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37th PARLIAMENT, 1st SESSION

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

EVIDENCE

CONTENTS

Tuesday, May 7, 2002

1540

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

The Chair

Mr. Peter Smith

The Chair

Mr. Peter Smith

Mr. Schmidt

Mr. Peter Smith

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

Mr. Peter Smith

1545

1550

Mr. Guy Arseneault

Mr. Pat Iannitti (Director, Tribunal Operations, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security)

Ms. Tina Head (Senior Counsel, Legal Services Unit, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security)

1555

Ms. Chantal Proulx (Legal Counsel, Legal Services, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security)

Mr. Pat Iannitti

1600

Mr. Guy Arseneault

Mr. Peter Smith

Mr. Pat Iannitti

Ms. Chantal Proulx

1605

Ms. Tina Head

Mr. Peter Smith

1610

The Chair

Mr. Peter Smith

The Chair

Mr. Peter Smith

Mr. Pat Iannitti

1615

Mr. Peter Smith

The Chair

Mr. Peter Smith

The Chair

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

1620

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Ms. Tina Head

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

1625

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Ms. Tina Head

1630

The Chair

Ms. Wendy Lill (Dartmouth, NDP)

Mr. Peter Smith

Ms. Wendy Lill

Mr. Peter Smith

Ms. Wendy Lill

Mr. Peter Smith

Mr. Pat Iannitti

Ms. Wendy Lill

1635

Mr. Peter Smith

The Chair

Mr. Peter Smith

Mr. Guy Arseneault

The Chair

Mr. Guy Arseneault

Mr. Peter Smith

Ms. Tina Head

1640

Ms. Wendy Lill

Mr. Peter Smith

Ms. Wendy Lill

Mr. Peter Smith

Ms. Wendy Lill

Ms. Anita Neville (Winnipeg South Centre, Lib.)

1645

Mr. Peter Smith

The Chair

Mr. Peter Smith

Ms. Chantal Proulx

The Chair

Ms. Chantal Proulx

Mr. Peter Smith

1650

The Chair

Mr. Peter Smith

The Chair

Mr. Peter Smith

The Chair

Mr. Peter Smith

Mr. Guy Arseneault

The Chair

Mr. Guy Arseneault

The Chair

Ms. Wendy Lill

Mr. Guy Arseneault

Mr. Peter Smith

Ms. Wendy Lill

Mr. Peter Smith

1655

The Chair

Mr. Peter Smith

The Chair

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

The Chair

Ms. Madeleine Dalphond-Guiral

The Chair

Ms. Madeleine Dalphond-Guiral

The Chair

Ms. Anita Neville

Mr. Peter Smith

The Chair

Mr. Peter Smith

The Chair

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

1700

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Peter Smith

Mr. Werner Schmidt

Mr. Pat Iannitti

Mr. Werner Schmidt

The Chair

Ms. Wendy Lill

1705

Mr. Peter Smith

Ms. Wendy Lill

Mr. Peter Smith

Mr. Guy Arseneault

The Chair

Mr. Peter Smith

1710

The Chair

Mr. Peter Smith

The Chair

Mr. Peter Smith

The Chair

Mr. Peter Smith

The Chair

Mr. Peter Smith

The Chair

Ms. Tina Head

Mr. Peter Smith

Ms. Tina Head

1715

The Chair

Ms. Tina Head

Mr. Peter Smith

The Chair

Mr. Peter Smith

Mr. Pat Iannitti

The Chair

Mr. Pat Iannitti

The Chair

Mr. Pat Iannitti

The Chair

Mr. Pat Iannitti

Mr. Peter Smith

Ms. Tina Head

The Chair

Ms. Tina Head

The Chair

CANADA

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

NUMBER 022

1st SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, May 7, 2002

[Recorded by Electronic Apparatus]

¹ (1540)

[English]

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

Wendy Lill has a bad back and hopes to join us in however long it takes for her to get over here.

We're very excited to have representatives from the Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security with us.

Commissioner, would you like to introduce everyone or do you want me to have a go at it? I think you should.

Mr. Peter Smith (Commisioner, Office of the Commissioner of Review Tribunals, Canada Pension Plan/Old Age Security): I'll try, Dr. Bennett, thank you.

Is the acronym CPP/OAS RT the longest one you've faced so far in this subcommittee's existence?

The Chair: I don't think so.

Mr. Peter Smith: I think it has the same number of letters in French, if that's of any comfort.

The Chair: But there are no hyphens or anything.

Mr. Peter Smith: There's a distinctive slash--CPP/OAS.

We're very pleased to be here, and thank you for the invitation.

With me today is Tina Head, senior counsel, who has appeared here with us before; in his first House committee appearance but a veteran of several stages and a great singer, though I suspect we won't have too much time for that, is Pat Iannitti, our director--

Mr. Werner Schmidt (Kelowna, Canadian Alliance): The stage pops up over there.

Mr. Peter Smith: Does it? We might be able to use it.

Pat Iannitti is our director of operations, which basically means he is the stage manager and director of our core business, if I can put it that way, although I refrain from using the word “business” often in relation to public programs. He is the person who, minute by minute, is responsible for our key business, the hearings. If we don't do those, well, we shouldn't be trying anything else, in other words.

Next is Chantal Proulx who is our counsel, as distinct from senior counsel. We have two lawyers; you have been warned.

Last, but certainly not least, I want to draw your attention to the fact that also with me is a former member of Parliament, Mr. Guy Arseneault, who served for two terms from his vantage point in northern New Brunswick just under the Baie de Chaleur in the Restigouche area.

Guy is still somewhat of a new deputy commissioner. He's really an associate commissioner, and rapidly became associate commissioner upon his arrival, almost, as a result of his wisdom and experience as both an Ottawa-oriented and a riding-oriented member of Parliament for two terms. He has had an easier transition than some from one side of the desk to the other. I'm wondering if he would like to give us in a sentence or two what his secret is.

Mr. Guy Arseneault (Deputy Commissioner, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security): I don't really know if I have a secret, but certainly it's a pleasure to be here. I must say that in my experience as a parliamentarian I found that, outside of the constituency work, the committee work was the most gratifying. I think that is where the hard work is really done. It's a shame more attention is not paid to this by the media and the public, that this is where the work actually gets done.

I had the distinct pleasure of sitting on one side for a term, and then sitting on the other side for a term, and also sitting at that end of the room for part of that term. So, I don't know, I guess the door is next.

Voices: Oh, oh!

Mr. Werner Schmidt: Does that mean you're all square now?

Mr. Guy Arseneault: Well, usually we come full circle, but I noticed it isn't a circle here. Perhaps some day we'll form circles with closer understanding.

Thank you, and thank you, Commissioner.

Mr. Peter Smith: Mr. Schmidt, maybe he can use your stage at the appropriate time. That could be his fourth position.

Dr. Bennett, may I proceed with what I hope will be my relatively quick opening?

The Chair: Yes.

Mr. Peter Smith: My goodness, my time has already begun. We have this device, and the bell will go off at a certain time to try to quiet the rambling commissioner. It has been adopted in our office and I have been sworn to using it consistently.

You and your colleagues are to be commended on your decision to conduct hearings on the difficult and complex topic of Canadian disability policies and programs. I would like, right off the top, to offer our cooperation to all of your members and staff in this valuable endeavour.

[Translation]

It has been my privilege to hold this position for the past three years, five months and a few days. So I can attest from personal experience to the complexity of this area of public interest. In fact, few positions in my life have provided me with such an extraordinary combination of opportunities and changes as I am facing today.

[English]

I understand our meeting with you today is to provide background on our operations, and that is the first of two or three possible roles you have in mind for us, the next being a possible round table of stakeholders, in which we would be pleased, I can tell you now, to participate if we are invited.

It is, however, the prospect of also being asked by the subcommittee to provide our views on the reform of federal policies and programs for disabled Canadians that particularly challenges us.

Although we are not ready today--nor have we been asked--to provide you with a coherent set of reform ideas for Canadian disability policy, we will be consulting our panel members on their suggestions for change and hope to be in a position to present a completed plan to you or make one available in general to the public late in the summer or early September.

As I expect you appreciate, your timing is very good if the subcommittee is to have an impact on the outcomes of the statutory review of the Canada Pension Plan slated to begin next fall.

I have written the Deputy Minister of Finance and senior officials of HRDC seeking details of their consultation plan for the statutory review, with particular reference to the potential role of our panel members in it, and I would like here to set out the rationale for a role for us, as the Office of the Commissioner, and the panel members in the statutory review lest there be any questions about the propriety of administrative tribunals taking part in reviews of the very legislation they are charged with interpreting and in effect implementing.

There are normally two places in the Canadian political system where administrative tribunals like ours traditionally are expected to make their views known publicly: in annual reports and before parliamentary committees. Some argue that this is the extent of it, and that otherwise, tribunals or similar agencies should refrain from comment on the legislation that as entities of the executive arm of our system they must rely on for their adjudicative and regulatory decisions.

This view, I submit, should prevail for “normal times”. But in other times--I don't want to call them abnormal--times of policy review such as your subcommittee's work, which has just started, or statutory review like that provided in section 113 of the Canada Pension Plan Act, the tribunal--not just ours--is expected to play a role in policy development.

Indeed, the guidebook for heads of agencies provided by the Privy Council Office in 1999 states:

There are at least three areas where the involvement of heads of organizations is beneficial in improving policy development and communication across the portfolio:

I guess in our case they mean the human resources portfolio.

They are:

sharing of expertise in ensuring relevance on any proposed legislative changes;

appropriate cooperation on policy development with Deputy Ministers so that they may be effective in giving sound policy advice to their Ministers

--at the time of the review; and the third--and not quite to the point--is “sharing”, at least in terms of a policy review, “management practices to benefit from each other's perspective and experience”.

I have learned from my predecessor, the estimable Ron K. Stuart, who was the only other commissioner of the CPP/OAS review tribunal and served from 1991-92 until 1998, that neither he nor the then panel members were consulted in regard to the 1998 legislative changes. And certainly neither I nor the panel members were canvassed in the 2000 statutory review.

This is despite the fact that our panel members are among the front-liners of federal service delivery to the disabled, and in serving our panel members, I would submit, so are we--in the form of in-person meetings, which we also call hearings, totalling exactly 52,483 to the end of last fiscal year since the creation of CPP/OAS review tribunals 10 years ago.

¹ (1545)

A goal for us is to ensure that we play our proper role now and into the future.

A concluding note: I want to cite Professor Michael Prince at the University of Victoria, whose work some of you may be aware of. You haven't yet seen the policy history he is just now completing, but we will be making that available to you if you wish in about two or three weeks. It's a companion document to the one we've already made available to you, the Sherri Torjman paper.

He remarks in this paper that at a round table three Fridays ago he discussed with us the rare non-partisan nature of MPs' actions in the general field of CPP disability over the years. A classic example was during the Mulroney era when the so-called Redway private member's bill got transmogrified into something else and in effect became a government bill, I think--I don't know the full history--and passed the House unanimously.

This was a characteristic of debates and discussions, I know, at the formative period of the CPP and has been at different times throughout. Professor Prince's paper shows this better than I could possibly sketch it to you. I must say, it was evident to me at the only other time we appeared that there's a general non-partisan approach because of the nature of the policy field and the circumstances surrounding disabled Canadians. I trust this heritage will guide your work in this current stage as well.

For the question and answer period, I'd just like to alert you to the fact that we have a major public opinion poll, better known as a “client satisfaction survey” in Ottawa bureaucratic circles, just in from the field. We have a few bits of data for you we could present in the Q and A if you wish, and we have a couple of slides summarizing that to give you some idea. There's a bit more data we could give you.

This slide represents 1,400 of our appellants, those who either succeeded or failed in terms of having their claims dismissed or allowed at our hearings over the last three years. This, frankly, was the one I was most worried about, and I'm pleasantly surprised that it isn't as bad as I thought it was going to be, because of course we have a confrontational process. If you look at “strongly agree”, that means the review tribunal hearing was fair. That is a basic, straight, clear statement. “Somewhat agree” totals 57%, and I'm somewhat heartened by that. We clearly have work to do on “strongly disagree” at 31%, but put this into the context of the allowed or success rate for appellants, which in this same period was somewhere around 31% or 32%. There are another 20% there who said, well, they turned me down but they were fair.

That has to be close to our core requirement and our core duty. We have a bit more of that for you. We will have more for you in another month's time when the full report from Environics comes in.

I've said enough. I'd like now to call on the deputy commissioner and our other colleagues to just give you snapshots of our operations and of our priorities for appeal system reform within our own responsibility.

¹ (1550)

[Translation]

Mr. Guy Arseneault: Thank you, Commissioner.

I would like to start by commenting the chart you have in front of you. There are two very important points that I would like to highlight. The chart gives a breakdown of the appeals by type of benefit. First of all, our review tribunals are responsible for appeals relating not only to the Canada Pension Plan, but also Old Age Security. People tend to forget that.

Second, most of the appeals heard by our tribunals deal with disability benefits. As you can see, they account for approximately 95% of the appeals.

Thank you.

[English]

Mr. Pat Iannitti (Director, Tribunal Operations, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security): Here is a snapshot of the number of appeals received and the number of hearings held since the creation of the Office of the Commissioner in 1992. You will note the high-volume years. New appeals peaked at just under 11,000 in 1997-1998, and the number of hearings peaked at 10,325 in 1999-2000.

[Translation]

When the Commissioner's Office was created in 1992, the expected number of appeals per year was around 1,800 but as you can see, there has been an increase of nearly 500% over the years.

[English]

Then, as you can see, the bell curve comes around--a dramatic drop of 30% in new appeals between 1999-2000 and 2001-2002. This is attributable primarily to demographics, better economic conditions, and an increase in the grant rates at the application level of the disability claims and at the reconsideration level.

Over the last two years the drop in new appeals has bottomed out, and we forecast to receive approximately 6,000 new appeals per year over the next four years.

Ms. Tina Head (Senior Counsel, Legal Services Unit, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security): About 10% of the disability appeals we receive are settled without the need for a hearing. As you'll see on the slide we have up, about 41% of those that do go to a hearing are successful.

That rate has been climbing slowly but steadily since about the mid-1990s. You'll note that there has been a fairly large jump in the success rate between this most recent year and last. That's due in part to a decision of the Federal Court of Appeal last summer in a case called Villani. Prior to that period of time we had quite a split in the jurisprudence of the Pension Appeals Board on the interpretation of “disability”. The Villani case settled that division of opinion and confirmed one particular line of jurisprudence. It has contributed to a much higher success rate overall.

There has been some suggestion that a subsequent decision of the Federal Court of Appeal in a case called Rice has constrained the result of the Villani case. There's certainly ample room for discussion of that, and I'd be happy to come back to that in questions and answers if you'd like.

¹ (1555)

Ms. Chantal Proulx (Legal Counsel, Legal Services, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security): We next have here the number of appeals to the attention of the appeals board. As we all know, this is the next level after the review tribunal.

I have the data now for 2001-2002. The percentage of decisions appealed by the minister is now 1.1% for this current year. So you'll see that there has been quite a difference from a high of 24.7% to a low of 1.1%. Part of the explanation for the recent decrease can be attributed to various factors.

Some of it is the types of issues we've been dealing with, whether or not it's a question of interpretation of the legislation. The other thing is probably better quality of the review tribunal decisions. Also there is the introduction of the litigation committee department. They're now deciding which types of appeals they want to bring forward to the Pension Appeals Board. My understanding is they are more questions of law than questions of fact, as they were in the past.

Mr. Pat Iannitti: The Office of the Commissioner has two toll-free numbers, one for the general public and one for the panel members themselves.

[Translation]

This table gives the number of appeals received over the past year: a total of 25,036 and an average of 2,086 per month.

[English]

Of the calls we receive, 47% are intended for our client service officers, relating to the enhanced counselling program. I will tell you more about this in a few seconds. Another 10% refer to inquiries on the process and the hearings themselves, and 9% of the calls are on decision inquiries. Finally, 8% are on general inquiries about the process.

In February 2000 we implemented the enhanced counselling program, which means that in addition to the general information on the process and on the hearing itself, we now try to reach each appellant or representative to provide them with an explanation of the issue under appeal, so that they can better prepare for the hearing with either additional documentation or other evidence.

[Translation]

The OCRT will increase its efforts by taking a number of measures to personalize the system in order to achieve fuller coverage.

[English]

By September 2002, our goal is to counsel 100% of the appellants. Over the period between January and March of this year, we've reached the 93% mark.

º (1600)

Mr. Guy Arseneault: To better serve our clients and other stakeholders, the OCRT has a website that contains various information available 24 hours a day, 7 days a week.

The table in front of you on the overhead is divided into four parts, the top part being a summary of the activity on a daily basis. We have about 14 visits per day, over 3,000 hits per day, and the average number of visits per weekend is roughly 32. The next part of that shows what days are peak during the week. That's a monthly table, showing that Mondays and Saturdays seem to be the high days. So that has a bearing on how we respond.

The next part of the graph shows the pages that are utilized the most and for how long. Again, that has an impact on how we set up our websites, and that's on a monthly basis.

The last one is on a monthly basis, and that's basically the browsers or the web crawlers that are accessing our site.

So Environics has told us in the survey that Peter, our commissioner, referred to earlier that about 55% of our clientele have access to computers, 47% have access to the Internet, and 45% have access to e-mail. Surveys have indicated a very high satisfaction rate for the use of our website by the representatives of the appellants; they find it very useful. They can download forms and information. Even the Villani case that was referred to earlier by our senior counsel is on that site. It's a fully bilingual site.

The OCRT is also participating in GOL, the government online project, which we hope will make our site more interactive in the future.

Thank you.

Mr. Peter Smith: That concludes a very brief snapshot of our operations per se. We will go to very quick summaries of the seven projects. One has just been dealt with by Mr. Iannitti, the 100% coverage, appellant counselling. So we will go to the other six and give you a brief description of status here.

May I draw to your attention that you have a handout summarizing our appeal system reform, which is a group of initiatives that have been at the top of our minds, our consciousness, over the last fiscal year, and now this fiscal year, and will continue.

I think Pat has something to say about the chair's role in a certain round table in Vancouver last June.

Mr. Pat Iannitti: The minister's case submission, now renamed HRDC's explanation of the decision under appeal, used to be presented at the hearing by the HRDC representative. HRDC and our office fully collaborated in piloting the initiative of releasing the explanation of the decision well in advance of the hearing. The pilot was held in B.C. between October 2000 and March 2001.

The commissioner had often stressed the importance of adhering to the common law principles of natural justice and procedural fairness, allowing all parties to an appeal to be made aware of the party's position in advance of the hearing. National implementation of this initiative was announced at the round table we organized in July 2001 in Vancouver, attended by advocacy groups for the disabled, our B.C. panel members, a few appellants, some representatives, and senior officials from both HRDC and the OCRT.

We would like to thank the chair of this subcommittee, Dr. Bennett, for her participation at the round table and in making the announcement on behalf of our minister, the Honourable Jane Stewart.

[Translation]

Between October 2001 and January 2002, HRDC, in cooperation with our office, successfully implemented, at the national level, a plan for early disclosure of the reasons for decision four to six weeks before the hearing. This innovation will make the process fairer and more transparent.

[English]

Ms. Chantal Proulx: I'd like to refer to points two and three together. They have to do with training our panel members. To put this in context, whenever a panel member is appointed to a tribunal, an orientation session takes place. Some of the components are knowledge of the legislation, the regulations, and the rules of procedure. They're taught about the hearing process through a mock tribunal. After that there's further training in an advanced workshop. We deal with communication and listening skills as well as the rules of evidence and the decision-making process.

Presently, we're doing a medical ethics workshop in which we have presentations from different advocacy groups, such as the Multiple Sclerosis Society and the Canadian Mental Health Association. The next one will involve the Arthritis Society.

We've also discussed some of the major issues that face our panel members in the decision-making process, such as chronic back pain and fibromyalgia. Another is cultural minority awareness.

Some of the groups that have attended our presentations are the Society for Manitobans with Disabilities and COSTI Immigrant Services. The Metropolitan Immigration Settlement Association will be attending the next one.

I'd also like to point out that for people who hear old age security appeals, there's separate training for that legislation.

º (1605)

Ms. Tina Head: I'd like to speak briefly to points four and six, legal aid and access to medical records. We're finding from our Environics survey that access to affordable representation is a significant issue for people in the CPP disability system. At present, seven of the provinces and territories theoretically provide legal aid coverage for CPP disability appeals, but we've only been able to find data of two of them actually providing certificates. That would be Ontario and British Columbia.

On the issue of access to medical records, again from the Environics survey, which is proving to be most valuable, I must say, we're finding that about a third of the people who appeal at the review tribunal level have difficulty obtaining their medical records, and cost is the second highest factor in their difficulty. As a result of our own intuition in this area, this year we initiated a proactive policy of reimbursing people for the cost of retrieving their existing medical records. Our policy stopped short of paying them to go and get new medical reports, but we will do what we can to ease the burden of getting what's already there.

Mr. Peter Smith: Thank you, Tina.

I'd like to say a few words about the final project in our group of initiatives to reform the appeal system, the creation last September of a complaints desk. It's a little desk. It's a part-time function at the moment, to collect complaints--not that we did not already have in place, from the beginning, a complaints mechanism for people concerned about our panel members, or us, the process, and how we spoke with them, etc.

We created it partly because of the increasing frequency of complaints about other disability providers, particularly private insurance disability providers, coming regularly--but in small numbers--from our appellants. We decided to expand from collecting complaints about our own operation to collecting complaints about others in the public-private disability delivery system.

Here is one of the more troubling examples of matters that have been brought to our attention. This is a replica or example of something that concerns us deeply: the forced appeal. Let's just call it that for the time being, but it goes a little bit further. I hasten to add that I could easily have put up an example from two or three other major Canadian insurance companies, which would have almost the same wording, and so on.

It is more than saying, “You have an obligation, and you've signed an undertaking with us as your disability insurance provider, to appeal to the CPP, first of all to apply, and then appeal if you don't succeed”. This says, “Unless you do appeal, we will calculate what you might have got from CPP disability and begin to subtract it from our monthly to you”.

To me this crosses some kind of boundary. It requires a good deal of attention. I don't want to go into great detail right here, but I will say I have been in correspondence with the provincial superintendents of insurance on this and related matters. The committee would be welcome to the exchange of correspondence. It has just been me to them and them to me. I'd be happy to make it available at the appropriate time, if the committee would like to see the correspondence.

At the moment we are monitoring and reporting. Just to be clear, we have no investigative powers, nor am I seeking them.

This concludes our maybe over-long...we went over the 20 minutes, Madam Chair.

But may I just draw to your attention a little Christmas card we received last year. Some days in our work, frankly, are downers. Some are uppers. Sometimes the up days are those in which you feel you've done a very professional job and assisted your system and panel members when they've asked for help. Deserving people get the benefit. You feel that you've played a small role in that. These are very sustaining human moments.

Here's a little Christmas card sent to me. I was asked to send it to the three panel members as well, who sat on that appeal. The person writes: “I just want to thank the above people in my review tribunal for having understanding and of being very professional and kind. You people really saved my life and standard of living for my family and I.”

It is not an exaggeration of the human dimension of our work, and I wanted to include that.

Thank you very much for your attention.

º (1610)

The Chair: Thank you very much.

We can go to questions--although I am particularly intrigued by the insurance company letter. As we've discussed many times, my experience as a family doctor was that people were pushed to apply, and then pushed to appeal--sometimes people who didn't qualify.

Do you have any examples of people pushed to apply and pushed to appeal, who had some negative response from the insurance company after that, because they didn't qualify or win their appeal?

Mr. Peter Smith: The short answer is no. We do not have information of any... Now, Pat has a couple of anecdotal bits on this, but we have nothing we would consider reliable information. Nor, I think it's fair to say, does the department. Our search so far of various industry sites and so on would suggest that this information hasn't been available.

The Chair: Do we have any numbers on the kind of shaking of trees that happens here where somebody doesn't appeal and therefore is having money subtracted, money they are actually entitled to?

Mr. Peter Smith: We do not have reliable numbers on this at all, at least in terms of our level, by which I mean no reliable numbers on the forced appeal. A number of our appellants are very hesitant to mention this either to our counsellors on the phone or in the hearings, for fear, frankly, as some have told us, of what the consequences to them might be. But we really have no record.

There's a box on the CPP disability application you tick off, box 13, to say that you are receiving benefits from another plan. That is our key to go in and do random checks to see what might also emerge on that file of the sort of thing this letter is an example of. But I cannot tell you how many people appealing to us--we do not have the data collection at the moment--are also in receipt of a private disability benefit.

We don't know where to start to ask the question. We're really in the hands of the appellant, who is feeling very aggrieved or pressured or who blurts it out, frankly, Dr. Bennett. I would say that probably the most frequent, if you will, evidence of this is the person who appeals as an appellant at our hearings and starts out with words to the effect of “The only reason I'm here is because my insurance plan told me I had to be here; otherwise, I wouldn't be here, because I don't think I'm disabled by this.” We've even had them say “I don't think I'm disabled in terms of the Canada Pension Plan; rather, it's more that I'm partially disabled in terms of my existing group plan.”

That would be the most frequent, right, Pat?

Mr. Pat Iannitti: We have no numbers, again, but, anecdotally, people have told us that the threat is there. Unless you continue to appeal and even reapply after the appeal process has been exhausted, they will continue to threaten to cut you off.

There's one other company where I've been told by the appellant that they only force them to appeal to our level; they don't force them to appeal to the Pension Appeals Board. Then they let them be and continue paying them until they start receiving either old age security, the retirement pension of the Canada Pension Plan, or other private pensions they may have.

º (1615)

Mr. Peter Smith: Similarly, we have been told by some insurance company representatives we've talked to--well, it causes some real confusion because they appear to be working for both the appellant and the insurance company. That's another matter we should get into at some point; we're trying to clarify this on a case-by-case basis. We're sometimes told that only other companies do this, which of course is good competitive language, I suppose.

The Chair: Are you in consultation with the provincial bodies in terms of insurance? Do they have a code of conduct on this?

Mr. Peter Smith: I have not been in touch with the industry and any of its formal entities, but I have now had a round of correspondence with the provincial superintendents of insurance, and I've been replied to by their central group, which is headed by the Newfoundland Superintendent of Insurance. They have told me they have not received any significant complaints in the area of forced appeals to CPP.

However, in following up in person with one, in this case, deputy superintendent of insurance--and I'd have to get his permission to tell you which one--he pointed out that in that province the data are not held by the Superintendent of Insurance but rather by a separate commission, and that I should get in touch with them and I would probably find some complaints.

The problem for us is... as I said, we're not seeking to be investigators and so on; we would like to collect as much as we can and raise the problem, which we think is a fundamental one for some of our appellants. But there is no federal competence in this area either. There's no federal responsibility for the policing of the consumer side of federally regulated insurance companies.

Excuse me, why is this? I guess it goes back a long way.

The Financial Consumer Agency of Canada at the moment is at pains to point out that they have to refer complaints about the consumer side of insurance companies, even federally regulated companies, to the provincial superintendents of insurance and other regulators. This is a bit of a bag of tricks.

Anyway, I don't want to belabour it. We should stay within our boundaries, of course. It's where we are responsible. I shouldn't be wandering into other people's turf too much.

The Chair: Well, it's very helpful in terms of the work of the committee. Thank you.

Werner.

Mr. Werner Schmidt: I want to follow up the line of questioning you've started, Madam Chair, because I think it's a very important line.

You have two legal counsels with you this afternoon, and I congratulate you for that. I also want to congratulate all of you for the attitude of compassion and understanding I seem to feel coming from you. I think that's very commendable.

I would like to ask, in terms of your background, in terms of hearing appeals and so on, you must know what the provisions are of many of these private insurances. Exactly what do their policies read? What kinds of benefits are there in their policies? Is there a conflict between the provisions that are contained in the policies and the provisions that exist under CPP disability?

Mr. Peter Smith: On the first part, Mr. Schmidt, we are not very knowledgeable on the precise provisions of private disability.

Mr. Werner Schmidt: How do you deal with an appeal then?

Mr. Peter Smith: Well, we are an administrative tribunal--I'll need some help from Tina on this, I think--and thus our boundaries extend, legally and in terms of the process, to whether that person qualifies for the CPP benefit. Other matters come up in an ancillary way, but I don't think we could call ourselves briefed, as part of our normal day, in other arrangements that people have made with other disability programs.

Mr. Werner Schmidt: Well, let me ask the question a different way then. Is the first appeal for any person who has a disability to CPP disability? Are you the payer of first resort?

Mr. Peter Smith: This is a first-payer question, then, is it?

Mr. Werner Schmidt: Well, it wasn't originally, but it is now.

Mr. Peter Smith: It is, indeed, the first-payer policy of the stewards of the Canada Pension Plan, which I hasten to add are federal and provincial--the feds and the provinces. But of course, the policy leadership has always been federal--that's something that should also be said, including by Parliament. It is that policy of first payer that leads to the situation where it is in the interest of the private insurance companies to prevail upon a percent of their disability caseload to apply and then appeal. So to that extent, it's connected. Does that make any sense?

º (1620)

Mr. Werner Schmidt: Yes, it does.

The question I want to ask, to make sure I understand you correctly, is whether in all cases of disability, the Canada Pension Plan disability is always the first payer.

Mr. Peter Smith: That is my understanding for the English Canadian provinces. The only place where the Canada Pension Plan--in this case the version of it that is under the Régie des rentes du Québec, in other words the Quebec Pension Plan--is not the first payer is Quebec. This is the sister plan in this case to the Canada Pension Plan. That's my understanding.

Mr. Werner Schmidt: That means then that all of the underwriting that takes place in the private sector is written as that, as the foundation.

Mr. Peter Smith: Written with that as an assumption. You mean the underwriting is done knowing that?

Mr. Werner Schmidt: Yes.

Mr. Peter Smith: That's my guess. I agree with you. Or at least with a percent of CPP first-payer moneys into the mix.

Mr. Werner Schmidt: This is very interesting.

Mr. Peter Smith: Now the other side of actuarially sound, as I'm sure you would appreciate--and I'm no great expert--

Mr. Werner Schmidt: I'll get to that one later.

Mr. Peter Smith: But if you have a risk analysis, then maybe you should calculate the risk of not getting the first payer.

Mr. Werner Schmidt: No, let's not go there right now. That's a whole different kettle of fish.

This is the point I'm really trying to nail down, if I could. Is one of the purposes of income of Canada Pension Plan disability income replacement for someone who cannot work?

Mr. Peter Smith: I would say that's the core purpose.

Mr. Werner Schmidt: How does that relate then to other income replacement policies in the private sector?

Mr. Peter Smith: Can any of my colleagues help, since I've been trying on a few? Tina Head can.

Ms. Tina Head: Actually, two of the papers that we'll be releasing in the next while will deal with this question in a little more depth, although you'll appreciate that as a tribunal we're not the policy experts on these questions.

My understanding is that implicit in the design of the Canada Pension Plan disability benefit was the notion that it would replace some, but not all, of a person's income, and that there would be other programs available—private and some public—to do that, Worker's Compensation for example, and, as a last resort perhaps, social assistance.

Mr. Werner Schmidt: The income replacement, which I'm referring to, is the pension income. That's really what you're replacing, because people are getting into the Canada Pension Plan before it would normally kick in, and that's why they're doing it. So you're really replacing that income earlier than they would normally retire from their particular job. Isn't that correct?

Mr. Peter Smith: Do you mean the early retirement provision or in this case the disability provision, which...

Mr. Werner Schmidt: No, there's no point in getting a CPP disability pension if you're already retired, if you're 65....

Mr. Peter Smith: Well, you can't actually.

Mr. Werner Schmidt: That's my point.

Mr. Peter Smith: You can't get both. And if you're in receipt of a retirement one first, then it precludes an application.

Mr. Werner Schmidt: Well, that's precisely my point. If somebody is injured at age 50, would he qualify for CPP disability?

Mr. Peter Smith: Absolutely, if he fulfils--

Mr. Werner Schmidt: This is a replacement in anticipation of the pension benefit that would be received at age 65. Is that correct?

º (1625)

Mr. Peter Smith: It's the relationship that you just sketched there that I'm puzzled about.

Mr. Werner Schmidt: This is the only thing. This is the only part that makes it actuarially sound.

Mr. Peter Smith: A partial answer is that of course at 65 it reverts to the retirement pension, which is invariably a little smaller than the disability these days.

Mr. Werner Schmidt: No, I think, Madam Chair, we had better have some--

Mr. Peter Smith: Is that adequate?

Mr. Werner Schmidt: No, it's not adequate. But I think there's a lot of stuff here that has to be looked at in some detail.

In reference to...was it last week or the week before? We had a group here that told us that the disability payout was roughly 15% of the total benefits paid out by the Canada Pension Plan. Roughly 15% of that was--

Mr. Peter Smith: I think it's closer to 12%, but I'm not absolutely certain--a little smaller than 15%. I think it's 16% of the individual beneficiaries when you put in all the children and dependants, and 12% of the payout, last year say.

Mr. Werner Schmidt: When you do your calculating, do you have any input at all in the setting of premiums for CPP?

Mr. Peter Smith: Do we as an admin tribunal? No.

Mr. Werner Schmidt: Do you make recommendations?

Mr. Peter Smith: We indeed regard it at a time like this, of policy review by your subcommittee and others--

Mr. Werner Schmidt: What would you recommend...?

Mr. Peter Smith: --as part of our prerogative to make recommendations.

Mr. Werner Schmidt: Are you going to make a recommendation on the ratio of...?

Mr. Peter Smith: Of the relationship between the two?

Mr. Werner Schmidt: Yes.

Mr. Peter Smith: Retirement and...? We could indeed.

Mr. Werner Schmidt: Are you going to?

Mr. Peter Smith: It's probably more appropriate for us to stick with our strength, which is CPP disability itself and within...

Mr. Werner Schmidt: That's pretty good, but I really want to know whether you will or you won't. I can skate around the question too.

Mr. Peter Smith: Our panel members may not feel as expert, is what I'm trying to say, Mr. Schmidt. Can I give you the idea of what we're studying toward giving recommendations?

The changes that took place in 1998 in the Canada Pension Plan disability have altogether meant that the current regime that we must interpret, that our panel members must interpret and that the department must interpret, is without question the most restrictive of any in the history of the CPP disability benefit. And that is going to be increasingly the case with the so-called rising YBE for disability, the year's basic exemption, if that persists as a policy.

Some would argue that the extra restrictiveness, if you will, brought in in 1998, also comes from the so-called recency requirement—the last four out of the last six—when compared with previous recency requirements of five out of ten, two out of three, and currently still in Quebec any two given years...

I believe, Chantal, we were checking on that, weren't we?

That's the kind of stuff that maybe we're better at because CPP disability is our main preoccupation. The relationship between CPP disability and retirement is a more logical thing to ask the department, and the Department of Finance, and others who do these big things; we're not equipped for them really.

Mr. Werner Schmidt: Yes, I quite appreciate that, but I know from my past experience in various areas that it's at the appeals section that you hear where things go wrong, and very often that's where you find out what really needs to be fixed. That's why I'm asking you these questions. The department will give you all the other stuff, but you guys can tell us what really happens. That's why I'm asking those questions.

Mr. Peter Smith: This is a sentiment Dr. Bennett expressed the other time we appeared.

Mr. Werner Schmidt: She and I actually like each other, so that's okay. I'm quite happy that she asked those questions.

But I want to change my tactic a little bit here. The number of appeals that were completed, or that were appealed successfully, has risen dramatically. To what do you attribute that? Is that because the people are really more disabled now than they were before, or is it because your methods are a little more lenient now than they used to be? Why is it that people are more successful? Is it because you're so sympathetic to their situation?

Mr. Peter Smith: Would the...

A voice: I think Chantal addressed that somewhat.

Mr. Peter Smith: She did indeed, and we could follow up.

Ms. Tina Head: It's a matter of some speculation. We don't have detailed studies on this. Until very recently, the increase was slow and steady.

I attribute that to the increasing confidence and increasing competence of our tribunals. We were, after all, just set up at the very beginning of 1992. It took us a while to settle in and establish some competencies. It also took us a longer while to bring on professional staff and to expand the range of tools and training for our members.

All of those things have contributed to a mix of broader and wider perspectives of our panel members and have increased their confidence in applying their own interpretations of the legislation. As well, it has increased their confidence in dealing in an environment where the jurisprudence on the next level of appeal was somewhat divided.

All of those things have contributed, in a slow and steady way, to an increase in the success rate, the dramatic difference, as I mentioned, between this year and the year before. A good part of that can be attributed to some very specific direction from the Federal Court of Appeal on how the disability provisions should be interpreted.

If I may, the split in the jurisprudence until that point was really a question of the extent to which you could take into account personal factors such as the age, education, work history, and the language and literacy skills of the person who had applied for the benefits. One line of jurisprudence said these factors weren't relevant and another line said they were indeed relevant.

The decision of the Federal Court of Appeal in the Villani case took the position that these factors are indeed relevant. Disability entitlements can't be decided in the abstract; some degree of realism must be had in approaching these questions. People have to be taken as they are, not as some abstract individual.

There has been some suggestion that a subsequent decision of the Federal Court in a case called Rice has pushed the barriers back a little bit. It depends on your view of Villani whether you agree with that position or not.

If you take the view that the Villani decision held that you could take local labour market conditions into account, then it's true that the Rice decision does push the boundaries back. But I have to say I didn't think the Villani decision went quite that far. I think this is true for the majority of our tribunals as well. We think it said, yes, an individual's age is relevant, their education is relevant, their work history is relevant--their personal circumstances are important in general. How they relate as individuals to the world around them is the context in which to make your decision.

But we don't think the Villani decision said the unemployment rate in one community as opposed to the next was a relevant factor. If people had been confused about that, the Rice decision confirmed that indeed it isn't relevant.

º (1630)

The Chair: Ms. Lill.

Ms. Wendy Lill (Dartmouth, NDP): Thanks a lot for coming here today. I'm interested in what you said earlier, that the CPP disability fund is there to replace some of the income but not all of it. You're assuming there are still little pots of money coming in to people to pay for pharmaceuticals, to pay for assistive devices, to pay for all of the things that are a part of being disabled. Is this correct?

Mr. Peter Smith: It's government...can I say “policy”? The figure 25% has been traditionally batted around in regard to CPP disability. I think you'll find that it's 25% income replacement. I don't know whether it was 25% when, for example, the Honourable Judy LaMarsh first spoke about it in 1964, but most recently I think you'll find that. And it is one source out of two or three in the intent of the policymakers.

Is that fair, Tina? I think it is.

Ms. Wendy Lill: You know, the problem we have—

Mr. Peter Smith: So it starts without an ambitious figure.

Ms. Wendy Lill: No, but I wasn't aware of that. So it's supposed to replace 25% of the income.

Mr. Peter Smith: I don't believe it's written down in black-letter law, but it's part of the policy law.

Pat, correct me if I'm on the wrong track.

Mr. Pat Iannitti: No, the retirement pension is supposed to replace the 25%.

Mr. Peter Smith: Oh, all right. I'm sorry. I'm mixing this up.

Mr. Pat Iannitti: I've never heard of a percentage for the disability pension.

Ms. Wendy Lill: First of all, I'm trying to get a sense of what it's supposed to represent. You mentioned a rare non-partisan action of MPs around the CPP disability. The reason is, of course, that they find very destitute, vulnerable people coming to their door and telling them stories that are just unbearable to hear. The bottom line is there is nothing else but CPP disability for most people. People who are on welfare and receiving some benefits there as soon as they get onto CPP disability no longer have any pharmaceutical coverage. You must know that.

I guess my question to you is, are you aware, province by province, of exactly what else is available to top up CPP? I think it varies across the country. I understand the Manitoba government is topping up CPP. They're not in Nova Scotia; you're just out of luck as soon as you get CPP. It's a real good news-bad news story. You may end up with an extra hundred dollars a month instead of your welfare; then you have no drug coverage and you're destitute for drug coverage. It's an abominable situation. Do you agree?

º (1635)

Mr. Peter Smith: I certainly agree. You start with a person who wins an appeal but is put into pay for CPP and ends up losing while winning, quite frankly.

We're not as knowledgeable as maybe we should be about the mix of things that could be made available in certain provinces. I think it's fair to say, for example, that in Ontario the disgraceful activities of the Harris government in regard to its existing welfare caseload were partly carried out with a view to attempting to upload some of those people to CPP disability. I think that could probably be easily documented. We know about the impacts on us and the possible links, but I don't know of one study. Tina and the others may want to correct me.

Our panel members are very concerned when they have to make a decision that technically it has to be on the administrative, legal questions in front of us. Does this person or does this person not qualify for the CPP disability benefit? If you're to be a pure adjudicator, you have to stop there. Well, humanity doesn't stop there. They wonder and fret and counsel and worry indeed, in many cases, about the loss of drug plans consequent upon this, the success--

The Chair: We also need to know, in the same way as we saw the insurance company letter, are there examples you've seen where the party pushing them to appeal is actually the social assistance plan from a province that then will save the money on the drug costs?

Mr. Peter Smith: I don't know whether we could verify the latter part, but yes, there would be some evidence in our files of the province and the Worker's Compensation Board in the province--provincial welfare and Worker's Compensation--

Mr. Guy Arseneault: Commissioner, just to add to that, in the Caledon report there's a section pointing out three specific provinces: Ontario, New Brunswick--I'm ashamed of it, but I've experienced it; I'm aware of it--

The Chair: We spend our lives being ashamed of Ontario. It's fine.

Mr. Guy Arseneault: —and British Columbia. In fact, the Ontario example they give is called the Peterborough Project, where the Ontario Ministry of Community and Social Services prepared more than 16,000 applications for submission to the CPP. That's an example right there. We talk about insurance companies, but we also have provincial governments doing very similar acts.

Mr. Peter Smith: I think it is fair to say, however, if one were to compare the intensity or the degree of troubling behaviour by the private sector as opposed to the provinces, in this case we hardly see the extremes of bad treatment of these people from the public sector actors. I don't think I've seen one from a Worker's Compensation Board staff, for example. Maybe we're missing something. I think we have seen more than one on provincial welfare--notably in Ontario, from our experience. But about half our hearings are from Ontario, so again we're not as pan-Canadian in our experience as we should be.

Ms. Tina Head: If I could, I'll just add some top-line data from our survey, as Peter has mentioned. There will be more details to be had when the analysis is done in about a month's time.

Our preliminary results show that when asked who told him to appeal, in about 5% of cases the appellant said it was a social services agency. When asked what other insurance or disability benefits they qualified for, about 8% said social services benefits. That may help to give you some perspective.

º (1640)

Ms. Wendy Lill: When the CPP was reformed in 1997-98, the Department of Finance stated as a principle that disability benefits must be designed and operated in a way that does not jeopardize the security of retirement pensions. Do you agree with that?

Mr. Peter Smith: I fully agree that this is what the Department of Finance said. I would question a number of things concerning the time, that review, how it was conducted, and the relative lack of consultation starting back in 1995.

We had a round table that included an icon, in my opinion, Tom Kent, who came and took part in our round table three or four Fridays ago. Your researcher was present for that. At one point he was talking to a participant, a former MP, who was a close friend and who had been involved as an MP in the so-called consultation in 1995. The friend described how basically they had kept the focus just on retirement and how tactically they had done this through the groups they chose to consult with, the media control, the spin, and all these things some of us have done in the past in the different causes we've been involved in. Tom couldn't listen to all this and finally said, “My goodness, I wish I had had you available 40 years ago when we were doing this so I could have gotten precisely what I wanted out of a consultation from the beginning.”

I'm afraid that's what happened in both 1995 and 1998, and it's time to show that we understand that the Department of Finance cannot be the only decision-maker on these things.

Ms. Wendy Lill: Well, it seems that persons with disabilities got sold out back then, and also persons who are going to be disabled in the future, young people on the job, and all sorts of people who never ever get these kinds of numbers up in terms of the amount of work they have to get in before they're eligible.

There really has to be some rethinking of the whole box and how big the box is. We have a growing population of disabled people because of our ages, and we all hear and know about it. It has to be reconfigured, I think.

Mr. Peter Smith: One of the ironies--that's too weak a word, I think--or rather flaws in the restrictive disability policy adopted in 1995-1998 is precisely what you hinted at. Here we are doing this on the eve of the boomers moving into high risk, being at risk of disability, and of course in need of pre-retirement.... Is there something wrong with this picture? We are becoming more restrictive when larger numbers of people in age cohorts are coming along and will possibly need these programs. It's gone a little “bass-ackwards”, as my father used to say, and maybe it's time to draw attention to it.

Ms. Wendy Lill: I'll let Anita continue.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you.

First I want to thank you for your presentation, which was splendid and very clear, and more particularly I want to thank you for your candour. It's refreshing, and I certainly do appreciate it.

I'm relatively new to this world, but I'm listening to this maze and sitting here wondering, is there any way of developing or working out some kind of harmonization of benefits to enhance people's opportunities, not to be restrictive and punitive but to work with both the private and public sectors? I would certainly welcome your thoughts or comments on that.

You also spoke about the fact that a disproportionate number of your appeals come from Ontario. I'm curious to know if that's a result of the climate in that province. What's the difference across the country, and how do you ensure that there is some consistency in the application of your decisions across the country?

We'll stop there for the moment.

º (1645)

Mr. Peter Smith: Ms. Neville, could we go to the second one first, on consistency, and related to that the role of Ontario?

In a short answer, we don't have any definitive explanation of why almost 50% of our appeals are from Ontario, but it does have something to do with the structure, the different structures of economies across the country, and to some extent age profiles, one would think, although per capita you would think a more, say, resource-based economy like British Columbia would produce more disability, a mining-based economy.

It would appear that it also relates to attitudes towards appealing and applying for the CPP disability officially in that province, and we have come through a period where, as we mentioned, a number of provinces, particularly Ontario, have attempted to upload. So if there's a single reason for our appeals going up like that and forming 50%, it's probably that.

It's also skewed, of course, in terms of national data, because there is a Régie des rentes du Québec. We don't operate in Quebec, so it looks dramatically more central Canadian when you say it's 50% from Ontario, in the absence of that. The only appeals we hear in Quebec are those that contributed to both, and of course we hear OAS in Quebec.

The Chair: What is the number of appeals in Quebec, and what is the appeal process?

Mr. Peter Smith: The appeal process is completely separate from the Canada Pension Plan but is somewhat similar. But the final appeal is quite different, given the creation of the Government of Quebec of an umbrella administrative social adjudicative court.

Chantal can give us more of a precise briefing.

Ms. Chantal Proulx: Yes. In Quebec, they have the initial decision that is made by the Régie des rentes, and then they go to a review again by the Régie des rentes, and then to the last level, which is called the Administrative Tribunal of Quebec. So they don't have what we call the review tribunal and then the Pension Appeals Board. They have sort of combined it. The Administrative Tribunal of Quebec listens to appeals on different issues. One of them is the social issues, but they also listen to environmental issues, economic issues, and real estate. So it's just in four different umbrellas, the way they set up the tribunal. But one of them is definitely the social benefits.

The Chair: Would we have any idea of the numbers? I guess we can ask them.

Ms. Chantal Proulx: I wouldn't know how many they have.

Mr. Peter Smith: A couple of reasons there would appear to be proportionately a much lower number of appeals in Quebec to the Régie is partly, of course, because of the different structure. The Workers' Compensation Board in Quebec is first payer, unlike the rest of the country, so I think that changes the complexion of things rather significantly on disability appeals, and so on.

On the consistency across the country, Ms. Neville, we can all try to give an answer, but we have a problem--we, just our tribunals across the country. We have imbalances and significant differences in yeses and noes, if you will, or grants and denials per province, and sometimes within particularly a province like Ontario. There may be really good reasons for this when you consider, for example, grant rates in Cape Breton versus grant rates in Victoria, B.C.

Just given what we know to be, generally speaking, Victoria is on Vancouver Island, which is one of the retirement capitals of Canada. It is relatively free of resource pollution, and so on. The opposite may indeed be the case in Cape Breton, and the age profile is quite a bit younger in industrial Cape Breton. So that's going to affect the conditions that are presented in a disability adjudication.

But I can say, too, that there are philosophical differences among our panel members. I can tell you honestly that in the Atlantic region and in the Prairies there's a tendency for the panel members to be more generous--I don't think this is probably news. In Ontario, they're grumpy and rather more abstemious, for some reason, particularly in the National Capital Region, in eastern Ontario--but I shouldn't go much further. We do what we can to even out--just in the last three years, frankly, this has been a major priority for me--through a considerably enhanced professional development program, which we gave you a bit of a sketch of earlier.

º (1650)

The Chair: How are the members selected? Do you get to suggest some possible members, or are you stuck with all the political appointments?

Mr. Peter Smith: No, we do get to suggest, if people come forward to us, and we sometimes will know of someone. Those of us on the staff, or particularly other panel members, will recommend and ask us to put the résumé forward. That isn't very often--it might be 10% of the new appointments.

The others are the result of the normal, or abnormal, Governor in Council appointment process, of which Mr. Arseneault and I are also products, so I shouldn't go too far. But we play a very little role on initial appointments. We play a large role--

The Chair: Does the department have any say in it?

Mr. Peter Smith: The department, yes. There is a secretariat of officials who very carefully... They are the ones who interview the candidates. Oh, yes, it's not very visible. It's not like the immigration members' selection. The Immigration Appeal Board has a secretariat for vetting people and résumés and all this. There is a modest version of that in our minister's deputy's office called the ministerial appointments unit. They actually are the ones who take a recommended name and interview that person on the phone.

The Chair: Ontario has a special screen for grumpiness.

Mr. Peter Smith: Parts of Ontario. That might not have been the right word, but there are peculiarities. I'm going to get into more trouble.

Mr. Guy Arseneault: I think in all fairness to our Ontario members, being from New Brunswick and being--

The Chair: Generous.

Mr. Guy Arseneault: --the independent person I want to be, I'd like to say that our Ontario panel members are very strong members. They're very good members, and we wouldn't want to give you the bad impression that they are on the negative side of the ledger. We do have panel members in all provinces who don't perform up to par, and we take a proactive approach by the training process that was explained earlier.

The other thing that should be mentioned here is the appointments' process. Members of Parliament have a role to play in that. We can't influence the panel members' decision. We can train them, give them the tools to work with, the information, but we do not influence their decision. But the type of individuals who are appointed are left up to the Governor in Council appointments.

The Chair: Do you do the performance review? Can you get rid of somebody who is bad?

Mr. Guy Arseneault: We do have some input into the reappointment. When asked, we do give comments and evaluations as far as which panel members are performing. But that is more subjective than objective in a lot of cases. We go that route. But really we don't have a lot of influence on who gets appointed at the initial stage.

The Chair: Wendy Lill.

Ms. Wendy Lill: How many members are there, say, in a province like New Brunswick?

Mr. Guy Arseneault: We have roughly... I don't know the exact number. We have 280 members across Canada. It might be in our annual report.

Mr. Peter Smith: There are 281 or something like that right now. On page 8 of the annual report you'll find the breakdown for New Brunswick--legal 7, medical 6, general 5, for a total of 18.

Ms. Wendy Lill: You're saying that MPs can in fact make recommendations, and some of them may have made recommendations--

Mr. Peter Smith: We would be happy to pass on résumés, but the minister should receive them. At reappointment time, interestingly, the deputy's secretariat actually causes some anxiety among serving members who are expecting to be reappointed by pointing out that it is a complete reappointment process, not an extension. They rigorously adhere to this. We have some serving panel members who are a little anxious about this. The whole point is that others may have come forward in the interim. But there is a high rate of reappointment for the second term.

º (1655)

The Chair: In assigning people to the individual cases, can you pick and choose using the high performers more often than the low performers?

Mr. Peter Smith: Yes. It is frankly easier when you aren't running to stay in the same place, as we were two years ago. Now that our backlog is taken care of and we have more time for everything, we've reduced the number of hearings in a run of hearings by one to provide more writing and deliberation time on the third day by the panel members. It gives us time also to assess and monitor more.

I'm hoping all of us here, in this next year, will be doing more monitoring and more in-person professional development, as well as the workshops we do, which are the primary answer to Ms. Neville on how we try to deal with the regional differences and inconsistencies. It's training, training, training, talking, talking, talking, without instructing them on how or what to decide, which we do not have the power to do. It's a delicate bit of diplomacy sometimes.

The Chair: Madeleine, did you have something?

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): I feel completely out of it. I am terribly sorry for being late. I looked at the agenda this morning, but I did not see the latest version. I was so happy because I had a thousand phone calls to make. I thought that I had an hour to make them, but then I realized suddenly that... Anyway, here I am.

I went through the documents quickly, but it is very difficult to ask questions because if someone has already asked them, the answers have been given. I feel very unprofessional. I will simply read the blues and if the questions I was thinking of were not asked, there will still be time to put them to you. We can write you or phone you.

A voice: As early as tomorrow.

Ms. Madeleine Dalphond-Guiral: No, not tomorrow.

The Chair: Perhaps at the round table.

Ms. Madeleine Dalphond-Guiral: Tell me when the round table will take place.

The Chair: May 21.

Ms. Madeleine Dalphond-Guiral: All right, that's fine.

A voice: Are we invited?

Ms. Madeleine Dalphond-Guiral: Everyone is invited.

[English]

The Chair: Peut-être. It depends on the performance today.

Some hon. members: Oh, oh!

Ms. Anita Neville: Can we get the results of your satisfaction survey when they're finally ready?

Mr. Peter Smith: If you would like the full report from Environics, we will make that available. It's a public document as far as I'm concerned. Why wait until freedom of information comes along? I would suggest you may even want to include—and he might be prepared to come and make a contribution—the lead researcher on that, Chris Baker at Environics, who in my view has a very good sense of these social area questions and issues.

The Chair: You actually have been invited.

Mr. Peter Smith: Tina and I weren't sure yesterday, so I had to change the introductory remarks.

The Chair: Our wandering clerk will be on the case.

Mr. Peter Smith: Oh, that's not the wandering one?

The Chair: No, this is a remplacement.

Mr. Werner Schmidt: What is your relationship with the Pension Appeals Board?

Mr. Peter Smith: They are the appeal above us, but they have roughly the same status as we do. They are both de novo... Now I'm getting into dangerous trouble as soon as I finish this sentence.

Ms. Tina Head: No Latin.

Mr. Peter Smith: No Latin, as Tina always says. They are not required to follow their decisions like we are required to follow the Federal Court of Appeal or the Supreme Court. Their cases have traditionally guided our panel members in the absence, particularly, of more superior court guidance on the matters we needed. This is where Villani comes in. Villani is there if you MPs all together in Parliament change the law, you know. The effect of the Federal Court of Appeal saying this is how to interpret this section is as if Parliament passed that same amendment.

Mr. Werner Schmidt: To follow through on an appeal process--

» (1700)

Mr. Peter Smith: PAB doesn't have any of that influence on us.

Mr. Werner Schmidt: If an appellant isn't satisfied with your decision, can they go to the Pension Appeals Board?

Mr. Peter Smith: Yes, in much the same way as they come to us, except there is a more elaborate leave to appeal process than we have.

Mr. Werner Schmidt: Do they have a choice?

Mr. Peter Smith: We accept almost anyone, even if they're late sometimes.

Mr. Werner Schmidt: So they can go to the Pension Appeals Board. Do they also have the option of going to the Federal Court?

Mr. Peter Smith: No, except for an appeal from the Pension Appeals Board on matters of law, as they say.

Mr. Werner Schmidt: If my memory serves me correctly, you or someone else on the panel said that the insurance companies did not encourage any of these appellants to appeal to the Pension Appeals Board. Why is that?

Mr. Peter Smith: To our knowledge, it involved some. I don't know about all. It may well be that they have said to their policyholders, apply to the department, appeal internally in the department, and appeal to the review tribunal. Maybe they got the message that they don't qualify. I don't know. It could be that, or they could be concerned for the welfare of these people, who are, after all, their clients.

Right now there's a very long wait for the Pension Appeals Board, particularly in Ontario, and that may be the practical reality there.

Mr. Werner Schmidt: I have a bunch of questions, but I'm going to stop here. The other question is, as the number of successful appeals increases, what will be the ratio of disability benefits paid out of the Canada Pension Plan disability unit? According to your figures it's now 12%. If the appeals continue to be successful, will that number increase?

Mr. Peter Smith: Currently, there are about 300,000 CPP disability beneficiaries, and they and their dependants are paid about $2.6 billion. It has remained relatively steady during the last four or five years in which we've gone up. At our review tribunal level, we would have to have much larger numbers to have a significant impact. Where the impact comes is if the department continues its upward trend. Those are much bigger numbers than ours.

Mr. Werner Schmidt: That's exactly what I mean. That's the implication. If the appeals process results in more successful appeals, then it would strike me as being perfectly logical that the department would say, we've been making some mistakes so we had better review what we're doing. The number of people who actually qualify in the first instance would increase. That would be the impact.

Mr. Pat Iannitti: You have to counterbalance that with the number of applicants. Over the last three years the number of applicants has dropped dramatically. Three years ago there were 75,000 applications for disability. It has now dropped to 56,000 a year.

Mr. Werner Schmidt: But those may be correlates of the same variable, so that doesn't necessarily follow. As the department increases its number of disability applicants and the number of appeals drops, the success rate will increase and they in turn will increase their agreement to the various appeals. I don't know that for sure. You might have to study that. I would see a connection there. There's a logical connection, in any event.

I think I'll stop there, Madam Chair.

The Chair: Wendy.

Ms. Wendy Lill: We agree on the statement that, basically, the changes that were made in 1997-98 were for securing retirement pensions, but they have certainly left persons with disabilities out in the cold.

You've probably said this before. I may have been out walking around at the time. If so, I'd like you to repeat it. Where do we go from here? Who re-establishes the policy goals in this regard? Is it HRDC or the Department of Finance? How are these policy goals established? What are the dates we have to be working on in terms of getting our comments in and really marshalling a good political force here? I know there are a lot of hoops. There are buy-ins from the provinces. All sorts of things have been locked in. Any kind of timeline and political gymnastics you can inform us of would be appreciated.

» (1705)

Mr. Peter Smith: As I said, we'll be in a little better position in a month or so--maybe by the time of the round table--to provide something more coherent. I think the key impact time is mid or late fall.

When it comes right down to it, it's whatever Mr. Martin, as the lead minister on the Canada Pension Plan, presents. The Minister of Finance is the lead minister on the Canada Pension Plan. Subsection 113.1(1) of the act--the one providing for the statutory review every three years--refers very painstakingly to a financial review. It doesn't say actuarial, but that appears to be what it means. It seems to be written to discourage the inclusion of other kinds of finances, i.e., the finances of the beneficiaries. I may be misreading that; I think it's worth attacking this with all due skepticism.

To be quite frank, the department with whom we share a minister could be much more active. As I say, I have just recently written saying, what is your plan for the consultation?

You also mentioned, Ms. Lill, the idea that it's in the lore of the Canada Pension Plan history that we've got to have the provinces onside. You know what? Parliament can lead. Parliament can decide just like they did in the case of the so-called private member's bill by the Honourable Alan Redway in 19...

Ms. Wendy Lill: In what year?

Mr. Peter Smith: In 1991. This will be dealt with in one of the papers we have available to you in a bit. I think it was 1991 or 1992.

What it demonstrates is that Parliament acted. The power of Parliament's unanimous action in this case—it's very unusual, I must admit—was so persuasive, the provinces thought they just had to agree.

Don't accept this argument from a number of circles--mostly from those that don't want to change, and some honest brokers as well—who say it's federal-provincial and you've got to get the provinces. I mean, that just looks insane, doesn't it?

Ms. Wendy Lill: Yes.

Mr. Peter Smith: Get a leading province or two, and Parliament, and you'll get change in the Canada Pension Plan.

Maybe I'm just an optimistic, old political scientist.

The reason we have two lawyers is that I'm just a poor version of one.

Mr. Guy Arseneault: If I may just add a comment to that, I noticed in your last report--I think it was on Revenue Canada, disability, etc.--there was a recommendation by your committee about the consultation process. I would strongly recommend that you look at formulating a recommendation in your report with regard to the consultation process. It seems as if the last consultation process was completely devoted to the economic-financial side.

It should be noted that benefits do impact finances. The people receiving or applying for these benefits, the stakeholders, should be consulted.

The Chair: That's what we hope to do.

In terms of resources, how many of the clients would actually have a legal...or a representative with them? Even above that, how stressful is the Pension Appeals Board? Obviously, Quebec has decided not to do that to people.

I know you're not supposed to be doing policy, but you're sort of stuck in the middle of a whole ladder of stuff.

Mr. Peter Smith: In our submission, we can be relied upon to try to give policy advice--when things are under review. We may get an argument from someone on that. Some would argue that an administrative tribunal is supposed neither to be seen nor heard on policy prescription. There's a quite other view. Even the Privy Council Office shares the one I've given you today.

Quite frankly, the bottom line is, why are we torturing these people with four levels?

I'll then ask Tina on the representative question you asked.

» (1710)

The Chair: Right, that was my question.

Mr. Peter Smith: These are poor and sick people when they start, and we are continuing to process them out as someone... I don't think anybody sat down and designed this in a cynical fashion, to be quite frank. I sure as hell hope not, but to have an initial internal appeal, a review tribunal, a PAB, and then you get your superior court on matters of law, and that could take two and a half, three years--that whole process... excuse me, but healthy people couldn't be expected to go through that. I believe that's where you're at.

The department has received two reports that I'm aware of that suggest collapsing initial and reconsideration into one decision level and really resource it, and collapse us into the PAB, or vice versa, or make the PAB appealable only on the strictest narrow grounds of matters of law, thus keeping the pressure off the Federal Court—things like this. These ideas have been around a long time. Instead, quite frankly, the department is moving toward coordinating itself better with insurance companies. I don't know whether this should be a priority or not. I said it and I wasn't going to, was I?

The Chair: Go to the representatives and then go again to what was maybe... you have a medical person, a lay person, and a legal person. When they go to the next level up, they just get judges, right?

Mr. Peter Smith: They get seasoned judges, supernumerary judges, superior court judges, county court judges.

The Chair: And is there a view that...

Mr. Peter Smith: Clearly there's a view that we are limited because of the very structure. Some would say we are limited and that maybe we're not providing full justice because of our makeup; however, as you've noted, the department doesn't appeal us any more, so we must be doing something right. All the appeals that go to the PAB are from--virtually all, except 1%--obviously, the appellant. About 150, 180 a month go by right now. It used to be 300. But there may be a view that supernumerary judges, semi-retired judges--and there are some very high-quality people on the PAB--are somehow or other better. Maybe that's the way it looks to the Department of Justice. But the PAB was created long before our little function. Our little function grew out of a quite chaotic review committee.

The Chair: But they're only letting about 1% through that you didn't...isn't it?

Mr. Peter Smith: No, they're way up too.

The Chair: They're way up too.

Mr. Peter Smith: They've been rapped on the knuckles by the Federal Court, actually, on their leave to appeal a little while ago and have opened the doors a bit and also have expanded considerably, I think, under the influence of Villani too. Villani was of course an appeal from them to the Federal Court.

The Chair: So maybe, Tina, just tell us the percentage of people coming to you who seem to need a representative or counsel.

Ms. Tina Head: Sure.

As you know, we did two surveys. We did one survey of people who at one point in time had been appellants at the review tribunal level, and then we did another survey of people who had given up and not appealed to our level. I'm going to speak first to the preliminary information on the survey of appellants, people who actually came to our level. About three quarters of them said they needed a representative, which is pretty significant, frankly.

Mr. Peter Smith: This is information that Tina has just got and that we haven't got yet from Environics.

Ms. Tina Head: Yes, we're still digesting this information, to be honest.

When asked whether anyone had represented them in their appeal, about 60% of people said, yes, but they didn't distinguish in that question between family members and lawyers. That's a wide range of skill and ability. About 37% said they had to pay their representatives, so that helps to narrow it down a little bit. We also have some data on how much they generally had to pay.

When it comes to people who didn't appeal, a significant reason for not appealing was stress involved in the appeal. Whether it's a minor factor or a major factor, together about 80% cited that as the most important reason. I think that goes very much to Peter's comments just now about the length and the complexity of the process. By the time they're making this decision, they've already been through two fairly lengthy procedures.

Interestingly, though, the second most significant reason was lack of representation. It was cited by 60% of people as being a factor of some kind in their decision not to appeal further. So there are definitely some issues there for us to look at in more depth than we have in the past. Does that answer your question?

» (1715)

The Chair: That's fine. Thanks very much. But do they all need counsel pretty well to go to the appeal board?

Ms. Tina Head: You don't have to have counsel, but it's more frequently the case that people perceive they do need counsel. You need to understand, of course, at that level the minister is represented by Department of Justice counsel, who almost always brings a medical doctor who's on the staff of HRDC. It creates a different sense of balance in the hearing process as well.

Mr. Peter Smith: Just as a footnote on that, imagine the quality of the decision-making if the same legal and medical resources now concentrated at that level, the PAB at the fourth stage, were operating at stage one. They might even put us out of business, which might be helpful.

That, by the way, is the recommendation of a consultant who has made a report to the department.

The Chair: Who represents the minister at your level?

Mr. Peter Smith: A person who used to be called the minister's representative is now called.... The names are changing to make it more understandable, because some people honestly thought it was Jane Stewart's staff member coming in there. People said, “The minister's office--no, no”.

It's a public servant in the ISP branch, who, as part of her or his main job, acts as what used to be called an MR and is now beginning to be called a departmental representative, or a representative for CPP, or a representative of OAS.

Mr. Pat Iannitti: The person who represents the department is called the representative for CPP disability, or CPP survivors, or retirement.

The Chair: And do they run around at your level only, or are they involved--

Mr. Pat Iannitti: They appear at the hearing. There are two parties at the hearing.

A voice: They're the other party. They represent the other party.

The Chair: Well, were they involved in the first two levels? Are they people who have experience at the first two levels, or do they just--

Mr. Pat Iannitti: They are not the people who make the adjudication at the first level. They're departmental employees. Most of them are outreach employees who are in the various local offices of the department, who appear on behalf of the department to represent the department's side of the story.

The Chair: But they are just tribunal-appearing people.

Mr. Pat Iannitti: They just appear at the review--

Mr. Peter Smith: [Editor's Note: Inaudible] ...the opinion, for example. Someone else writes the opinion and they bring it in and sometimes speak to it in a full way. Most times they don't; they just leave the opinion there.

Ms. Tina Head: Let me just say for the record, though, that I'm aware that the department does have some pilot projects where the adjudicator who makes the decision at the reconsideration level also appears as the representative at our hearings to present the decision.

The Chair: Okay. We can find out later. It sounds as if the pilot should work, right?

A voice: It's not our pilot.

Ms. Tina Head: We haven't seen the results. The department is where you need to find that information.

The Chair: Well, thank you very much. As you can tell, we are in our infancy in beginning to look at the scope of this huge, important thing for Canadians with disabilities. Thank you very much.

The meeting is adjourned.