Ottawa ON
Canada
On May 7, 2012, the Office of the Veterans Ombudsman released a report entitled Veterans’ Right to Fair Adjudication, an analysis of decisions of the Federal Court and Federal Court of Appeal pertaining to the Veterans Review and Appeal Board.
The report makes the following seven 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 Veterans Re-establishment and Compensation Act.
Case Studies:
Arial v. Canada (Attorney General)
In March 1996, the Veteran met with Veterans Affairs Canada for the first time to have his file assessed and to obtain information about his rights as a Veteran. Over the years, the Veteran and his family made repeated requests to Veterans Affairs Canada for help obtaining the required documents for their pension applications and for a clear and precise explanation of what had to be submitted. Ultimately, pension applications were submitted concerning four different disabilities as well as an attendance allowance.
Various legal proceedings were initiated on these pension applications including a 2011 Federal Court decision. The Federal Court held that "VAC's breach of the duty owed to Mr. Arial degraded the quality of life of this veteran. The Court refers the case back to the Veterans Review and Appeal Board so that the Board can review its responsibilities toward the Arial family. It will be up to the Board to determine what a major breach of its duty to inform is worth, in accordance with the legislation and the case law bearing in mind the fact that it is merely suggested but is explicitly stated in the PA [Pension Act] itself that VAC must provide counselling service to applicants and pensioners "with respect to the application of this Act to them.... and ... assist applicants and pensioners in the preparation of applications" (subsection 81(3) of the PA). The Board has an obligation to stay true to its mandate to respect this statement and not treat it like a superficial public relations ploy".
Ladouceur v. Canada (Attorney General)
While serving with the Canadian Forces in Cyprus in the early 1980's, the Veteran suffered severe injuries to his ankle that left him with a permanent disability. Since 1998, the Veteran had been seeking appropriate pension compensation for his disability. The Veterans Review and Appeal Board denied the Veteran's request for an increase of the disability assessment and a change of a start date for his compensation based on the opinion of an unnamed "medical advisor".
The Court determined that the Board improperly relied on a medical opinion that was not disclosed to the Veteran during the proceedings. In this case, the Board failed to provide the Veteran with the appropriate degree of procedural fairness.
Armstrong v. Canada (Attorney General)
The Veteran, an RCMP officer, was investigating a robbery in 1991 when she stepped into an open drain hole which caused her various injuries. Although she continued to work, she suffered increased pain, discomfort and disability in her neck, shoulder and arm.
The Board found that there was no mention of the injuries following the incident in her service records and the Veteran herself was of the view that the fall aggravated a shoulder injury she suffered in the 1970s while playing sports, before she joined the RCMP.
The Court held that "the finding of the 'Entitlement Appeal' connecting her disability to her hockey injury was outright speculation and can be given no weight whatsoever. There was no conflicting medical evidence in this case. There were no facts in the record to allow the Board to infer a causal connection between her hockey injury and her disability. If it had concern, it should have sought a further medical opinion."