Proceedings of the Subcommittee on
Veterans Affairs
Issue 4 - Evidence (Morning meeting)
CHARLOTTETOWN, Thursday, March 7, 2002
The Subcommittee on Veterans Affairs of the Standing Senate Committee on National Security and Defence met this day at 8:45 a.m. to examine and report on the health care provided to veterans of war and of peacekeeping missions; the implementation of the recommendations made in its previous reports on such matters; and the terms of service, post-discharge benefits and health care of members of the regular and reserve forces as well as members of the RCMP and of civilians who have served in close support of uniformed peacekeepers.
Senator Michael Meighen (Chairman) in the Chair.
[English]
The Chairman: We appreciate very much the repeated invitations of the deputy minister and his officials to come to Charlottetown. We are looking forward to discussing a variety of issues. I think everything is on the table, whether it is pensions, post-traumatic stress syndrome, health care or home care. I am sure that Admiral Murray, and those accompanying him, will be happy to touch on any issue that senators wish to raise. You have the schedule before you.
I am going to ask Admiral Murray, who is accompanied by Mr. Ferguson and Mr. Butler, to begin with a briefing on the pension process. We will then work our way through an actual case.
Mr. Larry Murray, Deputy Minister, Department of Veterans Affairs Canada: Mr. Chairman, I would just like to begin by saying how pleased I am and how pleased everyone here in the headquarters in Charlottetown is to host these hearings here today. Before I begin, I would also like to express condolences on behalf of our minister and all the staff of Veterans Affairs Canada on the loss of Senator Findlay MacDonald, a great Canadian and a great friend of veterans and their families over many years.
It has been a fairly busy week here. Many of our staff had their first chance to meet our new minister, the Honourable Dr. Rey Pagtakhan. Unfortunately, he had a number of regional commitments in Winnipeg and was unable to remain for your visit. He did ask me to pass along his warmest regards. I think the staff have distributed some of the press coverage of his visit, and if that leads to questions later in the day, certainly we would be pleased to respond. I know, as I said in Halifax, he is very much looking forward to the opportunity to appear at a hearing in Ottawa or somewhere soon, at your convenience.
We do very much appreciate this opportunity to meet with you for formal hearings, which we see as an opportunity to build on our recent Halifax briefings. We will talk about some of the progress we believe we have been making, as well as some of the challenges on a number of fronts.
[Translation]
As you know, VAC faces numerous challenges, chief among them the challenge of striking a balance between lending support to our older, traditional veterans as well as to younger veterans and their families.
Over the next decade, the number of WWI, WWII and Korean War veterans will decrease. Conversely, the number of clients over the age of 80 will increase by nearly 50 per cent over the next five years, as will the complexity and extent of their health care requirements. It is expected that during the same period, the number of Canadian Forces clients will increase by 25 per cent, that is from under 25,000 in 2001 to over 30,000 by 2005.
[English]
Workload and expenditures related to traditional war service veterans are growing at a faster rate than those related to CF veterans. This includes things like attendance allowances and pension applications for war era veterans, which are still on the increase. When it comes right down to it, all of us, and our veterans, are aging. The average age of our CF veterans is 59. Many of the more complex cases, however, involve our younger Canadian Forces veterans and most of these clients have growing families. Many veterans of service in special duty areas are suffering from conditions brought on by the trauma of their experiences abroad.
Our department and our programs and services have evolved over the past 50-plus years to meet the needs of our aging war service veterans. The downside is that our current programs and services, and even our legislation, do not meet all the needs of these younger men and women who have, in many cases, sacrificed their own well-being in the service of their country and in the name of peace.
That being said, we believe we have made a great deal of progress in recent years, working closely with the Department of National Defence and the Forces as well as veterans' organizations. We have been piloting, and continue to launch, initiatives and programs to meet the immediate needs of these Canadian Forces veterans. We are now looking at what longer-term changes may be required, particularly in transition services and support, to those members now serving in operations such as those ongoing in and around Afghanistan.
It is important to understand that improvement in service to CF veterans has not been and will not be at the expense of VAC's traditional veterans. Indeed, many of these initiatives benefit both groups. For example, the 24-hour telephone service, a professional counselling service that we established in April, was a continuation of DND's Canadian Forces Members Assistance Program. Canadian Forces veterans and war service veterans alike use it.
[Translation]
VAC also faces a number of challenges associated with remembrance. Our target public, that is Canadians from coast to coast, is very diversified. We need to understand this diversity and attest to it in our acts of remembrance.
Canada's veterans have contributed significantly to shaping our society, to safeguarding our values and to instilling in us a sense of pride and belonging. With the passage of time, Canada's veterans are increasingly less able to convey their message.
[English]
With these challenges, however, come opportunities. Research shows that 87 per cent of Canadians think we should be doing more to remember the sacrifices and achievements of Canadians in wartime and peacekeeping.
We are very flexible and our aim today is to serve you and to provide you with the information you need to do your important work in support of Canada's veterans and their families.
I know that two of the members are off to Vimy on the weekend. We have confirmed that our project leader on the Vimy renovation will be available to provide a short briefing to Senator Day and Senator Wiebe.
That is it by way of introduction, Mr. Chairman. With your indulgence, I will ask Bernard Butler to start the disability pension presentation, which is really intended as a scene setter, as you requested. Then there will be a walkabout where you will actually meet the people and follow a couple of files through the process, which will give you a good sense of who those folks are and how they do their jobs.
Mr. Bernard Butler, Director, Disability Pension Operations, Veterans Services, Department of Veterans Affairs Canada: Mr. Chairman, thank you for the opportunity to appear before the subcommittee today. Certainly we have had very good working relations with the Senate Subcommittee on Veterans Affairs, and I have been very impressed with the great work that the committee has done in identifying issues and giving us some very positive feedback on areas where we can work to improve our programs and services. It is certainly a pleasure today to have this further opportunity to appear before the committee and to give you some details on our disability pension program, which you will often hear of in the media. Through the course of the next few hours, you will gain a better understanding of how the program works and what some of the issues are for those in Veterans Affairs Canada who administer it.
You will find the presentation at tab 4 of your binders and we will simply work through it slide by slide. We will begin with the overview. We hope today to talk about the disability pension program in general. We will discuss the adjudicator framework, the method that we use for program delivery. We will talk about some of the redress options that are available to veterans and members seeking benefits under the program, which you will find to be most generous and comprehensive.
We will also share with you some statistics to give you a good idea of the magnitude of the program and some trends in expenditures and our clientele in general. The disability pension program mandate page is included to give you a sense of how we define and approach our obligation to compensate veterans, Canadian Forces members and former members and their dependants for death and disabilities related to service in a timely and equitable manner. That is one of the key principles of this legislated program. Many people ask a very basic question: What is a disability pension? The Pension Act is our guide. It is the statutory instrument that provides the benefit and three basic principles are clearly set out in the legislation. The first is the recognition by the people and the Government of Canada of service-related disability or death. It is recognition on a national level of the contribution that veterans and others have made.
Disability is defined as ``the loss or lessening of the power to will and to do any normal mental or physical act.'' That definition is actually contained in the act and is very broad, as you will appreciate. Over time, that has been interpreted to mean a medically defined disability. We normally look for a medical diagnosis of an individual's condition to enable us to adjudicate on the claim in the context of the legislation.
Finally, a disability pension obviously reflects a monetary payment made under the authority of the Pension Act and administered by Veterans Affairs Canada. There are some very specific provisions within that legislation and the Veterans Review and Appeal Board Act that enable and direct Veterans Affairs to administer the program in a very generous way for the benefit of veterans.
The act says that all the legislation must be liberally construed and interpreted. A provision in the legislation mandates Veterans Affairs to deal with each veteran's application in a very generous context. That provision has come to be known as the ``benefit of the doubt'' clause, and you will often hear veterans citing that in the media. They will say, ``Well, they did not give me the benefit of the doubt.'' That clause is simply a form of direction to the adjudicator managing the case. It tells the adjudicator to accept credible and uncontradicted evidence that is submitted in support of a disability pension claim. The adjudicator shall draw reasonable inferences in favour of the claim, and if, at the end of the day, there remains any doubt or uncertainty about whether or not the applicant has established a lawful basis for an award, the adjudicator shall resolve that in favour of the applicant.
It is a very generous provision and one reason why today we can deal effectively with many active force veterans' claims that come forward 50 years after the fact. The standard of proof is obviously much lower than you would find in a civil court setting. In fact, I think it is unique in terms of the nature of evidence required to meet a threshold to support a claim.
You will hear about how the department is managing a given file and whether a client is unhappy or not, and the process is actually set out in the legislation under section 5.3.
Our other legislated mandate is that all our proceedings must be expeditious, informal and non-adversarial. The framework that we use is very client centred in terms of how we assist the client with gathering evidence and how we approach the actual adjudication of the application.
The next slide deals with the two principal requirements for eligibility under the legislation. As I said earlier, one of the key elements, obviously, is service connection. There has to be a relationship between a disability and military service. The Pension Act, however, sets out two distinct categories. One deals exclusively with regular force clients who are current serving members, perhaps in Canada, and who suffer from disease or disability. This is referred to as the ``compensation principle'' and is very similar to workers compensation. Members must show a direct service connection. The disability must arise out of military service. That means we investigate what members were doing in the course of their duties or in some other relationship to service that caused or contributed to the disability for which the pension is being claimed. It applies while the members are at work. Once they leave work and go home, they are no longer covered. Members do not receive benefits or any entitlements flowing from any injuries that might occur when they are at home or on the weekend. That is a fairly straightforward and common-sense approach.
The other basis for eligibility under our legislation is that which applies to active force veterans, Korean War veterans and members of the Forces who have been assigned to serve in special duty areas such as Bosnia or Croatia. It is a different legislative provision and is known as the ``insurance principle.'' As long as members are serving in one of those areas, they are covered for benefits 24 hours a day, regardless of the cause of the injury, disability or death. For example, if a member has been posted to Bosnia and suffers any disability arising out of some circumstance that occurred during a mess dinner, that is covered under this legislation, regardless of whether or not it was actually related to military service. It is a very broad principle and certainly provides a considerable benefit to members who are serving in these high-risk areas.
It is well worth remembering those — the compensation principle and the insurance principle. You will hear more discussion of that as the Canadian Forces explore other issues around broadening eligibility for members in different circumstances, such as the Red River flood or the Ice Storm in Quebec. There is much discussion currently on whether or not these principles should be expanded. Time will tell how that might evolve.
Senator Wiebe: There were concerns, and I think maybe this addresses them, about members injured at work. Are they now eligible to continue to work and receive compensation?
Mr. Butler: It is a very good question, senator, and the answer is yes. That is a product of amendments that were made to the legislation just a few years ago through Bill C-41. Prior to that, only members who suffered injury while in a special duty area could receive a benefit from us and continue to serve. Now, it does not matter whether you are pensioned or not, you receive your benefit under the compensation principle or the insurance principle.
Senator Wiebe: Yes, Bill C-41 was introduced last year, I believe. Is it working well? I ask because I sponsored the bill in the Senate and there were some questions raised during the debate as to whether it would be functional or not. It is working fine and being accepted by the members?
Mr. Butler: It seems to be, and it seems to have been a very positive step forward in ensuring that members feel that they are all being treated equitably for service-related disability. As a consequence of that legislative provision, we saw a fair number of claims from this group, which from our point of view is a very satisfactory development. It enables us to deal with these cases in a more timely fashion. As you know, in the past, regular force members might suffer an injury in Canada but could not make application perhaps for 10 years, until their release. Of course, by that time, sometimes the trail would be cold in terms of putting together the evidence to support the claim and they would be deprived of that benefit for a considerable time. It seems to have been very favourably received.
Senator Wiebe: I am happy to hear that. Thank you.
Senator Atkins: How do you deal with invisible disabilities such as diabetes?
Mr. Butler: Any medically recognized condition can be considered in an application for disability. Diabetes is a difficult one at times, because the test is: Is your diabetes related to your military service? We would ask the member, ``Do you have any medical evidence to suggest that there was something inherent in your service or some event or other activity that might have caused or contributed to it?''
That is a very good example, senator, of the challenges and the difference between 21.2 coverage, the compensation principle, and 21.1, the insurance principle. For the compensation principle, we need some evidence of a cause-and- effect relationship between service and the disability, whereas for the insurance principle, if the symptoms of diabetes were first manifested in Bosnia, for instance, we do not have to extend the inquiry beyond that
Senator Atkins: You can inherit diabetes, especially type 2, and I do not know how you would relate that to service.
Mr. Butler: You are absolutely right. That is the challenge. The legislation is designed to compensate for service- connected disability, so oftentimes, claims for diabetes are difficult to establish for peacetime members.
Senator Atkins: What about veterans of World War II or Korea who come down with it? Would they be compensated or would they be treated through Veterans Affairs?
Mr. Butler: We would have a similar challenge today if a 75-year-old veteran presented with diabetes, wished to make a claim and related it to his active force military service. It would be very difficult to show that.
Senator Atkins: I do not know how he could.
Mr. Butler: It is often difficult with a condition like that, given its origins and so on. Talking of non-visible ones, we deal with a lot of psychiatric conditions, which are equally challenging in some respects. The ultimate requirement under the act is service relationship and service connection. We go to great lengths to try to assist members applying for the benefit, whether they are 80-year-old veterans or 25-year-old current members, in finding some basis to relate it to service. Unfortunately, there are times when we simply cannot, where the medical community will tell us, ``There is nothing we can offer. We do not believe that there is any connection to military service.'' In those cases, we end up having to say no, and those are cases where the applicants may be very unhappy and very frustrated because a lot of them have very disabling medical conditions.
Mr. Murray: I just want to touch on a few points. First, I would like to thank you for the speed with which Bill C-41 did go through, because it was one week before the election and the bill would have been delayed if it had not happened then. All-party support in the Senate was critical to that time frame; it moved through in a few days and that was extremely important.
The second point is focused on the disability pension. That pension is a gateway to health care. In fact, the importance of Bill C-41 goes well beyond disability pensions. It enables us to take Canadian Forces members as clients while they are still serving, even though they will ultimately be released as a result of the disability. It will significantly reduce the number of people falling through the cracks. They will be our clients before they ever leave the Forces. We now have regulations under that legislation that also provide Veterans Independence Program health care support to these people.
Senator Atkins raised the point of how does an 80-year-old sort out what is related to what, and we are trying to deal with that. If a veteran is seriously disabled, beyond 78 per cent, we do not try to sort out what was the cause of the condition. We have studies underway to see whether there is a way to move that below the 78 per cent level to avoid the difficulties for the veteran as well as for the system.
Senator Atkins: Diabetes is a life-style type of disease, so you do not know when it began, all you know is you have it. It is environmental and I just wondered whether there was any test that you could apply.
Ms Janice Burke, Acting Director, Disability Pension Adjudication, Department of Veterans Affairs Canada: We do have provisions within our table of disabilities to assess diabetes and we look a lot of parameters for that particular condition.
In addition, we have a project underway to revise the current table of disabilities, and that will provide even better criteria for the assessment of that disability.
Senator Atkins: Just one other comment. I would doubt that any veteran of World War II who had diabetes would be around today.
Senator Day: Mr. Butler, with respect to the compensation principle, can we draw a further parallel with workers compensation whereby the Armed Forces reduces the salary of individuals who are deemed disabled and receiving a disability pension while still serving?
Mr. Butler: No, once eligibility is established and members are put on pay from Veterans Affairs Canada, there is no set-off while they are still serving. That would be in addition to whatever benefit they were receiving through their classification.
Senator Day: Is it based on the principle of additional cost incurred by virtue of the disability?
Mr. Butler: Yes, and under that basic principle of the legislative scheme, this is in recognition of the contribution they make as members of the Canadian Armed Forces and is compensation over and above any other benefit or program. It is not income tested and is independent of rank, grade or otherwise.
Senator Day: I understood you to say that the compensation principle was related to regular force personnel. Does that mean that it would not apply to the reserve?
Mr. Butler: No, in fact it does. The compensation principle extends equally to members of the reserve and members of the regular force.
Senator Day: The final point of clarification is with respect to the special duty areas. Is that an evolving definition by virtue of regulation, or how do you deal with ice storms and Red River, et cetera?
Mr. Murray: It currently applies only to areas like Bosnia. A special duty area will be established soon for operations in Afghanistan, but it has not previously applied to operations in Canada such as the Ice Storm, the Manitoba floods and search and rescue operations. As a result of reflections following September 11, a number of pieces of legislation have been passed, as you are well aware. There may or may not be additional legislation, but one fallout of that was looking together with DND at this whole business of special duty areas. We are now looking at the possibility of revising the Pension Act to make the special duty area provisions more logical, perhaps through a mechanism such as a ``special duty operation.'' When an individual is assigned to a particular operation of increased hazard or risk, the provisions would be the same as for a special duty area. To give you an example, it does not make a lot of sense to me that the crew members of a Hercules aircraft leaving from Trenton and refuelling in Iceland are not covered while in Iceland, but once they cross some magical boundary in the Middle East, they are. We are trying to come to grips with that. In the same context, we are discussing the possibility that the Minister of National Defence could determine that a particular operation, let us say in Canada, would merit the same consideration as a special duty area abroad. We hope to bring something forward in the not-too-distant future to try to come to grips with some of those inequities that we see.
The Chairman: Is there any contributory fault principle involved in these awards?
Mr. Butler: That is a very good question, Mr. Chairman. Not really, although there is a provision in the act whereby you can be disentitled, if you will, through wilful misconduct. You can receive a partial benefit under the compensation principle. If you are suffering from a disease or disability that was partly caused by non-service-connected factors, there could be a discounting of the award to reflect that.
It is not usually done, however, in the context of some fault or failing on the part of the member. We do not usually approach it from that perspective. To give you an example, you may present, after five years of regular force service, with a hearing loss. You may play in a musical band five nights a week on your own time, but undoubtedly you were exposed to a lot of noise as a function of your duties in the service. When you make application for a benefit for hearing loss, there may be some set-off for non-service-connected factors that may have contributed to the disability and you will receive compensation for that portion or degree that is service connected. There is certainly a provision for that. Under the act, we can award entitlements on the basis of fifths. You may receive a hearing loss entitlement at the rate of four-fifths, with one-fifth being related to non-service-connected factors. However, we try to avoid that where we can because it creates challenges, both for the adjudicators in quantifying that contribution and explaining it rationally, and for members receiving partial benefits when, in their view, the disability may be wholly service connected.
The Chairman: Does it have to be non-service connected in order to affect the award?
Mr. Butler: Under 21.2, it would normally be non-service connected. Are you thinking of a more precise example?
The Chairman: Well, it is well known that I do not wear earplugs, even though I am an artillery officer, because I just do not like them. I know you are supposed to. What about that? You can get 10 people to testify that I never wore the darned things.
Mr. Butler: I think you should be an adjudicator, Mr. Chair. Those are very challenging cases for us. Oftentimes, members will say that very thing. However, they will also say, ``If I wore the darned ear plugs, I could not hear the range commander's instructions,'' or, ``I could not hear the sound of the engine in the ship's engine room.'' We try to avoid discounting benefits in cases like that. I suppose if there were a flagrant case of some violation of a standing order or some activity outside of the scope of employment, we would certainly look at that in determining a service connection. We certainly have the authority under the act to do that. As we said at the outset, we try, whenever possible, to resolve any uncertainty on an issue of that nature in favour of the applicant.
The Chairman: Is it similar to civil trials, with which Senator Day and I, at least, would be familiar, where it is my expert against your expert, and you get one doctor to say one thing and I will get another doctor to say the contrary, and on we go in a ping pong game?
Mr. Butler: Again, an excellent question. I think there was perhaps more of a tendency to that in the past. Since 1995, when the legislation was amended and the department, through the minister, took on responsibility for the adjudication of first level awards, the approach has been largely to look at ways and means of finding support for the case.
When clients come forward with a reasonable and credible medical opinion offered in support of a claim, one that is not at variance with the medical literature or traditional medical thinking, we certainly do not try to document a basis for rejecting it. That really goes to the heart of that legislative provision for benefit of the doubt. If applicants provide reasonable, credible evidence, our tendency, unless it is simply wrong on the face of it, is to say that it meets that minimum threshold of giving rise to a reasonable doubt and resolve it in their favour. We will run it by medical advisers if it is a complex case. We do have in-house medical advice on these issues. It really is non-adversarial in that sense.
At this front-end level, it is a very administrative type of process. We actually work with the client in the field to put together the evidence to support the application. We adjudicate it here in Charlottetown. If it goes on appeal to the Veterans Review and Appeal Board, and I will speak to that framework shortly, the department pays for a lawyer to represent the client, whereas it is not otherwise represented. The process is really weighted at all levels in favour of assisting the client in establishing a basis for the claim and meeting the eligibility requirements under the legislation.
If I could just ask you to look at the slide ``Adjudicative Framework.'' We have already touched on some of this. It is an evidence-based decision-making model. We look for medical evidence to explain the disability for which pension is being claimed. We look for evidence such as personal statements and witness statements if there is an issue about whether the incident occurred during service. We look for the military service record to confirm that the member was serving during a given period and for medical evidence on that record.
Senator Atkins: A lot of World War II veterans were so anxious to get out when they finished their service, they did not go through the processes that would have established a record of medical problems.
How do they deal with that when they realize that they have a problem as a result of their service?
Mr. Butler: It is a very good question, and the simple answer is that there are many ways to skin a cat, as they say. As you rightly point out, the best evidence in pension adjudication would be a written record made either during service or at the time of release.
However, you are absolutely right that many of these veterans, when they were asked if they had any problems, said no. They wanted out of there. We recognize and understand that, so we put a fair amount of weight on the veteran's statement. However, we also look for evidence in the post-discharge period, what we would call ``continuity'' evidence. If you suffered a back injury in 1942 and are claiming today that you have lumbar disc disease as a result, most doctors will tell us that if there is a link, you probably have a longstanding history of back complaints. We will look to see, did you see your family doctor in 1948? Did you receive any treatment from the company doctor when you worked at the plant during the 1950s? We will try to piece together a basis for showing that, reasonably speaking, there is a link. It would be virtually impossible, with a higher burden of proof such as in a civil court, to establish a claim 50 years after the fact with that kind of evidence. Under our legislative mandate, we can resolve uncertainty and reasonable doubt in favour of the veteran and we can look at evidence. The evidence is not tested as it is in a court of law. In other words, you may provide a statement from your wife saying you have had these complaints for all the years she has known you and you were married in 1950. We will put considerable weight on that, as long as it is reasonable and credible and not otherwise contradicted. It is certainly no bar to the awarding of a pension to a veteran today that there is no record of the problem during service.
Within the adjudicative framework, we ask three basic questions to determine eligibility. Is there a disability? Is it related to service? If so, to what extent? Once you are deemed to be eligible, once you meet that requirement that it is service related, we in turn have to determine how serious the problem is in order to know how much to pay you. You are paid according to the extent or degree of disability. That is what we call the ``medical assessment process.'' We look for medical evidence provided by your doctors. We will often have one of our doctors from a district office bring you in for a medical examination and then we will determine the percentage of disability you are suffering. As you can appreciate, there are many minor disabilities and we pension them at the low end of the scale. There are many very severe and debilitating disabilities and we pension those at the high end of our scale.
Senator Day: Is it in any way linked to income? I am thinking of people serving in the Armed Forces receiving a disability pension that you have set based on the degree of disability. Then they leave the Armed Forces and suddenly do not have the same income. The disability has not changed, but the income has. Can you change the amount without changing the degree of disability because of a change in financial circumstances?
Mr. Butler: No, senator, we cannot.
Senator Day: Oh, that is too bad.
Mr. Butler: These benefits are independent of income. They are not income tested at all and are pegged directly to the degree of disability. Undoubtedly that does create challenges for many members. To give you an example, you could be a surgeon in the military and lose two fingers of one hand. You will receive the same assessment for that disability as a member who is a labourer. That labourer may well be able to continue with his trade after leaving the service, but he will receive the same benefit from us as the surgeon, whose career may be finished. We are very sensitive to that issue, and it has certainly been identified in past discussions about whether or not the program is meeting all of the needs of members who leave the service. It is the subject of some considered study today on where this program should be going in the future.
The next slide shows the program delivery framework for Veterans Affairs. We have already touched on this. There are pension officers, Veterans Affairs Canada staff, in all of our district offices who are trained to assist members and clients with disability pensions. They counsel them and assist them in preparing applications. Once the evidence is put together, it is then sent here to Charlottetown for adjudication, and the claim is paid from here too.
You will have the opportunity to sit down with an adjudicator who will show you what adjudicators do and what they look at, and then we will sit down with a payment officer and you will see exactly how a case is paid.
The next slide deals with special awards. This is just to alert you to the fact that in addition to pension benefits, there are other benefits that flow from disability under the legislation. Attendance allowance is one of them. This is simply to help people who are totally disabled and receiving a benefit from us with things like aids to daily living. If you are pensioned for a knee problem and wearing a brace on your knee that causes wear and tear on clothing, we will provide you with a clothing allowance. The exceptional incapacity allowance is for veterans or pensioners who are receiving 100 per cent disability pension, but because of extraordinary helplessness or extraordinary pain and discomfort associated with their disability, need more.
The next slide is simply an overview of the special award process and I will not spend much time on that. The client would make contact with our pension officer in the field or an area counsellor, and the case can be decided, in some cases, in the field. Special awards and exceptional incapacity allowances would be adjudicated here in Charlottetown.
The next slide gives you a sample of pension rates, bearing in mind again that they are legislated rates. Once we set your degree of disability, the monetary rate that goes with that is legislated and adjusted annually in keeping with changes in the consumer price index. You should also note that it is tax exempt.
If you look at the table, the first one is at the low end of 5 per cent single pension and would receive $93.79 a month. If the pensioner was married, you can see it would jump by $25 or so, and an additional benefit would be paid if there were children.
The Chairman: For a dependent child or children?
Mr. Butler: Yes, for a dependent child. You can see that if you were a 100 per cent disability pensioner and married, the benefit would be $2,344.76. You should also note that if the recipient dies, the surviving spouse is eligible for a benefit that is tied to the pensioner's degree of disability. For less than 48 per cent, they would receive half of that original amount. For 48 per cent or more, they would receive 75 per cent of the married rate.
The Chairman: I appreciate that the amounts are adjusted yearly, based on the CPI, but when were the basic amounts last revised?
Mr. Murray: I will say a few words on that, Mr. Chairman, and Bernard can add to it. The story of how this was established following World War I is really fascinating and Parliament played a great role in it. Janice mentioned the table of disabilities. That came out of Parliamentarians working together and establishing the rates based on the rate of pay of a labourer. Most of the soldiers in World War I were farm labourers or labourers of one sort or another. There were differences based on rank at that time. Over the years, that disappeared, but the fundamental rates were based, and continued to be based, on the income of a labourer in the years following World War I. They have been adjusted yearly and now are based, as I understand it, on five occupations in the public service, for example, a labourer or a clerk.
Senator Day: It does not matter whether you were an admiral or a leading seaman, then?
Mr. Murray: No.
Senator Day: Does it end up being high for a leading seaman and low for an admiral in comparison to their pay scale?
Mr. Murray: Compensation is for the same thing. Actually, that goes back to the earlier question of what is the program all about? We are struggling a little with that kind of issue. For the 80-year-old veteran, I think the program has evolved pretty well, although we do get debates about individual cases. Health care and the philosophy behind the program are pretty good. However, does it work for a 39-year-old when you consider that the veterans' charter at the end of World War II focused on the country's obligation to look after those who would never be able to look after themselves again, and to look after them well. However, for the vast majority, the aim was to turn them back into fully functioning citizens as soon as possible. As we wrestle with the problems of the new veterans, we think we need to re- establish some of those tools involving retraining, reintegration and those sorts of things. The philosophy of the program is, the more disabled you are, the more money you get, recognizing that we are not talking about getting rich here. In the context of the social safety net of today, how do you establish a system that fairly recognizes the disability, but also contains mechanisms to enable people who can become fully functioning citizens again to do that? In my opinion, if we are not careful, we will say, ``Well, simply double the disability pensions,'' and I would argue that philosophically, that is not the right answer, because for most of these people, that is a recipe for lack of self-respect.
Mr. Butler: That gives you an idea of the program itself. I would ask you to turn to the page on the departmental review process. We want to give you some idea of the redress options available to applicants for disability pension benefits. As I have indicated, all of these applications are adjudicated here at head office by a group of adjudicators. If the clients are unhappy with that and have some new evidence to present, they can come back to us and ask us to reconsider the case. The minister retains jurisdiction and we can review a case more than once, if appropriate, when new evidence comes from the client. If there is a favourable outcome, we can put the client into pay.
If, after that departmental review process, clients remain unhappy with an unfavourable decision, they have a right to appeal to the Veterans Review and Appeal Board. The board is a quasi-judicial agency that reports to Parliament through the Minister of Veterans Affairs, but is at arm's length from the department. There are two levels of adjudication at the Veterans Review and Appeal Board. One is the review level, and as I indicated earlier, clients have the right to be represented by a departmental lawyer, give evidence and call witnesses, if they choose, to advance their claim. These reviews take place in various locations across the country. They are quite accessible and clients have every opportunity to fully state their case and seek a review.
If the outcome is still unfavourable, clients have a further recourse. They can appeal the case to the ``appeal division,'' if you will, or to an appeal panel of the Veterans Review and Appeal Board. Those are heard here in Charlottetown. The clients do not usually appear, but can be represented at the hearing by a lawyer with the Bureau of Pensions Advocates, which is part of the Department of Veterans Affairs.
Senator Atkins: Who selects the lawyer?
Mr. Butler: The chief pensions advocate actually reports to the deputy minister. He has half a dozen or so lawyers here in Charlottetown who work mostly on appeals. There are district offices associated with most of our district offices across the country. In the normal course, at the review level, clients simply get the lawyer who is assigned. It is sort of like a legal aid service. Likewise, when the case comes to appeal here in Charlottetown, that lawyer would review the file, speak with the client by telephone, solicit any new evidence that is appropriate, and then present the case. Under the legislation, we will pay for the client's travel expenses for the review level hearing, which, bear in mind, takes place out in the district. Clients have a right, of course, to attend in Charlottetown, but at their own expense. That is the distinction.
Senator Day: Is the lawyer appointed at the review level in the district a member of the Bureau of Pensions Advocates?
Mr. Butler: Yes.
Senator Day: What would your view be if the client said, ``I would prefer an independent lawyer who is not under the umbrella of the group that is reviewing my claim, but rather somebody that I think would act in my best interests''?
Mr. Butler: Clients certainly have a right to do so. The only difference is, it would be at their expense.
Senator Day: Okay.
Mr. Butler: I should point out that the Royal Canadian Legion also often provides advocacy or representative services, and in fact about 10 per cent of our clients choose to be represented by a service officer with the Royal Canadian Legion, either at the front end, at the application stage, or before the Veterans Review and Appeal Board.
Senator Day: Is the person you appoint always a lawyer?
Mr. Butler: Yes, through the Bureau of Pensions Advocates, and under the legislation, these are all members of the bar when they join the department. That is one of the requirements.
Senator Wiebe: Well, it is quite evident to me from the process that has been outlined that the veteran is certainly given the benefit of the doubt all the way through. I congratulate you on that. However, I have a tough question for you. Being a senator, and also a member of this committee, when individual veterans have gone through this process and feel that they have been hard done by, you might say that people like me are their ``last resort.'' Because we are members of this committee, they call us or write us a letter. Usually, I refer them back to their member of Parliament, explaining that, in my mind, it is their job to look after their constituents. How would you people in the department prefer us to handle a situation like that?
Mr. Butler: Well, senator, having worked in the system for many years, I can tell you that I receive queries directly from senators and from members of Parliament and so on, so there are many ways to approach it. At the end of the day, I think that is really a decision for the individual senator. In the final analysis, whether you convey a concern to us, you write to the deputy, or the assistant deputy, to somebody like myself, the outcome is the same. This program operates independently of Parliament, and that is the way it ought to be. We make adjudications based on the framework in place. Certainly we receive representations from members of Parliament. If it is new evidence, then we will certainly consider that, if we still have jurisdiction to rule on the case. The most problematic cases are those where we have said no, the Veterans Review and Appeal Board has said no, and it appears that there simply is no evidence to support the claim. Those are the real challenges. I think in those cases, the most you can hope to gain is a clear understanding, from the departmental perspective, of why was the case was turned down and then to try to counsel the client accordingly. You should feel free at any time to write to the department or the Bureau of Pensions Advocates lawyer who is representing the client to get that understanding of the case, and if there are any remedies left, have them exploited.
Mr. Murray: My view is that it is best to take the shortest route. Most of these folks are upset. Most of them are 80, certainly the World War II ones are. I attend as many conventions and things like that as I can, and one reason I do is that I invariably come back with a dozen cases of one sort or another from all kinds of people. I treat them all the same. We really do welcome them. In many cases, being listened to in the review process is extremely therapeutic. Obviously, you need to decide for yourself, but I would say, whatever is the fastest way to get the information to us. In many cases, there is actually something that got misplaced somewhere. Speed is usually of the essence for these folks.
Senator Wiebe: Thank you. I am happy to hear that. Part of the problem for a senator, of course, is that it is a matter of judgment. You will receive a call or a letter from someone who is not aware of how the system works. Usually, the person does have a legitimate complaint and you know how to deal with that. Often, if people have gone through this process and feel they have been hard done by, they will contact their member of Parliament, who will go through the process with them, and they may be turned down again. They do not give up. Then they phone the political minister in charge of the province, who goes through the whole process and turns them down. Then who is left? You know, there is the senator for the province, so let's give this guy a try. When they get to our desks, a lot of these have been through all of these other routes, I listen to what they have to say, and if they have gone through the process, I just refer them back to their MP, because I do not think that you want a third level wasting your time going through a case that has been thoroughly dealt with.
Mr. Butler: As the deputy has suggested, the department is certainly more than pleased to provide you with background at any time so you can better understand and better counsel the individuals. It is that understanding that is most helpful in dealing with the constituent — what the issues are, what the challenges have been, and where we might move with the client's case at that point.
The final section here, honourable senators, displays some program statistics to give you an idea of its magnitude. The first slide is on annual program expenditures from 1991-92, and you can see that those expenditures have grown over time. In the last fiscal year, expenditures were up to $1.2 billion.
The next slide shows the gradual growth in the number of recipients, going from 150,000 to 155,000. That number is relatively stable.
Senator Day: In what year was the legislation changed to include the definition of veterans and service personnel, in addition to those who served in the Second World War?
Mr. Butler: Senator, I believe that was Bill C-41.
Senator Day: It is a little too soon to see what kind of impact that will have?
Mr. Butler: Yes.
Senator Day: Do you predict that it will have a significant impact?
Mr. Butler: Well, we have seen growth, obviously, in the number of claims coming forward from the regular force group, and probably Bill C-41 accounts for a large portion of that.
Senator Wiebe: Bill C-41 was in the spring of 2000 because the election was held in the fall.
Mr. Butler: The next slide is pensioners as of February 2002. That is a breakdown of the group, and you can see that we have 86,000 receiving benefits, based on from 5 to 100 per cent pension assessment. We have a Class 21 group. This is where the pension is paid at less than 5 per cent and is a one-time, lump sum payment. It is really for very minor disabilities. The grand total of pensioners as of February 2002 is 155,000.
The Chairman: Thank you. I think I know what POW is. That is presumably a diminishing number? They are largely veterans from World War II and Korea.
Mr. Butler: Yes.
Senator Day: Mr. Chairman, do we have an explanation for the use of the word ``only'' with the POW category?
The Chairman: I think it means they are only receiving compensation because they were POWs, but maybe Mr. Butler can answer that.
Senator Day: Having been a POW is a disability in itself?
Mr. Butler: These people are receiving only POW compensation and no other disability benefits from us. The Halifax Relief Commission is the one that most people find very intriguing, and it flows from the famous Halifax Explosion. Veterans Affairs had been tasked through the Halifax Relief Commission to administer the benefits. Interestingly enough, we have seven survivors still on the books receiving benefits from that. You can see it is not a large percentage of our overall total. ``Gallantry awards only'' refers to people who are receiving a benefit as a function of winning a gallantry award while in service during the wars.
Senator Day: Just so it is clear in my mind, would that be in addition to any pension to which they might be entitled?
Mr. Butler: Yes. People receive a benefit in respect of various military medals, for example, the Distinguished Flying Cross. We administer it, but it is not a disability benefit as such.
I am not sure what falls into the ``other'' category. It is really just a catch-all. Janice, do you have any information on that?
Ms Burke: Compassionate awards.
Mr. Butler: It is possible that it is compassionate awards. Under the old legislation, the former Canadian Pension Commission had the authority, when an individual made application for a benefit that could not be ruled in because of any number of considerations, but the circumstances of the case were especially meritorious, to award a compassionate pension in an amount not exceeding the benefit that would be paid if the disability were recognized as being service related. That provision was changed in 1995. The responsibility currently rests with the Veterans Review and Appeal Board. We are speculating that meritorious awards or compassionate awards fall into that group of 39. The ``survivors'' category reflects surviving spouses or dependent children.
Senator Atkins: It is a big program.
Mr. Butler: It is. A lot of people are receiving these benefits across the country. People often do not realize just how big it is. They tend to think of Veterans Affairs, and veterans in particular, as being a very small constituency, but it is not.
I think you will find the next slide, on disability pension applications, very interesting. It is a sign of the times in terms of where we are going with our program. Back in 1994-95, the former Canadian Pension Commission received 8,679 applications. The legislation was changed in 1995, as I said, and the Department of Veterans Affairs is now responsible for managing the front end of the process. You can see a very striking growth in the number of applications in the intervening years. We are projecting that by the end of this fiscal year, 2001-2002, we will be up to almost 24,000 applications. When you hear of concerns about processing times and things like that, you need to bear in mind that we are operating within a framework where the growth rate is significant, and so are the challenges for managing timely processing, maintaining quality and so on. We certainly are working very hard to meet expectations.
Senator Atkins: That relates to the aging veteran?
Mr. Butler: Is the increase as a result of the age?
Senator Atkins: Yes.
Mr. Butler: I think there are probably a number of explanations for this, including aging veterans with increasing health problems looking for benefits and an increasing awareness in the Canadian Forces population, in large measure due to the guidance and direction of the deputy minister, who has had us out briefing members on their rights and benefits. Bill C-41 is another. CF members are becoming more of a force in all of this as they become more aware of their rights and benefits. They are seeking formal adjudication. It is a combination of many factors, undoubtedly, but that trend line is very significant. Deputy, do you have a comment?
Mr. Murray: Senator Kenny asked some interesting questions at the last session about trend lines and statistics, and we are trying to come to grips with that. We can reflect anecdotally on the causes, as Bernard said, but we do not fully understand them. Predicting, for example, future numbers for Canadian Forces is very difficult.
Senator Wiebe: Would it be partly because of the recognition of merchant mariners and that type of thing, or is that a separate issue? Does that recognition involve a one-time payment, so that they do not fall into this category?
Mr. Murray: It is an interesting question. On the face of it, the answer is there is no connection, because the merchant navy special benefit package was separate compensation. The reality is, we sent out information in Legion Magazine, and at the bottom of the forms we sent was a question asking, would you like contact with us? I suspect more people became aware of their rights and benefits as a result of that contact. It was a kind of outreach program. We do not have the stats yet, but a large number of those veterans who had not been disability pensioners were brought in under the low-income criteria. In many cases, they did not know what they were entitled to, so that may well be part of this too.
Senator Day: The special benefit compensation for merchant navy personnel was not connected to their eligibility for other things. Do I understand that they were already included?
Mr. Butler: They have been included since 1992. I would argue that some of the angst surrounding the whole issue was related to the fact that many of them did not realize that they had had the same rights as Armed Forces veterans since 1991 or 1992. Merchant navy veterans received $5,000, $10,000 or $20,000, depending on the length of wartime service, and that was totally separate from anything else. Whether you were a client of ours or not, you were entitled to that and you received it. In many cases, people became aware of their entitlements and may now be clients of ours, through disability pensions or whatever, in addition to that.
Senator Day: I had the sense that a number of people advocating for the merchant marine did not realize that. They became educated while promoting the compensation package.
The Chairman: That probably speaks to the wisdom of the outreach program that you are promoting.
Mr. Butler: The next slide is on medical exams. As I indicated, once that entitlement is awarded, we may get involved in the first medical if we do not have sufficient information to determine the degree of disability, and we also recognize that medical conditions do worsen over time and that recipients have the right to ask us for an assessment review. We do those through the medical staff in all of our district offices. This slide simply shows you the volume of that part of our business.
The next slide speaks to the change in client composition that the deputy minister alluded to in his opening remarks. We expect to see Canadian Forces personnel, for instance, become a greater portion of our clientele, moving from approximately 11.7 per cent currently to almost 25 per cent in 10 years. That presents a number of challenges for the department.
Mr. Murray: One thing I would mention, Mr. Chairman, is the speed with which the younger clients are coming through the door. In the last hour and 10 minutes, the average age of CF clients has gone down four years.
Mr. Butler: Undoubtedly we will chat about that later, but the slide on demographics does speak to those issues. The next slide is on approval rates and we really just wanted to give you a sense of our approach. You can see that there has been a gradual rise in recent years in the approval rates at the first adjudication stage. The idea was to try to get it right the first time. If we can help the clients to gather the right information to support the application the first time around, it obviates the need for them to go through the appeal process and all of the stress, time and expense associated with that.
The final slide is one that we are always more than pleased to share with the Senate and with anybody who will listen to us. It shows the success that we have had in recent years in reducing processing times. Back in 1994-95, it took 18 months to get a first decision from date of application to pay. The minister of the day, in his wisdom, said that was just not good enough. There was a major restructuring of the organization, major legislative reform. We have been successful in continuing to reduce the processing times down to where you see them currently, at about 6.6 months. I think it is fair to say, and I am fond of quoting the deputy minister on this, that 6.6 months looks pretty good, but actually, it probably needs to be a lot better. We continue to look at ways and means of improving the processing times and the quality and consistency of our decisions. Those are the challenges for the next few years.
Mr. Murray: I just want to make a point on the 6.6. The staff have worked valiantly to get it there, but I go back to Bill C-41, particularly in the context of new clients coming through the doors suffering from things like post traumatic stress disorder. The key issue here is that to get health care support in our system, you have to have a disability. That is the gateway for the Canadian Forces veterans. For the World War I, World War II veterans, there is an income gateway, a disability pension gateway. This is why Bill C-41 was so important, so that that 6.6-month time frame can its course while individuals are still in the Armed Forces and receiving full medical care support. Then when they come out the door, we are not only giving them a disability pension, they have passed through the gateway and we are now giving them health support for their condition. That is the point I was trying to make about why Bill C-41 was so important, because when some kid comes through the door of one of our offices in Toronto who served in Bosnia or somewhere in the 1990s and is suffering from PTSD, he has been out for three years, and our response is, fill out all these forms. We are pretty proud, because it used to be 18 months but it is now 6 months, and we will be able to help you. That is the problem, and in fairness, we work around that to the best of our ability. That is really why it is so important for us to connect with these folks while they are still in the forces, in an organization that will look after them until we are able to.
Senator Day: I assume that if they qualify for compensation, regardless of how long it takes to process, is it retroactive?
Mr. Butler: Yes, it is. It is retroactive to the date of application or the date of contact with Veterans Affairs Canada.
Senator Wiebe: With the considerable experience that Veterans Affairs has gained in dealing with this and your good record here, are you — and I am sure you are — passing information and requirements on to the Department of National Defence about how if their records were better or more up to date, it would be so much easier for you to deal with these people down the road. Is DND being encouraged to establish their own outreach program to let current serving members know that there are certain steps that they should keep in mind that might benefit them down the road?
Mr. Brian Ferguson, Assistant Deputy Minister, Veterans Services, Department of Veterans Affairs Canada: That is exactly what is happening. For the last three years, as a result of the work that went around Bill C-41 and the quality of life initiative with DND, we have had a very close working relationship with them. That has been one of our areas of focus: if we can get better information from them more quickly, if we can connect into their medical and human resources records and find a way to bring information into our system more quickly, and if they can spend more attention, keeping the records around their illness and around their events, that will help the whole process. Part of our outreach program to DND bases includes that message, quite a significant portion of it.
The Chairman: Senator Atkins has reminded me that we had that presentation about the treatment or lack thereof, given to Aboriginal veterans. I wonder if in this context it is a valid question and if you are the person with the expertise.
Senator Wiebe: I had planned to raise that today and I did not know under which area to do it.
The Chairman: I am not sure either.
Senator Wiebe: Chief Perry Bellegarde, Federation of Saskatchewan Indian Nations, made a presentation to our committee. Matthew Coon Come, National Chief, Assembly of First Nations accompanied him at that presentation. My impression was that Chief Bellegarde was certainly much more attuned to the concerns and the representations that they were making than was the National Chief.
I believe that they do have a case, although they are way out when they talk about the type of compensation they want when you compare the situation of the Merchant Navy and the award that they receive, and the lack of any assistance at the end of the Second World War.
We must also look at the assistance that our First Nations did receive. There were three separate areas that assistance was available. The First Nations veteran was basically eligible for and received parts of the first set of assistance and part of the third. It was the middle one where there was some ground. They left us with the impression that following their discussions with the Minister at the time they felt that the deal had been done and that there would be an announcement shortly thereafter. Of course that announcement never came.
I am sure your department has been working closely on it. What is your reaction to their presentation? Perhaps this is a conversation that I should be better having with the minister. However, he is brand new to the situation as well, now, and in my chats with him he certainly indicated to me that they certainly are looking at it.
Mr. Murray: On the basis of the concerns of First Nations veterans, the federal government, which included this department, the Department of Indian Affairs, and the Department of National Defence, agreed that because there is some question about family benefits during the war years as part of this overall package. Grand Chief Howard Anderson from Saskatchewan chaired a national roundtable. Their report indicated that there was consensus that there had been differential treatment of First Nations veterans from other veterans and that is in relation to veterans that returned to reservations after the war.
The differential treatment is that the Department of Veterans Affairs arguably provided the same menu of benefits but the actual delivery was through an Indian agent. There appears to be some debate concerning whether every Aboriginal veteran actually received, through that process, the same as a non-aboriginal veteran might have. In most cases the concern appears to be around the provisions of the Veterans Land Act.
In any case, the round table has been completed. They have produced a report and in which they make suggestions regarding the compensation — $425,000 I think was the figure. The government is considering that. Certainly the new minister is seized of this one, as are his involved colleagues. They are working together now to determine an appropriate government response to that national roundtable report.
The factors that are being considered include the level of compensation, the benchmark of the Hong Kong Prisoners Award, and the benchmark of the Merchant Navy veterans. At the moment, the involved ministers, led by our new Minister, are seized with this one and are trying to come to grips with it as quickly as they can to get a response to the First Nations veterans.
Senator Wiebe: As you are no doubt aware, speed is of the essence because there are not many still with us. On of the problems expressed to us was the lack of an outreach program to First Nations when they got back. A lot of the problem was the agent at the reserve itself.
Another area of concern — and they have a just claim to this — is that shortly after the Second World War most veterans received a tremendous amount of their outreach information at the Legions throughout Canada. First Nations veterans were not allowed to go into the Legion halls because they were not allowed to drink alcohol. They had no knowledge whatsoever about what kind of programs might be available to them. A lot of them were just like the veterans we talked about earlier with the medical exams — as soon as the war was over, they wanted to get out of there and they wanted to get home.
I think that there is just cause and the Minister certainly realizes that as well. All of these conditions have to be taken into consideration.
Senator Atkins: When I asked the Chief about medical records, he was not sure where they were kept — whether they were in the Department of National Defence or Indian Affairs. It certainly is not Veterans Affairs.
Mr. Murray: In the context of the national roundtable, there was a lot of research done and a lot of records were reviewed. Mr. Bernard can comment.
Mr. Bernard: I am not really privy to the issue. In the normal course we would look to National Archives for a veteran, whether Indian or otherwise, where the military medical records would normally be housed, in the normal course.
Mr. Murray: We are doing that now for Métis veterans. The National Aboriginal Veterans Association is in the early stages of research on non-status veterans. One of our people, Mr. Bryson Guptill, worked for months on that project in support of the national roundtable. Mr. Chairman, if you wish, I could ask Mr. Guptill to appear and provide you with details on what records we looked at, what was the state of the records and that sort of thing.
Senator Atkins: Excellent.
Senator Day: Gentleman, I have a little bit of unease from some information that all of us have gathered along the way. My concern relates to the expanded rights under C-41 that we have discussed. Your turnaround time is good and I think that the expanded rights for serving personnel is the right way to go. I also appreciate the importance that you have emphasized of medical records.
What concerns me is that when we were out in the West, visiting the navy and when we were in Halifax — and I hope there is not a connection between what you have been telling us in these new rights for the serving personnel — we were told that there is an unacceptable delay in reserve personnel who want to become regular force personnel in their applications. It was better for them to make an application and say they have had nothing to do with the reserves because of the medical records. The Armed Forces were spending an inordinate amount of time getting these medical records and documenting all of these applicants before they were accepted.
We brought that delay to the attention of the Minister of National Defence and we also referred to it in our report. I would hope that there is not a connection between that delay and these expanded rights under Bill C-41.
Mr. Murray: My answer would have to be somewhat anecdotal because that is really a recruitment issue in the internal workings of the Canadian Forces. I do know that with the tremendous effort in the last few years to try to beef up the medical services of the Canadian Forces, there has been significant emphasis on records in relation to needs within the forces. In terms of the needs here, when there is a particular record — a report of an accident, for example —it has been totally reformatted to be user friendly. I certainly recall, as a young officer, being briefed on all the reasons why I should make sure I recorded my jogging, my hockey and so forth.
In terms of the nature of the records for us, I think there has been significant effort there and to the extent we are supporting that effort to ensure that members of the forces know. I know the forces are supporting their ability to fill out records that would support the disability pension process. The issue of reserve and regular forces is of concern to us in a context different from that to which you alluded. We think we are doing reasonably well now with respect to presence on bases, getting to the regular force members and trying to get to the reservists.
That is an area in which we need to try harder to make sure the reservists understand the nature of their records. In transferring or trying to transfer to the regular force, we need to make sure that they are getting the same information from us as the regular force. I am not certain that is currently the case. There is work to be done from our perspective in relation to the reservists, although we are trying.
Senator Day: I do not think there is any more of an answer than that and I appreciate your answer, Mr. Deputy Minister.
Mr. Murray: We could follow up indirectly with the forces and get back to you if you would like.
Senator Day: I just wanted to alert you to the fact that there seems to be an inordinate delay due to medical records, for some reason.
Mr. Ferguson: We should follow up on your suggestion, track that and get back to you with whatever information we can update you on.
The Chairman: The Legion, as you know, often raises the issue of interpretation from the appeal board, and I wondered what your answer was. The act as I understand it, allows for interpretation. The Legion tells us that recently requests for interpretations of the act have not been agreed to. Can you provide any comment or insight into that?
Mr. Murray: I believe the Chairman of the Veterans Review and Appeal board appears later this morning. As I can only give you an anecdotal option, I would prefer that you ask the chair of that board.
The Chairman: That would be fine. Finally, is there any way to create a chart that might tell your story even better in relating volume to turnaround time? This chart of turnaround time does not take volume into account, does it?
Mr. Butler: No, it does not reflect the challenges that we have met in terms of meeting the increased demand.
Mr. Murray: If I might say, Mr. Chair, in further commendation of the staff involved, the 7.5 bubble there is not volume related. It is a computer issue that we worked through thanks to the tremendous effort by the staff. Therefore, it really is a testimonial to the folks you are going to meet in a few minutes.
Senator Day: Does the turnaround time, those cases that go to appeal, or is this just first assessment?
Mr. Butler: Just the first application level.
Senator Day: That is what I thought, yes.
The Chairman: This has been a most interesting and informative session. We want to thank you, each and every one of you for providing us with those very informative answers.
Our next witness is Brian Chambers and his colleagues. I gather that you are going to give us a briefing on the Veterans Review and Appeal Board, about which we hear from letter writers who occasionally contact us. All glowing terms, I assure you. Perhaps you could introduce your colleagues?
Mr. Brian Chambers, Chair, Veterans Review and Appeal Board: With me are our Executive Director, Dale Sharkey, and our senior legal counsel, Jean Dixon. I would like to provide a bit of our history since 1995-96 to help you understand the board's position. Please feel free to ask questions.
The board's legislated mandate is to provide clients with full opportunity to request review and appeal hearings to ensure a fair adjudicative process for disability pensions and war veterans allowance claims. The basic organization of the board is not excessively complicated. It consists of the Chair and a Director of Professional Development, who is the individual responsible for continuing training programs for members. We have an Executive Director whom I have introduced; our director of Legal Services; and we have at present a legislative capacity of 29 permanent members. We can appoint temporary members beyond that where the workload requires. At present, we have 28 members on the board.
The Chairman: Can you appoint them or does the board appoint them?
Mr. Chambers: No, they are appointed by the Governor in Council. Sorry, I should have been clearer. In our early years, we asked for some temporary members because the workload was extremely high. We have less need for these at the moment.
Our clients consist of World War I veterans, although that is a diminishing group.
Senator Atkins: Are there any left?
Mr. Chambers: Yes there are. I think they are still in the number of three or four thousand.
Senator Atkins: Oh really? They must be 100 years old.
Mr. Chambers: They are, yes. Now I might be off on those numbers, but they are certainly higher than I would have thought. In fact, we have seven survivors of the Halifax Explosion who still receive pensions.
Senator Atkins: Does that include spouses?
Mr. Chambers: Yes, there is a provision that a portion of the pension is passed on to a surviving spouse when the recipient passes on. As well, the spouses in our system can come back. For example, if a pensioner passes on, his widow can come back at any time and say that her husband never applied for a stomach condition that he had. There is provision for that claim, as long as she can provide evidence. We can grant, posthumously, an award to her and she will receive the benefit with respect to that veteran.
Senator Atkins: She could not come back and say if he were still living, his back would be much worse now?
Mr. Chambers: Yes, she can if she has the evidence. It is a practical issue here. It is very difficult to assemble that evidence, but we have had cases where doctors have had reports that had not been presented — particularly if they are in more far-flung regions of the country where they do not interact with the department on a regular basis.
We have the Korea veterans and their average age is pushing around 66 now, I think. The Canadian Forces fall into two basic categories. The first is special duty areas, which are covered under an obscure vote under an Appropriations Act that designates what special duty areas are. They are designated as the Canadian military goes into certain areas — for example, Haiti, Rwanda, Somalia and again, Afghanistan. I mention that only because you would have great difficulty finding it in any normal documentation. The second category is the still-serving veteran, their survivors and dependents. We look after dependents up to specific age categories. If a dependent, for example, is disabled before the age of 21, or a child had a severe mental illness or birth defect rendering them unable to work, that child is eligible for the continuation of a pension as a survivor.
We handle the RCMP and the Merchant Navy veterans, which is different from the Merchant Navy settlement issue. Any Merchant Navy are in a special category where if they were involved in action against the enemy or counteraction, in respect of the enemy, they can make a claim if they were injured or suffered disability as a result of that. That has been on the books for a long, long time. That benefit has been around for at least three or four decades.
The system used to be Canadian Pension Commission at first level. The appeal went to the Canadian Pension Commission and then on to what was called then the Veterans Appeal Board. In 1995-96, with Bill C-61, the Canadian Pension Commission went out at the first level and now the department does that adjudication. We are the next two levels up. We do review level hearings, it is called, and then a final appeal.
The simple distribution is this: on review we hold hearings in the hometowns and provinces of the veterans or Canadian Forces veterans or applicants or spouses or widows or whatever the situation is. The system also pays for them to attend the hearing. If they have witnesses — medical officials, for example — there are provisions to pay them. As well, some of our WWII people are aged and have serious disabilities. If they required someone to attend and look after them, we pay for that as well. For example, if they have to attend a hearing in Brandon from somewhere in rural Manitoba, we would put them up in a hotel, conduct the hearing the next day and send them home following that. If they are not satisfied with the decision that issues at that level, then they can appeal.
Those final appeals are conducted in Charlottetown, because this is our national office for the board. They will have a lawyer representing them — usually from the Bureau of Pension Advocates, but counsel could also come from the Royal Canadian Legion. The Legion has a person based in Charlottetown who does their appellate work. From time to time private solicitors may also appear on behalf of clients.
In addition to that, from time to time in very special cases, we do video conferencing to accommodate the Bureau of Pensions Advocates in terms of work distribution more than anything. We may have an advocate who is in Calgary or Newfoundland. We have a video conferencing system where they can do the appeal for their client.
At the hearing, you can present whatever evidence you want to us. There is no limitation to the evidence. Second, those hearings are de novo — that is a fancy Latin word that says that rather than appealing on particular issues in a case, we can rehear the case as if it was starting from ground zero again. So at each level it is a full hearing. You are not restricted in what you bring in. There is one limitation set in the act that seems to cause confusion. That is a section that says we will not hear oral evidence at the appeal level, the last level. This simply means that the applicant can, through his lawyer, and present a written statement. It can be 10 or 20 pages long. These people do not appear; just their lawyers appear.
When they read ``we will not accept oral evidence'' people interpret that as our stating we are refusing to hear the evidence. There is no refusal to hear evidence. We are just saying we are not set up to receive people's oral evidence. Generally in those cases, there is a taped transcript of the previous level that is brought forward. Therefore, we have heard them. We know everything they have said at the prior level and any additional evidence they want to bring in, whether it is medical, military, legal or whatever.
Therefore, there are many, many options. We are not married to a hard process. We are trying to facilitate the process. Given the age and stage of the population we must look for innovative ways to reach these clients and make the hearing process as accessible as possible, being mindful that we have certain requirements the court imposes on us from time to time to honour legal safeguards.
We adopted a system where they can have a one-member panel on review. We did this early on. Here are the simple facts: When we took over in 1995-96, we had 8,000 cases waiting to be heard. Because in the time that they were going to pass the new legislation, until the new board took over, the previous board simply discontinued their efforts.
In that first year, in addition to the 8,000 cases already filed, we had somewhere in the neighbourhood of 11,000 or 12,000 new cases to process. We had to move nearly 20,000 cases through the system and we were trying to do it over a 12-month period.
That was our challenge. Because we have only so many members and can do so many hearings, we aggressively asked people if they would be interested in having a hearing before one member instead of the normal two. We did not impose this on them, but if they were agreeable, we would be able to go to their communities three or four months earlier. If they did not consent to it, it was not done. However, a lot of people opted to do it sooner, rather than wait. We conduct hearings in slightly more than 40 different cities and towns across Canada.
We also conduct what we call a ``paper hearing.'' That often happens where they find a key piece of information that has been missing. Instead of booking the hearing and having us send people out and going through the song and dance, they know that as soon as we see this, the case is going to turn on that issue. We know that as well, so often we do an informal, pre-trial kind of discussion back and forth where our lawyers or our policy people are involved. They tell us what they have and we request a written submission and try to provide a decision within about 48 hours.
We have to understand that the World War II fellows, who are now in their late seventies and eighties, become stressed when they apply. The sooner we can eliminate that stress, the better. We are trying to reduce long waiting periods. Again, as I mentioned on review level, we audiotape all of these hearings and we send a written decision to the applicant and their representative.
We are working on some new processes here. We are trying to develop a system where we can electronically transmit documents to specific centres as an alternative to the slower process of regular mail. However, we must wade our say through issues of security and encryption. Hence, although we have a way to go, we would like to use technology to facilitate the as much as possible.
We can also do reconsiderations and our service standard that the decision is handed down within 30 days. That is our goal, and we monitor that very carefully with our staff, our members and so on. In the majority of cases, we reach this standard.
The Chairman: What is your batting average?
Mr. Chambers: Ms Sharkey has those.
Ms Dale Sharkey, Executive Director, Veterans Review and Appeal Board: The last time I looked at Review and Appeal it ran at about 60 per cent to 70 per cent. However, when you look at the time periods, we are getting most of them out within the 39 days. There is a nine-day period that we are working very hard to reduce. I would say since Christmas we are getting closer to that thirty-day period.
Mr. Chambers: The Department probably mentioned this to you. They put in a new information tracking system called CSD — client service delivery network. When they moved that in about a year ago, there was great twist and shuffle through the whole system. Many of our delays have resulted from system problems. We are not pointing figures, but they would acknowledge there have been considerable problems with the launch of that system. We have been affected by the fact that the system crashes from time to time or does not provide the information in a timely fashion. That has slowed our processes and that is something we do not have any particular control over.
Three members do the final level of appeal in Charlottetown. On an appeal, we do video conferencing to accommodate the lawyers and as I indicated, they can provide whatever evidence they want; however, anything from their client has to be in written form. In some cases we have reached the point to say we would accept a tape from their client to explain something. That becomes more problematic because of transmission, storage and trying to get that to three members.
The act provides that the clients may attend that hearing. They are not barred from the hearing by any stretch but they have to pay their costs. Obviously, it is prohibitive for somebody from Vancouver or Edmonton to fly into Charlottetown for their appeal hearing. We do not tape at that level but we do provide a detailed written decision and that decision has a privative clause attached to it, that it is final and binding — however, no decision in our system, frankly, is final and binding. There is a reconsideration provision that is not time limited. It means you can come back anytime you want as long as you can show us that you have new evidence or that we have made some error in a finding of fact or the interpretation of law and we will reopen your file and hear your case again.
There is never finality in the system; it is always open. In other words, there is not a limitation period set whereby if you do not appeal within a certain period of time, you lose your right to appeal. Our system is open-ended. That can create some issues periodically because you are going to hear arguments about retroactive awards. If you are going to be open ended on one end and allow people to come in whenever they want with no limitation, then what the government has said in their legislative scheme is, we are not going to pay you away back when. We limit the retroactivity under sections 39.1 and 39.2, whereby it is three years from the date of your application. Therefore, if you applied in 1990 and we awarded in 2000, we could only go back three years by legislation and give you the retroactive portion of the award.
As with any tribunal or board in the federal government, decisions are open to judicial review, primarily by the Federal Court, but not restricted to that.
Senator Day: Mr. Chambers, I do not know whether you want us to interrupt you or not.
Mr. Chambers: Yes, yes.
Senator Day: Good, thank you. This is a process question. Do you have members who specialize in appeal panels by virtue of appointment or seniority or is it just whatever might be coming up next month?
Mr. Chambers: We cross-train members so they are trained to do either review or appeal. If they do a review level decision, let us say they did one in Saint John, New Brunswick, for Mr. Smith. If Mr. Smith appeals to the appeal level, they are barred from hearing that a second time.
Senator Day: Yes, okay.
Mr. Chambers: So it has helped us if they are cross-trained for flexibility. With sickness, vacations, change of appointments, it gives us that flexibility to use a broad base of members. If we designated, we would really be cramped. We have had times when there have been two or three members out on longer-term illnesses and if we did not have the flexibility to move people all around the country our capacity to provide those hearings would have been compromised.
The Chairman: Can you hire temporaries?
Mr. Chambers: We do not hire temporaries. If we had them appointed, it takes too long anyway. We would not meet our business needs because it has to go through PCO and PMO and recommendation procedures. I think most of you are better aware of this than I am. It would take several months before we ever got anyone and then they would have to be trained for at least four months before they were not a great risk to us and to the client, going out there.
Senator Atkins: What is the preference, generally, for one member to go out or two?
Mr. Chambers: We send two out on review. The legislation is set up so that if there is a division in the opinion of the two members, the act says that the decision most favourable or more favourable to the applicant is what we go with. If two members split, then the favourable decision is what prevails in our system.
Senator Atkins: That is for the appeal?
Mr. Chambers: That is the review level. But on appeal you have three members and obviously it goes by quorum. It would have to be two and one at that stage.
Senator Atkins: You also say one member with client consent. What is the average and do a lot of people go for that?
Mr. Chambers: Yes they do. For example, a representative for the client who has a piece of medical evidence that will be the clincher in the case will contact us and opt for a written submission with one member because it can be turned around within 48 hours. This option is chosen to speed up the system for both sides. Generally it would happen fewer than 50 or 60 times per year.
Senator Atkins: Seems to me that would be a better choice.
Mr. Chambers: It is. They insist on having a two-member panel because they figure they only have to convince one person. In their minds, the odds are better if there are two people. However, in about 98 per cent of the cases, both members agree on the result. It is very seldom that two members get that far off and usually when they do it is because one member has misconstrued what the issue is and it is more of a learning experience at that stage of the game.
Senator Day: Must all members live in Charlottetown?
Mr. Chambers: No. We have two sets of members. We have the ones who live in Charlottetown. At the moment there are about 15 members here. They do the appeal level and they are primarily responsible for all of Atlantic Canada at review level. Then we have 14 deployed members across the country; we try to have one in each province. We have several in B.C. because there are a lot of retirees from the military on the West Coast. We have one each in the provinces of Alberta, Saskatchewan and Manitoba, and several in Ontario and in Quebec.
Senator Day: If I were a lawyer in Saskatchewan representing a potential applicant, would I know who is going to be doing the initial review here?
Mr. Chambers: No, we are not that transparent. You cannot shop for us.
Senator Day: That is what I was getting at and I was wondering about that.
Mr. Chambers: You do not know who is coming until we appear that week, and in fact if we think you are getting too friendly, it is highly unlikely that you are going to see the people that you really like because we have to balance it across the country. Applicants should be getting the same kind of awards at the same levels and that is why people are moved around. The members know the game. They know it is healthy for them. They do not sit in the same areas all the time, nor do they sit with the same partners all the time. Too much familiarity in any system — and I am sure yours is no different than ours — can cause problems so we are cautionary in that regard.
Senator Wiebe: What is the operation budget for this department?
Mr. Chambers: We are running about $8.6 million.
Ms Sharkey: Closer to the $9 million.
Mr. Chambers: Yes, we had a supplement because of some quality-of-life money that has come in but our basic one was about $8.6 million.
Senator Wiebe: Does that include office equipment and staff?
Ms Sharkey: The members of the board are full-time occupations.
Mr. Chambers: That is their only job?
Ms Sharkey: Yes.
Mr. Chambers: We do not have any part-timers. Some federal boards have part-timers, but we do not. About 90 per cent of our budget is tied up in salaries and the rest is operational funds. I think that is a reasonable distribution.
Senator Atkins: How long are the appointments?
Mr. Chambers: They have been ranging from one to five years. So there is no standard. The longest have been five. But we have a number of members who came in for one or two years. There has been an attempt by PMO to say perhaps if we appoint for two years and see if they can do the job, we can look at a longer term based on their performance.
Senator Kenny: Are they eligible for reappointment?
Mr. Chambers: Yes.
Senator Kenny: A one-year appointment strikes me as being a huge waste. You are just finding your way to the can at that point. In your judgment, how long does it take before someone is competent?
Mr. Chambers: We have tracked this now for almost six years. It takes roughly 12 months to get a member who started with a good set of core skills to become fully functional and to have autonomy as a decision maker.
Senator Kenny: Twelve months? For two years you do not get much payback time and you need three or four or five years. What do you do? Is there a feedback mechanism when you find someone is not performing well? Do you have a way of communicating to PCO or whomever that somebody is not carrying his or her weight? I am not talking about where you want to sanction them because they are misbehaving, but I am talking about someone who does not appear to have the competence to handle the job.
Mr. Chambers: I guess we are no different than most federal tribunals in the sense that the Chair does not have direct levers of control that you would find in most corporate structures. We can attempt to influence behaviour but we have no sanctioning provisions.
Senator Kenny: I understand that. I am asking what is the formal or informal feedback system when it comes time for reappointment? Is there a mechanism where one way or another the word gets back that that person might be happier doing something else?
Mr. Chambers: The PMO will often request the Chair's input on a particular member's performance when reappointment comes about. This does not occur in all cases, but there is an interchange.
Senator Kenny: When the feedback goes back, do you track the frequency of your recommendation being accepted?
Mr. Chambers: I have been reasonably satisfied that our real concerns have been treated seriously and that adjustments were make accordingly. I am quite pleased that they listen to what I have to say with regard to performance because there are always a variety of factors that affect it. Sometimes ill health may be the issue. It may be personal problems. We attempt to deal with that and work with the person but it becomes obvious that at a certain stage that no matter what intervention we bring to the equation, we are not going to resolve that situation.
We feel somewhat duty-bound to inform PMO that we see that as a real issue. Let me give you an example for better understanding. The review level members on this board are on the road between 30 and 35 weeks a year. In Manitoba there are very few boards on a regular basis, so if they are based out of Winnipeg they are flying every week. In a normal work schedule, I would send them out on a Sunday. They arrive at their destination on a Sunday afternoon. When they check in at their hotel all the file cases that they are going to hear the next day — generally five or six cases — are waiting for them at the desk.
Generally, it will take them two to three hours to read through, make their notes and review all of those cases for the next morning. They start the hearings around 8:30 a.m. the next day and try to finish by noon. Each hearing lasts roughly a half-hour. They deliberate on the cases in the hearing room and they know the result. Following lunch they will split the files and write up the decisions. Some will dictate the decisions, some will write them up on laptops. That would take another two and one-half hours.
Following dinner break, they begin reading the case files for the next morning. That is the procedure. That is their Monday-to-Friday schedule. The hearings on Friday will end at noon. Then they fly back Friday night and then they are out the next Sunday afternoon.
It is a very tough grind. These people really work hard and there are long days. The only thing I give them back is they do three weeks of hearings and I give them what we euphemistically term an `office week' to catch up. Generally, that is to find their dentist or doctor, and tend to family responsibilities.
It is less arduous for the appeal level members because the travel portion is not but I am distorting they also do review levels. But if you just look at an appeal level member in isolation, they just come to the office in Charlottetown and they do three sets of hearings a week on average. They also do reconsiderations and other work here.
Senator Kenny: That was a very helpful description, Mr. Chambers. Do you have a method of easing someone off if they have health problems? Is there a half load that someone goes to?
Mr. Chambers: If the issue is serious enough, we have a one-time leave process that we can initiate that allows us to put them off for a period of 180 days so they can be treated. But if they are struggling with other health issues, yes, we will either encourage them to come into Charlottetown, where the travel is less onerous. We add them as third members to review panels to split up the work even more, but that is when the volume is not driving on the other side.
Senator Kenny: My last area that was of interest is the evaluations. Do you have a system of annual reviews of performance? Do you have a peer review? How does one get feedback as to whether one is performing well or not?
Mr. Chambers: In the first 12 months, they continually get feedback on their performance, the quality of their decisions, the overall capacity to do high class file reviews, evidence reviews and so on. So for the first 12 months we do it very extensively. There is no formal process between us, for example, and PMO or PCO on review. There was an attempt in 1996 to set up a formal paper review process of each member and to provide that to the central agency for each member. Difficulties arose when they had to come up with a formula pertaining to the kinds of information they wanted to capture and so on. That is where it has been left.
Senator Kenny: How about you, are you reviewed at all?
Mr. Chambers: There is no formal review process in that sense. When I am up for reappointment, there is no one has a discussion with me about how things are going.
Senator Kenny: What about a peer review? Do you ever sit down as a group around a table like this and say, here are half a dozen cases that we have handled over the past year? Let us talk through how they were dealt with and what do we think collectively about the process. Do you ever do anything like that?
Mr. Chambers: Yes, quite often. We have two forums that we use. We have a policy review committee that does case review and also I host what are called `hot stoves' with the members who are in town at any given time. We go over the difficult, interesting, or bizarre cases. We try to get everyone on the same page in terms of how they see the case or what we saw as the problems or what the issues were and so on. We engage in that process because if peers and colleagues are not talking in this business, it is easy for people to get off track.
We are also trying to respect the fact that they are autonomous and can act independently. My general admonition to them is as follows: Here is how we have done it before. Here is how we have analyzed the case and here are the results. If you want to go in a new direction, that is fine. But let us not be bizarre. Have a good reason. Show us how you got yourself from here, honouring the legislative scheme, the legislative basis of it, or the medical issues. We do not mind you turning new ground, but you had better be able to reason it out so the rest of us will be able to understand it, because at the end of the day it is not your personal decision; it is the board's decision.
The Chairman: Those were good questions and were very helpful. What is the compensation of members of the review? It is on public record, I presume?
Mr. Chambers: Yes, it is public record. The range is between $82,000 and $97,400.
The Chairman: Depending on seniority?
Mr. Chambers: No, they are all paid at the same level. There is no increment. If you started today, you would get paid the same as somebody who has been here five years. That is the way the process works. We have no control over that.
The Chairman: What is the $80,000 to $90,000?
Mr. Chambers: That is the range, the scale. They do have different tiers of boards. We are a Tier 3 board in the federal system, and a Tier 3 board can be paid in this range. But for our board, this is what all our members are paid at, the one flat level across the board.
The Chairman: Somewhere between $80,000 and $90,000?
Mr. Chambers: Yes, at present it is $97,400.
The Chairman: All right, that is fine. I just wanted to get an idea of the order of magnitude.
Mr. Chambers: We can confirm that figure with you.
Ms Sharkey: I will confirm that. It is set by the Privy Council.
The Chairman: Thank you very much. I would be interested in whether this is theoretical or not. The Legion has an interest in many of your clients. What if the Legion were to write to you and say, ``Look, board member X has consistently rendered bizarre decisions, to use your word. This is getting to be a pattern and we really think it is unfair.'' What obligation would you feel to deal with this letter or how would you deal with it?
Mr. Chambers: That actually happens. I will give you and example. Last September, I appeared at what is called the Eastern Canadian Service Officers Conference. These are the Legion people who represent their clients before our review level board. They were indicating that there were some decisions they just did not understand, did not make a lot of sense to them.
The Chairman: By an individual or the same people?
Mr. Chambers: Two members. But generally we know, internally, who the writing member was for the decision and we do a review. We have done reviews and given the members feedback, not to try to change the result of the decision but to indicate where the client is saying the gaps are in the analysis, in the reasons for decision and why it did not make sense to them. It is a useful tool for us to use because it is no good saying we are getting poor decisions, but if we are provided with examples, then we have some raw material to work from. So we welcome it, actually. It is not something we resist, because it is helpful as a feedback tool.
The Chairman: I have one final question. I do not know whether you want to answer it now or later. My question is on what the Legion perceives to be unwillingness or an inability to give interpretations.
Mr. Chambers: Hearings?
The Chairman: Interpretations for areas of the act, which the act allows you to do, as I understand.
Mr. Chambers: Our act is unique in the sense that there is a provision in it that says groups can ask for an interpretation of certain sections of the act that may appear ambiguous or vague. The boards collectively have issued in the number of 42-43 interpretation decisions on various sections of the act since its last major revision in 1971. There was another mid-level reform about 1981-82.
Most of the act has not changed since 1971, so the broad base of interpretations is already well known, applying to the particular cases. In the example with the Legion that you have offered, they have asked for an interpretation on the status of allied veterans. Previously, if you moved from England but never served in the Canadian forces but were an allied veteran who moved to Canada after the war and stayed for a qualifying period of 10 years, you were eligible for a War Veterans Allowance. Parliament repealed that. They wondered why we should be paying people from an allied group who came to Canada after the war. It did not make any sense. So they grandfathered anyone who had come up to whatever it was. Do you remember the year it was repealed? I believe it was in the late 1980s.
Ms Jean Dixon, Director, Legal Services, Veterans Review and Appeal Board: Sorry, I do not remember.
Mr. Chambers: We can give you the date. But anyone who was in Canada and qualified at that time was grandfathered so they did not lose any benefits. However, if an allied veteran came to Canada in 1992 from Britain, we no longer pay a pension from the Canadian Treasury. That is the issue.
The Legion has said they think that there is a Charter argument to be made to challenge that. We suggested that they challenge it in court. It is Parliament's legislation. We are in an awkward position because, as a tribunal with primarily lay members, we are not really equipped for high-end, detailed Charter arguments. Nor do we have the capacity like the courts to issue certain remedies that would flow from a Charter thing.
We told them if they had a real case with a real person that they should make the application to us and we would do the interpretation. We have a written agreement with them. They have no one; there is no person who meets that description. We told them that we would not do a hypothetical case. We have thousands of veterans in their late seventies and eighties who are waiting our decisions. We cannot justify busying the board on hypothetical situations simply because lawyers or other representatives think it would be nice for the board to make a pronouncement on something that will have no application to anyone. That has been our balance point. When they have a real case, we will make a real decision.
With respect to the second part of your question, in any difficult case involving a difficult medical question or interpretation of facts of medicine to law, we do give an interpretation. We tell you how the board is going to analyze and give the reasons for how the law applies to those facts. Therefore it is peculiar to say that we claim we do not need to do an interpretation decision.
There was a case back in about 1985-86 that dealt with the definition of a foster child for certain benefits. They wanted to do an interpretation on that and they busied themselves doing it. We said that it makes more sense to do it in the context of an actual decision, using our normal legal tests to see whether so-and-so was or was not a foster child. Then we could have been held to that decision for all future cases.
That has always been our approach. It does not make a whole lot of sense to do it in abstraction, because the facts of actual cases will never fit later on. That has been our concern. I hope I have addressed your question.
The Chairman: We have a few minutes left and I think there are few slides left, Mr. Chambers.
Mr. Chambers: Yes. For many of you this is the first time we have gotten together. I would like to review the pension reform statistics because I think it gives you a pretty good indication of where we come from.
When it was announced in 1995 that the legislation was coming into being, it took more than four years for someone to make an application, get through the appeal processes and come out with some sort of decision. The Legion and the veterans groups felt that this was totally unacceptable. The legislation was passed. The review level that we inherited, a decision was made within 12 months of the application. At that time, appeals were taking about 10 months. To make a long story short, within 18 months of us taking over we reduced the 12-month period down to 3.7 months and we slashed the 10-month period down to about 3.8 months.
The lawyers at that time asked us not to squeeze any more water out of the sponge because they needed that much time to adequately prepare the cases. We established the principle that when they filed a hearing with us they were telling us they were ready to go. In other words, they could not file the application and then do the case later. We could have cut more time off the process, but they asked us to maintain it at the 3.6 to 4 month level, saying that the shortened time frame was jeopardizing their ability to properly represent their clients. I accept that.
In short, we could probably shorten the time period to two months, but it could harm the client's case and that would be counterproductive.
The Chairman: What happens when the lawyer appears and asks for a postponement by reason of illness or conflict or something else? Do they fall to the bottom of the list?
Mr. Chambers: No, we assess the reasons on a case-by-case basis. We are reluctant to give postponements and adjournments.
Ms Sharkey: In fact, we know when we have scheduled the case that the lawyer is in fact ready to proceed. It is probably less than one-half per cent — perhaps 20 or 30 cases a year — in which problems arise at the hearing.
The Chairman: That is better than before the courts, I would think.
Mr. Chambers: I believe in the last five and one-half years we have done 57,000 cases through this system, so it is quite high volume. The balance will always be between moving a lot of people through and maintaining issues of quality and consistency and fairness.
The Chairman: I cannot resist asking, is anybody complaining that you are going too fast?
Mr. Chambers: We have conducted a client survey. The people who receive favourable decisions from us evidently think we are going at just the right speed. We have actually had clients complain that we have gone too fast in their cases.
It is something we monitor. We bring veterans together in focus groups. We talk about various issues with them. In one example, the group indicated — and it would never have occurred to me, although it should have — that they found the print too small to read, even with their glasses. We said the decision would take a little longer and they said that was not a problem. We bumped up the print in all our decisions to meet their age and stage requirement.
We try to be sensitive to things like that in the process. We never would have had that information had we not had a focus group with veterans.
Our client satisfaction survey came about as part of what is called the ``Improved Reporting to Parliament'' project. This is a document that would go to you and it would also go to the Parliamentary standing committees. The survey is interesting. About 99 per cent of the clients were happy with us if they got a favourable decision from us.
However, interestingly, among the clients who got an unfavourable decision or partially favourable decision from us, 81 per cent said we were doing a really good job, we were fair, we were professional, the whole client list. Of those who did not get anything, 55 per cent said we were doing a really good job on many of these counts.
We were the first federal tribunal to do a client satisfaction survey; other tribunals have since contacted us to as how we did it. To the best of my knowledge we are certainly away ahead in terms of client satisfaction than any other federal tribunal. I am not going to pretend that them knowing us helps a lot. We have a lot more contact with clients than do other tribunals, but that can be a mixed blessing too.
People are always interested in favourability rates and I give you those just as reference points. For active force service, at review level, these are the current rates: 42.3 per cent are receiving favourable decisions; 20.6 per cent at appeal; Canadian Forces, 45.6 per cent and 24.2 per cent; RCMP, 48.1 per cent and 23 per cent. Overall, 44 per cent are receiving favourable decisions at the first level review and 22 per cent are receiving favourable results at appeal level where you would expect would get smaller and smaller.
The Chairman: You have been very patient and illuminating in your presentation. Gentlemen, any questions?
Senator Day: At the review level, are you reviewing an application that has been made by a client that was not as favourable as that client wanted?
Mr. Chambers: The minister turned it down.
Senator Day: It might have been turned down or the percentage of the disability might not have been as high as he or she wanted?
Mr. Chambers: Yes, exactly.
Senator Day: It is either, no, you do not qualify, or yes, you qualify, but you are not getting as much as you want?
Mr. Chambers: They may even give a favourable decision but the client thinks it should be higher. Reviews deal with a variety of those reasons.
Senator Day: Is the appeal the same thing again?
Mr. Chambers: The same thing.
Senator Day: I can understand why the statistics keep getting smaller, but 45 per cent, or 42.5 per cent actually seems quite high to me. I understand that they are being as favourable as they possibly can. We just sat with the woman who took us through the process of assessment and we see that the onus goes, if at all possible, towards the applicant. Yet, you are turning around 44 per cent of those rejections.
Mr. Chambers: Sometimes the reason can be that when people make a first application, they do not have all the goodies in the bag then. They do not have all the medical evidence or all the military records. There may be other additional witness statements that they have not included.
Another important point is that this is the first time the client appears before us to tell his or her story. We get to ask questions. Our questions are not to challenge them; we are not adversarial. However, we are able to extract a lot of information from them that has never been put in testimony or evidence and it is that extraction process that often leads to the favourable awards. There are things that they do not even realize that are really important and no one had collected before. We start prodding away, and as if they saw a doctor in 1950 and whether there was a pharmacy in town, what kinds of medication should they take and so forth.
We start this process of bringing things out that may often be the key elements in many cases for a favourable decision. Appearing in person is a two-part thing. First, we are the face of government for them. For the first time, there are real people in front of them. Second, they have an opportunity to tell their story.
Senator Day: Did they not tell their story back in their local office to whomever put this package together initially for them? Does this statistic tell us something about what is going on at the local offices?
Mr. Chambers: You draw that inference. It would be unfair for me to say that. I think it is just the nature of the process. Our adjudicators are more experienced than people at the departmental level. The questioning can tend to be more mature in probing than a first-level pension officer might be able to provide. I think that is as much the reason why we leverage more information out of the process than they might.
Senator Day: Two other questions if I may, Mr. Chairman. Have you any breakdown or do you track the reviews and appeals and just globally between refusal and denial of any coverage and the assessment issue? Somebody did not get as much as he thought he should get.
Mr. Chambers: All of it is tracked and it is all bundled. Dale does that.
Senator Day: Which do you get more of? Is there a percentage of one over the other in the type of cases you get?
Mr. Chambers: Roughly 50 per cent of our appeals are on assessment issues and 50 per cent are on entitlement.
Senator Day: It is half and half?
Mr. Chambers: Eight or nine years ago, 65 per cent to 70 per cent would have been entitlement cases. However, you can see the more people you are bringing into entitlement, the more worries about assessment. There has been a process since the early eighties when. Say, 8 out of 10 cases were entitlement. In the last 15 years, it has gone from 80-20 to 50-50, and the older they get, the more concerned they are about the assessment of their condition because they already have entitlement for it. That is why you are getting the tip.
Senator Day: The other question that I have is in relation to independent representation — not the government lawyer that is out in the field but in either Legion or an independent lawyer. I would assume that is a very small percentage of those.
Mr. Chambers: Yes, very tiny percentage. The Bureau tells us that they are handling about 98 per cent of the cases. The Legion would be doing 1.5 per cent to 2 per cent and we might see four private lawyers in the course of a year. It is very costly in relation to the benefit they are going to receive.
Senator Day: That might explain our Chairman's surprise at not very many requests for adjournments because it is the private lawyers.
Mr. Chambers: Can I get eight seconds from you?
The Chairman: You certainly may. Just let me thank you very much for being so helpful to us and to your two colleagues as well. Thank you for being with us.
Mr. Chambers: We did not give this to you at the beginning because we did not want it to be construed as a bribe. Two of our employees were involved in this project and one of them won the Public Service Award of Excellence — one of 12 in Canada. We are very proud of that. During the International Women's Year, they produced a book called My Grandmother's Wartime Diary, which is a compilation of stories of their own mothers or relatives' mothers and their wartime experiences. I brought a copy for each of you. We do not run a bookstore. The editor is upstairs and if you are so inclined to have her initial the book, I can make her available this afternoon for you.
The Chairman: Thank you very much. That is very kind of you indeed. Is there anything that you would like to add in closing?
Mr. Chambers: No, I appreciate the opportunity to come here today. I always find it is a healthy experience. The more you know about us, I think it is better for us.
The committee adjourned.