Proceedings of the Subcommittee on Veterans Affairs
Issue 2 - Evidence - November 2, 2011
OTTAWA, Wednesday, November 2, 2011
The Subcommittee on Veterans Affairs of the Standing Senate Committee on National Security and Defence met this day at 12 p.m. to study the services and benefits provided to members of the Canadian Forces; to veterans; to members and former members of the Royal Canadian Mounted Police, and their families.
Senator Donald Neil Plett (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, I declare the meeting in session. Welcome to the meeting of the Subcommittee on Veterans Affairs.
I am Senator Don Plett, from Manitoba, and I am the deputy chair of this committee. Today we are hearing from representatives of the Veterans Review and Appeal Board.
The board was created by Parliament in 1995 to provide veterans and other applicants with an independent avenue of appeal for disability decisions made by Veterans Affairs Canada. To achieve this, the board operates at arm's length from the VAC. Its work is governed by the Veterans Review and Appeal Board Act and the Veterans Review and Appeal Board Regulations.
We will be hearing today from John D. Larlee, Chair; Dale Sharkey, Director General; and Laura Kell, Acting Director Legal Services, Veterans Review and Appeal Board.
Welcome to all three of you and thank you for accepting our invitation to appear. We will invite you to make your presentation, after which we will ask senators to direct some questions to you.
With that, Mr. Larlee, the floor is yours.
[Translation]
John D. Larlee, Chair, Veterans Review and Appeal Board: Good afternoon, everyone. Thank you for giving me the opportunity to speak to you today about the work of the Veterans Review and Appeal Board.
[English]
Canada has a long history of providing veterans and their families with an independent appeal process for disability pension decisions to ensure they receive the benefits they so rightly deserve.
[Translation]
Today, it is the Veterans Review and Appeal Board that plays this important role.
[English]
The board supports veterans, members of the Canadian Forces and the RCMP and their families in obtaining benefits for service-related disabilities. We carry out this mandate by offering two levels of appeal for disability decisions made by Veterans Affairs Canada. These decisions relate to veterans' entitlement to disability benefits and to the assessment of medical impairment caused by their disabilities. We also hear final appeals for War Veterans Allowance decisions.
Only 10 to 15 per cent of the 40,000 decisions made by the department each year are appealed to our board. As an independent body, we have the authority to change a decision if the evidence supports it. That said, our work is bound by the laws enacted by Parliament to govern the disability benefit program for our Canadian veterans.
Our appointed board members bring a cross section of experience and education to their work. The board's merit- based selection process states a preference for members with military, medical, policing or legal backgrounds, in recognition of the work we do and the people we serve.
The veteran needs only to be ``dissatisfied'' with a disability decision to ask for a hearing before the board. Each case heard by the board is based on one individual's unique circumstances, such as medical condition, type of service and supporting evidence.
The board's appeal process is non-adversarial, meaning that no one argues against the veteran. Board members may ask questions to make sure they understand the veteran's situation and its relationship to service.
At board hearings, veterans bring forward any new information related to their situation. They have access to free legal representation to make arguments in support of their application for disability benefits.
The review hearing is the first level of redress at the board. It is the only time in the process when applicants may appear and testify about the facts of their case. To make it easier for applicants to attend in person, our members conduct review hearings in more than 30 locations across Canada.
The oral testimony given by the veteran at his review hearing can have a significant effect on the outcome. This is new evidence that was not available to the departmental adjudicator. For example, the veteran may be able to explain confusion in his medical records or provide details about the circumstances of his injury that were not in the file. At the review hearing, the veteran is given the last word.
Last year, the board varied the department's decision in 50 per cent of its review decisions. This high success rate is a reflection of the value of this level — namely, the opportunity for the veteran to testify, to submit new information, to be represented and to have doubt resolved in the veteran's favour.
In most cases, these varied decisions resulted in a financial boost to a veteran's benefits. If the applicant is not satisfied with his review decision, he can appeal it.
[Translation]
The appeal hearing is a completely new process. It is held before a board whose members did not participate in the review hearing. The act does not permit applicants to testify in person again, but they may submit written comments or present new information.
The appeal hearing provides their representatives another opportunity to present arguments or evidence in support of the veteran's claim. Last year, the Board varied the previous decision in 33 per cent of its appeal decisions.
A good number of cases were won because the veterans were able to provide a credible medical opinion linking their disability to their service. This evidence is often missing at the review stage and Board members note it in their review decisions.
[English]
In every review and appeal case, our board members apply the rules of evidence found in section 39 of our legislation. They draw favourable inferences from the evidence provided by the veteran. They accept uncontradicted evidence that they consider to be credible in the circumstances; and if they have any doubt about whether the case is made, they resolve it in favour of the veteran.
Despite the many generous aspects of the legislation, some cases will not be successful. However, the door remains open for the veteran to bring forward significant and relevant new evidence that may come to light at a later date. If applicants have exhausted all their redress options at the board and remain dissatisfied, they have the right to apply to the Federal Court of Canada for a judicial review of the decision.
We recognize that there are some misconceptions about the role of the Federal Court with respect to our decisions. The Federal Court is looking at individual cases and deciding whether the board properly performed its function in making the decision.
For example, the court may decide the board did not address relevant evidence in its decision. It may also decide the board made a reasonable decision and dismiss the application for judicial review.
Last year, 13 of the board's decisions were brought forward by veterans for a review by the Federal Court. This represents less than two per cent of the 1,100 decisions that were eligible to be reviewed. We also received 13 rulings from the court that were pending from previous years. Of these, the court asked the board to rehear nine applications and dismissed four.
If the court rules that the board made an error in the way we handled a case, it will tell us to rehear it with specific directions. These might be that a different panel should conduct the new hearing or that the board should perform a more careful analysis of a certain piece of evidence or point of law.
In some cases, the board will rehear the case on its own merits and still be unable to vary the previous decision.
The reality is that the board deals with the most complex and challenging cases. We do not see cases that demonstrate a clear link between the disability and the service. We do not deal with cases that fit easily into the assessment tables.
These straightforward cases are dealt with by the department at first application or, increasingly, through a departmental review if the veteran has new evidence.
Rising favourability rates at the department means the cases we see are more complex than ever before.
[Translation]
In order to manage this increasing complexity in our workload, we have established an excellent professional upgrading program for new members.
The program provides theoretical and practical training with on-going advice and support from the employees responsible for our management, quality and legal services.
Before new board members begin to hear cases, they receive twelve weeks of training. The training deals with the legislation, administrative law, the appraisal of evidence, questions of a military nature, medical conditions, conducting hearings and drafting decisions.
Thereafter, all members take part in monthly teleconferences during which they discuss legal and procedural matters.
[English]
We hold at least two training seminars each year led by medical, legal, military and lay experts. Members also receive feedback on their work through regular performance assessments.
All board decisions are reviewed from a quality perspective. I want to assure you that the board's priority is to deliver an effective appeal program. We are fortunate to have an excellent cadre of decision makers. Today, there are 24 full-time members including the deputy chair and myself as chair. We share a commitment to honour and serve our veterans by dealing with their applications fairly.
The most common applications to our board deal with medical conditions involving the neck, back, knees and hearing loss. About 90 per cent of these applications are made by Canadian Forces members and veterans as well as a small number from RCMP members. The remaining 10 per cent come from ``traditional'' veterans whose numbers, sadly, are dwindling.
About three quarters of our decisions deal with requests for new or higher levels of entitlement. The remaining quarter deal with requests for higher levels of assessment for already entitled conditions.
We are acutely aware that our decisions have a significant impact on people's lives. Our members have a difficult job of applying the law in the face of difficult and compelling human situations.
We take our role very seriously. Our board members and staff are committed to serving applicants respectfully, effectively, and efficiently.
From an operational perspective, we are driven to find ways to improve our program. Currently, we are working on posting decision-making resources on our website by early next year. These will include common medical resources consulted by the board as well as depersonalized decisions that determine a question of law of general public interest.
We are taking this approach because it will give interested parties greater access to our decisions and is realistic in terms of budget. We believe it is a cost-effective approach that will strike the right balance between openness in decision making and individual privacy.
We are also reviewing the processes we use to conduct our operations. We hope this will result in improvements for our applicants and chart a course for the future.
Thank you for this opportunity to talk about the board's role in supporting veterans and their families in obtaining benefits to which we all know they are entitled.
The Deputy Chair: Thank you, Mr. Larlee, for that very detailed report.
You said you had 24 members. I think your mandate allows you to have 29 members, so there are five vacancies. First, I gather those five vacancies are waiting to be filled. Can you address that? Second, where are your members geographically located? What breakup is there across the country? Third, if a veteran files an appeal how many board members would that veteran appear before? I am assuming it would not be all 24 members and there is a breakup. How many members typically would hear an appeal?
Mr. Larlee: Yes, firstly we are at 24 members presently. The legislation provides we can have up to 29 members on the board. We have a manageable workload, which we are able to address with present members.
The members are located across Canada because we sit in 30 different locations, although the appeals themselves — which is the second level we deal with — are heard in Charlottetown. There are 12 members in Charlottetown that deal with the Atlantic region for hearings as well as appeals.
The remaining 12 members are across the country. There are three in B.C. to cover the western region, four in Ontario and four in Quebec.
All our administrative work is done from our head office in Charlottetown. The members live in the areas across the country that I mentioned. Their work at review hearings is heard in different locations, and they travel to those locations from their region. It is because of the way the work is spread out across the country.
The Deputy Chair: If a veteran in the western region files an appeal, the three members in Western Canada would hear that appeal.
Mr. Larlee: That is the third part of your question, which I did not answer. The first is a review where two members sit. That is where the veteran appears personally and gives evidence. It is the first opportunity he has because the departmental decision making is a paper review. He brings that decision to us at first level on review. Two members would travel to wherever they have a week of hearings and would hear the cases on the schedule for that week.
What happens if the two members do not agree? Well, it goes to the veteran. I mean, there are provisions for dissent in a decision, but the most favourable finding goes to the veteran.
After the review, if the veteran is still not satisfied with that decision, he or she can appeal it to the appeal level of our board. That appeal is heard in Charlottetown, and representation is made on behalf of the veteran.
There would not be oral testimony at that level. There would be submissions. They are allowed to present new evidence because it is what we would call a de novo proceeding — a new proceeding. Additional information can be brought forward. As I mentioned earlier in my statement, sometimes it will be mentioned in the review decision that there was insufficient medical evidence to make the link. The veteran then has the opportunity, at any time following that unfavourable decision, to take it on to the next level at appeal. They are provided with free legal representation by the Bureau of Pension Advocates and by the Legion, as well as by representatives that assist veterans in making their cases before our board.
The Deputy Chair: Thank you very much.
[Translation]
Senator Rivard: Mr. Chair, this is the first time in several months that I have attended the committee as a replacement for another senator. May I ask two questions or do I just get one and then wait for the second round?
[English]
The Deputy Chair: We will try to limit every senator to about 10 minutes and that will get us to about 1:20.
[Translation]
Senator Rivard: With 10 minutes, I will have enough time to ask my two questions, and I am sure that the answers will be quick.
Mr. Larlee, I know that the Public Service Commission of Canada recruits and interviews nominees for positions as judges on your board. Maybe I am wrong.
Mr. Larlee: Yes.
Senator Rivard: You are bilingual, I see. Is bilingualism desirable or mandatory for nominees for positions as judges on your board?
Mr. Larlee: It is not mandatory, but, of the 24 board members, 12 are currently bilingual. Because our reality is that hearings in Quebec and in the Ottawa region are always bilingual.
Senator Rivard: And naturally you know the names of the people who are registering the complaints, the people you are going to be hearing. So I suppose that, if a case involves a unilingual francophone from Alberta, you are going to make sure that the judge hearing the case speaks French. Or conversely, in a case presented by a unilingual anglophone from Quebec, the judge in Quebec will speak the applicant's language.
[English]
Mr. Larlee: The veterans or RCMP officers that we deal with have the opportunity to choose the language of the hearing, and it is guaranteed that they will be provided with a hearing in the language of their choice.
[Translation]
Senator Rivard: Fine. Your decisions are not made public, I believe. I would like to draw a parallel with the Senate Ethics Officer. In his annual report, he never mentions senators by name, but he describes the nature of the matters he has dealt with during the year.
The board heard 952 cases in 2008 and 304 in 2009, all related to the conflict in Afghanistan, of course. More veterans mean more cases.
Do you think that it would be of interest to prepare an annual report and to summarize the cases you had to deal with? I suppose that one of the matters you deal with most frequently is stress after a mission, but there are surely others.
Could your organization do an annual report along the lines of the Senate Ethics Officer? For example, it could say that 80 per cent of the cases heard dealt with stress, and others for invisible wounds. Basically, it would summarize all the cases you deal with in a year. Could you see yourself doing a report like that?
[English]
Mr. Larlee: At present, we provide an annual report where we do a breakdown of our cases — the number that have been heard, et cetera.
The detail you are asking for, senator, is, perhaps, not there that specifically. Some of those statistics are difficult to establish, but we do have a process of tracking not only our cases but also many of our different conditions to identify where more cases are appearing.
[Translation]
Senator Rivard: Is it correct to suggest that over 50 per cent of the cases you hear deal with post-combat stress? I am not asking you if it is 51.2 per cent or 49.7 per cent; but can we say that most of the cases you deal with are about post- combat stress?
Mr. Larlee: I do not believe that it is as high as 50 per cent.
[English]
However, I know that stress-related injuries have increased in recent years. Between the last year and the year before, there is a marked increase in the number of post-traumatic stress disorder and psychological cases.
For example, last year there were 458 decisions, 247 of PTSD and 211 of major depressive disorders, if I remember correctly.
Dale Sharkey, Director General, Veterans Review and Appeal Board: It is the sixth most common type of decision of the board, so it would be less than 10 per cent of our workload.
Senator Rivard: Thank you.
[Translation]
Senator Mitchell: Thank you very much. I really appreciated your presentation. I have several questions.
[English]
I will start with a question about cuts to service. There is some suggestion that that is an issue. I can see where that could build to more work for you. I can see where reducing budgets may be justified by virtue of the fact that we will not have as many veterans.
However, I am concerned with an observation that I became aware of a little while ago. Now that much of what we were doing in Afghanistan has diminished, there could actually be a real surge in mental health issues. The military personnel who were in action, the sense of purpose surrounding action and, with that, some of the adrenaline that sustains people, will be gone. Have you anticipated that there may be a surge in mental health issues that may need to be dealt with?
Mr. Larlee: We have taken a very active role in the training of our members to make them very familiar with those types of cases. In our biannual training sessions, we have had extra emphasis on those aspects. We anticipate that we are prepared to deal with the conditions that we receive. If there is that increase from the servicemen returning from Afghanistan, we will be well prepared to deal with them.
We talk about the fact that there is an emphasis on cuts to service. We are a very small agency — an independent, quasi-judicial tribunal. We have 24 members who travel the country doing about 3,500 review decisions and 1,000 appeal decisions per year. That is close to 5,000 decisions per year with 85 full-time equivalent, FTE, support staff. We have a very small budget, and we are aware when there is a movement afoot to have us do more to publish our decisions on the web. However, we have requirements to deliver our program efficiently, effectively and respectfully of the veterans who come before us, which is difficult when additional suggestions are made that we should do.
Getting back to your question, we are a small agency and we are required to report to Parliament, but we are well prepared to receive the veterans that come before us. One of the nice things about the legislation is that it is open to the fact that if we cannot handle our workload with 24 members, then I can submit to the Minister of Veterans Affairs for an increase in the number of members. Sometimes we use the salaries of members that we do not have to assist us with our budget. We have that option to ensure that we are able to provide the service.
Senator Mitchell: You mentioned in your letter that there were 3642 reviews last year. In one sense, the argument is made that that is 10 per cent of all the cases initiated. At the same time, you made a powerful point that resonated with all of us, certainly with me. You said that these cases are so significant to an individual's life and a family's life that 10 per cent is significant. Also, you indicated that 50 per cent of those reviews result in some significant change to the original ruling.
Have you noticed a different level of quality of decisions region by region? Is there a concentration of reviews or appeals coming from certain regions? Not to be critical or to focus on a given region, but to say that perhaps there is an intrinsic or systemic problem in the way that a given regional group is reviewing these things in the first place.
Mr. Larlee: No. Our members, notwithstanding that they can be from a region, travel the country continually. On a weekly basis, we have members from the east going west, et cetera. I do not think that would be a factor.
Senator Mitchell: I know judges who live in fear of being referred to the next level of the court system for an appeal. They certainly focus on that quite deliberately in their work. Do you track appeals from given officers in that respect? Do you know whether certain cases come from some individuals who do the reviews more than other individuals? Is there any way to track that? Do you concern yourself with that?
Mr. Larlee: We look at our decisions across the country, but we do not identify certain regions as being different than others.
Senator Mitchell: Do you identify individuals in that way?
Mr. Larlee: No. We use resources and statistics to assist us in discussing trends or assisting members. We want to be consistent and to provide the most effective and beneficial service to our veterans. Therefore, we use these resources and statistics internally for the purpose of identifying and assisting us in additional training and discussions on new points of law and directions from the Federal Court. We have monthly teleconferences across the country with all our members to discuss new trends and to keep everyone up to date between our annual conferences.
Senator Mitchell: Have you noted in that process certain common themes in the cases that you have to review? Do you take those up with Veterans Affairs to let them know that you are consistently receiving a certain kind of appeal request or review request?
I was first elected in Alberta in 1986. We were overwhelmed in our constituency offices by workers' compensation cases, which were all of a sort over and over again, such as soft tissue neck, back and knee issues. Steps were taken to try to work that through and reduce the numbers. It was a common theme. If you fix one, you can reduce a lot of pressure.
Do you go through that process at all with the department?
Mr. Larlee: Keep in mind that we are independent from the department and quasi-judicial. We render our decisions and send them to the department. We would anticipate that they would be utilized by the department.
Another factor in the favourability rates and the 50 per cent overturned at review is that the rate is probably on the decrease because of the more favourable approach taken by the department. Our rates of overturning the department's decisions in previous years were higher than that. Whether it is a case of our decisions doing that or a case of the department's more favourable approach to veterans' applications when they receive them, it might be a combination of the two.
Senator St. Germain: I would like to thank the panel and Mr. Larlee for making his presentation. Is there backlog? What is the wait time? Let us say that I was a veteran who put in an application or sought out a decision through your tribunal, what would the actual wait time be? Can veterans from previous theatres of action be moved up the ladder if they are quite elderly? Old guys like me are living on borrowed time.
Mr. Larlee: At the present, we have no backlog. We are pretty much up to date with our hearings and decisions.
With respect to the wait time, from the time a case is submitted to the Veterans Review and Appeal Board and put in for review, it is less than six months. I believe it is 5.2 months to the date of the hearing. Some of that time is related to the representative of the veteran preparing his case and making sure he has everything ready for the hearing.
Senator St. Germain: You are talking about the 5.2-month wait time?
Mr. Larlee: That is correct. That is at review. That is the first time that the veteran will appear across the country, depending on where he lives, for a review hearing before two members. That is to put the file together.
The veteran's advocate from the Bureau of Pensions Advocates or from the Legion also has a role to play in that in getting his additional documents, such as a medical report, and that is part of that.
The next level being the appeal, if they are not satisfied, then the wait time there from the time a decision is submitted to us and say we are ready to go ahead on appeal, then it is 81 days, which is 2.6 months.
I talk about the generous benefits of the legislation. A veteran, at any time, can decide when he wishes to go to the next level. He may have a review and may be lacking, he may not have been satisfied. He may wait a year or two years. There is no time limit for a veteran to go to the next level. The same thing is true with appeal. The veteran can also ask for reconsideration if there is new material that has come in.
With respect to the traditional veterans, those from the Second World War, et cetera, we make every effort not only for all veterans that come before us, but when we are dealing with veterans from the Second World War and the Korean War, we do our utmost to process those applications as soon as possible.
Senator St. Germain: In other words, you will move them up, taking into consideration their age?
Mr. Larlee: When it is made known to us by their advocate we do so, yes.
Senator St. Germain: That is fair.
Mr. Larlee: Another aspect, I can throw this in, not necessarily with the aging veterans, is as we are trying to improve our service to veterans and being more efficient, we are also developing, for the areas we do not often visit, video conferencing. If the veteran does not want to wait the six months until the next time we are in Nanaimo or Penticton and does not want to travel to Vancouver, where we are more often, we are making that more readily available, if that is what the veteran wishes. That is another aspect that will perhaps assist in speeding things up.
Senator St. Germain: Will you actually go to a veteran's house if he is incapacitated as far as mobility?
Mr. Larlee: That is correct. I do not know if we would go to the actual house, but we would make arrangements. We will also take telephone evidence from a veteran's home, yes.
Senator St. Germain: Thank you very much. You are to be complimented.
Senator Day: Thank you very much for being here. I join my colleagues in thanking you for the work that you are doing and the comment that you are trying to do things to help the veteran by taking evidence on the telephone. I think that is important, having in mind with whom we are dealing.
I would like to understand the difference in terms of numbers. Under the traditional veterans and under the New Veterans Charter, how many total applications for an award come to Veterans Affairs? I know on review there were 3,600 in the last year. That is out of how many?
Mr. Larlee: That is in the area of 40,000 decisions that come out of Veterans Affairs Canada.
Senator Day: I saw the figure of 40,000, but then it indicates that includes first applications, department reviews and medical reassessments. Take out the department reviews and medical reassessments, because presumably the reviews are the 3,600. Was it 35,000 instead of 40,000? It is not clear to me.
Mr. Larlee: These would be the department's statistics we are taking, as far as where we get the 40,000 from. We are saying that, of the 40,000, there are only that 3,500 that appeal to us, which means that the remaining are not coming forward during that year. They could come forward in another year if there are additional ones, when it comes to review.
Senator Day: What I am interested in trying to get an understanding of is how many of the people who first go to Veterans Affairs looking for an award end up appealing in terms of percentage?
Mr. Larlee: I believe it is 10 to 15 per cent in a year. Is that what our numbers tell us?
Ms. Sharkey: I do not have those numbers. I think you are asking the number of first applications and how many of those would be appealed to the board. I do not have that information. I am not sure we can get it, but we can certainly attempt to find that.
Senator Day: Could you get it for us?
The Deputy Chair: Would you try to get that and, if possible, send it to us?
Ms. Sharkey: Yes.
Senator Day: If you could send it to the clerk she will circulate it to everyone. That would be wonderful. That gives us an understanding of how the department is working and how important you are to the process.
Let us talk about the process. The Veterans Review and Appeal Board was created in 1995. To whom do you report, Mr. Larlee?
Mr. Larlee: I report to Parliament.
Senator Day: What, if any, role do you have in reviewing the processes and making recommendations? Is that in your report? Are there any recommendations of changes that you feel should be made?
Mr. Larlee: I prepare an annual report, but I am bound by the legislation that created the board. It is the same legislation with respect to pensions, the Pension Act and the New Veterans Charter to provide the board mandate to our veterans.
When I say I report to Parliament, I am part of the Veterans Affairs portfolio. We are separate, being quasi-judicial, from Veterans Affairs. My reports would be tabled in Parliament by the minister.
Senator Day: Since 1995, has there been any fundamental review of the Veterans Review and Appeal Board in terms of its process, the number of people involved, the support, the salaries, reviewing the statistics, that kind of fundamental review?
Ms. Sharkey: I think you are referring to a program evaluation, if I am not mistaken. No, we are scheduled to do some of that work in the next four years as part of the evaluation plan. We are also subject to the Comptroller General, as a small agency under their policies, looking at things like compliance with regulations and policies of Treasury Board, internal control.
As well, the Auditor General, whenever they look at programs such as the pension program or the disability award program, they would be looking at the continuation into the Veterans Review and Appeal Board.
Senator Day: Have you had the Auditor General in to do a value-for-money audit since 1995?
Ms. Sharkey: No.
Mr. Larlee: If I may add, we have also not had any increase in our budget since — I do not know for how long. More things have been added to our agency. We are a small agency, but we still have to do all the reporting and we need the resources to provide all this information, as the large agencies do. We are part of the small agencies.
Senator Day: Is your budget a separate budget from Veterans Affairs?
Mr. Larlee: Yes.
Senator Day: The exercise we are going through for review of budgets and a 10 to 15 per cent reduction will be reflected in the next budget coming in March of 2012. Are you going through that exercise for your agency?
Mr. Larlee: As part of the portfolio, we have been asked to look at that as well, yes.
Senator Day: Is that part of the overall Veterans Affairs portfolio?
Mr. Larlee: Yes.
Senator Day: You mentioned that the salaries of those non-appointed members of the board could be used for other purposes. Did I understand you correctly?
Mr. Larlee: No, not non-appointed members. I am talking about GIC-appointed members.
Senator Day: You have 24, and there are 5 vacancies?
Mr. Larlee: Yes, but part of our budget is not for 29 members.
Senator Day: You do not get in your budget an amount for salaries for those non-appointed GIC positions?
Ms. Sharkey: No. Our budget comes to us with a portion that is allocated for salary dollars for all staff and members. There is no distinction between salary dollars for members versus public servants. Then there is a small portion of operating dollars.
The board has traditionally been reasonably underfunded for our operations. As a result, surplus salary dollars will often be reallocated to supplement the operating funds for the board. We have the flexibility to transfer the money between the two. As the chairman mentioned earlier, if our workload were to increase and there is an operational requirement to have more members, we would look at how we can orchestrate our budget to have more members to hear more cases.
The number of members, although we may have up to 29, is very much a reflection of how our workload fluctuates, based on that type of a formula, to ensure we do not have any backlogs.
Senator Day: Ms. Sharkey, am I understanding you correctly? You can take the salary allocation within your estimates for the year in your budget and move some of that over for operations if you do not need it for salary?
Ms. Sharkey: Yes, as with any budget in the public service.
Senator Day: I understand there are 24 members and you have not felt that you have such a backlog or such a need that the other five vacancies should be filled at this time.
Mr. Larlee: At the present time, no.
Senator Day: Is that a recommendation you make to the minister, Mr. Larlee?
Mr. Larlee: I make our requirements known to the minister. We have a merit-based selection process that we control at the board, and we supply the names of those people who have met that merit-based selection process.
Can I take a minute to explain how that works?
Senator Day: Please do. I think that will be helpful for all of us.
Mr. Larlee: This is a process whereby we put on our website that we maintain a pool of qualified candidates because of the nature and structure of the appointments system. Our selection process has three stages. There is a paper review of applicants who are invited to apply. Second, there is a written exam on the legislation and the type of work we do. At each level, if an individual is successful, then there is the personal interview. If they are successful in all three stages, they go into a pool of qualified candidates for a period of three years, where they remain. That pool of qualified candidates is submitted to the minister's office and the minister makes a recommendation to Governor-in-Council for appointment.
In doing so, I also make recommendations to the minister on our requirements. In other words, if we are short of bilingual members in a certain part of the country, we will make it known to the minister's office that this is what we are looking for, and we make that recommendation.
Senator Day: Would you go into your pool of qualified people and say that this or this person might fit our current requirements?
Mr. Larlee: In the sense of identifying that they are from a certain area where they wish to work and that they meet the criteria, whether they are bilingual or whatever. Keep in mind that we are always looking for more women and more people with military and policing backgrounds. We throw that into the mix and try to find people in the qualified pool whom we are looking for.
The Deputy Chair: Before we go to the second round, I want to confirm one thing for the record. You said that you had not had an increase in your budget for quite some time, but you also said that you were functioning fairly well with being able to transfer money from one part of your department to another and that you did not have enough of a backlog to warrant having five more people; that the 24 people you have are serving you quite well.
I am assuming from that — and maybe I do not want to assume — that the way you are functioning now is fairly acceptable. I will let you answer that, and then I want to make one other comment about the makeup of your committee.
Mr. Larlee: As I stated earlier, we do not have a backlog, we are up to date, and we are managing, although we could always use an additional member or two to assist us.
Ms. Sharkey: We have not had a fundamental increase to our budget since 2006. The only increases have been for collective bargaining and statutory salary increases.
Mr. Larlee: The point I wanted to make was that we would love to, as suggested by veterans groups, do more outreach, publish our decisions or make our decisions available on our website, et cetera, but these all come with a cost. We have to maintain our essential mandate, which is to deal with our veterans as efficiently as possible. Therefore, we have been in the process of putting some of our resource material on our website to assist people who are looking for more information about our board.
The Deputy Chair: I want to make reference to my notes here. You have already alluded to your appointment process. According to my records, six members of your board are members of the Canadian Forces veterans, eight are legally trained, two have medical experience, and other backgrounds include experience in administrative tribunals, education, public affairs, administration and politics. Right now, you have seven members who are female and eleven who are bilingual.
I commend you for the makeup of your board and certainly the process you go through. I want to further compliment you on the recent appointment of Serge Martel, who is an ex-RCMP officer. You are certainly going in the right direction in terms of the makeup of your board, and I commend you for that.
Senator Day: Do we have on the record the statistics on the makeup of the board?
The Deputy Chair: I think it is on the record right now.
Senator Day: I heard you say it, but I did not hear the witnesses agreeing to it.
Mr. Larlee: Yes. If I am not mistaken, with the appointment of Mr. Martel, we are at 12 members who are bilingual, six military and, with him, one with policing background.
Senator Day: The other statistics in terms of medical, legal, et cetera, that is all as was stated? We do not want the chair to become a witness here.
Mr. Larlee: That is correct. There are two with nursing backgrounds. One of the members with a nursing background is a former Canadian Forces member as well.
[Translation]
Senator Mitchell: I have a Library of Canada report here, prepared by Jean-Rodrigue Paré. It contains a lot of interesting material.
One comment particularly caught my interest. It says that, on average, veterans' incomes drop by 10 per cent after they leave the service. For veterans who leave for medical reasons, the drop is 30 per cent, and that goes for female veterans too.
[English]
One can understand the medical. As difficult as that is, you could understand, perhaps, why incomes would be reduced over others as a result of that but why women? Has any research been done into that? Are there any steps to be taken to address that?
Mr. Larlee: At the review board, on our tribunal, we determine entitlement and assessment. The actual payment, then, is with the department. We do not have any involvement in the sense of the amounts they are paid. They are established by the department through their policies.
Senator Mitchell: I obviously did not express that very well. I am talking about their personal incomes after they retire. I guess that is outside the realm of your configuration. It is interesting that women's incomes after they leave the forces drop as much as 30 per cent during the first three years, which is commensurate with people with medical problems upon their discharge.
If you are identifying problems, I would say that is one.
Ms. Sharkey: Our claims are not income related, so we would not always be aware of their income circumstances when they come before the board.
Senator Mitchell: Concerning the makeup of your group, are there any Aboriginal people and, if so, any Aboriginal veterans? They are a unique group.
Mr. Larlee: No, not at this time.
Senator Mitchell: Is that on your radar?
Mr. Larlee: We are always trying to promote former military, former RCMP and people with those varied backgrounds that I discussed — medical. It would be welcome to increasing that with Aboriginals or other minorities.
Senator Mitchell: I would encourage that. I had quite a remarkable experience with Korean veterans on a trip to Korea and a group of Aboriginal veterans from that war. It was very powerful and it is evident that there are differences, I think, probably in both their lives and their problems.
Senator St. Germain: Have you ever had an Aboriginal person as one of your judges?
Ms. Sharkey: We would not always be aware because it is up to the individuals to self-identify. There may be members on the current board but we are not necessarily aware of that for that very reason, unless they make themselves known publicly.
Senator St. Germain: Thank you.
The Deputy Chair: Thank you for that. I think we will have to keep the second round to five minutes.
Senator Mitchell: I am done.
The Deputy Chair: You are? Thank you.
[Translation]
Senator Rivard: Does a veteran who decides to go before the Board have any choice?
For example, could a veteran from Quebec decide to make his case before the Superior Court and, ultimately, if he loses at the Appeal Court of Québec, even before the Supreme Court of Canada if they agree to hear him? If something in the employment contract does not sit well with him, like a regulation, does he absolutely have to go before your board?
Mr. Larlee: I understand your question perfectly. I am an old lawyer and I would like to be able to answer like one.
[English]
However, as chair of the board, I have my own views on that. Perhaps I could ask legal counsel. It is my understanding that proceedings have to be taken before the board prior to any member of the veteran going through any of the court systems.
Laura Kell, Acting Director, Legal Services, Veterans Review and Appeal Board: That is correct. The board has final, binding and exclusive jurisdiction over all issues that are raised on review or appeal.
I think that one of the issues that you are speaking of would be, perhaps, whether policy or regulations or guidelines passed by Veterans Affairs are within the contemplation of the legislation or whether they are legal. That is an issue that we would often look at. Those types of issues are raised to us. If on appeal, and if in the appeal decision that we render on the issue, the appellant is unhappy with the conclusions reached by the board on this issue, he or she can take it to the Federal Court of Canada.
[Translation]
Senator Rivard: When one of your Board positions becomes vacant, I gather that your hiring policy for senior positions can be found on the Internet. Candidates put in their applications and, when you get them, you do a preliminary screening to make sure that they meet all the criteria. When that stage is completed successfully, you go to a written exam and an interview and then the selection committee makes its recommendations to the minister? Is that what happens?
Mr. Larlee: That is what happens.
Senator Rivard: Does that process prevent political interference of all kinds? Is it a completely transparent process for any candidate with the skills to serve on your board?
[English]
The merit-based selection system assures that the members who enter into the pool of candidates, and they remain there for three years, are merit-based and therefore qualified and they would be accepted by the board to serve.
We have the selection processes two times a year. Actually, we are just concluding one shortly. The dates for the deadlines are advertised on our website or through the Governor-in-Council appointment site, or whatever. It depends on when vacancies come up and where the requirements are that determines whether someone will be recommended for appointment.
[Translation]
Senator Rivard: I gather that the mandate is for three or four years. Then people can apply again, meaning that the term is not fixed. People can stay in the position as long as they want and as long as they meet the criteria.
When the mandate is over, it is possible to apply again, because I am looking at the names of the board members and I know that some have been there for 15 or 18 years. People reapply each time their mandate expires. They are part of the process like everyone else and they may have to compete against new candidates. A new appointment is not automatic. Is that correct?
Mr. Larlee: No, reappointment is not automatic.
[English]
Once an individual is appointed, whether it is for three years, five years, or as in my case six, the individual can request to be renewed. At that time, that individual does not have to go through the process of taking the exam, but it is the recommendation of the minister to cabinet whether they are reappointed or not. We are consulted on what the needs are.
That is why, when we talked about the fact that there are some times when we can make some movements with our budget when we are waiting for an appointment. In the case of Mr. Martel, we had a vacancy for almost a year for a bilingual appointment for Ottawa. In that period, it makes it a little more difficult with our scheduling while we are waiting for our appointments to be made because we have to move more people from different areas to cover, but that is just the reality of how those types of appointments work.
[Translation]
Senator Rivard: I suppose that, when a judge on your board reaches the end of his term and he expresses a willingness to continue in the position, someone higher up confirms the quality of his work. He is not going to be reappointed just because he has been there for three, five or ten years. There must be a favourable report from a superior.
[English]
Mr. Larlee: Yes. We have a program of performance evaluations. As a small agency it is part of the requirements and we carry them out. We do annual performance evaluation of our members and then recommendations are made at the time when members indicate whether they want to be reappointed and that is my role, as well as that of my deputy chair.
The Deputy Chair: I have a quick supplemental on that. Are you allowed to appoint, or is the government allowed to appoint for a maximum of 10 years?
Mr. Larlee: Yes, under the legislation I believe the maximum one-time appointment is 10 years for an order-in- council, if I remember correctly.
Ms. Sharkey: The legislation, the Veterans Review and Appeal Board Act, outlines the 10 years allowable, and permanent members can have up to 10 years for an appointment and can be renewed any number of times. Temporary members who also work full-time — it is a non-term — can be appointed for only two years and only one renewal.
The Deputy Chair: Mr. Martel has been appointed for a three-year term. What criteria are used to determine the length of the term?
Mr. Larlee: That is determined by the Governor-in-Council.
The Deputy Chair: You have nothing to do with that?
Mr. Larlee: No.
Senator Day: I wanted to confirm, Ms. Kell, that you are acting director of legal services. Are you based in Charlottetown, or are you part of Justice seconded?
Ms. Kell: No, we are independent legal counsel. We are based in Charlottetown. We are not part of Justice for the reason that we are an independent tribunal and we require independent legal advice in that position.
Senator Day: Thank you for that clarification.
In terms of your budget, as part of your accommodation budget, are you provided housing? Does Veteran Affairs look after you from that point of view?
Mr. Larlee: We are separate and apart, although we would not be tenants, but we are a separate part of the building where we have separate security to enter and so forth. We are separate in that way. We have, as small agencies do have, a memorandum of agreement with the department for various services like IT, finance and human resources advice when we need it.
Senator Day: Since your overall budget has not gone up for several years, has that portion of your budget that you are required to give to Veterans Affairs changed over the last several years?
Ms. Sharkey: We are in a situation where the memorandum of understanding outlines roles and responsibilities and the services that are provided, including accommodation and security services.
However, there is no exchange of funding in that respect. The budget was not awarded to the board when it was first created, with the understanding that there would be services provided to the board by Veterans Affairs. However, the memorandum of understanding is very clear on who is accountable and what their roles are with respect to providing advice and services to the board.
Senator Day: We are running out of time so I will just put my question to you directly instead of trying to get the facts and then making the argument, as Mr. Larlee, Ms. Kell and I are accustomed to doing from time to time. As far as financial independence goes, as a quasi-judicial body you will want independence. It is important that when you are acting as a review agent in appeal of a decision you need independence. Are you satisfied that you have the financial independence to do the job that is required of you?
Mr. Larlee: Yes.
Senator Day: You may not have this here, but can you provide a breakdown of the work that you are doing now under the New Veterans Charter and people who have proceeded under the New Veterans Charter versus the older traditional veterans? I would assume that is changing each year. It would be helpful if you could show us how your workload is changing over the past few years and the number of clients.
Mr. Larlee: Certainly.
The Deputy Chair: John Larlee, Dale Sharkey, Laura Kell, on behalf of the committee I thank you all for accepting our invitation to attend here today. It has been enlightening and I thank you very much.
Honourable senators, I now declare the meeting adjourned.
(The committee adjourned.)