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UPDATE: Veterans' Right to Fair Adjudication
« on: May 07, 2012, 12:39:31 PM »
Veterans' Right to Fair Adjudication

http://www.ombudsman-veterans.gc.ca/reports-rapports/vrab-tacra-03-2012-eng.cfm

Report of the Veterans Ombudsman
March 2012


Analysis of Federal Courts decisions pertaining to the Veterans Review and Appeal Board


Click on the pdf link http://www.ombudsman-veterans.gc.ca/pdfs/vrab-tacra-03-2012-eng.pdf to access the information


OR READ BELOW

Table of Contents

    Letter to the Minister of Veterans Affairs

    The Mandate of the Veterans Ombudsman

    Report Summary

    The Issue

    Methodology

    Background
        The adjudication process
        Adjudication statistics in context
        Federal Courts decisions in context
    Summary of Borden Ladner Gervais LLP (BLG) Findings

    Discussion
        The Board's decision making
        The cost to Veterans
    Conclusion and Recommendations

    Footnotes

    Appendix – BLG Report – Systematic analysis of Federal Courts decisions, Veterans Review and Appeal Board
        Executive Summary
        Background / Overview
        Recourse to the Federal Courts
        Trends in Federal Courts Decisions
        Failure to Liberally Construe Statutory Regime
        Failure to Accept Uncontradicted Evidence
        Failure to Give Benefit of Evidenciary Presumptions
        Failure to Ensure Procedural Fairness
        Failure to Accept New Evidence
        Statistics
        Conclusions
        Footnotes
        Appendix A - Chart of Judicially Reviewed Veterans Review and Appeal Board Decisions

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Contact Information

Office of the Veterans Ombudsman

Address:
360 Albert Street, Suite 1560
Ottawa, Ontario  K1R 7X7

Calls within Canada (Toll-free):
1-877-330-4343

Calls from outside Canada (Collect):
1-902-626-2919

Email: info@ombudsman-veterans.gc.ca
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Letter to the Minister of Veterans Affairs

March 29, 2012

The Honourable Steven Blaney, P.C., M.P.
Minister of Veterans Affairs
House of Commons
Ottawa, Ontario
K1A 0A6

Dear Minister:

I am pleased to submit to you the report Veterans' Right to Fair Adjudication. The report is based on the analysis of judgments issued by the Federal Court and the Federal Court of Appeal on applications for judicial review of decisions made by the Veterans Review and Appeal Board.

The Board has a critical role to play in ensuring that Veterans and other clients of Veterans Affairs Canada receive the disability benefits to which they are entitled. The fact that half of cases reviewed at the Board's review level and a further one-third at the Board's appeal level are varied in favour of applicants attests to the need for an independent administrative tribunal that Veterans and other applicants can turn to when they are dissatisfied with decisions made by Veterans Affairs Canada.

To ensure fairness in the redress process, the Board must act according to its enabling legislation, the Veterans Review and Appeal Board Act, and the principles of procedural fairness. In 60 percent of the 140 Board decisions reviewed by the Federal Court, the Court ruled that the Board has failed to do so. Despite assurances from the Board that it analyzes Federal Court judgments to ensure that guidance given is reflected in its decisions, which is also important to ensure fairness in the redress process, Court judgments point to the same errors over an extended period of time.

It must be acknowledged that Board members and staff have the difficult task of determining the merits of cases by deciding on questions of law and fact in an environment characterized by heavy workloads, increasingly complex cases, and pressure to issue timely decisions. Nonetheless, in fairness to Veterans and other applicants, I must conclude that improvements to the Board's decision making are needed to restore the trust of those who turn to it for redress.

I look forward to discussing the recommendations at your earliest convenience.

Yours sincerely,

The paper copy
was signed by

Guy Parent
Veterans Ombudsman
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The Mandate of the Veterans Ombudsman

The Office of the Veterans Ombudsman, created by Order in Council, works to ensure that Veterans, serving members of the Canadian Forces and the Royal Canadian Mounted Police, and other clients of Veterans Affairs Canada are treated respectfully, in accordance with the Veterans Bill of Rights, and receive the services and benefits that they require in a fair, timely and efficient manner.

The Office addresses complaints, emerging and systemic issues related to programs and services provided or administered by the Department of Veterans Affairs, as well as systemic issues related to the Veterans Review and Appeal Board.

The Veterans Ombudsman is an independent and impartial officer who is committed to ensuring that Veterans and other clients of Veterans Affairs Canada are treated fairly. The Ombudsman measures fairness in terms of adequacy (Are the right programs and services in place to meet the needs?), sufficiency (Are the right programs and services sufficiently resourced?), and accessibility (Are eligibility criteria creating unfair barriers, and can the benefits and services provided by Veterans Affairs Canada be accessed quickly and easily?).
Veterans Bill of Rights

The Veterans Bill of Rights applies to all clients of Veterans Affairs.

You have the right to:

    Be treated with respect, dignity, fairness and courtesy.

    Take part in discussions that involve you and your family.

    Have someone with you for support when you deal with Veterans Affairs.

    Receive clear, easy-to-understand information about programs and services, in English or French, as set out in the Official Languages Act.

    Have your privacy protected as set out in the Privacy Act.

    Receive benefits and services as set out in published service standards and to know your appeal rights.

    You have the right to make a complaint and have the matter looked into if you feel that any of your rights have not been upheld.

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Report Summary

The Veterans Review and Appeal Board has a critical role to play in ensuring that Veterans and other clients of Veterans Affairs Canada receive the benefits and services to which they are entitled by determining whether the laws governing the disability benefits program have been properly applied by the Department at the adjudication level and by providing applicants the opportunity to present additional evidence in support of their application. Given its role, the Board must be held to a higher standard of review and procedural fairness than the Department. The degree to which the Board adheres to these standards by rendering decisions in compliance with the Veterans Review and Appeal Board Act has been the source of much concern within the Veterans community, and this erodes the trust in the institution.

Through their decisions, the Federal Court and the Federal Court of Appeal provide an independent judicial assessment of the manner in which questions of law, fact, and procedural fairness were handled in cases before them. For this reason, the Veterans Ombudsman determined that an analysis of Federal Courts judgments pertaining to Board decisions would provide valuable information about the degree to which the Board adheres to high standards of review and procedural fairness. The services of the law firm of Borden Ladner Gervais LLP (BLG) were retained to perform an independent analysis that included the 140 Board decisions that have been challenged to the Federal Court and the 11 decisions that were subsequently appealed to the Federal Court of Appeal. The review was conducted in the fall of 2011.

In 60 percent of Board decisions reviewed by the Federal Court, the Court ruled that the Board erred in law or fact, or failed to observe principles of procedural fairness. The failure to liberally construe the provisions of the Veterans Review and Appeal Board Act, to accept credible uncontradicted evidence, to give the benefit of the doubt, and to accept credible new evidence pertain to the Board's failing to allow the latitude granted to it by its enabling legislation. The failure to ensure procedural fairness by not providing sufficient reasons for decisions or not disclosing medical evidence considered by the Board further undermines the rights of Veterans and the credibility of the Board.

The findings of the analysis are of great concern to the Veterans Ombudsman:
It is difficult to think that fairness is assured when the Federal Court returns more than half of Board decisions it reviews for errors of fact or law, or for procedural fairness issues. Ultimately, this is about the fair treatment of the men and women who have served their country honourably. In the case of 85 Veterans, the Federal Court has concluded that the adjudication process has failed them. Veterans Affairs Canada and the Veterans Review and Appeal Board have the obligation to fully consider the reasons for the Courts' decisions.
Veterans Ombudsman's Recommendations

    That the Veterans Review and Appeal Board report to Parliament on its performance using the percentage of Federal Court judgments that uphold Board decisions as an indicator of fairness in the redress process, and on remedial measures to attain the 100 percent target.

    That the Veterans Review and Appeal Board, Veterans Affairs Canada, and the Bureau of Pensions Advocates establish a formal mechanism to review each Federal Court decision rendered in favour of the Veteran or other applicant, for the purpose of remedial action to procedures and adjudication practices.

    That the Veterans Review and Appeal Board provide reasons for its decisions that clearly demonstrate that its obligation to liberally construe the legislation has been met, as well as its obligations under Section 39 of the Veterans Review and Appeal Board Act to draw every reasonable inference in favour of applicants, to accept credible uncontradicted evidence, and to give applicants the benefit of evidentiary presumptions (benefit of the doubt).

    That the Minister of Veterans Affairs ensure that the Veterans Review and Appeal Board is sufficiently resourced so that the Board may publish all of its decisions on its Web site and all Federal Court judgments pertaining to Board decisions.

    For the Minister of Veterans Affairs to mandate the Bureau of Pensions Advocates to represent applicants on judicial review of decisions of the Veterans Review and Appeal Board in the Federal Court.

    For the Veterans Review and Appeal Board and the Bureau of Pensions Advocates to review their processes and service standards for the priority treatment of cases returned by the Federal Courts for rehearing.

    For the Minister of Veterans Affairs to put forward the necessary legislative and regulatory amendments to allow Veterans to be compensated retroactively to date of application under the Pension Act and the Canadian Forces Members and Veteran Re-establishment and Compensation Act.

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The Issue

Veterans and serving members of the Canadian Forces and the Royal Canadian Mounted Police who suffer an illness or disability related to their service may apply to Veterans Affairs Canada for disability pensions or disability awards. One of the most important rights to which Veterans and other applicants are entitled is the right to appeal decisions made by the Department to the Veterans Review and Appeal Board.

Reporting to Parliament through the Minister of Veterans Affairs, the Veterans Review and Appeal Board is an independent, quasi-judicial body established by law01 with the authority to uphold, change, or overturn decisions02 made by Veterans Affairs Canada, and to refer decisions back to the Department for reconsideration.

The Board has a critical role to play in ensuring that Veterans and other clients of Veterans Affairs Canada receive the benefits and services to which they are entitled by correcting adjudication errors made at the Department level and providing applicants the opportunity to present additional evidence in support of their application. To that end, and to fulfill the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants03, the Board has been granted very liberal powers under its enabling legislation, the Veterans Review and Appeal Board Act. In particular, Section 39 of the Act provides that the Board shall:

    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;

    Accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and

    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.04

To ensure fairness and retain the trust of those who turn to it for redress, the Board must act according to its enabling legislation as well as to principles of procedural fairness, including the right to a fair hearing, freedom from bias, and the provision of reasons for its decisions.

Since the Board's role is to determine whether the laws governing the disability benefits programs for Veterans and other applicants have been properly applied by VAC [Veterans Affairs Canada] in individual cases,05 the Board must be held to a higher standard of review and procedural fairness than the Department.

The degree to which the Board adheres to these standards by rendering decisions in compliance with the Veterans Review and Appeal Board Act has been the source of much concern within the Veterans community, and this erodes the trust in the institution.

To address these concerns, the Veterans Ombudsman informed the Minister of Veterans Affairs of his intention to conduct an analysis of the reasons for decisions issued by the Federal Court06 and the Federal Court of Appeal on applications for judicial review of decisions made by the Veterans Review and Appeal Board.

It is important to mention at the outset that the Veterans Ombudsman firmly believes that the Veterans Review and Appeal Board fulfills a critical function in the adjudication process and he recognizes the inherent complexity of the work carried out by the Board's members and staff. They have the difficult task of determining the merits of a case by deciding on questions of law and fact in an environment characterized by heavy workloads, increasingly complex cases, and pressure to issue timely decisions.
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Methodology

In cases where Veterans and other applicants have exhausted all redress options at the Veterans Review and Appeal Board (review level and appeal level) and remain dissatisfied with the outcome, they have the right to apply to the Federal Court for a judicial review of the matter. If the Court determines that the Board has made an error of law or an unreasonable error of fact, or has failed to observe principles of procedural fairness, it will set aside the decision and ask the Board to rehear the case.

Since the Board was created in 1995, it has made more than 118,600 decisions, of which approximately 33,990 could have been subject to judicial review (decisions made at the Board's appeal level). Of those decisions, 140 have been challenged to the Federal Court and 11 decisions were subsequently appealed to the Federal Court of Appeal.

Through their decisions, the Federal Courts provide an independent judicial assessment of the manner in which questions of law, fact, and procedural fairness were handled in cases before them. For this reason, it was determined that an analysis of Federal Court judgments pertaining to Board decisions would provide valuable information about the degree to which the Board adheres to high standards of review and procedural fairness by rendering decisions in compliance with its enabling legislation and principles of procedural fairness.

It is worth noting that until recently, the Veterans Review and Appeal Board relied on the percentage of Federal Court decisions that uphold decisions as a performance indicator of fairness in the redress process for disability pensions and awards.07 This is a clear indication that the Board also considers Federal Court decisions meaningful in this regard.

The services of the law firm of Borden Ladner Gervais LLP (BLG) were retained to perform an independent analysis of all decisions of the Federal Court and Federal Court of Appeal (the Federal Courts) pertaining to the Board in an effort to identify any systemic issues having a negative impact on Veterans. The terms of reference included an analysis of the findings of the Federal Courts in regard to the consistency of Board decisions and how the Board considered evidence in the cases before it, as well as the identification of legal trends. The review was conducted in the fall of 2011.
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Background
The adjudication process
It is helpful to briefly summarize the various steps in the adjudication process for disability benefit claims (disability pensions and disability awards):

    Application for a disability pension or award is made to the Department with the assistance of a disability benefits officer (formerly, pension officer).

    First-level Adjudication – adjudication of the application in terms of entitlement and assessment08 by an adjudicator.

    Applicants may exercise their redress options in respect of both entitlement and assessment decisions. Those who exercise their appeal rights can obtain legal representation at no cost from a lawyer from the Bureau of Pensions Advocates.

    Departmental Review – the Department may confirm, amend, or rescind the adjudicator's decision if an error with respect to any finding of fact or interpretation of law has occurred or, on application, if new evidence is presented.09

    Review Hearing Before the Veterans Review and Appeal Board – the Board has exclusive jurisdiction to review decisions (first-level decision and departmental review decision) of the Department. 10 The review hearing is the only time in the process when applicants may appear and testify about the facts of their application. Review hearings are normally conducted by two Board members. On its own motion, the Board may also reconsider its decisions if an apparent error of fact or law has occurred.11

    Appeal Hearing Before the Veterans Review and Appeal Board – an applicant who is not satisfied with the result of the review hearing may appeal to the Board.12 While the legislation does not permit applicants to testify in person again, they may submit written statements and new evidence. The appeal hearing is an additional opportunity for the applicant's representative to make arguments before three different Board members.

    Reconsideration Before the Veterans Review and Appeal Board – on its own motion, the Board may also reconsider its decisions on appeal if an apparent error of fact or law has occurred, or, on application, if the applicant alleges that an error of fact or law was made or has new evidence for the Board to consider.

    Application for Judicial Review to the Federal Courts – if the applicant remains unsatisfied, he or she may seek judicial review on application to the Federal Court, and subsequently to the Federal Court of Appeal. Since the Bureau of Pensions Advocates is not mandated to represent applicants in the Federal Courts, applicants must either represent themselves or secure legal counsel at their own expense.

    The Federal Courts Act13 gives the Federal Court the power to declare invalid or unlawful, or quash, set aside, or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal if it finds that the federal board, commission, or other tribunal:
        acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

        failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

        erred in law in making a decision or an order, whether or not the error appears on the face of the record;

        based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

        acted, or failed to act, by reason of fraud or perjured evidence; or

        acted in any other way that was contrary to law.
    Unlike appeal courts for civil and criminal matters, the Federal Court and the Federal Court of Appeal cannot substitute their own decisions to those made by a federal board, commission, or other tribunal. The authority of the Federal Courts is limited to setting aside a decision and returning it for reconsideration if an error of fact or law was made, or if principles of procedural fairness were not observed.

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Adjudication statistics in context
In 2010-2011:

    Veterans Affairs Canada issued approximately 40,000 decisions14 with appeal rights to the Veterans Review and Appeal Board. Slightly more than 70 percent of applicants received a "favourable" decision on first application, meaning that they obtained the relief sought, or some part thereof.

    It should be noted that a "favourable" decision does not mean that the applicant is satisfied with the decision or that the applicant has received the level of compensation to which he or she is entitled. The applicant may disagree with either or both the entitlement decision (degree to which the disability was caused or aggravated by service, expressed on a fifths scale) and the assessment decision (the degree of severity of the disability and its impact on the applicant's quality of life, expressed on a percentage scale, from 0 to 100 percent). It is common for applicants to appeal a "favourable" first-level decision and obtain an increase in their disability benefits (pension or award) based on a review of the existing evidence or new evidence introduced at the review and appeal levels.

    The Veterans Review and Appeal Board issued 3,539 review decisions, 974 appeal decisions, 131 reconsideration decisions, and 24 decisions on applications for the War Veterans Allowance.

    On average, 50 percent of the Board's review decisions and 33 percent of the Board's appeal decisions varied or overturned a previous decision of the Department, either by correcting an adjudication error or upon consideration of new evidence. Notwithstanding the reasons for which the Board varied a previous decision, it means that the Board ruled in favour of the applicant with respect to some aspect of his or her entitlement or assessment for benefits.

    It is worth noting that in any given year, the Board will review 10 to 15 percent of decisions made by the Department with appeal rights to the Board and will vary more than half of the Department's decisions. While outside the scope of the current analysis, this suggests to the Veterans Ombudsman that there is a need for the Department to determine why so many decisions are varied at the Board level and to consider ways to improve decision making at the Department's first adjudication and review levels.

    There is a high cost to Veterans when they must go through various levels of review and appeal to obtain the benefits to which they are entitled. The Veterans Ombudsman also has concerns about the impact of the volume of applications on the Board's operations.

    In 2010–2011, the Federal Court issued 13 decisions on application for judicial review. Of those 13 decisions, the Federal Court asked the Board to rehear 9 applications and dismissed 4 applications. This means that the Federal Court found errors in 69 percent of Board decisions (9 out of 13 decisions) reviewed that year.

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Federal Courts decisions in context

Since the Board was created in 1995, it has made more than 118,600 decisions, of which approximately 33,990 could have been subject to judicial review (decisions made at the Board's appeal level). Of those decisions, 140 have been challenged to the Federal Court and 11 decisions were subsequently appealed to the Federal Court of Appeal.

While the number of court challenges represents only a small percentage of the total number of cases decided by the Veterans Review and Appeal Board, the Veterans Ombudsman contends that it would be misleading to conclude that those who did not seek redress in the Federal Court were satisfied that the merit of their case was fully considered by the Board.

As noted by Borden Ladner Gervais LLP (BLG), the option of challenging a Board decision in the Federal Courts may be more illusory than real for many reasons, including the complexity and legal costs associated with Federal Court proceedings, which can range from $15,000 to $50,000, depending on the complexity of the case. The Office of the Veterans Ombudsman has assisted a number of Veterans in securing pro bono legal services for Federal Court proceedings and the law firm has valued the cost of its services at approximately $50,000 per case.

Chief Justice of Canada, the Right Honourable Beverley McLachlin, P.C., has pointed out on numerous occasions that access to justice is the greatest challenge facing the Canadian justice system. As she said to the Council of the Canadian Bar Association at the Canadian Legal Conference in Calgary, Alberta on August 11, 2007:
The cost of legal services limits access to justice for many Canadians. The wealthy, and large corporations who have the means to pay, have access to justice. So do the very poor, who, despite its deficiencies in some areas, have access to legal aid, at least for serious criminal charges where they face the possibility of imprisonment. Middle income Canadians are hard hit, and often left with very difficult choices that if they want access to justice, they must put a second mortgage on their home, or use funds set aside for a child's education or for retirement. The price of justice should not be so dear.

Another reason Veterans and other clients of Veterans Affairs Canada may be dissuaded from challenging a Board decision in the Federal Court is the fact that the Court does not have the ability to substitute its decision for that of the Board. While the Court can compel the Board to reconsider a decision, there are no guarantees that the Board will decide the matter any differently the second time around.

Insofar as decisions of the Federal Courts provide an independent judicial assessment of the manner in which questions of law, fact, and procedural fairness were handled in cases before them, it is the reasons for the Courts' decisions and any identifiable trends that are significant, not the number of Court challenges.

Until recently, the Veterans Review and Appeal Board relied on the percentage of Federal Court decisions that uphold decisions as a performance indicator of fairness in the redress process for disability pensions and awards.

The Board's performance against that indicator is worrisome: only 31 percent of Federal Court judgments in 2010–2011 upheld Board decisions; 42 percent in 2009–2010; 44 percent in 2008–2009; and 44 percent in 2007–2008. Moreover, these numbers do not take into account decisions returned to the Board pursuant to consent orders, also known as consent judgments. When the Attorney General considers that the Federal Court will likely allow the application, that is, decide in favour of the Veteran, the parties agree to seek a consent judgment from the Court, and the matter is returned to the Board for reconsideration. Between April 1, 2007 and March 31, 2011, there have been 50 Federal Court judgments (60 percent of those judgments set aside the Board's decision and asked the Board to rehear the case) and 8 consent orders.15

The Veterans Ombudsman is also concerned about the 50 percent target that the Board used to measure its performance against the performance indicator. To suggest that fairness is assured when the Federal Court returns almost half of Board decisions for errors of fact or law is questionable. Given its role in determining whether the laws governing the disability programs for Veterans and other applicants have been properly applied by Veterans Affairs Canada in individual cases, the Board must be held to a higher standard of review and procedural fairness than the Department. The Board's performance must be measured against a much more ambitious target: one hundred percent of Federal Court judgments uphold Board decisions.

The Board should continue to use the percentage of Federal Court judgments that uphold the Board's decisions as a performance indicator of fairness in the redress process, with a target of 100 percent, and report against it in performance reports to Parliament.

    Recommendation 1 – That the Veterans Review and Appeal Board report to Parliament on its performance using the percentage of Federal Court judgments that uphold Board decisions as an indicator of fairness in the redress process, and on remedial measures to attain the 100 percent target.

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Summary of Borden Ladner Gervais LLP (BLG) Findings

    The majority of applications (60 percent, that is, 85 out of 140 applications) were granted by the Federal Court and returned to the Veterans Review and Appeal Board for reconsideration.

    From 1995 to 2011, the Federal Courts have found errors in the Board's interpretation and application of the provisions of the Veterans Review and Appeal Board Act, the Pension Act, 16 and common law principles of procedural fairness. The five most common errors for which the Federal Courts returned decisions to the Board for reconsideration were:
        Failure to liberally construe the provisions of the Veterans Review and Appeal Board Act and the provisions of the Pension Act most acutely demonstrated by cases where the Board has assessed the meaning of "on duty" in an overly narrow manner and too narrowly construed what activity was or was not part of a Veteran's service.

        Failure to accept credible uncontradicted evidence, including medical evidence, and failure to provide detailed reasons where the Board finds that uncontradicted medical evidence is not credible.

        Failure to give the benefit of evidentiary presumptions (benefit of the doubt) in cases where sufficient credible evidence was provided that establishes a reasonable link between the applicant's disability and service.

        Failure to ensure procedural fairness by not providing sufficient reasons in support of a decision 17 or not disclosing medical evidence (i.e., medical opinion or passages from medical textbooks) considered by the Board in making its decision and, as a result, not giving applicants the opportunity to make submissions in response.

        Failure to accept credible new evidence 18 that concerns a decisive issue and could affect the result in a case.
    The average lapse of time between a judgment of the Federal Court and subsequent Board decision was 260 days.

    Veterans without the means to secure legal counsel are much less likely to be successful in challenging Board decisions in the Federal Court: 72 percent of those represented by legal counsel were successful (66 out of 92 cases) compared with 40 percent among self-represented applicants (19 out of 48 cases).

    The Board changed its decision in 63 percent of cases returned by the Federal Court for reconsideration.

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Discussion
The Board's decision making
Application of the provisions of the Veterans Review and Appeal Board Act

The main finding of BLG's analysis is that 60 percent of Board decisions reviewed by the Federal Court were returned to the Board for errors of fact or law, or for failure to observe principles of procedural fairness.

Despite assurances from the Board that it monitors the outcomes of applications for judicial review to ensure that any guidance given by the Court is reflected in its decisions and operations, 19 Board decisions have been returned by the Federal Courts for the same reasons over a long period of time. This only further erodes the trust of Veterans in the Board, particularly when four of five errors identified, namely, the failure to liberally construe the provisions of its enabling legislation, the failure to accept credible uncontradicted evidence, the failure to give the benefit of the doubt, and the failure to accept credible new evidence, pertain to the Board's failing to allow the latitude granted to it by the Veterans Review and Appeal Board Act.

It is worth noting that Federal Court judgments reflect not only on the Board's decision making but also on the Department's, since they pertain to cases where the initial decision was made by the Department and subsequently upheld by the Board. At issue here is the sufficiency of the Board's procedures to apply corrective measures to ensure that Board decisions are compliant with the provisions of its enabling legislation and to bring about improvements in the Department's decision making.

    Recommendation 2 – That the Veterans Review and Appeal Board, Veterans Affairs Canada, and the Bureau of Pensions Advocates establish a formal mechanism to review each Federal Court decision rendered in favour of the Veteran or other applicant, for the purpose of remedial action to procedures and adjudication practices.

Adherence to principles of procedural fairness

The fifth error, the failure to ensure procedural fairness by not providing sufficient reasons for decisions or not disclosing medical evidence considered by the Board, undermines the rights of Veterans and the credibility of the Board as an impartial administrative tribunal that Veterans and other applicants can turn to when they are dissatisfied with decisions made by Veterans Affairs Canada.

The Ombudsman agrees with the notation made by BLG that as … a quasi-judicial administrative tribunal, the Board owes a common law duty of fairness to parties appearing before them. While the circumstances of a given case will dictate what is required to ensure procedural fairness, the most common requirement includes providing sufficient reasons in support of a decision or allowing a party to have access to all of the evidence considered by Board members in making their decision. 20

The Ombudsman's report, Veterans' Right to Know Reasons for Decisions: A Matter of Procedural Fairness, argues the need for well-documented reasons in the Department's decision letters and makes recommendations to do so. These recommendations can be applied to any administrative body, including the Veterans Review and Appeal Board.

    Recommendation 3 – That the Veterans Review and Appeal Board provide reasons for its decisions that clearly demonstrate that its obligation to liberally construe the legislation has been met, as well as its obligations under Section 39 of the Veterans Review and Appeal Board Act to draw every reasonable inference in favour of applicants, to accept credible uncontradicted evidence, and to give applicants the benefit of evidentiary presumptions (benefit of the doubt).

The Ombudsman also draws attention to an earlier recommendation he made that the Board publish its decisions on its Web site, in keeping with guidance provided by the Privacy Commissioner of Canada in relation to administrative tribunals. Tribunals such as the Pension Appeals Board and provincial workers' compensation boards are able to reconcile the objectives of open government and the protection of individuals' privacy. The Office believes that publishing decisions would increase the Board's transparency and enable Veterans and other applicants who are preparing appeals to be aware of decisions rendered in cases similar to their own. Justice must not only be done, it must be seen to be done, and posting decisions on its Web site would aid in accomplishing this.

    Recommendation 4 – That the Minister of Veterans Affairs ensure that the Veterans Review and Appeal Board is sufficiently resourced so that the Board may publish all of its decisions on its Web site and all Federal Court judgments pertaining to Board decisions.

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The cost to Veterans
Legal representation

Borden Ladner Gervais LLP (BLG) found that those represented by legal counsel during Federal Court proceedings are much more likely to be successful than those who represent themselves (72 percent and 40 percent respectively). The Ombudsman finds that Veterans' right to seek judicial review of Board decisions should not be subjugated to their financial ability to secure legal representation. The Bureau of Pensions Advocates provides free legal assistance to individuals for review and appeal hearings at the Veterans Review and Appeal Board. It would be consistent with the principle of adequate representation that the mandate of the Bureau include representation to the Federal Court.

    Recommendation 5 – For the Minister of Veterans Affairs to mandate the Bureau of Pensions Advocates to represent applicants on judicial review of decisions of the Veterans Review and Appeal Board in the Federal Court.

Delays

The BLG review found that the average lapse of time between a judgment of the Federal Court and subsequent Board decision was 260 days. There are many contributing factors to administrative delays that are beyond the Board's control. Nevertheless, the Ombudsman finds that where applications are allowed by the Federal Court, it is unfair for Veterans to be forced to wait any longer than possible for the Board to rehear the case. Cases sent back to the Board by the Federal Courts should be heard on a priority basis. The Veterans Review and Appeal Board and the Bureau of Pensions Advocates should be sufficiently resourced to do so.

    Recommendation 6 – For the Veterans Review and Appeal Board and the Bureau of Pensions Advocates to review their processes and service standards for the priority treatment of cases returned by the Federal Courts for rehearing.

Retroactivity

Delay alone is a serious issue when one considers what is at stake for applicants. These individuals suffer from disabilities and may have limited or no participation in the workforce. The impact of delays on applicants is compounded by the restriction on retroactive entitlement to disability and treatment benefits. Section 39 of the Pension Act provides for retroactive payment going back three years, plus an additional two years for administrative delays. In such cases, Veterans would receive retroactively disability pensions and reimbursement for treatment expenses related to the pensioned condition. There are no retroactivity provisions under the New Veterans Charter; applicants receive a disability award at the rate in effect when the decision is made and they are not reimbursed for treatment expenses incurred while their application is being processed. As such, treatment expenses can only be reimbursed if they are incurred after the decision to grant a disability award is made.21

The restriction on retroactivity and legal costs incurred by Veterans and other applicants can diminish considerably the value of the disability benefits awarded to them when they are successful in obtaining a favourable decision, particularly for those who are in the Courts for many years. The Ombudsman finds this to be unfair. Where the Board renders a favourable decision as the result of a successful application to the Federal Court, retroactivity should be to the date of original application. The Government of Canada has the obligation to make such restitution to applicants where benefits were originally denied but eventually granted. The only fair solution is to amend the current statutory regime to properly balance delay with the cause of that delay.

    Recommendation 7 – For the Minister of Veterans Affairs to put forward the necessary legislative and regulatory amendments to allow Veterans to be compensated retroactively to date of application under the Pension Act and the Canadian Forces Members and Veterans Re-establishment and Compensation Act.

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Conclusion and Recommendations

The Veterans Review and Appeal Board has a critical role to play in ensuring that Veterans and other clients of Veterans Affairs Canada receive the benefits they are entitled to by correcting adjudication errors made by the Department and providing applicants the opportunity to present additional evidence in support of their application. To that end, the Board has been granted very liberal powers under its enabling legislation, the Veterans Review and Appeal Board Act.

To ensure fairness and retain the trust of those who turn to it for redress, the Board must act according to its enabling legislation as well as to principles of procedural fairness. In 60 percent of Board decisions reviewed by the Federal Court, the Court ruled that the Board has failed to do so. Despite assurances from the Board that it analyzes Federal Court judgments to ensure that guidance given is reflected in its decisions, policies, and operations, Court judgments point to the same errors over an extended period of time.

The failure to liberally construe the provisions of the Veterans Review and Appeal Board Act, to accept credible uncontradicted evidence, to give the benefit of the doubt, and to accept credible new evidence pertain to the Board's failing to allow the latitude granted to it by its enabling legislation. The failure to ensure procedural fairness by not providing sufficient reasons for decisions or not disclosing medical evidence considered by the Board further undermines the rights of Veterans and the credibility of the Board as an impartial administrative tribunal that Veterans and other applicants can turn to when they are dissatisfied with decisions made by Veterans Affairs Canada.

In any given year, the Veterans Review and Appeal Board reviews between 10 to 15 percent of decisions (approximately 5,000 decisions) made by the Department with appeal rights to the Board, and varies more than half of the Department's decisions in favour of applicants. While outside the scope of the current analysis, the Veterans Ombudsman has concerns about the impact of the volume of applications on the Board's operations, and he strongly suggests that there is a need for the Department to determine why so many decisions are varied by the Board and to improve its decision making at the adjudication and review levels.

Ultimately, this is about the fair treatment of the men and women who have served their country honourably. They should come to the Department confident that they will obtain the benefits and services that they are entitled to on first application, and if they choose to appeal decisions with the Department or the Veterans Review and Appeal Board, they should be equally confident that the merits of their case will be considered fully and fairly.

In the case of 85 Veterans, the Federal Court has concluded that the adjudication process has failed them. Veterans Affairs Canada and the Veterans Review and Appeal Board have the obligation to fully consider the reasons for the Courts' decisions.

Where Veterans decide to seek judicial review of decisions of the Board to the Federal Court, their right to do so should not be subjugated to their financial ability to secure legal representation. Moreover, where benefits were originally denied to Veterans as a result of adjudication errors but eventually granted, the value of those benefits should not be diminished by restriction on retroactivity or legal expenses.

The Veterans Ombudsman makes the following seven recommendations:

    Recommendation 1 – That the Veterans Review and Appeal Board report to Parliament on its performance using the percentage of Federal Court judgments that uphold Board decisions as an indicator of fairness in the redress process, and on remedial measures to attain the 100 percent target.

    Recommendation 2 – That the Veterans Review and Appeal Board, Veterans Affairs Canada, and the Bureau of Pensions Advocates establish a formal mechanism to review each Federal Court decision rendered in favour of the Veteran or other applicant, for the purpose of remedial action to procedures and adjudication practices.

    Recommendation 3 – That the Veterans Review and Appeal Board provide reasons for its decisions that clearly demonstrate that its obligation to liberally construe the legislation has been met, as well as its obligations under Section 39 of the Veterans Review and Appeal Board Act to draw every reasonable inference in favour of applicants, to accept credible uncontradicted evidence, and to give applicants the benefit of evidentiary presumptions (benefit of the doubt).

    Recommendation 4 – That the Minister of Veterans Affairs ensure that the Veterans Review and Appeal Board is sufficiently resourced so that the Board may publish all of its decisions on its Web site and all Federal Court judgments pertaining to Board decisions.

    Recommendation 5 – For the Minister of Veterans Affairs to mandate the Bureau of Pensions Advocates to represent applicants on judicial review of decisions of the Veterans Review and Appeal Board in the Federal Court.

    Recommendation 6 – For the Veterans Review and Appeal Board and the Bureau of Pensions Advocates to review their processes and service standards for the priority treatment of cases returned by the Federal Courts for rehearing.

    Recommendation 7 – For the Minister of Veterans Affairs to put forward the necessary legislative and regulatory amendments to allow Veterans to be compensated retroactively to date of application under the Pension Act and the Canadian Forces Members and Veterans Re-establishment and Compensation Act.

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Footnotes

1. The Veterans Review and Appeal Board Act, S.C. 1995, c. 18.

2. The Veterans Review and Appeal Board has full and exclusive jurisdiction over applications made under the Pension Act; the Canadian Forces Members and Veterans Re-establishment and Compensation Act, Part 3; and the War Veterans Allowance Act; as well as disability pension applications under the Royal Canadian Mounted Police Pension Continuation Act and the Royal Canadian Mounted Police Superannuation Act.

3. The Veterans Review and Appeal Board Act, S.C. 1995, c. 18, Section 3.

4. The Veterans Review and Appeal Board Act, S.C. 1995, c. 18, Section 39.

5. Department of Veterans Affairs, 2010–2011 Departmental Performance Report, p. 35.

6. Formerly, the Federal Court of Canada (Trial Division). Until 2003, the Federal Court of Canada consisted of two divisions: a Trial Division and an Appeal Division. With amendments to the Federal Courts Act coming into force on July 2, 2003, these divisions became two separate courts: a trial court (Federal Court) and a court of appeal (Federal Court of Appeal).

7. The Board reported against this indicator in departmental performance reports up to 2009-2010, but did not do so in the 2010–2011 Departmental Performance Report.

8. The entitlement decision pertains to the relationship between a disability and the applicant's service. If it is established that a relationship does exist, partial or full entitlement is expressed on a fifths scale, from 1/5 (minimal link between disability and service) to 5/5 (disability arises fully from service). The assessment decision pertains to the degree of severity of the disability and its impact on the applicant's quality of life, expressed on a percentage scale, from 0 to 100 percent. The rate of disability benefit payable is obtained by multiplying the entitlement figure, expressed in fifths, by the assessment figure, expressed as a percent.

9. Pursuant to Section 82 of the Pension Act or Section 84 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act.

10. Pursuant to Section 84 of the Pension Act and Section 18 of the Veterans Review and Appeal Board Act.

11. Pursuant to Section 23 of the Veterans Review and Appeal Board Act.

12. Pursuant to Section 26 of the Veterans Review and Appeal Board Act.

13. Federal Courts Act, R.S.C., 1985, c. F-7, Subsections 18.1(3) and 18.1(4)

14. Includes decisions made by the Department on first applications for disability benefits, departmental reviews, and medical reassessments. Those who experience a deterioration of the condition for which they receive a disability pension or received a disability award may ask to have the condition reassessed, potentially resulting in an increase in their disability benefits.

15. Because consent orders are not reported by the Federal Court, it is difficult to ascertain the exact number. The Office of the Veterans Ombudsman is aware of 8 consent orders between April 1, 2007 and March 31, 2011.

16. The Federal Courts (the Federal Court and the Federal Court of Appeal) have yet to consider a Board decision related to the Canadian Forces Members and Veterans Re-establishment and Compensation Act (New Veterans Charter).

17. In Johnston v. Canada (Attorney General), [2010] F.C.J. No. 408, the Federal Court granted Johnston's application because the Board had provided inadequate reasons for its decision. On that ground alone, the case was sent back to the Board for reconsideration.

18. In Mackay v. Canada (Attorney General), [1997] F.C.J. No. 495, the Federal Court held that the Board should follow the test and principles for new evidence outlined by the Supreme Court of Canada in Palmer v. the Queen (1979), 106 D.L.R. (3d) 212 (S.C.C.) [Palmer]. The "new evidence" test in Palmer provides that new evidence should 1) generally not be admitted if it could have been adduced at a hearing; 2) must be relevant in the sense that it bears upon a decisive or potentially decisive issue; 3) must be credible in the sense that it is reasonably capable of belief; and 4) if believed, must reasonably be expected to have affected the result.

19. Veterans Review and Appeal Board's Web site.

20. Borden Ladner Gervais LLP, Systemic Analysis of Federal Courts Decisions Veterans Review and Appeal Board, 2011.

21. The issue of retroactivity for the reimbursement of treatment expenses under the New Veterans Charter is of concern to the Office of the Veterans Ombudsman and discussed in its 2010–2011 Annual Report.
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Appendix
BLG Report – Systematic analysis of Federal Courts decisions, Veterans Review and Appeal Board
Report of Findings

Borden Ladner Gervais LLP
Vincent J. DeRose
Nadia Effendi
Jack Hughes
Roberto Ghignone
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Executive Summary

The mandate of the Veterans Ombudsman, as established pursuant to Order in Council P.C. 007-530, provides that the Ombudsman shall review systemic issues related to the Veterans Review and Appeal Board ("Board"). To that end, we have been retained to conduct an analysis of the various Federal Court (Trial Division) and Federal Court of Appeal (collectively "the Federal Courts") decisions which have reviewed decisions of the Board in an effort to identify any systemic issues having a negative impact on veterans.

At the outset, it is important to recognize two important caveats. First and foremost, our mandate was limited to examining those decisions of the Board which had been considered by the Federal Courts. These represent only a small percentage of the total number of cases which have been decided by the Board since its creation. In our opinion, however, the number of cases which have been reviewed by the Federal Courts was sufficiently large and varied so as to allow us to draw the conclusions detailed in this report.

Second, we have interpreted the term 'systemic issues', as found in Order in Council P.C. 2007-530, in its ordinary sense, meaning any issue pertaining to the Board as a whole. Consequently, our review considered all aspects of the Board and the regime in which it operates – not merely the specific administrative practices it employs in the discharge of its mandate. As such, the systemic issues we have identified are a combination of legal issues and administrative issues.

In reviewing the various decisions of the Federal Courts, given the purposes of our analysis, we were required to give particular attention to those cases where the Federal Courts had found that the Board made errors in the decision under review. In so doing, we were able to identify the five most common errors historically made by the Board. To the extent that these five types of errors were repeated, we believe they are evidence of general systemic problems which warrant further consideration.

The five most common errors identified by the Federal Courts were: (1.) failure to liberally construe the applicable statutory regimes; (2.) failure to accept uncontradicted evidence, including uncontradicted medical evidence; (3.) failure to give veterans the benefit of the evidentiary presumptions; (4.) failure to provide veterans with procedural fairness; and (5.) failure to accept new evidence presented by veterans.

Based on our analysis of the various Federal Court (Trial Division) and Federal Court of Appeal decisions, and given the nature of the errors identified, we believe there are systemic problems underlying how the Board is required to fulfill its mandate. Chief among these being that while the Veterans Review and Appeal Board Act contains a number of safeguards intended to relieve the procedural burdens imposed on veterans, they are still subject to the most difficult burden – the onus of proving they are entitled to the benefits sought.

In our opinion, the various decisions rendered by the Federal Courts suggest that the Board has had difficulty in the past reconciling its obligation to give veterans the benefit of the doubt with its obligation to require veterans to discharge the onus of proving they are entitled to the benefits they seek. It is the tension between these conflicting obligations, compounded by other procedural obstacles, which has resulted in undue hardship for some veterans.

In the end, however, it is our strong view that there is a clear and continuing benefit for veterans in having an independent quasi-judicial body tasked with reviewing government decision where a veteran has been denied a pension or other benefits. To the extent that the Board can provide veterans with an informal and expeditious review of such decisions, we believe that it can continue to help veterans secure the pension benefits to which they are entitled and deserve.

Moreover, and more importantly, our review did not identify any systemic or personal bias against veterans. None of the conclusions or corresponding recommendations contained in this report are intended to question, in any way, the dedication that members of the Board have to their task and to the rights of veterans. Rather, the observations support the conclusion that the system within which the Board operates could be strengthened and streamlined in such a way as to assist them to better fulfill their mandate going forward.
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Background / Overview

The Board is an independent quasi-judicial tribunal with the jurisdiction over applications made under the Pension Act (R.S.C., 1985, c. P-6), the Canadian Forces Members and Veterans Re-establishment and Compensation Act (S.C. 2005, c. 21), Part 3, the War Veterans Allowance Act as well as disability pension applications under the Royal Canadian Mounted Police Pension Continuation Act (R.S.C., 1970 c. R-10) or the Royal Canadian Mounted Police Superannuation Act (R.S.C., 1985, c. R-11).

The Board provides veterans with two levels of hearings for disability pension and disability award decisions as well as the final level of appeal for War Veterans Allowance applications. The first level is the review hearing, which provides veterans with the opportunity for an in-person hearing before two members of the Board. The second level is the appeal hearing, where cases are heard by three members who were not involved in the review hearing.

The Board has the authority to review Veterans Affairs Canada's decisions related to: disability pensions or awards; special awards, including Attendance Allowance, Exceptional Incapacity Allowance and Clothing Allowance; prisoner of war compensation; dependent/survivor benefits; and War Veterans Allowance appeals. Depending on the circumstances of a given case, the Board may affirm, vary or reverse those decisions or refer decisions back to Veterans Affairs Canada for reconsideration.

The Veterans Review and Appeal Board Act (S.C. 1995, c. 18) expressly provides that the Board shall liberally construe and interpret both its own Act as well as any other Act of Parliament which confers powers or jurisdiction on the Board, including any regulations made thereunder, in an effort to fulfill the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependents.

The Veterans Review and Appeal Board Act (supra, s. 39), further provides that the Board shall draw from all the circumstances of a given case, and all the evidence presented to it, every reasonable inference in favour of the veteran. Moreover, the Board is required to accept any credible uncontradicted evidence presented to it by a veteran, and resolve in favour of the veteran any doubt, in the weighing of evidence, as to whether the veteran has established a case.
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Recourse to the Federal Courts

In a case where a veteran has completed both the review and appeal processes at the Board, they then have a right to apply to the Federal Court of Canada for a judicial review of the matter. If the Court determines that the Board has made an error of law or an unreasonable error of fact, it will set aside the decision and may direct a new panel of the Board to reconsider the matter subject to whatever specific directions the Court may deem appropriate in the circumstances.

As noted in Powell v. Canada (Attorney General) (2005 FC 433, [2005] F.C.J. No. 537 [Powell]), the role of the Federal Court (Trial Division) and, ultimately, Federal Court of Appeal is not to determine whether the Board came to the right conclusion – or whether a pension should be given. Rather, the Court's role is to consider the reasons given by the Board and determine whether the line of analysis given by the Board could reasonably have led it from the evidence it received to the conclusion at which it arrived.

At the same time, the Court will examine whether the Board acted within its jurisdiction when making its decision. This analysis can include an examination of whether the veteran was afforded the requisite degree of procedural fairness, as well as whether the Board's decisions and reasons demonstrate that they undertook their analysis based on a proper interpretation and application of the provisions of the Veterans Review and Appeal Board Act and/or the Pension Act.

Since the Board was created in 1995 it has made over 118,600 decisions, of which approximately 33,990 could have been subject to judicial review. Some 140 of those decisions have been challenged to the Federal Court (Trial Division), and, of those cases, 11 were then appealed to the Federal Court of Appeal (1. The cases reviewed are chronologically listed in Appendix "A" to this Report). While the number of court challenges has been statistically low, we caution against concluding that this means veterans who did not seek judicial review were satisfied with the decisions of the Board. In the course of our review, we identified a number of systemic issues which could have dissuaded veterans from going to the Federal Courts.

First, Board hearings are structured to be as informal as possible and veterans can obtain the often invaluable assistance of representatives of the Bureau of Pensions Advocates and the Royal Canadian Legion, who act on their behalf free of charge to help present the case to the Board. Judicial review applications in the Federal Court (Trial Division), as well as appeals before the Federal Court of Appeal, are complex proceedings often requiring the assistance of legal counsel.

The legal fees associated with such proceedings can be very significant, and they are the personal responsibility of the veteran involved. As a result, even where a veteran may strongly disagree with a Board dec

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UPDATE: Veterans' Right to Fair Adjudication
« Reply #1 on: December 10, 2012, 03:46:36 PM »
[pdf]http://www.ombudsman-veterans.gc.ca/pdfs/vrab-tacra-03-2012-eng.pdf[/pdf]

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Veterans' Right to Fair Adjudication-Health Records/benefit application
« Reply #2 on: February 04, 2013, 01:56:44 PM »
Examination of the procedures used by Veterans Affairs Canada to retrieve and process service and health records to prepare disability benefit applications for adjudication

[pdf]http://www.ombudsman-veterans.gc.ca/pdfs/disclosure-divulgation-11-2012-eng.pdf[/pdf]

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Government moves to lift veil after ombudsman says vets ‘kept in dark’ when applying for disability benefits

By Lee Berthiaume, Postmedia News February 4, 2013 8:09 PM



OTTAWA — The Harper government unveiled new measures Monday to help serving and retired military and RCMP members seeking disability benefits after an ombudsman found veterans’ rights were being violated through a bureaucratic push for greater efficiency.

Veterans Affairs Minister Steven Blaney said officials have been directed to be more inclusive after veterans’ ombudsman Guy Parent slammed what he called an “unfair” process that keeps veterans “in the dark” when applying for a disability benefits.

“To best serve veterans, we are making the right decision as quickly as possible,” Blaney said in a statement. “Veterans can be assured that every application is reviewed and fully considered to ensure a fair outcome.”

Parent, however, said only time will tell whether the changes will make a difference.

“A plan is just a plan until there is action,” he said in an interview.

In a report tabled in Parliament on Monday, Parent found Veterans Affairs officials have taken it upon themselves to collect information for retired and serving military personnel and Mounties applying for disability assistance.

This includes gathering service and health records taken from Library and Archives and Canadian Forces bases across the country or RCMP headquarters.

Officials also routinely flag aspects of an applicant’s service and health history before the information arrives on an adjudicator’s desk, Parent found, even though they don’t have the authority to do so.

The idea was to speed up the application process and make the veterans’ disability system more efficient, Parent says, but the result actually undermines an applicant’s right to a fair and impartial hearing.

“Efficiency and effectiveness cannot take away the rights of an individual,” Parent told Postmedia News, “and that’s very important.”

The ombudsman found veterans and serving members are not told by officials what information is being considered when an adjudicator is deciding whether to approve their disability pension requests.

“We were also informed (by officials) that operational practice is to not consider service and health records if they are supplied by applicants,” his report reads.

This is directly at odds with the law, which states that it is an applicant’s responsibility to provide information backing a request for disability benefits.

Parent also found that the practice of flagging files “may introduce bias” into the process.

The ombudsman acknowledged Veterans Affairs has a responsibility to ensure information included in a disability benefits application is accurate and not tampered with, and that there are other cost and time advantages to having officials collect records themselves.

However, he said the practice of not telling applicants what information has been gathered and refusing to consider records from applicants themselves effectively shifts responsibility for providing evidence to support a claim from the veterans, as intended by the law, to bureaucrats.

“The application process is one of the most important steps that a veteran can take so they can obtain benefits from Veterans Affairs Canada,” Parent said. “And although a process can be efficient and it can be effective, it needs to be fair as well.”

Blaney welcomed Parent’s report and said a number of changes will be made to the process to make sure veterans aren’t excluded from the application process, and that they know what information is being considered in deciding whether to grant them benefits.

At the same time, Blaney defended the government’s record, noting that 74 per cent of the 33,000 applications for disability benefits received last year were approved the first time around.

A spokesman confirmed, however, that the figure was 85 per cent after appeals were factored in, which means more than 3,000 applications were initially rejected but ended up being overturned.

Parent said he took issue with the assertion that more than 70 per cent of applicants have received a “favourable decision.”

“The unfortunate part is the veterans never knew the evidence in front of the board, so it’s pretty hard to comment on whether a decision is right or not,” he said.

“ ‘Favourable’ is a strong word because in some cases a decision might be considered favourable by the department but might not be up to the expectations of the applicant who expected maybe a higher percentage of a pension.”

And he added that while disclosure of information to applicants may require a bit more time at the beginning of the process, the overall process will be more efficient by reducing the need for reviews and appeals.

lberthiaume@postmedia.com

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OVO: My Views on the Recently Announced Changes to the Application Process
« Reply #4 on: February 05, 2013, 04:19:52 PM »
My Views on the Recently Announced Changes to the Application Process

Ottawa – February 5, 2013

Yesterday, the Minister of Veterans Affairs released the Right to Fairness Implementation Plan, a plan to address the concerns that were raised in our report Veterans’ Right to Disclosure, a Matter of Procedural Fairness. While I applaud the Minister’s prompt response to the report’s findings, the changes to the Department’s application process, while a step in the right direction, fall short of ensuring procedural fairness.

Under the recently announced changes, those who apply for a disability pension or a disability award will still not obtain a copy of the documents that will be reviewed by adjudicators. As explained in our report, applicants cannot participate in the process, by commenting on documents available to adjudicators and providing additional evidence, unless they have the opportunity to review the information upon which a decision will be made. Instead, in cases where there is insufficient evidence to establish entitlement to a disability pension or a disability award, the Department will call applicants to provide them with a summary of the evidence on file and remind them of their right to submit additional evidence. It will have to be determined whether a telephone call is an adequate substitute to receiving a copy of the evidence. It is difficult to imagine how useful a telephone conversation could be if both parties do not have the same information in front of them. A telephone call is a good first step to getting applicants to participate, but in my view it is not enough to ensure procedural fairness.

It is also of great concern to me that only applicants who do not appear to be entitled to a disability pension or award, based on the evidence available to adjudicators, will receive a call from the Department prior to a decision being made in their case. What about the applicants who are found to be entitled to a partial disability pension or award? While the Department’s statistic is that 70% of all initial applications are approved, this favourability rate includes applicants who receive a partial pension or award. Why would an applicant who is informed that he is entitled  to only one fifth of a full disability pension or award not be given the opportunity to challenge the evidence available to adjudicators before the decision is made? This is procedurally unfair and I will be raising this issue with the Minister and the Department. In addition, my Office will carry out a follow-up evaluation of the impact of the changes announced by the Minister over the coming months and we will publish a report detailing our findings.

As the Department moves forward with its transformation agenda to improve service delivery by cutting red tape, I will continue to remind all that doing things faster is not an improvement if it is done at the expense of procedural fairness. Often, the best way to render a process more efficient overall is to take a bit more time at the beginning of the process. I am convinced that improvements to the application process would ultimately save time and grief for applicants by reducing the need for reviews and appeals.

Guy

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NDP on Veterans' Right to Fair Adjudication Changes to the Application Process
« Reply #5 on: February 05, 2013, 04:57:49 PM »
FOR IMMEDIATE RELEASE
February 5, 2013

CONSERVATIVES MUST RESPECT VETERANS
Veterans Ombudsman says government is keeping veterans in the dark

OTTAWA – The Conservatives must give veterans the medical information they need for their claims, said New Democrat deputy Veterans critic, Sylvain Chicoine (Châteauguay?St-Constant), in reaction to yesterday’s third report from the Veterans Ombudsman.

New Democrats thank the ombusdman for his report. “Granting pensions and compensation to our veterans is a key responsibility of the department,” said Chicoine. “But the department is hiding information from those primarily concerned, veterans themselves. Why?”

“It’s time for the government to give veterans all the information they need to make their claims. This has gone on long enough,” said NDP Veterans critic, Peter Stoffer.

“The government must make every effort to help those who defended Canadian values within the Armed Forces rather than making life difficult for them,” he said.

– 30 –

For more information, please contact:
David Patry, Press Secretary, Quebec Caucus Services
514-238-8240 or david.patry@parl.gc.ca

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Mes opinions sur les changements récemment annoncés au processus de demande
« Reply #6 on: February 05, 2013, 04:58:39 PM »
Mes opinions sur les changements récemment annoncés au processus de demande

Ottawa – le 5 février 2013

Hier, le ministre des Anciens Combattants a diffusé le Plan de mise en œuvre du droit à l’équité, en réponse aux préoccupations que nous avions soulevées dans un rapport intitulé Le droit des vétérans à la divulgation – Une question d’équité procédurale. Je félicite le ministre de donner suite aussi promptement au rapport, mais je suis d’avis que les changements apportés au processus de demande du Ministère, même s’ils représentent un pas dans la bonne direction, sont loin d’assurer l’équité procédurale.

En vertu des changements récemment annoncés, les personnes qui présentent une demande de pension d’invalidité ou d’indemnité d’invalidité n’obtiendront toujours pas de copie des documents soumis à l’examen de l’arbitre. Comme nous l’avons expliqué dans notre rapport, les demandeurs ne peuvent pas participer au processus en commentant les documents accessibles aux arbitres et en fournissant des éléments de preuve supplémentaires, à moins d’avoir la possibilité d’examiner l’information qui servira de base à la décision. Dans les cas où il n’y aura pas suffisamment de preuves pour établir l’admissibilité à une pension ou à une indemnité d’invalidité, le Ministère téléphonera aux demandeurs pour leur fournir un résumé des preuves au dossier et pour leur rappeler qu’ils ont le droit de soumettre des éléments de preuve supplémentaires. Il reste à déterminer si un appel téléphonique représente un substitut adéquat à l’obtention d’une copie des documents servant de preuve. Il est difficile d’imaginer qu’une conversation téléphonique puisse être d’une grande utilité si les deux parties n’ont pas la même information devant elles. L’appel téléphonique représente un bon point de départ pour permettre aux demandeurs de participer au processus, mais, à mon avis, il n’est pas suffisant pour assurer l’équité procédurale.

En outre, je m’inquiète beaucoup du fait que les demandeurs qui ne semblent pas admissibles à la pension ou à l’indemnité d’invalidité à la lumière des éléments de preuve accessibles aux arbitres seront les seuls à recevoir un appel téléphonique du Ministère avant que la décision ne soit rendue. Qu’en est-il des demandeurs jugés admissibles à une pension ou à une indemnité partielle? Les statistiques du Ministère révèlent que 70 % des demandes initiales sont approuvées, mais ce taux comprend les demandeurs qui reçoivent une pension ou une indemnité partielle. Pourquoi un demandeur qui est informé de son admissibilité à seulement le cinquième d’une pension ou d’une indemnité d’invalidité n’aurait-il pas la possibilité lui aussi de contester les éléments de preuve dont disposent les arbitres avant que la décision ne soit rendue? C’est inéquitable sur le plan procédural. Je compte attirer l’attention du ministre et du Ministère sur cette question. De plus, mon Bureau procédera, dans les mois à venir, à une évaluation de suivi de l’impact des changements annoncés par le ministre, et nous publierons un rapport de conclusions détaillées.

Pendant que le Ministère progresse dans son programme de transformation pour améliorer les services par l’élimination de la paperasse, je continuerai de rappeler à tous que le fait d’accélérer un processus ne représente pas une amélioration lorsque les choses sont faites aux dépens de l’équité procédurale. Bien souvent, le meilleur moyen d’accroître l’efficacité globale d’un processus consiste à y consacrer un peu plus de temps au début. Je suis convaincu que des améliorations au processus de demande finiraient par économiser du temps et des soucis aux demandeurs en réduisant le nombre de révisions et d’appels nécessaires.

Guy

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NPD: LES CONSERVATEURS DOIVENT RESPECTER LES ANCIENS COMBATTANTS
« Reply #7 on: February 05, 2013, 05:00:53 PM »
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5 février 2013

LES CONSERVATEURS DOIVENT RESPECTER LES ANCIENS COMBATTANTS
L’ombudsman des Anciens combattants conclut que ceux-ci sont tenus dans le noir par le gouvernement

OTTAWA – Les conservateurs doivent donner aux vétérans l’information médicale dont ils ont besoin pour leurs demandes de prestation, selon le porte-parole adjoint du NPD pour les anciens combattants, Sylvain Chicoine (Châteauguay?St-Constant), qui réagissait ainsi au dépôt hier du troisième rapport de l’ombudsman des vétérans.

Les néo-démocrates remercient l’ombudsman pour son rapport. «Accorder des pensions et indemnités à nos vétérans est au cœur même des responsabilités du ministère, indique M. Chicoine. Mais le ministère cache de l’information aux principaux intéressés, les anciens combattans eux-mêmes. Pourquoi?»

«Il est plus que temps que le gouvernement conservateur donne aux vétérans toutes les informations dont ils ont besoin pour faire leurs demandes de prestation. Les cachettes ont assez duré», ajoute le porte-parole principal du NPD pour les Anciens combattants, Peter Stoffer.

«Le gouvernement doit tout faire pour aider ceux qui ont défendu les valeurs canadiennes au sein des Forces armées et non pas leur mettre des bâtons dans les roues», conclut-il.

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Pour de plus amples renseignements, veuillez communiquer avec :
David Patry, attaché de presse
514-238-8240 ou david.patry@parl.gc.ca

Sylvain Chartrand CD

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Sylvain Chicoine - Député de Châteauguay St-Constant
Aujourd'hui, j'ai demandé au ministre des Anciens Combattants s’il allait ajuster son plan d’action suite au torrent de critiques de l’ombudsman. Voyez la réponse du ministre!!

[youtube]http://youtu.be/vIqEEU53BSQ[/youtube]

Sylvain Chartrand CD

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