Proceedings of the Subcommittee on Veterans Affairs
Issue 5 - Evidence - May 7, 2008
OTTAWA, Wednesday, May 7, 2008
The Subcommittee on Veterans Affairs of the Standing Senate Committee on National Security and Defence met this day at 12:08 p.m. to study on the services and benefits provided to members of the Canadian Forces, veterans of war and peacekeeping missions and members of their families in recognition of their services to Canada. Topic: Deductions from SISIP Payments
Senator Michael A. Meighen (Chair) in the chair.
[English]
The Chair: Good afternoon, ladies and gentlemen. I will call the meeting to order. As I explained to our witnesses, this being caucus day, senators will be drifting in as we proceed. We certainly have a distinguished roster of senators already here, whom I will introduce.
On my left is Senator Day, the deputy chair of the subcommittee. Senator Day is from New Brunswick, where he has had a successful career in private practice of the law. He has served in the Senate of Canada since October, 2001 and he chairs the Standing Senate Committee on National Finance.
[Translation]
To my right is Senator Roméo Dallaire who had a very distinguished career in Canada's armed forces. Senator Dallaire is from Quebec and was appointed to the Senate in 2005. He is a member of the Standing Senate Committee on Human Rights and of the Standing Senate Committee on Aboriginal Affairs.
[English]
To his right is Senator Banks, from Alberta, who was called to the Senate in April, 2000. He is known to many Canadians as an accomplished and versatile musician and entertainer, and has been one for a long time. He is the chair of the Standing Senate Committee on Energy, the Environment and Natural Resources.
Today, we are continuing our study on SISIP, Service Income Security Insurance Plan. That is a group insurance plan that makes insurance available to members of the Canadian regular and reserve forces.
Last week the subcommittee heard from SISIP Financial Services President, André Bouchard. This week we turn our attention to the stakeholders on this issue, some of whom have referred to these ``clawbacks'' to SISIP long-term disability benefits awarded to disabled veterans as unfair reductions.
This week I am pleased to welcome once again from the Royal Canadian Legion, Mr. Jack Frost, the Dominion President. With him is Colonel Pierre Allard, Service Bureau Director. From the time of its formation in 1926, the Legion has focused its efforts on the fight to secure adequate pensions and other well-earned benefits for veterans and their dependants.
Also here today is Mr. Sean Bruyea. Mr. Bruyea is a retired Canadian Forces officer and a tireless advocate for the fair treatment of veterans. He is a frequent commentator on veterans affairs in the media throughout Canada. Accompanying him is Mr. Dennis Manuge, plaintiff in the class action to stop unfair deductions from SISIP payments; and Mr. Peter Driscoll, legal counsel to Mr. Manuge.
I welcome each of you and thank you for your presence here today. I am sure it will be an interesting session. I am forced to remind everyone that we must end our meeting prior to 1:30 p.m., under Senate rules. That is when the Senate begins to sit. Therefore, I would ask senators, as usual, to keep their questions crisp. I know I can count on the witnesses to keep their responses crisp and to the point.
We will begin with the Royal Canadian Legion. I understand you have a statement which has been distributed.
Jack Frost, Dominion President, The Royal Canadian Legion: I will introduce our position and the issue, and Mr. Allard will discuss the issue.
It is again a pleasure to appear before your committee to discuss issues related to SISIP long-term disability and other issues of importance to veterans. We recognize that policy development must be based on a full understanding of the purposes and the consequences of making policy decisions. Policy development must also be based on the testing of the consequences of acting or not acting. It must include sound reasoning about the cause and effect. I would like to introduce at this time the Service Bureau Director, Pierre Allard, who will discuss these issues.
Pierre Allard, Service Bureau Director, The Royal Canadian Legion: Honourable senators, it should be clear to all, after your briefings last week, that we are dealing with complex issues. Disability benefits for Canadian Forces members, veterans and their families are provided by the Canadian Forces through the Service Income Security Insurance Plan (SISIP), and by Veterans Affairs Canada through various pieces of legislation such as the Pension Act and the New Veterans Charter. Even though Veterans Affairs Canada has adopted the New Veterans Charter, it is a reality that veterans and still-serving Canadian Forces members continue to receive benefits under these three programs: to name but one, the complementary SISIP term life insurance. The challenge for these service providers is to harmonize their service delivery while meeting the urgent needs of all veterans and their families.
We intend to revisit the so-called SISIP long-term disability offset of the monthly Pension Act disability pension benefits in the context of the New Veterans Charter; to look at the rehabilitation services offered by both Veterans Affairs Canada and SISIP; to take another look at the veterans health services review, which Minister Thompson alluded to when he appeared before your committee on March 5, 2008; and to comment on Last Post Fund funeral and burial benefits for veterans.
First, the SISIP offset. The so-called SISIP long-term disability offset of Pension Act disability pension benefits must be viewed in the context of the crucial test of cause and effect. You may have seen an overview of the SISIP long- term disability program and the historical evolution of this program. It is to SISIP's credit that they have continuously attempted to improve benefits for Canadian Forces members and veterans. However, through the years, some discrepancies have become apparent while, with the introduction of the New Veterans Charter, some duplication of programs is becoming evident, especially in the context of rehabilitation.
One of the long-standing discrepancies which pre-date the New Veterans Charter relates to the still-ongoing recovery process of Pension Act disability benefits. Pension Act benefits are, in theory, paid for pain and compensation. It is more than theory; it is legislation. Subsection 30(1) in the Pension Act that states that:
No award shall be assigned, charged, attached, anticipated, commuted or given as security. . .
The Pension Act goes on to state under subsection 30(1.1) that:
An award is exempt from seizure and execution, either at law or in equity.
There is similar wording in the New Veterans Charter which states — and I will repeat — that:
No compensation payable under this act shall be assigned, charged, attached, anticipated, commuted or given as security. . . .
. . .Compensation payable under this act is exempt from seizure and execution, either at law or in equity.''
Note that the two pieces of legislation are quite similar.
To make matters more complicated, a still-serving member can receive his Pension Act disability benefits while on full military pay without an offset or a ``clawback.'' This is the issue of fairness that was raised by both Mr. Marin and Mr. Côté, the two previous Canadian Forces ombudsmen. On the basis that still-serving members can receive their full salary and their full Pension Act monthly disability benefits while veterans' monthly Pension Act disability benefits are offset if receiving SISIP long-term disability benefits, fairness demands that the SISIP offset be terminated for veterans, whatever the cost.
The New Veterans Charter has resolved this issue of fairness in that disability awards, the lump sum benefits partially replacing the monthly pension benefits, are not subject to the SISIP offset. However, the economic loss benefits retain the offset principle. Thus, in the context of the New Veterans Charter disability awards, there is no SISIP offset for what are considered payments for pain and suffering.
Unfortunately, the same cannot be said about Pension Act monthly disability payments. At the very least, SISIP should stop offsetting what is deemed the portion of monthly benefits for dependants, which was indeed the case prior to 1988.
It should be noted again that the same issue exists with the New Veterans Charter earning loss benefits. This monthly Pension Act award is also offset against the economic loss benefits. However, in this context, the economic loss benefits payments are clearly income replacement.
To be fair to SISIP, SISIP long-term disability benefits are paid based on the cause and effect principle to medically- releasing CF members, whether a disability can be linked to military service. This is not the case for Veterans Affairs Canada disability benefits. Thus, one could argue that the SISIP long-term disability program is more encompassing than the VAC program, at least in that respect. Furthermore, when it was recognized that VAC Pension Act monthly disability pensions were insufficient as income replacement, SISIP took some steps to improve benefits. As Canadian Forces veterans in receipt of Pension Act benefits were in need of additional income, in 1976, SISIP modified its long- term disability program to also provide benefit payments in the event of a disability due to military service. This was when the decision was made that Veterans Affairs Canada monthly Pension Act benefits would be applied as a direct offset to SISIP long-term disability payments for reasons of equity and cost.
One presumes that Treasury Board could not have anticipated that, with the passing of Bill C-41, still-serving Canadian Forces members could one day be eligible for Pension Act disability benefits. This resulted in an apparent unfairness with regard to SISIP.
It should be noted that, in 1971, the Pension Act was amended so that Canadian Forces members injured in a special duty area could receive a disability pension while still serving. However, this was not a major issue because the number of members injured in a special duty area was minimal. In October 2000, Veterans Affairs Canada amended the Pension Act to entitle any Canadian Forces member to a pension while serving.
Let us go on to talk about Veterans Affairs Canada and SISIP rehabilitation. SISIP also administers a long-term disability integrated vocational rehabilitation program. Over the years, this program has been improved by including an ``own'' occupation definition of total disability during the initial two-year period of eligibility rather than the more restrictive criterion which was in play before of ``any'' occupation. SISIP also provides a separate package of benefits for accidental dismemberment attributable to military service while it provides separate benefits for non-service-related accidental dismemberment through a term life insurance plan with no war exclusion.
The introduction of the New Veterans Charter in 2006 introduced the legislated provision for Veterans Affairs Canada to set up its own more comprehensive rehabilitation program, which includes medical and psychosocial elements. Questions have been raised whether a single program of rehabilitation should be put in place. The administration and coordination required between the two programs could result in some degree of dysfunction.
A simple solution may not be easy to implement. One must keep in mind that SISIP's long-term disability program covers both disabilities attributable to military service and those that are not, regardless of whether the member is medically released. Veterans Affairs Canada's rehabilitation services are strictly for those with a disability attributable to military service or, if not related to service, the member must be medically released from service. SISIP considers medical release as their gateway to SISIP long-term disability while Veterans Affairs Canada may invoke a greater eligibility window.
One should also remember that the SISIP rehabilitation program is strictly a vocational rehabilitation program, while Veterans Affairs' program has medical, psychological and psychosocial components. Veterans Affairs' rehabilitation program can be subscribed to by a spouse or partner, which is not the case for SISIP. Thus, as you can see, the merging of the two rehabilitation programs would need to be done very carefully to ensure that the eligibility criteria are not restricted for any of the current recipients under both rehabilitation programs.
We understand that the Canadian Forces, SISIP and Veterans Affairs Canada are working to provide a harmonized approach to the delivery of long-term disability and rehabilitation services to the sick and injured members of the Canadian Forces. Whatever harmonized approach is implemented, the overriding principle should be to protect the best interests of still-serving members, veterans and their families in all instances where coverage is currently granted via SISIP and Veterans Affairs. We should not see any reduction in coverage or greater costs to those who are covered.
We would now like to address the Veterans Health Services Review, or VHSR. When Minister Thompson appeared before your committee on March 5, 2008, he made a statement to the effect that this review is nearly completed. It is unfortunate that while the review may be completed, the recommendations of the minister's own Gerontological Advisory Council, the GAC, which are complementary to the Veterans Affairs Canada in-house health services review, have not been implemented.
In our view, the government has failed in its latest budget to adequately address the needs of veterans and their families. The extension of VIP benefits to survivors who had been excluded is a good thing. However, this does not address the real needs of veterans to access services based on needs for modern veterans and their families, and especially those veterans who are frail, veterans who served with allied forces and Canada's service veterans who may not have achieved the magical number of days in service. In other words, widows and caregivers are now eligible for VIP benefits, while some categories of veterans are not.
Unfortunately, Veterans Affairs Canada service teams are still dealing with eligibility grids which are much too complex and full of gaps, with some veterans being eligible for only the most expensive care, when all they want is to remain in their home with dignity. The Gerontological Advisory Council's report, Keeping the Promise, promoted a comprehensive approach. Instead, Veterans Affairs Canada continues to provide service delivery through a patchwork of ad-hoc measures, constantly overestimating the cost of programs and services while the number of executive-level, EX managers at Veterans Affairs has increased from 45 to 55 since 2002.
At the same time, it is evident that as Canada engages in overseas military action and severely wounded soldiers are sent home, more needs to be done to help their struggling families, as reported in a recent study conducted by the University of Alberta. The study, entitled Wounded Veterans, Wounded Families, reports that families of young wounded veterans released from active duty with severe disabilities need help urgently. The findings of this study reinforce our own misgivings concerning the welfare of veterans and their families who continue to suffer significant hardship financially, socially, emotionally and medically. This report includes recommendations based on needs for direct compensation to caregivers and enhanced programs to meet the needs of families as well as veterans.
We recognize that the study does not provide background information on whether or not the veterans and the families surveyed were receiving benefits under the New Veterans Charter, the Pension Act, or both. Nevertheless, we believe there is some flexibility in the New Veterans Charter to provide for these needs, assuming that the Veterans Affairs Canada service teams are ready to exercise the flexibility that was meant to be built into the New Veterans Charter programs. Unfortunately, the same cannot be said about the Veterans Health Services, which include long- term care, treatment services and VIP.
It is unfortunate that the Veterans Health Services Review has not yet culminated in proactive intervention on behalf of veterans and their families. They have suffered enough. The problem is that Veterans Affairs Canada has not taken appropriate action to deal with the quality of life of the rapidly diminishing cadre of traditional frail veterans, let alone to take appropriate care of modern veterans and their families.
We are also very concerned that important and urgent changes to the funeral and burial program remain unacceptably delayed for a variety of bureaucratic reasons. Amendments to veterans burial regulations have taken many years to process while survivors of veterans remain financially disadvantaged due to circumstances related to inflation.
The current program also lags behind that provided to Canadian Forces and RCMP still-serving members. The Department of National Defence and the Solicitor General have recently implemented changes to their funeral and burial program while Veterans Affairs and Treasury Board seem incapable of introducing even very modest amendments to the Last Post Fund veterans funeral and burial program to better support traditional veterans and to extend benefits to modern-day veterans.
We recommend: immediate action to eliminate the SISIP offset of the Pension Act monthly disability benefits; harmonization of rehabilitation programs provided by both Veterans Affairs Canada and SISIP without removing any of the current benefits provided by these two service providers; that Veterans Affairs provide VIP benefits to frail veterans, which category now includes modern veterans who are aging; that they take appropriate action to improve the quality of life of modern veterans and their families; and that they improve funeral and burial benefits for all veterans.
We are ready to answer questions in French or English.
The Chair: I want to make one comment — and it is not a criticism, believe me. All that you said will be on the record, but in terms of what we are focusing on today, I think it is fair to say that, in terms of your recommendations, it is the first two that might fall under that category. Your discussion of the Veterans Health Services Review and the discussion of funeral and burial benefits are valuable, but they are matters that fall outside of our discussions today.
I say that primarily for the benefit of my colleagues on the committee. In their questions, if they could concentrate on matters relating to SISIP and the alleged clawbacks, that would be helpful.
My inclination, if senators agree, would be to go directly to Mr. Bruyea and his colleague, in order to get everything out on the table and then we can ask questions of all of you.
Captain (ret'd) Sean Bruyea, as an individual: I thank the committee for taking the time to study the issue of the unfair deductions from soldiers' SISIP long-term disability income. I served 14 years in the Canadian Forces as an intelligence officer. I have with me Mr. Manuge, the plaintiff for the proposed class action to stop the unfair deductions, and Mr. Driscoll, the legal counsel for the class action. Both will provide speaking notes to the committee.
On March 5, 2008, the Minister of Veterans Affairs made comments to this committee that the disabilities suffered by injured soldiers could be somehow lucrative. He went on to claim that in order to stop these profoundly and fundamentally unfair deductions, ``the cost across government departments would be in the billions of dollars to readjust it.''
These two statements are highly inaccurate. The military has long retained soldiers who are injured. This compassionate trend has only increased in the past few years. These injured soldiers collect their full salary plus pain and suffering payments from the Department of Veterans Affairs. Those injured soldiers deemed of no use to the military are kicked out through no fault of their own.
The Chair: I apologize for interrupting; do you have a copy of your remarks?
Capt. Bruyea: I only have two extra copies at this point.
The Chair: Perhaps we could photocopy them. It is better to have them in our own files for future consultation. Please continue.
Capt. Bruyea: These soldiers then are placed on the SISIP long-term disability plan, which pays 75 per cent of their income. The tragedy is that these soldiers never wanted to leave the military. They have lost their careers and a proud way of life not found in any area of civilian life. They will likely not be able to apply their military skills to a civilian job, even if they were able to work.
This extremely difficult transition is, for all disabled soldiers, the lowest point of their lives and the most painful, obstacle-filled transition they will ever face. In the midst of such overwhelming change, tragedy and pain, the government steps in and deducts Veterans Affairs pain and suffering payments from an already reduced income. One need only ask the 4,286 disabled soldiers affected by this unfair deduction, struggling each and every day, if their disability is or ever will be lucrative.
As to whether the unjust deductions would cost billions in required changes across all government, I offer the following: The two federal public service long-term disability plans, including the plan which serves all members of the Senate and the House, do not deduct Veterans Affairs Pension Act payments for pain and suffering. I have contacted every provincial and territorial workplace safety and compensation body throughout Canada and not a single one of them deducts Veterans Affairs Pension Act payments. Most, if not all, provincial LTD plans for the government employees are not allowed to deduct Veterans Affairs Pension Act payments.
The new veterans benefits replace this monthly payment with a one-time lump sum. This lump sum is not deducted from SISIP Veterans Affairs earnings loss program, but the monthly payments for pain and suffering continue to be deducted from both.
We are talking about a unique and distinct long-term disability plan for the Canadian Forces, and perhaps the RCMP, as concerns the isolated policy of deducting Veterans Affairs Pension Act payments from already reduced income loss payments. It is profoundly distasteful that our senior bureaucrats would feed such misinformation to a well-intentioned minister — information that attempts to make this issue far more complex than it is.
It may appear expensive at $270 million to $295 million, but we are talking about an amount of money that represents a time span of 25 years or more, going retroactively backwards and going forward. The amount works out to approximately $10 million a year to right this wrong. That is half of the $20 million annual maintenance bill of just one of Canada's new military transport aircraft. Caring for half of one plane surely must be no more important or valuable than caring for the lives, restoring the faith and righting an injustice for more than 4,200 of Canada's bravest men and women and their families.
Even the Chief Actuary of Canada from 1992 to 1998, Bernard Dussault, agrees. He prepared a report for the DND ombudsman, Yves Côté, on these unfair deductions.
Considering that fairness is priceless, do apply without reservation the second recommendation of the OSR —
That recommendation referred to stopping the deductions.
An argument could be made that the cost. . . may appear very large . . . but it is actually a relatively minimal one-time expenditure that would resolve a critical fairness issue affecting one of the most important groups of Canadians. . .
This committee invited me to testify on the new veterans benefits two years ago, but I was too ill to attend. I await a follow-up to that invitation, but until that time I would like address one issue raised by our esteemed colleagues from the Royal Canadian Legion with respect to the SISIP long-term disability plan and the new veterans benefits.
The national leadership of the Royal Canadian Legion wants the Department of Veterans Affairs ``to eliminate SISIP long-term disability rehabilitation and incorporate it into a single Veterans Affairs Canada program.''
I thank the legion for acknowledging that there are many shortcomings in the New Veterans Charter, as Louise Richard, Harold Leduc and I pointed out when we had the honour to testify before the Standing Senate Committee on National Finance three years ago this week. At that time, the department promised that the legislation is a living document and that there would be reviews of the legislation every few months. We have not seen any public or transparent reviews of the new benefits, let alone due process.
It would be short-sighted to dissolve SISIP long-term disability and vocational rehab, which have a proven track record over a 30-year period of adaptability and success. Please let us put the brakes firmly on any plan to give Veterans Affairs Canada more programs while they already have their hands full, and until such time as they prove they can resolve the existing shortcomings of, and handle, the New Veterans Charter.
I would like to thank the members of this subcommittee for inviting individual veterans to speak. It is extremely important for parliamentary committees to speak directly with veterans and their families to find out how government is treating them. Otherwise, it is up to the disabled veterans and their families to fight a nearly unbeatable ``city hall'' while we are disabled. Being an advocate and suffering from post-traumatic stress disorder and depression myself, I can tell you that speaking out in defence of veterans and their families carries an immense cost, both emotionally and physically. I can also tell you from personal experience that there is an even greater cost when certain bureaucrats in the government seek reprisals against those who speak out.
Veterans Affairs has unparalleled power over the lives of disabled veterans and their families. Reprisals need not be heavy-handed to cause great harm to a disabled veteran struggling to make it from day-to-day.
I urge committee members to see through the myriad of obstacles put in the way of granting justice to these 4,200 disabled soldiers. To quote our first DND ombudsman, André Morin, who shed light on the unfair SISIP deductions: ``It is a maxim of good government that technical obstacles never be allowed to impede doing the right thing.''
I thank you for inviting us here today. We are open to your questions.
The Chair: Do either of your colleagues wish to speak? I would remind you of our time limitations.
Peter Driscoll, as an individual: We filed two documents with the committee. We will not go through those today, given that time is short. One of the documents was prepared by me with respect to some issues that were raised last week.
If the committee would indulge Mr. Manuge, he now has a statement to make to the committee.
Dennis Manuge, as an individual: Thank you, honourable chair and senators. I need only three minutes to illuminate a more human side to the issue. I will stay on topic and I will be brief.
I am a disabled former member of the Canadian Forces, having served from 1994 until my medically-required release in 2003. My service included Bosnia from March to October 2001. I am also the representative plaintiff in a proposed class action filed in Federal Court against the Government of Canada, seeking to end the clawback of Pension Act disability awards from SISIP long-term disability payments.
I want to thank this committee for giving me the opportunity to speak on this issue. Rather than discuss the class action, my intention is to speak to you concerning the unfairness of the clawback, my personal experiences with this, and the experiences of other disabled former members as they have been recounted to me. I consider myself lucky. Since my medically required release in 2003, I have been able to transition to a civilian life. No transition is easy and mine was no exception. If I could ask this honourable committee to place itself in the shoes of a regular member such as myself in 2003, who was medically required to leave the forces and transition to civilian life. I have lost my job. I still have the same financial commitments and bills. I have lost a way of life. I am disabled. I am no longer useful to the Canadian Forces. I am unable to continue to use the skills I learned in the forces. I am 33 years of age.
I have emphasized ``medically-required release'' because, through no fault of my own or the Canadian Forces, for that matter, I am no longer useful because of my disability. How I am treated, however, is controlled by the Canadian Forces and the Government of Canada. Here is how it looks from the ground in 2003: As a result of my injury, I apply for and am awarded a disability award under the Pension Act. I am still useful at this stage, so I receive 100 per cent of my salary from the Canadian Forces as well as a monthly disability award under the Pension Act while serving. I am involuntarily medically discharged. I am not longer useful. On my release, I receive SISIP LTD representing 75 per cent of my salary, clawed back by the amount of my VAC monthly disability award. This takes place during the most personally and financially challenging period of my life. The extra $386.28 I would have received had my disability award not been clawed back at this time could hardly be described as lucrative under the circumstances. The frustration I experienced in trying to understand the clawback at the time is indescribable.
The impact of a disabling injury is entirely dependent upon your continued usefulness to the Canadian Forces. For example, under this system, if you injure your knee in a game of hockey and are still useful in your capacity as a member, you receive 100 per cent of your salary and a disability award. If you lose your knee and can no longer serve, you are subject to the clawback. From a disabled member's perspective, it is difficult to understand and fundamentally unfair. As I said at the outset, I consider myself lucky. Yes, I experienced a difficult transition, but it is nothing compared to other former members I have spoken to who are totally and permanently disabled and continue to have the SISIP LTD clawed back. A number of them suffer from post-traumatic stress disorder. I can only conclude from speaking with members that their frustration and feelings of uselessness and abandonment are magnified 10-fold, especially when they compare themselves to the hockey injury example.
There are two other situations that I would ask the committee to consider: First, zero sum — the amount disabled veterans receive under the Pension Act disentitles them to any SISIP LTD whatsoever; and second, retroactive SISIP LTD recovery — a disability award is retroactively made after the former member is in receipt of a SISIP LTD and the lump sum clawback is aggressively pursued by SISIP at a time when the former member is most vulnerable.
In closing, I want to advise this committee that these proceedings have, for the first time in a long time, given me some hope that the government will do the right thing. I am an unlikely plaintiff but, after watching the ``bright pink line'' of the ombudsman's recommendations end and remain at the office of the then minister of defence in 2003; after watching the motion to adopt the recommendations being ignored; and with the New Veterans Charter that addresses the issue on a go-forward basis and the non-binding motion in the House of Commons, it is time for me to stand up for disabled former members of the Canadian Forces. After watching this committee do its work last week, I now have faith that I am not alone.
The Chair: Thank you, Mr. Manuge, it was valuable for us to hear directly from someone who has gone through the system. If I could summarize, the meat of your testimony seems to be that small injuries benefit the troops because they get their pay and the LTD, whereas those with big injuries are penalized, released and only receive 75 per cent of their salary?
Mr. Manuge: With respect, I would not say that it is an added benefit to the still-serving member because they are still injured in some capacity.
The Chair: Financially, they are getting more, are they not?
Mr. Manuge: Absolutely. They have injured themselves in service to the country. On the flip side, when the uniform comes off and you are rejected by the forces, the trouble begins. I remind you that my 20 per cent disability and $386.28 at the time pales in comparison to $1,500 or $2,000 a month that many of the veterans I am in contact with suffer in the clawback.
The Chair: Senators, we have approximately 30 minutes for questions. Before that, I will introduce Senator Nancy Ruth, who joined us after the introduction. She is a feminist activist from Ontario and has been in the Senate since 2005. She is a member of the Standing Committee on Internal Economy, Budgets and Administration. She also sits on the National Finance Committee.
Senator Banks: Mr. Driscoll, what is the state of the proposed class action?
Mr. Driscoll: The proposed class action has proceeded to the stage of certification motion.
Senator Banks: That is making sure that you get paid.
Mr. Driscoll: No, not at all. It determines whether it is appropriate to proceed as a class action. A certification hearing was held in February in Halifax. If it is approved as a class action by the court, it proceeds to the substantive portion of the litigation. We are awaiting a decision.
Senator Banks: Do you have any idea when that will be?
Mr. Driscoll: No one can precisely tell.
Senator Banks: What is your immediate reaction to the idea that SISIP was always supposed to be, and was never supposed to be anything other than, a kind of safety net or top-up as opposed to an award, per se?
Mr. Driscoll: I would say that the SISIP LTD program is an income replacement program, and it should operate that way. The error was in SISIP deciding to take into account what it considered to be income payments as set out in the policy, such as CPP and other sources of income. In fact, under the Pension Act, as set out in the presentation by the Royal Canadian Legion, it is not income replacement but is an award for pain and suffering.
It is clear from the legislation, from our perspective, that there is provision that if I am awarded pain and suffering under the Pension Act as a result of an accident for which someone else is responsible, and I receive a pain and suffering award from that person in a court of law, then the minister can recover the pain and suffering payments that he has to make under the Pension Act. It is clearly a pain and suffering benefit. It is the only way a member can get compensation for injury and loss. The member cannot start an action against the government. The statute prohibits that, so that is the only place for redress that the member can pursue.
Senator Banks: The argument we have heard is otherwise, and I am sure that that is what you will be dealing with in court.
Mr. Driscoll: That is correct, and that is also part of the presentation that I have left with this committee.
Senator Banks: Captain Bruyea, we have to read between the lines here. I believe that you were talking about a personal experience in the last part of your presentation. Have you been the subject, if that is the word, of the kind of retributive action on the part of someone for having stood up and made a noise?
Capt. Bruyea: Yes, it is very clear that that has happened.
Senator Banks: Perhaps you can summarize that for us on paper and send it to the clerk for our edification?
Capt. Bruyea: I will do that. I have a one-minute prepared statement that I can submit in writing or say out loud now, whichever you prefer.
The Chair: Would you present it orally now, please?
Capt. Bruyea: As you can understand, I would prefer not to go into the details at this time, but I will disclose the following: I am going through 4,000 pages of my Privacy Act request for my personal file, and what strikes me most, besides the obvious evidence as to the reprisals and harassment, is that there is very little, if any, kind words about this injured soldier and veteran advocate.
Of the four bureaucrats I know who are involved in seeking reprisals against me, I can tell you that all four have apparently been promoted since I reported their actions. This tells me that the department condones, at some level, harassment of those veteran clients considered obstacles. At this time, there is documentation that more than 260 persons in the department, and probably more, have seen personal details of my entire file, or my entire file. This represents almost 10 per cent of the employees of the department. This raises serious questions of privacy.
I first submitted details of these reprisals more than three years ago to the department. The current parliamentary secretary to Veterans Affairs sent in details when she was Veterans Affairs critic. I hand delivered details to the current minister. My MP, who is also parliamentary secretary to the Treasury Board, has twice requested an investigation in the past 20 months. I have frequently offered to enter mediation to get to the bottom of the harassment and reprisals, and still there is nothing from the department.
Although initiation of harassment, for the most part, has stopped, much defamation of me still circulates in the department, and just as troubling is that nothing of substance has been done to address the original offences.
Should this pattern of inactivity continue, my family and I are seriously considering taking the matter public in order to seek a just recourse on these unresolved issues. Thank you very much for asking.
Senator Banks: It is public now. Thank you for that. Perhaps we will pursue that further.
Senator Day: I will ask my question to the Royal Canadian Legion first. We see class actions and we see individuals advocating on their own behalf. What role does the Royal Canadian Legion have in this process? Is it another advocate, or are you trying to take a leadership role and coordinate all of the complaints that are being expressed here by a good number of veterans?
Mr. Allard: I would answer that by saying that we are certainly aware of the issues that are out there. We would certainly not feel that some of these issues that are brought forward by independent advocates necessarily want to be turned over to the Royal Canadian Legion.
Having said that, we feel strongly that we need to take up advocacy issues on behalf of Canadian Forces members and veterans to the best of our ability. We do not think that we are representing them, but we feel strongly that we represent their cause.
Senator Day: As an overall coordinating group, what do you believe is the true figure that this would cost, if we go back to the year 2000, retroactively? We have heard billions, and we have heard $5 million. There was information that the ombudsman was advised to go back to October 2000 and that it would cost up to $275 to $295 million from the public purse to reimburse those veterans who had their pensions improperly reduced, if that decision is made. However, we need to have a figure that is reliable.
Mr. Allard: I would suspect that the figure presented by the ombudsman is probably the most accurate one because there were actuarial projections that indicated that that figure was correct. I believe that is the $275 million figure.
Having said that, I also realize that the government accounts slightly differently today than it did back then in that you try to take into consideration any liabilities that you may have under that program, thinking that everyone will come forward to seek the benefits. Under the accountability financing — I forget the correct term — the figure might be different, but $275 million is probably a good figure.
Senator Day: Therefore, $275 to $300 million would be the outside figure if everyone came and made the claim?
Mr. Allard: Yes, if everyone came forward.
Senator Day: Would we contemplate that if the veteran whose pension had a clawback or a deduction is no longer surviving, his or her estate would be able to make a claim?
Mr. Allard: I am not talking on behalf of the Royal Canadian Legion, but it is my personal opinion that surviving spouses have a direct claim on benefits. I am a bit more leery of estates having a claim.
The Chair: We did ask the president last week to come up with an estimate of the cost if we went back to 1976. We do have the $275 to $300 million from 2000 and on, and we are waiting to hear what the president says it would cost to go back to 1976.
Senator Day: I do recall that, and I remember asking both for their positions. However, we are hearing from so many different sources that it would be good if there is a common figure amongst the stakeholders.
Mr. Bruyea, or any of you, do have any comment on those questions that I asked?
Capt. Bruyea: If we are going back to October 27, 2000, which the ombudsman recommended, there is widespread consensus that we are talking about $275 million to $295 million.
The issue was justly raised by Senator Dallaire last week about going back to 1976. Perhaps we could apply a bit of common sense in that it is not an exact number, but if we are talking 1988 onwards, for the rest of the lives of those veterans, and also talking from 2000 on when there was a dramatic increase in LTD benefits because they started recognizing psychological disabilities, that amount of $275 million would exceed the previous 24 years in addressing that issue. I do not think we are looking at astronomical sums here, even going back to 1976.
Mr. Allard: It is our experience that somehow the government always overestimates the cost of these programs.
Senator Day: I noticed that you made that comment in your presentation. Is that peculiar to veterans affairs, or were you commenting generally?
Mr. Allard: Maybe the senator would like to answer that one.
Senator Day: We try to get the real numbers, and you will be pleased to know that there is a new parliamentary budget officer, who is an officer for parliamentarians and is there to help us get to the real figures on these things. That is a recent improvement that we have been looking forward to, and the parliamentary budget officer has just been put in place. That is an aside, but it might be of interest to you.
For the record, the calculation was made retroactive to October 2000 because that is when serving personnel were entitled to continue to get their full salary with no deduction for any disability benefits they were receiving. That unfairness became apparent as a result of Bill C-41. That is why we have gone back to 2000.
Mr. Driscoll: October of 2000 is the date.
Mr. Allard: There are probably three dates that we should consider. Senator Dallaire alluded to 1976, or we could consider 1988. In 1988, the only thing clawed back was the portion that was paid directly to the veteran. The portion paid to family and dependants was excluded. There are a number of dates floating around.
Senator Day: Would it be an acceptable compromise to stop making deductions right now, but to have no retroactivity?
Mr. Allard: I do not think that would meet the fairness test of cause and effect.
Senator Day: It is important to have that on the record.
Mr. Manuge, I would like you to explain one of your comments. You asked the committee to consider two other situations. One is retroactive SISIP recovery, that is, where a disability award is retroactively made after the former member is in receipt of a SISIP long-term disability. Can you explain how that would happen? You say that the lump sum clawback is aggressively pursued by SISIP. SISIP is making a lump sum payment to someone who is on an SISIP long-term disability.
Mr. Manuge: I will defer that question to my legal counsel, as he can provide you with a better and more accurate answer.
Mr. Driscoll: Thank you for the question. The situation is essentially that at times there is a delay, given the appeal process in the award of VAC disability pension benefits.
Senator Day: Is it correct that this is a Veterans Affairs Canada pension that is coming after you are already on SISIP?
Mr. Driscoll: That is correct. You are going through the process. You apply for your disability award and it is delayed because you are appealing it. In the meantime, you are discharged and you begin drawing SISIP LTD. You may in fact go through the 24-month period of receiving SISIP LTD. If your VAC disability award is made, it is made retroactively to the date of your application and you receive a lump sum.
The member has been living in very frugal circumstances, without income and in financial hardship with various financial commitments. He or she gets a lump sum under the Pension Act. SISIP will then contact that person and say that, as they received an award for a period of time when they were also receiving SISIP LTD, they must pay back the SISIP LTD, and that is aggressively pursued.
Mr. Allard: It is really a retroactive payment on a monthly disability pension. It is not an award, because the disability award is purely under the New Veterans Charter. It is a retroactive payment, because the processing of the claim has taken some time.
Mr. Driscoll: That is my mistake. I refer to it as an award.
Senator Day: It becomes a lump sum because for several months they received nothing?
The Chair: For clarification, leaving aside the fairness issue as to whether it should be offset, administratively would you agree it would be better if they gave the award having deducted what it is deemed should be deducted? At least then they are not seeking to get a portion after the money has been received. I understand that you do not want to deduct it at all.
Mr. Driscoll: It would be much fairer.
The Chair: It would be better if the deduction were made at source, would it not, at the very least?
Mr. Driscoll: Yes.
Senator Day: Is the difficulty not that the amount which you call an award is from Veterans Affairs and the clawback is by SISIP?
Mr. Driscoll: Yes, two separate entities.
Senator Day: They are two different organizations. It is difficult to ask Veterans Affairs to hold back an amount on behalf of SISIP. Then there are two organizations playing games.
The Chair: Who manages SISIP? I think it is DND, is it not?
Senator Day: We met the managers of SISIP here the other day.
The Chair: They fall under DND.
Senator Day: Yes.
Senator Banks: Whatever inconvenience that would cause to the bureaucracy, that is too bad, by comparison.
Senator Dallaire: I want to understand correctly. When the lump sum arrives from VAC, are people notified that SISIP will be coming for a clawback?
Mr. Driscoll: It is my understanding that there is no notice.
Senator Dallaire: Therefore, several months after receiving the lump sum, SISIP asks for some money back. Meanwhile, that money may have been spent.
Capt. Bruyea: In my case in 2000, I had been in close contact with both SISIP and Veterans Affairs and had done a lot of research, so I was aware of it. You are correct that there is no direct communication, and after six or eight weeks SISIP comes calling for that lump sum. Had I spent it, I would have been in a difficult situation.
Senator Dallaire: I gather that in many cases the details are not well explained and the troops are not aware of it. The concerns are that the troops are not well-informed about this and that the old paymaster method of clawing back is used. The paymaster keeps everything until you pay back what you owe, and then he gives you a salary. I understand that.
Where does the Canada Pension Plan disability program fit into this exercise? The Canada Pension Plan has a disability program to which you can apply, and if you receive a pension, it is also deducted from your pension. Has the Legion looked at that angle? Mr. Bruyea or Mr. Driscoll, did either of you get caught up in that exercise?
Mr. Driscoll: No, we have not looked at that issue in detail.
Senator Dallaire: Have you looked at it, Mr. Allard?
Mr. Allard: We have not looked at it, either. We have looked, however, at the CPP clawback in the context of superannuation, but that is another issue.
Senator Dallaire: That is essentially what I was hoping to hear, that it is another issue. A superannuation disability pension is also clawed back, but in the past the delta between the two usually ended up in favour of the individual as opposed to the system. I do not know whether that has changed.
Mr. Allard: It does not necessarily end up that way. Some people are subject to a CPP clawback when they start to receive their superannuation, and actually receive less money.
Senator Dallaire: That is interfaced with the pension program, as such. That is something for us to look at again. We must not forget that people are getting bushwhacked in exactly the same way with the Canada Pension Plan.
The Charter changes a lot of the exercise, of course. It has brought finite dates and numbers. I am concerned, as a sidebar, about the fact that over the last three years there has been no transparency in any of the activities of the implementation of the new charter. Has there not been a special advisory committee on special cases created? I think a Madam Michon was part of that. Were they not to take these people on in that regard? Have they not created a general purpose advisory to get into that issue and start advising the deputy minister on these matters? Has that not been initiated at all?
Capt. Bruyea: That is an excellent question. Thank God for the Senate hearing three years ago, because it was as a direct result of that Senate hearing on the new charter that they created the Special Needs Advisory Group. The Special Needs Advisory Group is filled with excellent people, chaired by Bruce Henwood, previously by Dr. Peter Neary. The Special Needs Advisory Group has created three reports. None of those reports were allowed to be released publicly by the group members. They have been forced to sign a confidentiality agreement. They are not allowed to discuss what goes on in the advisory group. This hardly meets the standard of transparency.
Senator Dallaire: What about the other one?
Capt. Bruyea: Mr. Allard is better prepared to answer that, but I want to add that for the Special Needs Advisory Group, they needed an additional rehabilitation specialist. I recommended Dr. Muriel Westmorland, and instead of putting her on SNAG, they put her in as chair of the new Veterans Charter Advisory Group, which Mr. Allard can speak about.
Mr. Allard: There is a new Veterans Charter Advisory Group. We have met three times. It does include representatives of various veterans organizations. It includes Bruce Henwood as the representative of the Special Needs Advisory Group. He has tabled his report to the new Veterans Charter Advisory Council. It includes some academics, including a new rehab expert, Dr. Patrick Loisel, who has the right credentials to sit on that council.
The activity of the council is focused on preparing a report for release in October, and we hope to be able to make some recommendations. We have advised our mentors, if you want to call them that, that if the report we released in October meets the same fate of the Gerontological Advisory Council report, Keeping the Promise, that we are spinning our wheels. We will not achieve anything and the living charter concept will be meaningless.
[Translation]
Senator Dallaire: There is a reason why I brought this up. The problem that we are examining dates back to 1976. The new veterans charter provides for a fixed date. However, what we are hearing is that we are going to encounter a great many problems. When the charter was implemented, we wanted to ensure that an advisory committee would be heard every six months. That is what we said at the meeting. We agreed that the veterans affairs committee would report on the evolution of the charter. It has taken two years to get the process up and running and we have yet to hear from an advisory committee. Hopefully, that will happen in October because unlike what we are hearing, this will not be a pointless exercise. Along with Deputy Minister Murray, the committee that brought in the charter was instrumental in initiating reform. We must not be negative about this. It is critically important for this committee to ensure that there are no new problems that remain unreported for five years.
The Chair: Your comments have been duly noted and we will follow developments closely.
Senator Dallaire: Thank you, Mr. Chairman.
Mr. Allard: The charter was approved by the finance committee, not by the veterans committee. The national finance committee received a mandate to table a report regularly, that is every three months or every six months. I believe this mandate was subsequently transferred to the veterans affairs committee.
Senator Dallaire: It was initially assigned to the national finance committee because we wanted to have this approved quickly and it was the only committee around at the time. It could just as easily have been referred to the official languages committee.
Mr. Allard: The commitment was to a living charter that would be revised as required. The only comment I want to make is that as a member of this committee, I would not want the report prepared in October not to receive any follow up.
Senator Dallaire: We do understand your position, but to keep costs in check, it was essential that we act in this manner, instead of trying to repair the damage.
[English]
I remind you in this context of taking this money away. Apart from what we were touching on with CPP and so on, this is the only program that actually does it, as far as I believe our research has been able to determine; is that not correct, regarding veterans pension or programs and so on?
Capt. Bruyea: In my research, yes.
Mr. Driscoll: Yes.
Mr. Allard: If someone is in receipt of Workers Compensation, they also get less monthly disability pension benefits.
Senator Dallaire: The Workers Compensation?
Mr. Allard: Yes.
Capt. Bruyea: I would beg to differ, because I spoke to every one of the Workers Compensation bodies throughout Canada. Every one of them gave me official responses that there is no deduction or reciprocal deduction for veterans affairs.
Mr. Allard: There is a question mark on the pension application for disability benefit that asks: Are you in receipt of Workers Compensation benefits?
Senator Dallaire: However, specifically the veterans compensation is neither identified nor called upon, nor has it been tested, I suppose, by them in regard to deduction.
We have an evolving system that has fallen short in that specific area. The case is, in my opinion, solid if you go back to 1976, because that is the real fairness exercise.
The Chair: I would like a clarification from Mr. Allard or Mr. Frost. In your presentation on page 4, you said,
Unfortunately, the same cannot be said about a PA monthly disability payments. At the very least, SISIP should stop offsetting what are deemed the portion of monthly benefits for dependants, which was the case prior to 1988.
Are they still offsetting both today?
Mr. Allard: They are offsetting both today. In other words, they lump the monthly benefit, whether they are accruing to the veteran or to his family or to his spouse or children. Prior to 1988, they were only offsetting the portion that was deemed to accrue to the veteran.
The Chair: Not the portion to the dependent?
Mr. Allard: Yes.
The Chair: You are advocating that, at the very least, they should stop lumping them together?
Mr. Allard: Yes.
Senator Dallaire: It was the meanness of the scenario. This appeared in an organization that was moving towards meeting requirements. All of a sudden they threw this curve, which was a meanness curve, that no one had expected, and it made its way through.
Senator Banks: To finish with the WCB, you got an undertaking, Captain, that they do not make any deductions, but what did you say, Mr. Allard?
Mr. Allard: In this case, this is not a WCB offset; it is a VAC offset.
Senator Banks: The VAC is saying if you receive WCB, they may deduct something?
Mr. Allard: Yes.
Senator Banks: I have a couple of quick questions to ensure that I understand, and to get a straight answer on the record. The lump sum you were referring to is not correctly characterized as a lump sum. We do not want to get confused with the new lump sum that replaces monthly payments. The lump sum you are talking about is the accumulation of retroactive back payments?
Mr. Allard: Retroactive back-payment of monthly disability benefits.
Senator Banks: Thank you. I wanted to ensure that that was on the record.
Senator Day: It is not an award.
Senator Banks: I think we shall be careful not to characterize it as a lump sum. It is not. It is a cheque for back- payments.
Mr. Allard: It is retroactive payments.
Senator Banks: Colloquially, we refer to the new deal as a lump sum, but it is different.
Does the Legion, Mr. Frost, wholeheartedly support the action that is being taken by Mr. Manuge?
Mr. Frost: That is correct. We do.
Senator Banks: Mr. Allard, you talked on page 11 about the Solicitor General. We do not have one anymore. For future reference, when you are talking federally, there is no longer such a thing as a federal Solicitor General, unless I am mistaken. You can check that out.
The Chair: You have to watch your grammar with Senator Banks, too. He is a stickler.
Senator Banks: Would you tell us how aggressive the effort is to recover when you get this retroactive payment? Does SISIP come calling and say, ``We want that money back?'' What do you mean by ``aggressive?'' Are there lots of phone calls, or do they sick agencies on you, or do they sue you?
Mr. Manuge: No. It is just phone calls. They want the money now.
Senator Banks: All of it now?
Mr. Manuge: Yes, absolutely.
Senator Banks: In a — forgive me — lump?
Mr. Manuge: Dare we say lump sum? I am awake now, by the way. Exactly. I think Captain Bruyea can speak more to that.
Capt. Bruyea: The quick answer is yes. They pursue it aggressively unless there are extenuating circumstances. SISIP, at least in my case and other cases, has been rather compassionate in arranging payment terms.
Senator Day: I want to get this clear in my mind as well. If you are on a SISIP long-term disability, you are getting 75 per cent of your salary; and it is from that 75 per cent that there is a deduction. If you are in the Armed Forces and you are getting a pension, there is no deduction, and you get a 100 per cent salary. For SISIP, you are down to 75 per cent already, and it is from that 75 per cent that there is a deduction?
Mr. Manuge: You are 100 per cent accurate with that.
Senator Day: I am sorry that I am accurate.
Senator Dallaire: This is a dangerous exercise in some of the words you were using in your text, and it is emotional. Because we were able to provide better assistance to those still serving, in fact, we equated SISIP with Veterans Canada, because if you are still serving and yet you have been injured, Veterans Canada also gives you your disability pension under the old methodology. SISIP was meeting that requirement for those who were injured outside of operational requirements.
We are trying to make that a reasonable equivalency. Because we did get that does not mean that those who are released and get only 75 per cent are being had. It is just that the ones who are being released have been ill-treated by the clawback methodology that exists. It is a different problem. You do not say, ``Because I have all that money, the guys are getting it there, and now I am being screwed because I am thrown out.'' You are right.
You were released medically, and you are down to 75 per cent, and there are supposed to be all kinds of programs for finding you employment and transition and medical assistance, so all that stuff kicks in, too. It is dangerous to say that because we have been able to sort that one out, the system is unfair for not sorting this out. We sorted that one out, and now it is a matter of sorting yours out, and that is the aim of the exercise.
Mr. Driscoll: To respond to that question, if we go back to fairness, the justification for paying salary and the Pension Act disability pension is pain and suffering. That is why you can receive your salary and your pension. The justification for when you are released is that that award now somehow becomes income. That is the fundamental problem. The justification does not stand up to a hard analysis.
Senator Dallaire: They keep it separate under that context.
Capt. Bruyea: I provided a number of documents for you. One includes the actuarial report provided to the ombudsman. Another includes a fact sheet. Through a conversation with Veterans Affairs Canada, to put this in perspective, currently, over 9,000 serving soldiers rightly and correctly receive Veterans Affairs pain and suffering payments while they are still serving. That is twice the number affected by this dispute.
Senator Day: I wanted to point out that the impact of the clawback is even more profound on the individual because his or her base is 75 per cent of previous salary. That was the point I was trying to make, and I think you got it.
There was a point made earlier about the Veterans Charter legislation going through to the Standing Senate Committee on National Finance. I thought I should come to the Finance Committee's defence. Some may feel that that might have been an appropriate committee to which to take that legislation. In other words, there was some suggestion that it was the only committee that might have been available at the time.
I have a point of clarification. You spoke about the Special Needs Advisory Group. I made a note that three reports have not become public. Mr. Allard indicated that at least one of those reports was made to this other Veterans Charter Advisory Group.
Mr. Allard: All three were made available, but we are also under a confidentiality umbrella.
Senator Day: Do you anticipate that in October, when the Veterans Charter Advisory Group report comes forward, these other reports will be made available to the public as well?
Mr. Allard: I do not see why not. I think they are full of very good comments about the New Veterans Charter.
Senator Day: We will pursue this matter if you believe they will not be released.
Senator Dallaire: Even if they are released, we must pursue it. We have experience from the past that they do not necessarily act upon such reports. If the reports are not released, just like those of the special committee, that is contrary to the spirit of the Charter.
Senator Day: I agree.
Senator Dallaire: That is something we can pursue. That is completely against the whole philosophy of that new Charter. The minister has all kinds of room to be positive and not negative, as the old one tended to be.
The Chair: On that note, I thank you, senators. One thing you did not mention, but which I presume you also feel is inequitable is that if you have one payment under the Pension Act deducted from your remaining 75 per cent and another injury surfaces totally unrelated to the first, that too will constitute a deduction; am I correct?
Capt. Bruyea: Yes.
The Chair: Are there many cases like that? Are there enough to worry about?
Mr. Allard: There probably are.
The Chair: Thank you very much. We appreciate your candour and the information you provided to us.
Thank you, senators. You have been given a document indicating when our next meeting is to be held.
The committee adjourned.