ACVA Statement, October 29, 2012
John Larlee, Chair
Veterans Review and Appeal Board
Good afternoon Mr. Chair.
With me are members of my senior management team, Karen Rowell, Director of Corporate Operations and Kathleen Vent, Acting Director of Legal Services.
Thank you for giving me the opportunity today to comment on remarks and concerns raised by members of this Committee and witnesses who have appeared before you in recent weeks.
I think you will find that we are all working towards the same objectives.
The Board is honoured to serve a constituency of people that are unique and impressive in their selfless service to Canada.
These Veterans, members of the Canadian Forces and RCMP, and their families, deserve to be – and must always be – treated with dignity and respect when they come to the Board.
They clearly have the right to fairness in the appeal process, to openness in decision-making and to be heard by qualified and impartial adjudicators.
We all agree that our Veterans' appeals must be considered with the compassion expressed in the Board's legislation – notably in sections 3 and 39.
Since our last appearance, you have heard from advocates and other interested parties.
I followed the testimony and heard inaccuracies presented to this committee.
I would like to correct the record by giving you additional context and clarification on the Board's commitments to veterans.
My remarks will deal with three important topics: number one, procedural fairness; number two, transparency and impartiality; and number three, the culture at the Board.
Let me start with procedural fairness.
As you know, the Board's process exists to ensure fairness in the disability benefits system for Veterans, members of the CF and RCMP, and their families.
Our objective is to give applicants who are dissatisfied with their departmental decisions further opportunities for new and increased benefits for service-related disabilities.
Our adjudicators are independent.
They look at Veterans' applications with fresh eyes and listen to their stories at non-adversarial hearings.
Our members usually ask questions at hearings to make sure they fully understand the Veteran's circumstances.
They consider, but are not bound by, the Department's policies and make decisions based on the evidence brought forward by the Veteran.
As our success rates clearly indicate, the Board does change decisions to benefit Veterans.
Fairness is our mission and we strive for it in everything we do.
Some serious questions have been raised at this Committee about how we do our work, in particular with respect to role of Board staff and the information used by members in decision-making.
Let me put these to rest.
Board management and staff respect the independence of members as decision-makers.
Their role is to support members in making clear and well-reasoned decisions for Veterans.
They do this by giving advice to members on the clarity and completeness of reasons and on issues of consistency in the interpretation of the legislation.
It is nothing more than feedback intended to improve the quality of the decisions going to Veterans.
I know you will agree that Veterans deserve decisions that present information logically and accurately; that address evidence and arguments; and that express the reasons for the conclusion clearly and plainly.
Many of our members are laypeople with different backgrounds who are based in locations across Canada.
They deal with a high volume of cases involving complex matters.
For these reasons, they welcome support from experienced staff in legal and quality assurance roles.
Members are free to consider their feedback and accept it – or not.
In administrative law, it is quite simple: He, or she, who hears must decide.
Questions have also been raised about the role of favourability rates at the Board. Mr. Chair, these are not individual rates, as Board decisions are made by panels of two or three members.
Rather, they are decision outcomes associated with panel members that were provided at the members' request.
They are not used for performance feedback.
They have never been used to influence Board members to be more favourable or less favourable.
They were used only as a tool to initiate a conversation about consistency in decision-making.
I hope you will agree that Veterans deserve predictability in our decision-making – that similar cases should have similar outcomes.
The Board has established ongoing training and support structures, adjudicative guidelines, a professional code of conduct and performance standards – all to fulfill our Veterans' expectations that they will be treated fairly and respectfully throughout the appeal process.
Together, these tools cultivate consistency while respecting the independence of decision-makers.
This philosophy is helping us to attract new members with military, policing and medical backgrounds who want to serve Veterans by contributing their expertise.
Transparency is the second area I would like to touch on.
You heard from Mr. James Ogilvie of the Canadian Council of Administrative Tribunals that transparency is ensured by a variety of things, including the publication of the results of all hearings.
It would cost approximately $3.5 million annually for the Board to translate and depersonalize upwards of 5000 decisions each year for web posting in a timely fashion.
This represents one-third of our budget, the bulk of which is spent on conducting hearings and issuing decisions for Veterans and other applicants in locations across the country.
The reality is that the Board could not absorb this cost without compromising service to Veterans.
While a third party like CanLii would publish our decisions for free, the obligation to comply with the Official Languages Act and the cost of translation would remain ours.
As you know, we are now publishing noteworthy decisions on our Web site to improve transparency.
These are instructive decisions that demonstrate how the Board applies the law in individual cases.
They are full text versions of the Board's decisions with some personal information removed to respect the privacy of applicants.
They are not otherwise modified or vetted, as has been suggested to this Committee.
I encourage you to visit our Web site and read some of these decisions.
You will also find medical and legal resources used by members, posted in the interest of transparency.
We will continue to add information and look for more opportunities to talk about the appeal process with our stakeholders.
Another way for tribunals to be open and transparent is to hold hearings in public.
The Board's hearings are public and we are happy to accommodate observers.
We ask interested parties to contact us in advance, out of respect for Veterans and the personal matters being discussed, as well as to make logistical arrangements.
Once again, I would extend an invitation to Committee members to observe a hearing.
As you heard from Mr. Cal Small of the RCMP Veterans Association, it will give you an appreciation of the informality of the process, the efforts of Board members to understand the Veteran's circumstances, and the complexities of the cases that come before us.
The third and final topic I'd like to address is the culture at the Board.
We are here to serve Veterans, members of the CF and RCMP, and their families.
As in the past, Board members are looking for the evidence that will allow them to award new or increased benefits for disabilities related to service.
Our evidence requirements have not changed but the nature of our cases certainly has.
As you heard from the Bureau of Pensions Advocates, applicants are counselled to request an internal or “departmental” review if they have relevant new evidence after receiving a first decision from the Department.
The success rates for both first applications and departmental reviews are higher now than in the past.
This means that Veterans are getting good outcomes earlier in the process.
As a result, fewer cases are coming to the Board – and those that do are less straightforward than in the past.
Mr. Chair, Veterans in Canada have access to many levels of redress for their disability benefits decisions.
Some see it as a struggle but many others welcome these opportunities to bring forward new information at any time.
And they benefit from it: our decision outcomes reflect this, with favourable rulings for Veterans in half of review decisions and one-third of appeal decisions.
While we understand the perception that the burden of proof is too high, the legislation requires Veterans to establish a link between disability and service.
Ultimately, some applicants are unable to make this link.
We've heard the message loud and clear that Veterans want to know that they are getting the benefit of the doubt as required by the Board's legislation.
We have an initiative underway to train members to more clearly explain how they have applied the benefit of the doubt in every case.
As Chairman, I will continue to emphasize to members and staff that they must always bear in mind the debt owed to Veterans who have served our country so well.
In closing, I would like to recognize the work the Veterans Ombudsman is doing to help us achieve our goal of serving Veterans, members of the CF and RCMP, and their families better.
The Board embraced Mr. Parent's recent recommendations and will continue to make improvements to maintain trust and confidence in the appeal process.
I am hopeful that your questions today will give us the opportunity to further clarify our commitment and the work we do at the Board to serve Veterans and their families.