a bigger role, or are they too busy?

Ms. Allison Schmidt: I would say that most often family physicians who support the appellant are great to work with. They will take the time to meet with me, to have me explain to them what it is the appellant is faced with, and to pose some questions such as, do you think this appellant could work on a regular basis, and if not, why not?

Some doctors are good; some doctors are bad. Some doctors in rural areas don't have the time to even see the patients they need to see. Some doctors from different countries perhaps believe that disability is someone in a wheelchair. The range is variable. But most often I can say I've had excellent support from the doctors, because most often the appellants are credible in their report; they've known the person for 20 years.

The Chair: Would you say the same for specialists?

Ms. Allison Schmidt: It's ongoing; someone who has arthritis may be seen by the same specialist year after year. But specialists are to report on their speciality, so a specialist may say, at this particular hour of this particular day, the appellant could bend down and touch his toes. The family physician has more direct contact day after day.

If someone is taking morphine and is so drugged out of it even driving a vehicle is impossible, how on earth does the government expect that person to work? And this happens all the time as well.

The Chair: I remember. I also remember specialists who would say things to me like, it's not related to the accident if the pain arrives three days later, even though you knew they were walking funny for three days and of course the other hip hurt. There seems to be a very linear approach that sometimes happens in certain consultation reports that seem to be part of whose side you are on before they walk in the door.

Do you see people in their own homes?

Ms. Allison Schmidt: Yes, I do. I see people in the hospital. I went to see a lady by the name of Pat last week. She's probably 350 pounds overweight, but her heart is failing. She'd had a gastric bypass at the age of, I don't know, 21 and lost 200 pounds. It failed. She gained it all back. Now she can barely walk a block, but the government said, she's obese and she's denied; if she lost some weight, she would be fine. The fact that she can't walk half a block has nothing to do with it.

She was very frightened to attend the review tribunal because she was being judged. It's the same as with, perhaps, people who have been smokers all their lives or maybe had issues with alcohol, self-abusers, people with personality problems. People don't understand that.

The Chair: Obviously what I'm hearing is that there's a certain turndown rate based on pieces of paper that you don't understand. You think if somebody had read the piece of paper more clearly, they wouldn't have been turned down.

Obviously it's incomplete sometimes and they should be able to turn back, so the file not being fully developed is another problem. Also, you think there's an attitudinal problem within the department or a culture of turndown.

What has been your experience with review panel members?

Ms. Allison Schmidt: Overall, very positive. I thank goodness for Mr. Smith and the commission, because without them I think a lot of people would have nothing.

There's a song that everybody has a story. Everybody truly does have a story, and if people took the time to listen to this story, along with the supporting documentation, I think there would be a larger approval rate. But if it's budgetary costs, if it's cutbacks in costs to the plan.... I know Laurie Beachell was here and he said that there would be cuts of, what, $1 billion to the disability component by 2005. If it's fundamental cost problems, then it doesn't matter what you say for a definition, you're not going to get the approval rate that fairly reflects the applications.

The Chair: What we've heard from other panellists, but I'm not hearing from you, is that some people feel that if it were more flexible or less black and white, people with the cyclical illnesses would be able to try to work, and that in terms of self-esteem there's also a collaborative way that you can get people working when they're well and not working when they're not. Is that something you would agree with?

Ms. Allison Schmidt: I think that people with cyclical illnesses generally do not make above the substantially gainful occupation benchmark. It may be two or three months, four months, they may earn $5,000. That's not above the substantially gainful occupation benchmark.

The Chair: Is that benchmark proper, do you think?

Ms. Allison Schmidt: I believe it's a year's--

The Chair: But do you think it's okay?

Ms. Allison Schmidt: I suppose you have to have a benchmark somewhere, but I can honestly, 100%, without any hesitation, tell you that those medical adjudication guidelines are not followed--are not. I can show you reconsideration pages that are a page long. I can show you medical reports that say, the patient was doing well today, but as far as working is concerned, I do not think it will be possible for this person to undertake any work, and that whole paragraph is ignored except for “the patient was doing well today”.

Á (1145)

The Chair: Do you have some comment on the overlap with insurance companies?

Ms. Allison Schmidt: That is a very complicated issue and it is a barrier for them to get advocacy work because, as you know, my fee is attached to the retroactive payments. So I do have a flat rate fee that I offer to claimants who are going through that process, but they feel a lot of pressure. They're scared. They're scared their benefits are going to get cut off if they don't make their way through it. Many times they really don't qualify for the process and they lose to win. They throw the appeals.

I think it's unfair that the child tax disability benefit is included. I don't think the insurance company has any right to that. I never, ever take anything that belongs to the children.

The Chair: Just go back over when you say they throw the benefit.

Ms. Allison Schmidt: They throw the appeals.

The Chair: Throw the appeal. That's because they're better off financially not getting CPP?

Ms. Allison Schmidt: That's right, which has implications on them in later years, I believe. I'm not an expert on this, but my understanding is that all those years of zero contributions affect what they receive at age 65, so their old age pension is reduced.

The Chair: In the last panel, the first payer principle, or whatever agreement there is, means that certain clients are worse off if they get the Canada Pension Plan that they paid into all those years.

Ms. Allison Schmidt: Yes. They pay premiums into long-term disability group, and they pay premiums into CPP, and yet they don't get the benefit of both. Yes, they're worse off, but they're pressured.

I had a fellow in Saskatoon last year who I helped with his appeal, and once we had a successful review tribunal decision, the insurance company repeatedly phoned me week after week after week. When is the money coming? How much is he getting? So in the end, I was being hassled.

The Chair: Are the public insurers any better?

Ms. Allison Schmidt: I have an issue with that too.

I think it was in 1998 or 1999 that the department announced this wonderful information sharing agreement with the provincial workers' compensation boards. Workers' compensation, in my experience, will not categorically state that an employee is unable to do any work. That means they'll have to pay them until the age of 65. So all the information from workers' compensation boards does is muddy the waters, because they have their own rehabilitation agencies they send clients to.

I don't think that's a helpful issue, and also it's used frequently to deny claimants within CPP. My argument to the CPP, to the review tribunal panel, and something that I was taught in university, is that you always have to consider the source.

The Chair: What's in the cost of an appeal?

Ms. Allison Schmidt: For money for services?

The Chair: My feeling was that the department quite often used the percentage of people appealing as a little report card on whether people didn't appeal because they knew they didn't deserve it. My experience has been that some people don't appeal because they're too sick, they can't afford advocacy, or they come from a country where no means no. Do you see people like that? It sounds like Foster, after two or three times, just wasn't up to it any more.

Ms. Allison Schmidt: Foster was devastated more than once.

The Chair: So the cost, with and without your services, what would that be?

Á (1150)

Ms. Allison Schmidt: The costs without my services? Obviously they're not getting the benefits to which they should be entitled. Examples of people who would come to me are likely people with little education, poor literacy levels, people who don't speak English very well—and that's a very big barrier—people in the first nations communities, people with mental illness, people who have been referred to me by members of Parliament's offices, people who have been referred to me by doctors. I speak frequently at various different organizations just to give people information, including medical social workers, family physicians' meetings. The cost is a percentage of retroactivity. Generally it works out to about $3,000, depending on the amount of--

The Chair: Does that payment plan mean that... You're pretty honest with them if they have had sufficient attachment to the workforce. You tell them straight up that there's no way you're going--

Ms. Allison Schmidt: Yes. I'm not going to waste my time. I work on an agreement that if they win, I get paid.

The Chair: So you only take them on if you think they have a chance.

Ms. Allison Schmidt: Absolutely. So every file that comes to me is reviewed diligently before I even agree to take it on. Sometimes it requires a little scratching below the surface to really talk to them. Sometimes it's just based on gut instinct.

The Chair: We're very grateful today that you've come and put all of this on record. If between now and the writing of the report there are things you think just must be in the report, please stay in touch and let us know if there's anything more we can do.

We are, as a committee, trying to look at some of the short-term fixes we could do around some of the key things we keep hearing--the flexibility, the criteria, and all of that. Also in the long term, what would a society look like if it didn't have to put people through all these hoops and it could look after people through their years of abilities and disabilities? So if there's anything in either of those categories that you have...because we do know it's the people in the trenches who have the solutions and the observations.

A lot of what you've said is reflected in what we've heard in terms of the e-consultation and talking to Canadians. I guess we had over 1,500 people who took the time to fill out their views.

Anyway, we do thank you for coming.

Ms. Allison Schmidt: Were there any favourable reports?

The Chair: I don't know, actually.

I had one other little question.

Last week, Wolfgang suggested--and again, in the earlier panel--a common database for EI and CPP. I think what Wolfgang suggested was that it would be almost like an early warning system. If there are people who have to run out their EI before they can apply, and you can tell right from the day of the accident or the day of the stroke that this is going to be somebody who would eventually need CPP, or should be applying, is that something you feel should have a more coherent approach?

Ms. Allison Schmidt: I assume that would be a good idea, but I have some problems with the whole EI-CPP system. A lot of times people will take their EI for 15 weeks and then when that runs out, they start on regular benefits because they need the money. So at the same time as they're declaring themselves fit and capable of working, they're applying for Canada Pension Plan disability and stating they're incapable of working. So people will do whatever they need to do to feed their family or their children.

The Chair: Do you mean they've gone onto regular social assistance?

Ms. Allison Schmidt: The've gone onto regular employment benefits because they need the money. And when they get to me, and I get their submission and see they've been on regular EI benefits, I'll say to them--

The Chair: What did you do that for?

Ms. Allison Schmidt: And they say, well, I needed to pay my bills.

Survival is our basic instinct. We do what we need to do to survive.

Á (1155)

The Chair: Well, thank you very much.

Ms. Allison Schmidt: You're welcome.

The Chair: I would like to thank all of the panel at the back, too.

Thank you and the meeting is adjourned.