http://www.ombudsman-veterans.gc.ca/reports-rapports/vrab-tacra-03-2012-eng.cfm#i
Extracts:
Report Summary
The Veterans Review and Appeal Board has a critical role to play in ensuring that Veterans and other clients of Veterans Affairs Canada receive the benefits and services to which they are entitled by determining whether the laws governing the disability benefits program have been properly applied by the Department at the adjudication level and by providing applicants the opportunity to present additional evidence in support of their application. Given its role, the Board must be held to a higher standard of review and procedural fairness than the Department. The degree to which the Board adheres to these standards by rendering decisions in compliance with the Veterans Review and Appeal Board Act has been the source of much concern within the Veterans community, and this erodes the trust in the institution.
Through their decisions, the Federal Court and the Federal Court of Appeal provide an independent judicial assessment of the manner in which questions of law, fact, and procedural fairness were handled in cases before them. For this reason, the Veterans Ombudsman determined that an analysis of Federal Courts judgments pertaining to Board decisions would provide valuable information about the degree to which the Board adheres to high standards of review and procedural fairness. The services of the law firm of Borden Ladner Gervais LLP (BLG) were retained to perform an independent analysis that included the 140 Board decisions that have been challenged to the Federal Court and the 11 decisions that were subsequently appealed to the Federal Court of Appeal. The review was conducted in the fall of 2011.
In 60 percent of Board decisions reviewed by the Federal Court, the Court ruled that the Board erred in law or fact, or failed to observe principles of procedural fairness. The failure to liberally construe the provisions of the Veterans Review and Appeal Board Act, to accept credible uncontradicted evidence, to give the benefit of the doubt, and to accept credible new evidence pertain to the Board's failing to allow the latitude granted to it by its enabling legislation. The failure to ensure procedural fairness by not providing sufficient reasons for decisions or not disclosing medical evidence considered by the Board further undermines the rights of Veterans and the credibility of the Board.
The findings of the analysis are of great concern to the Veterans Ombudsman:
It is difficult to think that fairness is assured when the Federal Court returns more than half of Board decisions it reviews for errors of fact or law, or for procedural fairness issues. Ultimately, this is about the fair treatment of the men and women who have served their country honourably. In the case of 85 Veterans, the Federal Court has concluded that the adjudication process has failed them. Veterans Affairs Canada and the Veterans Review and Appeal Board have the obligation to fully consider the reasons for the Courts' decisions.
Veterans Ombudsman's Recommendations
That the Veterans Review and Appeal Board report to Parliament on its performance using the percentage of Federal Court judgments that uphold Board decisions as an indicator of fairness in the redress process, and on remedial measures to attain the 100 percent target.
That the Veterans Review and Appeal Board, Veterans Affairs Canada, and the Bureau of Pensions Advocates establish a formal mechanism to review each Federal Court decision rendered in favour of the Veteran or other applicant, for the purpose of remedial action to procedures and adjudication practices.
That the Veterans Review and Appeal Board provide reasons for its decisions that clearly demonstrate that its obligation to liberally construe the legislation has been met, as well as its obligations under Section 39 of the Veterans Review and Appeal Board Act to draw every reasonable inference in favour of applicants, to accept credible uncontradicted evidence, and to give applicants the benefit of evidentiary presumptions (benefit of the doubt).
That the Minister of Veterans Affairs ensure that the Veterans Review and Appeal Board is sufficiently resourced so that the Board may publish all of its decisions on its Web site and all Federal Court judgments pertaining to Board decisions.
For the Minister of Veterans Affairs to mandate the Bureau of Pensions Advocates to represent applicants on judicial review of decisions of the Veterans Review and Appeal Board in the Federal Court.
For the Veterans Review and Appeal Board and the Bureau of Pensions Advocates to review their processes and service standards for the priority treatment of cases returned by the Federal Courts for rehearing.
For the Minister of Veterans Affairs to put forward the necessary legislative and regulatory amendments to allow Veterans to be compensated retroactively to date of application under the Pension Act and the Canadian Forces Members and Veteran Re-establishment and Compensation Act.
The Issue
Veterans and serving members of the Canadian Forces and the Royal Canadian Mounted Police who suffer an illness or disability related to their service may apply to Veterans Affairs Canada for disability pensions or disability awards. One of the most important rights to which Veterans and other applicants are entitled is the right to appeal decisions made by the Department to the Veterans Review and Appeal Board.
Reporting to Parliament through the Minister of Veterans Affairs, the Veterans Review and Appeal Board is an independent, quasi-judicial body established by law01 with the authority to uphold, change, or overturn decisions02 made by Veterans Affairs Canada, and to refer decisions back to the Department for reconsideration.
The Board has a critical role to play in ensuring that Veterans and other clients of Veterans Affairs Canada receive the benefits and services to which they are entitled by correcting adjudication errors made at the Department level and providing applicants the opportunity to present additional evidence in support of their application. To that end, and to fulfill the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants03, the Board has been granted very liberal powers under its enabling legislation, the Veterans Review and Appeal Board Act. In particular, Section 39 of the Act provides that the Board shall:
Draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;
Accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
Resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.04
To ensure fairness and retain the trust of those who turn to it for redress, the Board must act according to its enabling legislation as well as to principles of procedural fairness, including the right to a fair hearing, freedom from bias, and the provision of reasons for its decisions.
Since the Board's role is to determine whether the laws governing the disability benefits programs for Veterans and other applicants have been properly applied by VAC [Veterans Affairs Canada] in individual cases,05 the Board must be held to a higher standard of review and procedural fairness than the Department.
The degree to which the Board adheres to these standards by rendering decisions in compliance with the Veterans Review and Appeal Board Act has been the source of much concern within the Veterans community, and this erodes the trust in the institution.
To address these concerns, the Veterans Ombudsman informed the Minister of Veterans Affairs of his intention to conduct an analysis of the reasons for decisions issued by the Federal Court06 and the Federal Court of Appeal on applications for judicial review of decisions made by the Veterans Review and Appeal Board.
It is important to mention at the outset that the Veterans Ombudsman firmly believes that the Veterans Review and Appeal Board fulfills a critical function in the adjudication process and he recognizes the inherent complexity of the work carried out by the Board's members and staff. They have the difficult task of determining the merits of a case by deciding on questions of law and fact in an environment characterized by heavy workloads, increasingly complex cases, and pressure to issue timely decisions.
