Remarks for Thomas Jarmyn, Acting Chair, Veterans Review and Appeal Board – On the occasion of the Council of Canadian Administrative Tribunals’ Symposium - 2016

Plenary A: What is Tribunal Excellence?

Ottawa, ON – May 29, 2016

Thank you for that kind introduction, Don.

It’s a real pleasure for me to be sharing the podium with our esteemed colleagues from the US and France, as well as the Honourable Michel Bastarache with his impressive legacy as a Supreme Court Justice and vast contributions to equality law.

Their different perspectives on tribunal excellence are invaluable – based as they are on years of legal experience and expertise in the delivery of justice to citizens of the world.

For the next few minutes, I’d like to add my perspective to theirs as the Acting Chair of a federal administrative tribunal here in Canada.

First, I’ll be giving you a short overview of the structure of administrative justice in Canada: why it exists, and, more specifically, what role the Veterans Review and Appeal Board plays in this context.

Second, I want to talk to you about how we define excellence at the Board, how we seek to measure it, and how we’re measuring up.

And finally, I will end with a few thoughts on the challenges and opportunities facing administrative justice and those of us who dedicate our lives to it.

As you know, administrative tribunals were established in Canada by Parliament to reduce the burden on the courts and improve citizens’ access to justice for disputes about their legal rights.

Implicit in this is our obligation, as tribunals, to provide Canadians with timely and informal proceedings; qualified and impartial decision makers; and fair decisions that reflect the law.

The pursuit and measurement of tribunal excellence is important – not only for administrators, but also for the many citizens affected by tribunal decisions.

For us at the Veterans Review and Appeal Board, those affected citizens are Veterans, members of the Canadian Armed Forces and RCMP, and their families.

Our mandate is to provide them with an independent appeal process for disability benefits decisions made by Veterans Affairs Canada.

The Board was established by statute as an independent tribunal to hear, determine and deal with all applications for review and appeal made under the Pension Act and the Canadian Forces Members and Veterans Re-establishment and Compensation Act.

Along with giving the Board its jurisdiction, our statute sets out the burden of proof for applicants as well as procedures for our members who hear and decide cases.

For example, it tells us how panels should weigh evidence and approach decision making, with some unique features.

It also sets out how many members decide cases.

At Review, the first level of redress at the Board, cases are heard by panels of two members. To my knowledge we are the only tribunal that hears cases with an even number of members.

As long as one of them concludes that the Veteran has established their case, the decision is favourable.

Our process for Veterans is also unique in that it’s non-adversarial, has no time limits, and at both levels provides de novo hearings where new evidence is accepted.

Additionally, Veterans are represented for free by lawyers from the Bureau of Pensions Advocates, an organization within Veterans Affairs.

So, what does excellence look like in the Board’s context?

To define excellence, we first had to articulate our mission: what we’re here to do and how we’ll do it.

Simply put, our mission is to provide timely, respectful hearings and fair, plain-language decisions to applicants – so that we can fulfill our mandate of ensuring they receive all the benefits they are entitled to under law.

This mission was developed with input from staff and members, as well as stakeholders, to ensure it captured the Board’s commitment and reflected Veterans’ expectations.

As Acting Chair, I look for every opportunity to connect this mission to our work – so that staff and members can be proud of their contributions, understand their obligations, and know what will be measured.

A clear mission, strong leadership and good communications are necessary to the pursuit of excellence in any organization. The Board’s mission, then, gives us the important questions we need to ask to measure excellence: Are hearings timely and respectful? Are they fair? Are decisions timely? Are they written in plain language?

And, most importantly, does the hearing process respect Veterans’ legal rights and provide them with their entitlements for service-related disabilities?

Before I talk about the measures the Board has put in place to help answer these questions, I’d like to give you a sense of our workload.

Last year, our small Board of 20 members (supported by about 80 public servants) heard 2500 Reviews and 800 Appeals for Veterans across the country.

As a result, about 1600 Veterans – almost half of those who came to us – received new or increased benefits for service-related disabilities from the Board.

Although this speaks to the value of an independent appeal mechanism, we must still ask ourselves whether we have provided Veterans with a process that is respectful, timely and fair.

One way to find out was to ask Veterans for their impressions of the hearing.

In 2013, the Board established an ongoing exit survey for applicants who have had a Review hearing.

The Review hearing is especially important in our context because it provides Veterans with their first and only opportunity to appear before decision makers and tell their story.

This exit survey has allowed us to gauge satisfaction with the Review hearing through questions about respect and fairness.

Last year, almost half of the 2500 Veterans who had a Review hearing completed the survey.

I’m very pleased to report that the vast majority of them had a good experience: 97 per cent of respondents told us Board members treated them with respect, and 91 per cent said their hearing was conducted in a fair manner.

The survey also gives Veterans the opportunity to provide suggestions for improving the hearing experience, which we are using to guide our efforts going forward.

One of the things we often hear about, whether through the survey or from stakeholders more generally, is that timely hearings and decisions are extremely important.

This is not surprising when you consider that a Veteran has already received one, and sometimes two, decisions on their application for benefits from the Department of Veterans Affairs.

To ensure timeliness, the Board has established service standards for the time within its control.

Before a case is ready to be heard, the Veteran and their representative spend time obtaining additional evidence and preparing the case.

It’s only when they tell us they are ready to proceed to a hearing that we start measuring time.

From this point of readiness, our goal is to schedule, hear and decide the case within 16 weeks.

Last year, we met this standard in 96 per cent of cases – far exceeding the 80 per cent target we set for ourselves.

Our second service standard focusses entirely on decisions, with a goal of issuing 80 per cent of them within 6 weeks of the hearing.

Again, we exceeded our target last year by issuing 86 per cent of decisions within this timeframe.

To achieve this strong performance, the Board had to establish internal service standards for each step of the hearing and decision process.

We monitor cases so that if a standard is not met at a particular stage, it is identified quickly, and the issue or complexity keeping the file from moving forward is addressed.

And, for cases where we can’t meet our service standards, we know the reasons why, and focus on them so that we can get these decisions to Veterans as soon as possible.

Of course, when it comes to decision making, timeliness isn’t everything – we must also ensure that decisions are fair and provide reasons written in plain language.

This latter point is especially important: Veterans need to understand clearly why the panel decided as it did.

If they don’t understand the reasons for a decision, their confidence in the process and perception of fairness are affected.

Furthermore, those who consult our decisions online should equally be able to understand – and have confidence in – the Board’s decision-making.

Like other tribunals, the Board has measures to support quality decision making by its members.

At the membership level, these include a merit-based selection process, ongoing legal training and professional development opportunities, performance feedback, and monthly teleconferences for discussion on common approaches.

At the institutional level, they involve a quality review of all decisions, access to legal advice, the designation of Leading and Persuasive Decisions, and other tools that promote consistency.

As the Board’s decisions are reviewable by the Federal Court, we also monitor and analyze outcomes of judicial review decisions and follow any direction given.

Last year, the Court issued 10 judicial reviews, eight of which upheld the Board’s decisions.

Although these results are encouraging and tell us our decisions respect the law, they are just one indicator that help us measure fairness.

We also look at our own decisions to determine why a panel ruled favourably where the Department did not.

We ask our members to categorize the reasons: Was it because of the Veteran’s testimony? Was there new medical evidence? Could a more favourable decision have been made earlier?

One of the things we have found is that new evidence and the Veteran’s testimony are factors in the majority of cases.

We share these reasons with the Department, so that it can look for opportunities to improve the initial application and decision-making processes so that Veterans get the benefits they are entitled to as early as possible.

I haven’t yet spoken about transparency, which is integral to tribunal excellence.

As a federally-funded tribunal, the Board has a general obligation to demonstrate to Canadians that is fulfilling its mandate for Veterans.

The idea of transparency, of course, is that decision-making processes should generally be open to scrutiny so that the public can ensure that they are fair.

In the Board’s context, it’s also so that Veterans can see how the Board applies the law in cases similar to their own. As I mentioned earlier, our decisions are accessible online.

Since July 1, 2015 all of the Board’s Appeal decisions and most Reviews have been published on the Canadian Legal Information Institute’s website (or CanLII).

As of today, we have more than 2,600 depersonalized decisions published.

I would encourage you to visit that site and read some of them.

When you do, you will understand that the Board rarely hears clear-cut cases, as these would have already been approved by the Department.

Instead, our cases often involve complex medical and legal issues with large volumes of information and evidence to consider.

The Board’s biggest challenge going forward is to effectively manage these records for our members who hear cases in 23 locations across Canada.

By taking advantage of technology, we are aiming to refine and revise our business processes to eliminate paper files, assist members in preparing large cases, and issue decisions in an even timelier manner.

Of course, tribunals will always be challenged to balance the time needed to write quality decisions with the pressure to issue them quickly.

This is a constant challenge with no easy answer, except to ensure that decision-makers have the knowledge, skills, tools and support to assist them in their important work.

In summary, for a tribunal to succeed it must:

• Understand and articulate its mandate;
• Use tools to assess the experience of those who appear before it;
• Understand the milestones of its process;
• Develop objective standards for those milestones;
• Be transparent in its decision making;
• Regularly assess the quality of the reasons in its decisions; and
• Be able to report on the reasons for those decisions.

With that, I will conclude my remarks today on my experience as the Acting Chair of a federal administrative tribunal, on the Board’s performance goals and targets, and on our challenges and opportunities for the future of administrative justice.

I look forward to your questions.