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House of Commons Emblem

Standing Committee on Veterans Affairs


NUMBER 045 
l
1st SESSION 
l
41st PARLIAMENT 

EVIDENCE

Monday, October 15, 2012

[Recorded by Electronic Apparatus]

  (1530)  

[English]

    Today we will continue our review and study of the Veterans Review and Appeal Board. We have witnesses from the Canadian Peacekeeping Veterans Association followed by those from the Royal Canadian Legion.
    Welcome to all of you. We will start with the Canadian Peacekeeping Veterans Association, who will be splitting up their 10 minutes among them.
    Please go ahead, whoever is starting.
    Mr. Chair, committee members, ladies and gentlemen, my name is Ray Kokkonen. I'm the national president of the Canadian Peacekeeping Veterans Association. With me are two gentlemen: the patron of the Canadian Peacekeeping Veterans Association, retired Brigadier General Larry Gollner and retired Colonel John Eggenberger, vice-president of research for our organization.
    The aim of this presentation is to provide insight into how Canada's veterans perceive the current Veterans Review and Appeal Board and why it is failing them.
    We decided on a very low-tech approach, because we knew there were some heavy presenters here, such as the Legion and a few others. We thought we would keep it simple and within our capability, and we simply compiled all of the common issues and complaints we have heard from veterans over the years. In fact, we did a canvass when we got the invitation. We then classified them into categories, and we ended up with seven categories. We'll be getting into those a little further.
    I'm not going to read our presentation. I invite you to look at what our organization is about—veterans, obligations, and service—and to pay particular attention to the Veterans Bill of Rights, which is on the second page, and particularly to the first statement. That is our case: that through all of these examples of issues and complaints, that is the one most often being violated. Larry will be giving an in-depth case study of that.
    Then on the third page is our main presentation, and that's on the seven major issues or complaints that we have gained from veterans.
    We are not going to read out those issues—that's why I invited everybody to look at them now—and we're not going to present a case study for each one. We're going to present one example that covers about four of those points.
     I will now turn it over to Larry.
    Mr. Chairman, members of the committee, ladies and gentlemen, my name is Larry Gollner.
    The following occurred at a VRAB hearing and was reported by an experienced Legion and CPVA service officer. While we have no doubt that the conduct of this hearing was an anomaly, it was unacceptable and needs public airing. The veteran and his companions asked that we not disclose their personal information, and we have complied.
     The opening line of the Veterans Bill of Rights is that veterans “be treated with respect, dignity, fairness and courtesy”. It also used to say “in a timely manner”, but that line seems to have been shortened of late.
     In this case, the Veterans Affairs client, as was his right, was accompanied to the hearing on his PTSD condition by his doctor, a psychiatrist, and a service officer. You can judge whether he was treated with respect, dignity, fairness, and courtesy.
    Here is what the veteran said about his hearing for a PTSD condition. I quote directly, and when I do so, I will say so. In other cases, I've paraphrased to keep the veteran's message but without his, shall I say, earthy language:
Throughout the hearing I was grilled—not spoken to, but grilled—by the board. I went to get up three times to leave, but my doctor and service officer pulled me back into the chair and told me to be quiet.

The board chair stated, “Well, you could have a medical condition, not PTSD”, and began questioning me and making comments about my medical reports, at which point my doctor spoke up, stating that the chair was completely wrong in her conclusions on what type of medical condition I have and her understanding of my condition was not correct. Then he asked her about her medical background, and she answered, “None”, just what she had read up on, so she was trying to act like a medical doctor based on her own medical knowledge, and my application was going to be based on her not having any real medical training.

She questioned me again and again about the death of my infant son, who died from a childhood ailment, but there was some discussion between the doctors on the cause. She said, “Well, what was it?” Did it ever happen, and just how many kids did I have die? Then she decided and said that it was the death of my son that caused my condition, if it even happened, or my imagination. Again my doctor spoke to her about the connections and events, correcting her on her conclusions reached on the medical conditions and detailed reports.

I was treated like a criminal, shown no respect at all, nor did I have a fair chance to explain myself to the hearing. She had made up her mind.
    He said that If his doctor and service officer hadn't been there, he would have either attacked them or told them where to go and left.
    As I said, in fairness to the VRAB, this hearing was likely an anomaly, but this case is but one example that lives forever on the Internet. These cases have a serious impact on the VRAB's credibility in the veterans community writ large, because they take prominence over much of the good work that is done.
    Thank you.

  (1535)  

    Thank you.
    Although we will not make any technical recommendations about procedures and organizational change or anything like that, our vice-president of research has some ideas we'd like to pass on.
    One of the difficulties for any organization that we're part of when dealing with individuals is how best to compress and collate all this information so that you can make sense out of it and adjust policies, procedures, and rules to better express what the wish is to be.
    Right now, we have a database that comes from Veterans Affairs Canada. It's theirs and it's confidential, but databases are databases, and they all adhere to the same principles. Our thought is to make sure that the information on the database is properly entered, and after that, properly manoeuvred by appropriate statistical analysis. I'm absolutely sure, at least in my own case, that all of this data is properly handled and protected, but I think a revisit now and again wouldn't hurt.
    Thank you.
    In my opening remarks I think I forgot to mention that John has a Ph.D. in personnel applied research.
    I'm now going to switch to reading directly from the last page.
    Conclusions: When the foregoing perceptions held by veterans are compared with the Veterans Bill of Rights, it is clear that the first article, the foundation statement, is not being respected or practised by the VRAB. It is difficult to believe that VRAB can properly serve our veterans when our veterans have little, if any, faith in the current VRAB structure, modus operandi, attitudes, or ability to meet its legislated responsibilities.
    In terms of recommendations, we simply ask that this committee, with its mandate, proven competency, and genuine concern for the welfare of Canada’s veterans, vigorously pursue the necessary steps required to bring about essential changes to the VRAB that will enable it to meet its obligation to serve our veterans fairly, with dignity, and with the courtesy that they so rightly deserve, and in accord with the spirit of Canada's existing veterans' legislation.
    In this context I would like to recognize Ron Griffis of the Canadian Association of Veterans in United Nations Peacekeeping, who will later be presenting a very in-depth paper about this, and say that we are very supportive and that we applaud what he has done.
    In conclusion, the CPVA is very grateful for this opportunity to present the views of veterans on VRAB to this committee. The CPVA also commends and thanks the committee for all its caring, dedicated, responsible, and extremely important and valuable work on behalf of veterans.
    Thank you.

  (1540)  

    Thank you very much, Mr. Kokkonen, Mr. Eggenberger, and Mr. Gollner. You will get a chance for questions and answers in a few minutes.
    We'll now turn to the Legion. Ms. Andrea Siew is here to give her presentation.
    Please go ahead, Ms. Siew.
    I don't know how I ended up in the middle of you three. I guess it's a bit of an honour.
    I did bring copies of my presentations. Unfortunately, due to the untimely death of our translator, they're only available in English. I notice you have copies of theirs.
    I'll begin my presentation.
    Good afternoon. It's a great pleasure—
    Excuse me.
    If there's unanimous consent, we could pass out the English copies, if you want. It's up to the committee.
    Is everyone in agreement? You'd like to have them for information?
    Some hon. members: Agreed.
    The Chair: Yes.
    Do you have copies?
    Yes, I have given them to the clerk.
    Okay, thank you.
    Please go ahead.
    Thank you.
    Good afternoon. It is a great pleasure to appear in front of your committee. I am pleased to be able to speak to you this afternoon on behalf of our dominion president of the Royal Canadian Legion, Mr. Gordon Moore, and our over 330,000 members and their families. The Royal Canadian Legion is well situated to provide advice regarding recommendations that could improve the current Veterans Review and Appeal Board.
    The Legion is the only veteran service organization that assists veterans and their families with representation to the board. We have been assisting veterans since 1926 through our legislative mandate in both the Pension Act and the new Veterans Charter. Our 22 professional service officers located across the country provide free representation for veterans who are not satisfied with the decisions about their claims for disability benefits from Veterans Affairs. Please note that you do not have to be a Legion member to avail yourself of our services. Our national service officer network provides representation at all three levels of the Veterans Review and Appeal Board: the review, the appeal, and the request for reconsideration. Through the legislation, the Legion has access to service health records and departmental files to provide a comprehensive, yet independent, representation at no cost. Last year, our service officers presented 265 reviews, 85 appeals, and 15 requests for reconsideration. As director of the service bureau, I have sat on about 150 cases before the board.
    The Legion believes that the Veterans Review and Appeal Board does have a critical role to play in ensuring that all veterans and their families receive the benefits they are entitled to as related to their injuries attributable to their service to Canada. However, the government does have an obligation to ensure that veterans have access to a fair and transparent adjudication process. Our veterans have been injured in service to our country; they deserve to be treated fairly and with respect, and they must trust the process.
    The VRAB provides an independent avenue of appeal for disability benefit decisions made by Veterans Affairs. The fact that half of the cases reviewed at the board's review level and a further one-third at the appeal level are varied in favour of applicants attests to the need for an independent administrative tribunal that the veterans can turn to when they are dissatisfied with decisions. Specifically, in the 2010-11 period, the VRAB issued approximately 3,500 review decisions, about 50% of which were varied, and 974 appeal decisions, about 33% of which were varied. This high ratio of decisions that are varied by the VRAB cannot be looked at in isolation of the department or the first application.
     Why is the variance ratio so high? The application process is not complex, but it is not as simple as saying that I was injured during my service. It's an evidence-based system that requires proof that the injury or disability arose out of, or was directly connected to, service, and the onus is on the veteran to show how that the injury or disability is related to their service and the performance of their duties.
    The burden of proof is very high. There may be an incomplete diagnosis or an incorrect diagnosis. Medical information such as X-ray reports, CT scans, pulmonary function tests, physical fitness tests, your unit employment record, accident reports, boards of inquiry, witness statements, etc., are all required, especially in complex cases that go before the board. The Legion is concerned that more and more veterans are being encouraged to submit applications online or at Service Canada outlets. I'm not sure that this is going to improve the situation.
     How will they be counselled or assisted with ensuring a complete application package? This is not a passport application package in which an error or a piece of missed information simply results in the package being returned. An unfavourable or incomplete decision creates a negative atmosphere and an untrusting environment. The approach or culture that “if you are injured, we will look after you” seems to have disappeared. The burden of proof is too high.
    The most misunderstood part of the process is the application of the concept "benefit of the doubt". Section 39 of the VRAB Act regarding rules of evidence granted very liberal rules; however, over time this has become a very legal interpretation. The spirit of the legislation has evolved to a workers' compensation insurance approach rather than a social safety net approach.

  (1545)  

    The legislation states:
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; (c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
    What was the intended spirit of this legislation? Is it liberally interpreted by the VRAB? What are the evidence requirements? What is meant by “every reasonable inference in favour of the applicant”? What does "uncontradicted" mean? Who determines what credible evidence is? The board's own adjudicative guidelines describe in detail the requirement for medical evidence to be considered credible, relevant, and reasonable. It's very instructive and restrictive. Not only is the burden of proof on the veteran, but the evidence requirements are so complex and so restrictive that many veterans can't obtain the type of evidence that is required. They don't have access to the medical professionals and specialists or can't afford to obtain the necessary reports and, therefore, will decline to proceed to appeal when advised of the evidence requirements. The benefit of the doubt clause needs to be reviewed in the context of its original intent and liberal spirit.
    The Legion has advocated for several years the importance of the composition of board members with relevant military and operational experience. It's important that members understand the exigencies of service. There are currently 24 members on the board, and according to section 4 of the VRAB Act, there could be no more than 29 members. There are six with military or RCMP experience.
    While the board should be balanced, the composition of the VRAB should accurately represent the experience of our veterans. Should the majority of the VRAB members be non-veterans? Do they have the experiential knowledge to review the evidence of complex cases and render a fair and compassionate decision?
    The selection process for the board creates an artificial barrier and limits the selection of board members with the necessary and relevant operational experience. The use of the Simulation for the Selection of Executives screening process or tool, or SELEX, which was designed to assess candidates for entry-level executive positions in the federal public service, is a barrier to many Canadian Forces members and veterans who may not be familiar with the leadership competencies of the federal public service; may not have worked at a strategic level and, therefore, not have the competencies, skills, and knowledge to function at the director level; and may not be able to perform well in a simulated environment.
    While it is understood that the board members' pay scale and classification are at the executive level, the duties of the board members are not consistent with those of other executives in the public service. The duties of the board members are unique and distinct. The selection criteria should more accurately assess the relevant experience, skills, knowledge, and competencies necessary to fulfill their duties and responsibilities as a board member.
    The Office of the Veterans Ombudsman's March 2012 report, entitled "Veterans' Right to Fair Adjudication", recommended that decision letters must provide sufficient reasons in support of a decision and provide access to all of the relevant evidence considered by the board in making its decision. The report further recommends that the publishing of all decisions would increase the board's transparency and enable veterans who are preparing appeals to be aware of the evidence requirements similar to their own. Posting all decisions is full transparency.
    Lastly, the Legion is concerned about moving towards the use of video conferencing technology for VRAB review hearings. At a board review hearing, veterans have the right to bring forward new evidence, tell their story, and be represented by lawyers from the Bureau of Pensions Advocates or Legion service officers. This is the only time that veterans can present their case to the board. The board can look directly into the eyes of the veteran and the veteran can look directly into the eyes of board members. These members are making a decision that will have a lifelong impact on the quality of life of our veterans and that is at the heart of the social contract between the government and the sacrifice our veterans make to this country.

  (1550)  

    Yes, there is a cost for hearings in person and time delays with scheduling. However, if these hearings reinforce the trust and transparency in the adjudication process, then let's ensure that the board has the necessary resources to continue hearings across the country. This is the only opportunity for a veteran to be face to face with the adjudicator to tell his or her story, and this is important.
    In summary, the Veterans Review and Appeal Board does have a critical role to play to ensure that all veterans and their families receive the benefits to which they are entitled. However, the government has an obligation to ensure that veterans have access to a fair and transparent adjudication process. Our veterans have been injured in service to our country. They deserve to be treated fairly and with respect, and they must trust the process.
    Thank you.
    Thank you very much.
    We'll now turn to the opposition and ask Mr. Stoffer to start. You have five minutes, please.
    Thank you, Mr. Chairman.
    I'd like to thank each and every one of you, not only for your service but for being here with us today.
    I want to read this from the bottom of page 3:
A Veteran's quote: “I congratulate the VRAB on their ability to do what the enemies of the country could not do and that is to completely destroy the morale of the Veterans who have returned from combat.”
Two quotes by a Veteran and former Board member: “In its present form the Board is extremely dysfunctional: the main problem is that members have little idea of the circumstances of service.” and, “Excuse me, what is the purpose of the Board, to grant pensions or to save the Government money?”
    That's quite a strong statement to say.
    You fine folks have the opportunity periodically to meet with the deputy minister, the gerontological society, and various groups to discuss with the Department of Veterans Affairs your concerns on a regular basis. Am I correct?
    Are you addressing the question to me?
    That's for all of you.
    Yes, in fact each veterans organization has a member on the stakeholders committee, which is, at the moment anyway, chaired by the deputy minister. Of course those other committees, now past, have had members from most of the organizations.
    When we hear statements like this, and obviously your concerns for veterans....This question is for both of you here.
     Obviously the new deputy minister is fairly new, so she'll take time to fill in, but when you get an opportunity to speak to her or the minister in this regard, what is the response from them when you mention these very serious allegations towards the Veterans Review and Appeal Board? These are quite serious. You're absolutely correct that the bill of rights says dignity, fairness, respect, etc. From those two quotes, obviously in those particular cases that didn't happen.
    When you get a chance to speak to them, what is the response from the department when you mention these issues to them?

  (1555)  

    I think I should start out by saying that there seems to have been a growth of complaints more recently. Although these matters have been mentioned at various meetings—the stakeholders meeting, for instance—it never became a major issue at that time. There really has not been much of an opportunity to respond to anything, in my experience, but this thing has really taken on a life of its own recently.
    Go ahead, Andrea.
    I just wanted to respond to your first two questions, Peter.
    Our Legion president meets with John Larlee, the chair of the board, at least annually. I have a once-a-month teleconference with Ms. Dale Sharkey, the director general, and I raise very specific issues.
    When a veteran identifies at a board hearing, or particularly at a review hearing, that they have concerns with the presentation, all the hearings at the review level are recorded, and we ask that they go back and review the hearings.
    Okay. Very good.
    If you could make, say, one recommendation to the committee—my time's just about up—that we could recommend to the government in order to enhance or protect.... If you could eliminate VRAB, or protect it, or keep the status quo, or could change it, what's the number one recommendation that you would bring in right now in order to assist us to assist the government?
    Mine would be to change the required aspects of VRAB and deal with those. We've listed the major complaints.
    As we've said in our presentation, we believe the role of the VRAB is very important as a quasi-judicial organization. However, the benefit of the doubt clause and its interpretation is probably the most misunderstood application. That needs to be revisited from a legal perspective, in terms of what it means and what the evidence requirements are.
    If you could look at the VRAB adjudicative guidelines—it's an internal VRAB document—it would give you a strong indication of how restrictive and instructive the medical evidence requirements are.
    Thank you.
    Ms. Adams is next. You have five minutes.
    I also thank you for coming today and for your service to our nation. It was very nice to see you this morning at the launch of the benefits browser, so thank you very much for that.
    The Veterans Review and Appeal Board is a board at arm's length from the government, but of course our Conservative government, and I would imagine every Canadian, expects that members of the board would treat veterans with the utmost respect, the highest level of respect, for their dignity and to ensure that every opportunity be fair and to extend the benefit of the doubt is extended to them. That is certainly our expectation, and that is really why we're looking at VRAB through these committee hearings: to understand how we might better serve the veterans, which is our government's number one focus.
    You saw some of that through the transformation agenda. The initiative right now has done certain things, such as the plain language initiative. We did the benefits browser today and the My VAC Account last week, but in particular, the plain language initiative is something that I think, Andrea, you're getting at. The plain language initiative was announced a couple of days after the ombudsman came out, and I know that is one of the issues that you've raised in the document you just circulated. Let me just find the page.
    It is on page 5 and “recommends that decision letters must provide sufficient reasons in support for a decision and provide access to all of the evidence”. You further recommend that publishing all decisions would be helpful, but you're asking, though, for very plain language to ensure that veterans understand exactly why they have been turned down and what information is still required, and that's exactly what the plain language initiative offers.
    Our letters now go out in very simple, straightforward language when a decision is rendered. They enumerate for the veteran why they were approved or why they were turned down or what information is missing. That is already being done as part of the transformation initiative, so thank you very much for highlighting that again.
     You both mentioned that you would like VRAB to continue, which is different from what the NDP has brought forward. They have called for VRAB to be completely dismantled.
    Could you tell me, in your experience, what types of members the government should look for? What type of experience should they look for when making appointments to VRAB?

  (1600)  

    The Legion has been proactively advocating for many years to have military or RCMP experience on the board to represent those who are appearing in front of the board. It's important to have a balanced board with both military and non-military experience, but if you have the military or the RCMP experience in front of the board, the requirement to have such stringent evidence may not be required. You would have somebody who has had the same experience, who has been deployed and has an army, navy, or air force background.
    There are no female veterans on the board, yet a number of female veterans go in front of the board. Nobody has experienced what a female veteran has experienced; I've said to this committee on several occasions that what women experience in the Canadian Forces is different from what men experience, but there is no female military or RCMP representation on the board.
    It's to have a very balanced board and a larger makeup of relevant operational military experience. The Veterans Review and Appeal Board will show that right now 86% of the veterans coming in front of the board under the new Veterans Charter have peacetime service, and so the experience should be there.
    I completely support what Andrea has said. We definitely need the military experience.
    Andrea, I don't know if you mentioned the medical aspect. One of our issues was that there's a marked lack of medical expertise on the board, and in some cases the board is second-guessing professional medical opinion. When we're talking about a balanced organization, we need the military experience and we need some medical expertise that is readily available, whatever way it's done.
    Thank you. That's both military and medical.
    When the chair of the Veterans Review and Appeal Board appeared before this committee, he stated that approximately 5,000 cases are decided by VRAB each year, and of those, fewer than 1% are referred to the Federal Court. Is that your understanding?
     Yes, that's correct.
    What about you, Mr. Kokkonen?
    That is our understanding. We also had a tour of VRAB, and those were the numbers we were given.
    Thank you.
    Thank you, Ms. Adams.
    We now go to our visitor today, Mr. McKay, for five minutes.
    Thank you, Mr. Chair.
    Thank you to all of you for your participation and attendance.
    Just on those questions, it appears that being a member of the Conservative Party or being a political adviser seems to be a sine qua non of being on this board. But I digress.
    Sixty-five percent of the decisions made by the Veterans Review and Appeal Board modify initial rulings. If I put that in a criminal law context and say that 65% of decisions made by trial judges are buried, there wouldn't be a person in Canada who wouldn't say that this is a huge problem. Can we arrive at any understanding of why 65% of the decisions referred to the board end up being modified?
    You're speaking of the original departmental decisions being sent for review.
    Yes. As I would understand it, according to the notes here, 75% go through without any problem. However, 25% have problems, and of that 25%, 65% are modified or buried. That's a fairly significant change. What's the basis for it?
    As I mentioned in my presentation, one of the issues is that the evidence requirements are onerous. The burden is on the veteran. At each level, additional medical evidence is required. That's one of the issues.
    The other thing is that it's not quite so easy as saying that Veterans Affairs delivers 20,000 decisions, and 75% of them are favourable, which is about 15,000, so those are the other 5,000 decisions. Those aren't necessarily the 5,000 that go in front of the board, because you could be bringing a favourable decision to the board. It could be an entitlement issue. It could be an assessment issue.
    To look at, it's not an easy process. The VRAB does vary. At the review level, it's 50% of the decisions, and at the appeal level, it's another 30%. Our view is that it's probably related to the evidence requirements. As well, it's complex.

  (1605)  

    Would it be your view, then, that the evidence requirements be lowered and that it become much less like an insurance hearing and more like what it's supposed to be, which is a liberal interpretation in favour of the veterans?
    I think the evidence requirements need to be looked at to see if they're actually too restrictive. That's why I raised the issue of the VRAB adjudicative guidelines, the application of the benefit of the doubt and how that's being applied, and the composition of the board. If you had more military experience on the board, with people who understood current operations, maybe the evidence requirements would not have to be so stringent.
    The composition does seem a little light on the military side. Four people out of the 24 seems awfully peculiar.
    There are six board members with military and RCMP experience—five with military experience and one with RCMP experience.
    The RCMP is a different function, but let's put that aside for the time being.
    The other thing I don't understand is that of the appeals to the Federal Court, more than half are kicked back. I've had some experience with the Federal Court, and I don't think the percentage is anywhere as close in any other review process.
    Again, what is your explanation for the Federal Court sending decisions back?
    The Veterans Ombudsman, in his report, was very clear about some of the issues. When they go back to the Veterans Review and Appeal Board, they're not necessarily overturning the decisions; they're sending them back to the board to have them reheard, because there may have been legal issues relating to those decisions.
    The ombudsman also says,
In applying the guidelines established for this review, the Ombudsman found that all the letters examined failed a test of adequacy in the reasons given for the decisions.
    In other words, the reasons were nonsense.
    I agree.
    What kind of an operation is this? The reasons were nonsense. No wonder they won't publish them: they'd be ripped to shreds by any competent lawyer.
    Am I missing something? I'm new to this committee, but I'm looking at this and I'm thinking, my goodness, this is outrageous.
    The ombudsman was very clear in his recommendations on the study. I think it was a very important study on the Veterans Review and Appeal Board process.
    I guess so—
    The Chair: Sorry—
    Hon. John McKay: Yes, we don't want to get into anything substantive here, Chair.
    As exciting as this has been, we have to move on to the next panel member.
    Go ahead, Mr. Hayes, please, for five minutes.
    Thank you, Mr. Chair.
    I do have to admit that I find it disconcerting that the veterans' perception of the VRAB is virtually all negative. I just got appointed to the committee. It was a highly publicized event in my riding of Sault Ste. Marie. Thus far, I've had only two calls about concerns with the VRAB.
     That said, I will be hosting a town hall meeting in January with my Legion members to get a sense of their perception of things. An operative word here is “perception”. In Sault Ste. Marie there are 1,100 members. I'm hoping that if a poll were done at this point today, the perception might not be quite so negative.
    Mr. Kokkonen, can you outline for the committee how the process for the Veterans Review and Appeal Board has improved over the past few years? We're hearing a number of negative things, but I'm hoping you can identify some improvements that have occurred recently.
    There is a review in process. One of the things that the Veterans Review and Appeal Board has just very recently done is that they've asked for the vision and mission value statements to be vetted by the veterans organizations and for them to give feedback, so there is activity going on in the VRAB to try to improve.
     In fact, I visited the VRAB with Ron Griffis and another veterans organization. We were toured through. The explanations were given on all of the processes and so on. I think there is an actual energy right now in the VRAB. Whatever the reason or how it's motivated, there is certainly a movement to try to fix what needs fixing. That's a clear message that I'm getting.

  (1610)  

    Ms. Siew, would you care to comment as well, to your knowledge, on improvements that the VRAB has made over the past few years?
    Yes, absolutely. After the Veterans Ombudsman's report and recommendations were released, the VRAB came out with their action plan to remedy a number of the key issues raised by the Veterans Ombudsman's report.
    One is looking at their mission vision, but they've also been working very hard on the decision letters. That's really important in regard to the veteran having a perception of fairness in the adjudication process and knowing what was missing. It also is really important in going to the next level in determining why it was turned down and what evidence is required to achieve a favourable decision.
     The VRAB has been conducting focus groups and bringing veterans together to look at the decision letters to see how to make them more in plain language and easy to understand. They are actively working to remedy some of the issues.
     I'll be looking forward to meeting with my Legion folks to see what they have to say. Hopefully, there will be some recommendations that I can bring forward as well.
    Again, I'm new to this committee, so I'm just learning about some things. I understand that there is a Bureau of Pensions Advocates that's funded by Veterans Affairs Canada. Is this something that happens in other countries, such as the United States or Britain? Are there similar free services available?
    I don't know.
    There isn't to your knowledge, but is the Bureau of Pensions Advocates a good thing?
    Oh, absolutely. I think it's a mainstay and is really a very critical thing for our veterans going in there. They need that support and expertise in law.
    One of the gaps highlighted in the Veterans Ombudsman's report was the lack of free legal representation in going to the Federal Court. That might be one of the reasons only 1% of all of the VRAB decisions go to the Federal Court: because the veteran has to pay for legal representation.
    Ms. Siew, the Royal Canadian Legion and the Bureau of Pensions Advocates, I would suspect, are similar and complementary, so can you outline the similarities of both groups and how each complements the other?
    We're very similar, except that the Bureau of Pensions Advocates are lawyers and service officers. Most of us have military experience and we provide the same type of representation at all three levels: the review, the appeal, and the request for reconsideration.
    How's my time, Mr. Chair?
    You can slip in another question.
    Thank you.
    Again to you, Ms. Siew, would you say that Canada's veterans have many avenues to challenge decisions by Veterans Affairs Canada?
    The two key primary mechanisms are through either the Bureau of Pensions Advocates or the Royal Canadian Legion service officers.
     Mr. Kokkonen, I'll ask you the same question.
    Well, I took the question slightly differently. To challenge the Veterans Review and Appeal Board is really the main avenue. I suppose court action of some sort could be taken at the federal level after the VRAB approach was exhausted.
    My understanding is that the number of those types of appeals is very minimal.
     I may be wrong, but I don't think that VRAB is obligated to follow those Federal Court decisions. I think they can take them or leave them. I might be way out to lunch, but that's my understanding.
    Thank you very much, Mr. Hayes.
    We'll now go to Mr. Chicoine for five minutes.

[Translation]

    I would like to thank the witnesses for joining us today.
    In terms of VRAB, you have already mentioned a number of improvements that can be made. You talked a lot about the composition, the fact that there are not enough veterans and that perhaps there are not enough board members with medical knowledge. I understand that you wanted to focus on how to improve VRAB. There are in fact a whole lot of problems in that respect.
    You briefly talked about the benefit of the doubt given to veterans. It seems that the board is quite strict about giving the benefit of the doubt to a veteran with post-traumatic stress disorder, when symptoms appear a few years later.
    In terms of the board's decisions, do you think that the benefit of the doubt should always be given to veterans?

  (1615)  

[English]

    I think all of the commentary here and also in the past has been that the benefit of the doubt is being applied incorrectly. It's much too strict and gives no benefit of the doubt to the veteran in very many cases. The former veterans ombudsman made a very big issue of this, did a lot of research into it, and clearly seemed to prove that it was not being done correctly at VRAB.

[Translation]

    Yes, you said that the ombudsman's third recommendation had to do with the benefit of the doubt. I read in the government's implementation plan that the intent was to strengthen the benefit of the doubt. The department said that it would set up a multidisciplinary team to improve the formula used to make decisions and to provide reasons that are easy to understand.
    In my mind, that does not really deal with the benefit of the doubt. Are you getting the same impression? Do you feel that the department and the board have taken all the necessary measures to ensure that the benefit of the doubt is given to a greater extent?

[English]

    As I mentioned in my presentation, the application of the benefit of the doubt is probably the most misunderstood part of the process. It's a concept, and it now has a legal interpretation from the Federal Court, and veterans don't understand it. For advocates and lawyers, it's still very difficult to understand, and it needs to be simplified.
    What does “benefit of the doubt” mean? Veterans will tell me that it means the benefit should go to them. They were injured during their service, and therefore they're entitled to benefits. It's from one end of the spectrum to the other. If there's one thing that needs to be done, it is to make how that benefit of the doubt clause is to be applied very clear. What does it mean? It's very complicated.

[Translation]

    Could recommendations be made to VRAB to improve how the principle of the benefit of the doubt is applied?
    You talked about changing the composition of the board members, to include people with more military or medical experience. Is there something else that could be suggested?

[English]

    I look at three things.
    One is the evidence requirements, which are directly linked to the benefit of the doubt. The interpretation of all of the evidence by the board members influences what benefit of the doubt is, but you need to look at all three.
    You need to look at the composition of the board members. You need to look at the “benefit of the doubt” clause and how that's being interpreted, and you need to make that very clear to veterans and to the board and to Veterans Affairs, because they also use it. As well, you need to look at the evidence requirements.

[Translation]

    It seems that veterans file very few complaints with the board on a yearly basis. You said that veterans do not have a good perception of the board. I would like to get an idea of why there are not more complaints filed with the board. I am told that some are afraid that their file would be affected.
    Veterans' confidence in the board needs to be restored. They have to be confident that the board has integrity. Could you expand on that?

[English]

    I think there might be a lot of misinformation out there about the board. The evidence requirements are so stringent, and I mentioned it. You have to provide all of the evidence and you have to have the specialists' reports to confirm that you have that injury. You have to have the pulmonary function test.
    I ask for statements from veterans. Was there a board of inquiry? Where is the CF-98, the report of injuries? Do you have your unit employment record? There's a lot of evidence required. The veteran just says, “But I was injured.” Yes, but we need to do the evidence. There's a thought process that says, “That's a lot of evidence that's required; why do I need all that? I'm a veteran; the government, the country, should be looking after me.”
    That's where that perception comes from. We need to get past that.

  (1620)  

    Thank you very much. We're quite past time on that one, so we'll go to Mr. Harris for five minutes, please.
    Folks, I really want to thank you for coming today, and thank you for the job that you do, because standing up for our vets in any way you can, and particularly in your position, is so important. It's so important that they receive absolutely the best care and all of the help we can give them.
     I'm not going to imagine that this is a new problem we're having with Veterans Affairs. I would suspect it's been going on for a very long time. Like any organization around government, when deficiencies or needed improvements are brought to their attention, the government should—and does, hopefully—respond in a positive fashion. I think that's the whole idea behind the current transformation process that all of Veterans Affairs is going through. The obligation you folks have, and you do it well, is to bring the negatives that you see within the system to the attention of government so they can try to fix it. Thank you for doing that.
    Mr. Gollner, I note in your presentation that you did appropriately point out, just to paraphrase, that the negatives get all the attention and the good things never make the press, never make the media. Quite often they never get to committee hearings like this. Along with the negative comments, there's likely a good amount of good news that comes out as a result of this government, and governments before us, trying to fix Veterans Affairs in whatever way they can.
    Would you like to comment on that?
    Mr. Chair and ladies and gentlemen, within CPVA we work very diligently at trying to recognize nationally and locally the good job that the vast majority at Veterans Affairs and the VRAB actually do. You always hear about the 10,000 widows, if you will, who get service, but it's the one who doesn't get the service who is in the media.
    To that end, two years ago CPVA initiated a national awards system for members of Veterans Affairs. Last year the award went to Bridget Preston, the director of Vancouver Island's Veterans Affairs office, and her staff. She, with a small staff, provides service to 14,000 clients and does a Herculean job. Unanimously, we had an awards ceremony. The Lieutenant Governor of the province presented her the award, and Ray and I were there.
    This year we have a similar award that's about to take place next month, in Moncton, but it's not to be announced just yet. We also do it locally by having our chapters across the country identify good people who are helping veterans in a variety of ways.
    Knowing that this committee was coming, during my week off I made a stop at three Legions in British Columbia. I wanted to test the waters. I talked to a total of 18 vets. I just went around to introduce myself as a member of the veterans affairs committee.
    Of those 18 vets—and this is not a concocted good-news story; this is what happened—11 said they have had little or no contact, in any area, with Veterans Affairs because everything was going fine. Their pension cheques were coming and their health issues were not serious. There were five who had some favourable comments about how Veterans Affairs has helped them with health issues that had come on later in their lives. As well, one had just completed an appeals process and had won the appeal. Then there was one who was still involved in the appeal. He didn't know the outcome, but he didn't think it was going to be very good.
    Appropriately, I guess, the one chap who has had problems with the appeal board was very outspoken in his opinions, and that was to be expected. However, there's always some good when you talk to people.
    Mr. Kokkonen, I want to get back to you for a minute.
    You are talking about the energy that you saw—

  (1625)  

    Mr. Harris, excuse me. You have to ask a very brief question, because we're—
    Well, Mr. Kokkonen said that he saw an energy within VRAB and that maybe gave him a bit of encouragement.
    If I could add something, Mr. Chair, one of the big factors here is social media. That one complainer you're talking about will get on Facebook, Twitter, email, and that's the message that goes out.
    The information we've presented comes.... We had no positive comments, so we don't know how many are out there. We're not presenting our findings as balanced evidence; we asked, and this is what we got back.
    Mr. Richard Harris: Thank you.
    Thank you very much.
    We'll conclude with Mr. Lobb. You have five minutes, please.
    Thank you, Mr. Chair.
    Andrea, of the 5,000 or so appeals that VRAB deals with every year, how many occur because of a missing report or a missing diagnosis from a specialist?
    Is it half, three-quarters, 10%? Does anybody know?
    No. The VRAB doesn't keep statistics on that type of data.
    Okay. Do you think that might be a suggestion that would be worthwhile as a recommendation from this study, to gather data on how to maybe better remedy the problem or perceived problem?
    Yes, to have that type of data, as well as in the decision letters....
    If it's turned down at a particular level, why is it turned down, and what information is missing? I know the department and VRAB are working on both of those items.
    That would seem reasonable.
    Let's say the case is rejected because they need to get an MRI on a shoulder or a knee to assess the level of damage. What is the timeframe for a veteran, from the day they get the rejection letter to the day they can visit the local base to have it examined by a military specialist?
    Each case is individual. It depends on what community they're in and whether they have access to an MRI. Here in Ottawa it takes eight months to get an MRI.
    In a case in which there could be undue financial hardship—maybe the spouse has lost a job recently and perhaps the veteran does not have a large stream of income coming in—is there a mechanism for them to be moved up on the priority list to at least have their case revisited, or be able to see a doctor more readily than, say, in the eight months for an MRI here in Ottawa?
    There are a couple of things. I, with the Legion, have a big issue about the delays, because you have a finite number of opportunities to appeal or redress a decision, and if you use those up, you cannot go back to the board. We always tell the veteran to make sure we have the best possible evidence. We don't take a case before the board without all of the available evidence. We will work with the veteran to get the MRI and we'll look at options.
    Both the Bureau of Pensions Advocates and the Legion provide compensation. They will pay for medical opinions, doctors' reports, and test results to help them out.
    When you're putting together your case or filling out your application in the initial scenario, the member of the military or the former member of the military, the veteran today, would have full access to his or her complete medical file from A to Z if they request it, right?
    I'm assuming the adjudicator would also have full access to that file.
    That's correct.
    Then in the cases in which it's rejected because of a lack of supporting documents, it wouldn't be what's in the file, but what actually hasn't been assessed yet. Is that what you're seeing most of the time?
    Yes, because there may be a medical report in the file that doesn't confirm a current diagnosis. For example, when they left the military, they didn't have osteoarthritis of the knees, but five years later, they do have a diagnosis of osteoarthritis of the knees, so they have to have the MRI report, or the X-ray report, or the medical opinion from the orthopedic surgeon that says they have it.

  (1630)  

    That's a good point, because everybody who watches the news has noticed how many former NFL football players have suffered substantial head trauma 10 or 15 years down the road. Now there's a big enough number of cases that it's quite obvious what's occurring here.
    How good is the data collection, both in DND and with Veterans Affairs, just with such examples as arthritis or shoulders that need to be replaced or hearing loss? Do you feel the data collection is suitable and acceptable, or is that another recommendation for what you'd like to see so that when you're trying to establish a benefit of the doubt and the burden of proof, you have a collection of sound data to back up what could be, in some cases, not enough evidence of a reported injury at the time when the member thought...?
    Are you referring to military veteran health research and looking at the types of injuries that military members have during their service—
    Exactly, to further—
    —and maintaining those database files?
    --help establish the benefit of the doubt. Do you think that is there now, or does it need to be enhanced?
    No, they're working on it. Just last year the military released a longitudinal health study, and they're working on that. They've done that in conjunction with Statistics Canada, looking at the Canadian population versus the military. It doesn't have everything and it's not complete. It was the first of its kind. It's a very good study, but it needs to be ongoing. There need to be resources on both the Canadian Forces side and the Veterans Affairs side, but that takes research.
    Thank you very much. Our time is up for this panel, so I want to thank you all very much for being here. I think you've added a lot to the study. I appreciate your being here.
    We're going to break for a couple minutes while we change our witnesses.
    Thank you.

  (1630)  


  (1635)  

    Okay, folks, we are back in session.
    I want to say, first of all, welcome, Mr. Ron Griffis. It's not the first time I've seen you. It's always good to see you again. I'd like to welcome as well Mr. Kovacs, who reminds me he's in my riding. He knows how to find me.
    Ron Griffis is from the Canadian Association of Veterans in United Nations Peacekeeping and Mr. Kovacs is from the Army, Navy and Air Force Veterans in Canada. You know what the study's about. We welcome your participation and your knowledge in this matter.
    Mr. Griffis, we'll start with you. You have 10 minutes, please.
    My name is Ron Griffis. I am the national president of the Canadian Association of Veterans in United Nations Peacekeeping.
    I would like to thank the committee for inviting our organization here today to speak to the committee's interest with respect to the Veterans Review and Appeal Board. I have discussed these issues with our organization members, and we have arrived at a consensus, which is what I will be stating.
    My background is military—initially infantry, and then military police, civilian police, and 22 years with the judiciary.
    The Veterans Review and Appeal Board is a quasi-judicial organization that deals with issues pertaining to Canada's military and RCMP veterans and their requests for benefits. I understand the board has an entitlement of 29 hearing officers, and, in a letter dated September 2011 from Mr. Larlee, the chair of the VRAB, I'm informed there are 24 members. Half of them are based in cities across Canada, where they conduct hearings. I further understand one of the board members is on leave because of illness, and I respectfully suggest that he will not be reappointed when his contract expires.
    An organization such as the VRAB must have the ongoing respect of all the participants. As in the military and the RCMP, respect for an organization is paramount. Lack of respect promotes disdain for an organization. I respectfully suggest that for an organization such as the VRAB and their officers to receive respect, they must be considered a truly independent board.
    The appointment process for new members of the board may be considered reasonable under the circumstances. Their contract is for a set period. The reappointment process is another matter. I respectfully suggest that to secure reappointment to the board, a member must toe the line.
    Part of the reappointment process is the satisfactory assessment of the board member by the chair of the board on the completion of the Veterans Review and Appeal Board member’s professional performance assessment. By any stretch of anyone's imagination, the member quasi-judicial officers who hear cases are not independent.
    An understanding of the word “quasi-judicial” denotes or is related to powers and functions similar to those of a judge, such as those exercised by an arbitrator or administrative tribunal. How can an officer of the board be independent when their livelihood depends on the renewal of a contract that is dependent on a report that, in essence, reflects how the quasi-judicial officer performs his or her job?
    Administrative tribunals must be free from an appearance of bias; that is, a reasonable person must conclude that an administrative decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments, commonly known as a “reasonable apprehension of bias” test. This is derived from the natural justice principle, or the right to be judged impartially.
    Independence is one important indicator of whether there is an appearance of bias in an administrative body. Although administrative independence is not required to be as strict as judicial independence, there are certain minimum requirements, such as security of tenure and an independent administrative control. However, administrative independence is not guaranteed under the Constitution and can be ousted by statutory language. Once a court has determined that there has been a reasonable apprehension of bias, the decision in question must be void, as there is no remedy for the damage created by the appearance of bias.
    It is unheard of that a judicial officer or a quasi-judicial officer is rated as to the quantity and quality of his or her work. It is reasonable to assume that applications to the VRAB will be those of persons who have had life experiences and may have retired from their careers. At this stage of their lives and careers, it is not too much for successful applicants to expect a situation in which they will be comfortable in their employment and not have to be concerned about the reappointment process that may occur every two years or so. The reappointment process can, and will be, a distraction to the VRAB member.

  (1640)  

     It is respectfully suggested that members of the VRAB be appointed on a permanent basis, with retirement at 75 years of age. As a result of a permanent appointment, there would be a loyal and dedicated appointee who would do their best at all times to enhance the reputation of the VRAB and, by extension, of the ministry of Veterans Affairs. This type of appointment would also satisfy the veterans, as they would observe a quasi-judicial officer who is truly independent in his or her function.
    Section 39 of the Veterans Review and Appeal Board Act deals with the rules of evidence. If I may, I will read section 39:
In all proceedings under this Act, the Board shall (a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and (c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
    I make reference to the rules of evidence, taking into consideration the accountability aspect of the VRAB. There is an accountability aspect to the VRAB that presently appears to be non-existent. For example, the hearing rooms are supposed to be open to the public. If I may, I will use in my example the hearing room located in Charlottetown, at Veterans Affairs headquarters. The public does not have access to this room, as per access to other hearing rooms located across Canada. People wishing to attend must identify themselves to the security official in the lobby, sign an entrance form, receive a visitor's badge, and then wait in the lobby until an escort arrives to be escorted to the hearing room that is under lock and key. If the person attending wishes to leave the hearing room for any purpose whatsoever, generally speaking they will not again gain access to the hearing room.
    In the reach of procedural fairness rights chapter, chapter 8 of Mullan, Diana Morris indicates that:
Open courtrooms
    —or hearing rooms, my words—
force the decision maker to be more careful and reflective in the ways they act and in the conclusions they reach because they are subject to public scrutiny and criticism.
    At this time I again refer to a letter I received from Mr. Larlee, dated September 2011. He again states:
While our members are trained in assessing all kinds of evidence, they also have access to independent medical advice under the legislation.
     I respectfully suggest that this statement tells me that the hearing officer had access to what might be called a “secret witness” who I cannot, as an appellant or applicant, examine or question. Because it is legislated doesn't make it fair and it doesn't make it just. It is just an affront to the veteran applicant and undermines the basic fundamentals of justice. It appears their decision is based on the hearsay evidence of a nameless and faceless person. How can a secret witness determine one man's fate? How would you like that?
    To further quote Diana Morris:
Also, affected parties would be more likely to accept the outcome when they participate in hearings versus a decision being made in secret by a faceless and nameless person. Their participation in the decision-making process would involve being able to confront the actual decision-maker. This also contributes to the belief in participation in the democratic process.
    How can we have an act, the Veterans Review and Appeal Board Act, that is not only unfair but grossly unfair to our most vulnerable and damaged citizens as a result of serving their country with pride and honour? How can this be allowed in 2012 in a country called Canada?
    The mission statement of the Veterans Review and Appeal Board is flawed. It is, “To ensure fairness in Canada's programs for disability pensions and awards and War Veterans Allowances by providing fair and timely appeals for traditional Veterans, Canadian Forces members and Veterans, Royal Canadian Mounted Police applicants, qualified civilians and their families.”

  (1645)  

     The current process creates anger, distrust, frustration, and all of that is completely avoidable.
    Would you want a nameless and faceless person to determine your fate? Neither would we. We are not asking for a handout; we are asking for fairness in the form of a fair and transparent process. Here is a golden opportunity to make that right.
    It is suggested that on a regular basis, the hearing officers fail to apply the doctrine of giving the benefit of the doubt to the veteran. In failing to apply the benefit of the doubt to the veteran, the hearing officer suggests that various notes from medical practitioners, as well as verbal statements from the applicant, are not sufficient to satisfy the board, and therefore they conclude that a case has not been made out.
    Going back to section 39, the act states categorically that the board shall—not “may”, but “shall”—accept any uncontradicted evidence presented to it by the applicant. In short, this is a must-do. For the board to state that they do not find the evidence credible in the circumstances is just plain not fair.
    The appeal portion of the board must be addressed. When one seeks out the definition of the word “appeal” in the context of the VRAB, various dictionaries refer to a higher authority than the one that a decision is being appealed from. VRAB appeals are decided by people equal in status to those who made the original decision. Taking into consideration that there are only 24 members—and also one on sick leave—it is reasonable that they are friends and colleagues. The question that surfaces at this time is this: on what authority does my colleague of equal status have the right to overturn my decision? What gives him the right to say that I was wrong and he is right? Will friendship play a part in the decision? Will the pending completion of the Veterans Review and Appeal Board members' professional performance assessment play a part in the ultimate decision?
    By the same token, if my assessment was poor and my re-engagement hangs in the balance, will this affect my judgment? If my assessment was perfect, will that affect my judgment? Who really knows the answers to such questions?
    It is respectfully suggested that an appeal section be created within the board. The board should be staffed by senior long-term members who, by reason of their new appointment to this section, are a step above the regular members, with the appropriate remuneration increase. Their appointment documentation would give them the authority to conduct appeal hearings.
    In conclusion, I would be more than happy to answer any questions you might have.
    Thank you.

  (1650)  

    Thank you, Mr. Griffis.
    Now we'll turn to Mr. Kovacs.

[Translation]

    Mr. Chair, ladies and gentlemen, veterans, good afternoon. My name is Jerry Kovacs.

[English]

    Good afternoon, everyone.
    Thank you for inviting the Army, Navy and Air Force Veterans association to this meeting this afternoon to discuss the Veterans Review and Appeal Board. Our position, shared by others, is that systemic and decision-making problems at this administrative tribunal are having negative emotional, physical, and financial impacts on veterans and their families.
    I represent Mr. George Beaulieu, our president, and I speak on behalf of the executive and members of ANAVETS. I am substituting for Mr. Lorne McCartney, our Dominion Command secretary-treasurer.
    ANAVETS was formed in 1840, 172 years ago. Our organization is older than Canada. A royal proclamation signed by Queen Victoria created our first unit in Montreal. The original members of ANAVETS served in the War of 1812, in Wellington’s army, and in the royal navy of the Napoleonic Wars. ANAVETS was incorporated by a special act of Parliament in 1917.
    Our 20th century members served in South Africa, World Wars I and II, Korea, and in NATO campaigns, such as that in the former Yugoslavia. In the 21st century, our members have served in Afghanistan, Iraq, and peacekeeping missions worldwide.
    Presently, although we're smaller than the Royal Canadian Legion, at 15,000 members we are located across the country in seven provinces under seven commands in 68 units.
    ANAVETS is a non-partisan organization. Our motto is “Shoulder to Shoulder”. Our members stand shoulder to shoulder in serving their communities, promoting camaraderie, and advancing advocacy issues on behalf of veterans across Canada. Safeguarding and promoting the rights and benefits that veterans have earned and deserve working for Canadians at home and overseas is an important part of our job.
    That’s the big picture.
    Now permit me to address today’s subject. Why are we here? Our focus today is on the role, responsibilities, and performance of VRAB with respect to serving veterans.
    One of our major concerns is the treatment of military personnel who, while on duty, have suffered physical, psychological, and emotional injuries. We believe that the Canadian government has a duty and an obligation to provide the best possible care and support for those injured in the line of duty. VRAB plays an important role in ensuring that injured veterans are treated fairly with regard to their appeals for benefits that have been reduced or denied by Veterans Affairs Canada.
    What are the issues? They are numerous.
    One is the performance of VRAB. Another concerns appeals of VRAB decisions where not enough information is provided to appellants, where appellants need to know but do not know why their applications have failed, and where appellants should know where adjudicators erred in decision-making.
    Third is a review of Federal Court decisions.
    Number four is the length and cost of the process to veterans. Anybody who appeals a decision in court has to go through a lengthy process that costs them money and that is sometimes very emotional. It takes up to a year for VRAB decisions and up to three years for appeals to the Federal Court. Veterans can pay as much as $40,000 out of their pocket to appeal their case, because they have to hire a lawyer.
    Number five deals with the reasons for the process. Adjudicators should adhere to the legislation, as has already been mentioned by our comrades from the Royal Canadian Legion here. The process should involve a liberal interpretation of the legislation that favours veterans and ensures that the benefit of the doubt is always in favour of veterans.
    Number six is the publication of VRAB decisions, which encourages transparency.
    Number seven is a review of processes and service standards. That has been discussed.
    Number eight involves retroactively compensating veterans at the end of a lengthy appeal process.
    Number nine has already been mentioned: veterans representation on VRAB.

  (1655)  

    Where have these issues been discussed? It is right here, in the Veterans Ombudsman's report dated March 2012: “Veterans' Right to Fair Adjudication”. The work has been done for you, ladies and gentlemen.
    What are the recommendations? Quite simply, they're found on page 20. There are seven of them. I'm sure that our good friend Mr. Guy Parent has sent your offices a copy of them. It's a comprehensive report. He even hired lawyers from Ottawa to conduct an objective review of VRAB decisions that have been appealed to the Federal Court.
    I'm going to take 10 minutes to say something very simple here. I feel embarrassed.
    ANAVETS agrees entirely with these recommendations, which you undoubtedly have had a chance to read during the past six months. We wish to make a number of additional recommendations that reiterate and support those contained in the Veterans Ombudsman's report.
    With all due respect to our colleague Mr. Stoffer, we do not believe that VRAB should be abolished. It is a higher quasi-judicial authority that, if it functions properly and effectively, ensures that veterans receive a fair shake.
    The same as in the courts, the same as in a civil or criminal court, when judges make good decisions at the lower level, there is less chance of an appeal to a higher level. The same thing applies at the departmental level: good decisions in the Department of Veterans Affairs should result in fewer appeals to VRAB.
    VRAB must focus on its purpose and objectives and adhere to its legislative mandate. You've heard numerous references made to the sections of the act that apply; VRAB needs to meet its mandate and meet the same legal requirements as other quasi-judicial administrative tribunals that serve Canadians.
    We also believe that a veteran should be on every VRAB panel. I conducted my assessment from the VRAB website, and I looked at the 24 members. Oh, my gosh, what a surprise; quelle surprise. There are seven lawyers, two nurses, two teachers, and no psychologists or psychiatrists, no social workers, no court case workers, no paralegals, no law professors, and no families of veterans. There are lawyers, civil servants, former Conservative politicians, tribunal members, a couple of teachers, and some political advisers and assistants, although it doesn't say for whom they were advisers.
    VRAB decisions should be available online to the general public for increased transparency. We do this in our court system. Anybody can walk into a courtroom on Elgin Street or into the Supreme Court of Canada or the Federal Court and observe. Increasing transparency and accessibility should result in better decisions, as was already mentioned.
    Appellants must know the reasons for the decisions. They must know how to prepare their cases, what documents are required, and how others are treated in similar situations.
    We've heard a little bit about this next point already. We've been pushing VRAB to publish its decisions on its website, and there are some very good reasons that it doesn't want to. VRAB has published 19 decisions on its website this year, because they say that the cost of publishing decisions would be $2 million to $3 million.
    Okay. There is an alternative called the Canadian Legal Information Institute, which is funded by the law societies across Canada. They publish legal decisions on their website for free, or my favourite word en français, gratuit. To date, CanLII, for free, has published 189 VRAB decisions on their website.

  (1700)  

    Therefore any concerns that VRAB has about the cost of publishing decisions are mitigated by the fact that there are some law societies across Canada, CanLII, who are willing to publish all of them—all of them—for free. What a sweet deal. For any of you who are in business, if somebody came to you and offered to do something for you for free to enhance the nature or quality of your business, would you say no?
    Our opinion is this: your job is very easy here. Monsieur Guy Parent, the Veterans Ombudsman, has done the work. He's made seven recommendations and conducted an in-depth study of appeals to the Federal Court. All you have to do is say, “Monsieur Parent, thank you very much for all the work you've done on behalf of veterans” and accept his recommendations.
    In closing, I'd like to ask a few rhetorical questions.
    In 1998, almost 15 years ago, the Auditor General of Canada brought to the attention of the Government of Canada systemic problems at Veterans Affairs. Since then there have been ombudsmans' reports, stakeholder meetings, Veterans Affairs committee meetings, a veterans bill of rights, a new Veterans Charter, and numerous lawsuits, and appeals started by veterans who were denied rights and benefits entitled to them by law.
    Why do you need to invite representatives from veterans organizations to your committee meetings to tell you what you already know? Why do you need to invite bureaucrats from the department to fly here from Charlottetown, at taxpayers' expense, to tell you there are problems that you already know about? Why do you need to invite VRAB management to come to Ottawa, when they know what needs to be done but cannot provide you with the information or statistics to prove they are solving problems when you asked them two weeks ago today? Why do individuals such as the Veterans Ombudsman and veterans groups such as ours, who are continually sending email messages and letters and making phone calls to VRAB, need to bring to their attention, and now to yours, systemic problems that everyone is aware of? Why do veterans need to engage in long—years' long—expensive, protracted lawsuits against the Government of Canada to obtain financial awards and benefits to which they are entitled by law? Why, why, why do we need to push and pressure civil servants, who are supposedly working for Canadians and who know their job descriptions and what is going on in their department or tribunal, who are paid to do the right thing—why do we need to tell them? Why is it so hard to do the right thing for veterans and their families?
    We are all here, I hope, to serve the best interests of veterans, people who have made significant contributions to Canada and Canadians. Our response should not be to engage in administrative appeals and litigation that involves winning or losing. This is not about winning or losing. Our response should be supporting veterans—all of them, all of the time.
    Sometimes I tell people that for many veterans the real war starts when they return to Canada and have to fight their government for disability benefits they are legally entitled to receive. Serving Canada by fighting enemy forces and insurgents overseas in the defence of the freedoms and values we cherish is honourable; coming home and being forced by your government to fight Canadian government lawyers is disgraceful.
    In conclusion, we want to know why. You should be asking the same questions: Why has VRAB not been implementing all of the Veterans Ombudsman's recommendations? What does it take for Canadians working at Veterans Affairs Canada and VRAB to get things done and do things for veterans every day?

  (1705)  

     During an era of federal budget cuts that negatively affect veterans, why is it necessary to force veterans into a position in which they must hire expensive lawyers at the appellate level to fight their government for services and benefits that they are legally entitled to receive?
    We are all sitting here around this table, shoulder to shoulder, as Canadians who care about our country and about how veterans are treated. Let’s all work together to ensure that the legal obligations to deliver services and benefits to veterans become a reality.
     Thank you.
    Thank you very much to both presenters.
    I will point out that both were very extensive and went quite a bit over the time we expected. I'm going to limit the questioners to four minutes, and we will try to get through one round, with a choice at the end of the meeting as to whether to extend the meeting by a few minutes or to stop when we reach the end of the time.
    I'm going to start with Mr. Stoffer. You have four minutes.
    Thank you, Mr. Chairman, and thank you both very much for coming.
    Ron, thank you very much for your eloquent example of what is going on. You are right; I don't believe that other gentleman will be reappointed when he applies again.
    Mr. Kovacs, thank you very much.
    You will notice that the veterans bill of rights does not include an article that says you have a right to have your decisions made in a timely manner. I remember that when the bill of rights came forward I suggested this to the government of the day, but I wasn't successful in getting it in there.
    Mr. Kovacs, you're right, and Ron and the previous presenter are right, that it could take years for a process to get through to the VRAB. Let me give you an example.
    John Doe calls up 1-866-522-2122. He is a veteran. He calls in and says, “I have a problem.” Why can't the person on the phone—hopefully they are not Service Canada or Quantum, a private agency handling calls for DVA now—send someone to that individual's home to say, “Sir, if you are making an application for a benefit, here's what you have to have in order to possibly be successful” and describe all the medical files, all the documented papers, and all of that right from the very beginning.
    That doesn't happen. That person has to go through a string of assistants, either through their veterans' organization or BPA or some other group. As you know, many of them don't even pursue it; they just give it up. If they are denied the first time, they just stop.
    Is there not a way we can make it much simpler, when the veteran makes the initial call to 1-866-522-2122, to ensure that the person on the phone then says, long before the initial application, “We're going to sit down with you. We're going to help you right from the very beginning to access all the programs and services you need, and we believe that you should have this and this document and that document when you make your initial application”?
    Is it not possible to do that, to make it much faster for the veteran, RCMP member, or family member when it comes to applying for a benefit? The status quo just seems to take far too long.
    Yes, there is way to do it, if people want to do it or want to implement it. It's not rocket science. Just about anybody—I myself, or some other veterans' organization—could assist. We can sign a document of confidentiality and, for no money whatsoever, go to see the veteran in our community or within so many kilometres or miles and do this, or if VAC wants to deal with it themselves, that's possible too.
    Yes, it is possible, and it's reasonable under the circumstances. It can be done.

  (1710)  

    Mr. Kovacs, thank you for bringing the CanLII point forward. They mentioned this to the VRAB board here the other day. They had a concern about the translation of decisions and making sure they were in French and in English. They said they could work on that problem.
    I agree with you. When you can get something for free and have all the decisions online, that may be very helpful for all decision-makers and for people in the future. Thank you for raising the issue.
    That's my time.
    Let me address the second one first.
    CanLII is a private organization, so it's not bound by the Official Languages Act.
    No, but the decisions are published.
    Mr. Kovacs, you're going to have to be fairly brief, please, because we are caught for time here.
    CanLII can do it. If you go to their website, there is a list of federal government agencies and tribunals for which they publish decisions in English, French, or both. There are a number of them.
    Second, your idea for a checklist is excellent. When I practised law and when a client came into my office and wanted a will or a real estate transaction or anything done, we had a checklist. It took down basic information and it included a list of documents and asked if the person had all these documents.
    It was very easy to do a checklist. Many lawyers use checklists.
    Thank you, Mr. Kovacs.
    Ms. Adams, you have four minutes, please.
    Thanks very much to both of you gentlemen for appearing here today.
    Mr. Griffis, my first questions are to you, sir. While the name of your organization doesn't reflect it, in addition to representing members of the Canadian armed forces, you also represent members of the RCMP.
    That's correct.
    Could you tell us briefly how the needs of the RCMP might differ somewhat from the needs of our veterans?
    The needs from the RCMP are not enshrined in the Veterans Affairs Canada contract that they have. They're not entitled to full benefits under the VAC. Their contract calls for a very small portion of what they can be entitled to.
    You are referring to those that were established when they first joined the RCMP.
    Pardon?
    You mean those that are established under the RCMP.
    Yes.
    The thing is, they never talk about benefits and Veterans Affairs Canada until it's a requirement by reason of something that's happened.
    Could you take a moment to explain why it's important that our government appointed the first RCMP member to VRAB, and how that experience helped members of the RCMP?
    Once again, the RCMP organization is reflected by the military organization. They don't trust the VRAB. They've heard so many bad things about the Veterans Review and Appeal Board that they would much rather just sit at home and say "I'm not doing that. I'm not going through the hoops. They're not going to make me do that, and I'll do without before I have to go through that."
     It's one of those things that the reputation of the VRAB—and I mentioned this to Mr. Larlee—requires attention. It may not be the worst, yet, and it may not be the best, but it can be.
    Do you think it's helpful, though, in terms of building some confidence into the decision-making and the process at VRAB that our government appointed the first RCMP member to the board?
    If memory serves me correctly, I believe the spouse of an RCMP member was appointed a long time ago.
    You mean a family member.
    Mr. Ronald Griffis: Yes.
    Ms. Eve Adams: This is an actual RCMP officer, though.
    I—
    You indicated, though, and we've questioned previous witnesses on this issue, that the Canadian armed forces members on the Veterans Review and Appeal Board bring their military background to the board's decision-making, and we've appointed a number of members with military backgrounds. Can you tell me what the government should be looking for when it makes appointments?
    I want to reiterate that both you and Mr. Kovacs indicated that you want VRAB to continue. You're looking, though, to suggest improvements to the board's composition and process.

  (1715)  

    One of the things that really bothered me when I attended hearings at the VRAB is that there are two adjudicators. One of the adjudicators does 98% of the work and the other adjudicator does nothing, so I would suggest that if you appointed a member of the military to the VRAB and you had a single adjudicator—as in a great many adjudications across Canada—you would see the judgments markedly different.
    Right now you have to convince two people that what you're asking for is reasonable, bearing in mind that only one has asked all the questions. Then they go back and make a telephone call to a doctor, a psychiatrist, or whomever, and ask, "This is what I heard today; can you help me out?"
    We don't have the opportunity to do that, but if you had one adjudicator, it would be that much better, and if that adjudicator had a military background—or a law background, or a police background—you would see the judgments change overnight.
    Thank you very much, Ms. Adams.
    Now we're on to Mr. Casey for four minutes, please.
    Thank you, Mr. Chairman.
    Mr. Griffis, did I hear you say in your introduction that you have 22 years' experience in the judiciary?
    Yes, sir, 22 years.
    Okay.
    You also referred to a letter from Mr. Larlee that caused you some concern with respect to access to witnesses and evidence outside the hearing room. You said the letter was dated last month?
    No, it was September 2011.
    Okay. Would you please provide a copy of that letter to the committee?
     Sure.
    Thank you.
    Sir, I share your concern with respect to a decision being made based on evidence that isn't presented to the tribunal. You raised this in the context of the letter that was provided by Mr. Larlee, but you've also indicated that you spent some time at Veterans Review and Appeal Board hearings. Have you seen it in practice?
    No. We don't know who they call.
    Okay.
    Your critique of the board, which I very much appreciate, really advocates making the board a lot more like a court. You'd have independence of the decision-makers, an open process, and two levels, with the more experienced level acting as an appeal division.
    You would know well, sir, by virtue of your experience in the judiciary, that administrative tribunals often don't have all the trappings of a formal court system, yet that seems to be what you're advocating. Is there room here, do you believe, for something less than, or a facsimile of, a trial court?
    Yes. For instance, the tribunals that we go to always suggest there is going to be an air of compatibility, that things are going to go nicely, and we're all going to be friends and all of that. That's reasonable, but I think you have to apply some reasoning to it.
    For instance, in Charlottetown the three appeal court adjudicators sit on a dais above you, and you're looking up to them as you would look up to the judge in a court room. That doesn't promote congeniality in any sense.
    You also had some comments with respect to the idea that an appointment should be a tenured post.
    In light of that, I'd be interested in your advice on the process to be followed to make the appointments. If we're going to be appointing people essentially as judges who can only be removed for serious misconduct, as opposed to their record, what changes would have to be made to the actual appointment process itself? It strikes me that we're appointing a bit of a different animal if we're appointing someone for life as opposed to someone for a term with performance reviews.
    A committee would be formed of responsible persons—perhaps there might even be a veteran on that committee—and you would examine the applicants. You would ascertain the suggested qualifications that they have, what the board is looking for, and what they did to prepare for this application. Also, the applicants would have first passed the exam and then passed the interview. If a committee is set up, I'm quite certain it could even be a video committee that might question the person.

  (1720)  

    Thank you very much, Mr. Casey. Your time is up.
    Go ahead, Mr. Zimmer, please; you have four minutes.
    Thank you for coming today and for your service to our country. It's much appreciated.
    I have a question with regard to the VRAB in general. We've heard a few comments, and Jerry, you mentioned this before, but we've certainly heard criticism of VRAB today.
    I want to hear your recommendations in terms of completely scrapping VRAB or in terms of what I like to think of as sharpening the knife a little. What are your thoughts on that? Could I get answers from both of you?
    My answer would be very brief, which is that you would fine-tune it. There are going to be some hiccups along the way, as there are with any judicial appointment or any appointment at all. If you're appointed to the Immigration and Refugee Board, there are always hiccups.
    By the same token, if you fine-tune the VRAB.... Let me give you an example. At any time you can ask any senior judicial person to explain to the 24 people on the board what reasonable doubt is or the benefit of the doubt. You can get people from the Supreme Court of Canada down to the local provincial court, and in a heartbeat they'll attend and give you their opinion of what benefit of the doubt is. You would find that it's extremely simple, and I don't think I'm making any great news on that.
    Just to interject, I think of the F-18. It's been a great airplane for many years and served us well, but I remember there were issues with it in the initial stages. It certainly needed to be honed and needed to be fixed, but it developed into a very good airplane for our servicemen and women.
    I look at it that way. I think we can certainly make it better, but it's a process and we need to definitely get on with the....
    Jerry, if you could provide....
    Publish all the decisions so everyone can read them from coast to coast.
    Right.
    I'll just make a comment from my perspective. I'm a new guy here, and so some of this is definitely informative for us. It mostly is informative.
    I just talked today to my cousin, who served for 20 years, and asked him what he thought. He said it's been serving him well--specifically him--and he's had no complaints. He's actually a year younger than I am, and he's already been in the service for 20 years. To him it's been a good thing. In our riding, too, we haven't heard any complaints, from my office's perspective, over the last year and a half.
    What I'm saying is that we do want to work on behalf of veterans. That's what we're all here for. Whether we're on the opposition side or on the government side, we want what's best for veterans, and that's why we're here today.
    Certainly there hasn't been a plethora of examples in my riding, but that doesn't mean that we don't need to fix it and make that knife as sharp as we can make it.
    Again, thanks for coming.
    Thank you, Mr. Zimmer. You caught me off guard there.
    Go ahead, Ms. Mathyssen, for four minutes, please.
    Thank you, Mr. Chair, and thank you very much to the witnesses for being here.
    I have a number of questions and I hope I'll be able to get through them.
    My first question relates to what we heard in previous testimony, which was that VRAB doesn't have to accept the Federal Court decision. If a veteran goes to the Federal Court and gets something different from what VRAB has come up with, VRAB doesn't have to accept that.
    Are you aware of that? How can that be?
    I respectfully disagree with that comment, because when a higher court tells you to do something, with all due respect, you'd better do it, and if not, then that particular judge, if he's within a reasonable distance, will call you in and say, “I gave you an order, and you'd better do it, and if you don't want to do it, get out”.
    Then it's your understanding that the Federal Court does have that kind of authority?
    Well, when they send it back to VRAB and say, “We want you to take another look at this”, it's not rocket science. You'd better take another look at it.
    Okay, thank you.
    A couple of months ago I had the privilege to speak to the past president of the Canadian Medical Association, Dr. Haggie. He was talking about his concerns in regard to what happens to veterans and the denial of benefits. He said that he thinks there should be a cost-benefit analysis. Basically, when veterans are denied, when they're not given the kinds of benefits they need, there's a cost to the community and there's a cost to the health care system.
    Does it make sense to you that we need to be more cognizant of the fact that there's a cost somewhere, and it's to families, it's to veterans, and it's to our entire community?

  (1725)  

    I disagree with that. The benefits for veterans are legislated, and yes, sometimes things are going to be out of balance, but if the veteran is entitled to that benefit, it is legislated that he will receive the benefit. Even if VAC or the VRAB, or whoever it is, were to run out of money, I would imagine they would go back to Treasury Board and say, “We need x dollars because of such-and-such.”
    Okay.
    Finally, of all the rejected applications, only half result in a request for a review. My question is—and you touched on this with the RCMP—are there veterans who simply are likely to give up the benefits to which they're entitled because they feel overwhelmed, as you suggested that RCMP officer was feeling overwhelmed?
    Yes. I was just dealing recently with a 93-year-old fighter pilot from World War II. He received some benefits and he was trying to increase his benefits, and he became frustrated. He lives in Kemptville, Nova Scotia. He called me up. He said, “Ron, forget about it. I don't need this crap.” He just said, “Don't bother anymore.”
    Okay.
    Is there a culture that sees veterans as opportunistic? Is there a culture within the board that would lean toward being more likely to deny benefits? Is that something we need to be concerned about?
    That, I understand, is accepted by a number of applicants, yes.
    That's what the applicants themselves believe.
    Yes.
    Okay, we're already at your four minutes, and, excitingly enough, we have enough time for you to ask a question, Mr. Lizon.
    Gentleman, thank you very much. I will join my colleagues and thank you for your great service, everybody present here and veterans, and for your service to our country.
    I listened to both presentations very carefully, and maybe to change the tone a little bit I will ask a general question. Is there anything positive we can say about the VRAB? Is there anything positive we can say? We've heard all the negative comments, but I don't think in life, in any organization, every single thing is negative. Therefore there must be something positive.
    There are thousands upon thousands of veterans who have had a good response and a good deal with the VRAB—thousands. Once they receive their benefit and they're happy with it, you never hear from them. Yes, there are thousands who have been successful.
    As we know, not every case goes to the VRAB—
    Your question, Mr. Lizon, please.
    —because many are done on the first round, but we've heard from previous witnesses that some cases that go before the VRAB are cases where there is insufficient paperwork. Some positive cases are appealed because people are not happy with the original decisions.
    It's too bad that we don't have all these statistics because they would give us a better picture of what the real problem is and what percentage of total cases we are really—
    You have 10 seconds, Mr. Lizon, please, to ask your question.
    I have 10 seconds. I'm sorry. I thought I had four minutes. I'm sorry, Mr. Chair.
    I was just about to conclude. I'll just ask a quick question. Do you have any additional recommendations? We're all here to serve veterans.
    Guy Parent has told you what to do.
    Thank you. I'm sorry about that. We have to stop there.
    I really want to thank our presenters today. That was very helpful information, which will add to our report. On behalf of the committee, we appreciate your coming here. You did a good job.
    Some hon. members: Hear, hear!
    The Chair: For the rest of the committee, we'll see you on Wednesday.
    The meeting is adjourned.
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