The Veterans Review and Appeal Board has promised to pull up its socks following a report from Veterans Ombudsman Guy Parent criticizing the board for errors in law, fact and fairness revealed by studying appeals to the Federal Court of Canada and Federal Court of Appeal.
A review of 140 VRAB decisions from 1995 to 2011 that had gone to federal court found that VRAB “erred in law or fact, or failed to observe principles of procedural fairness” 60 per cent of the time. In light of this finding, “it is difficult to think that fairness is assured,” says the report.
“Court judgments point to the same errors over an extended period of time,” wrote Veterans Ombudsman Guy Parent. VRAB failed to exercise benefit of the doubt; interpreted legislation too narrowly; failed to accept credible uncontradicted or new evidence; did not provide sufficient reasons for decisions; and failed to provide veterans information necessary to make submissions in response to decisions. The report makes seven recommendations to improve the situation, five of which directly involve the board.
“In 60 per cent of the 140 decisions reviewed by the Federal Court, the court ruled that the board failed to ensure fairness,” said Dominion President Pat Varga of The Royal Canadian Legion. “The failure to allow the latitude granted to it by the provisions of the Veterans Review and Appeal Board Act, to give the benefit of the doubt, undermines the rights of veterans and the credibility of the board.”
The board responded to the reports saying, “The board welcomes the opportunity to build on our ongoing efforts to improve the appeal program for applicants.” It has promised to follow up immediately on some recommendations and to report progress on its website www.vrab-tacra.gc.ca.
VAC makes about 40,000 decisions annually that could be appealed. Of those, 30 per cent do not favour the veteran. Veterans may appeal first through VAC, then request a VRAB review and if still unsatisfied, a VRAB appeal hearing. After that, they may apply to the Federal Court of Canada for a judicial review of VRAB’s decision.
VRAB annually conducts nearly 4,000 reviews, of which half favour the veteran, and approximately 1,000 appeals, of which about 33 per cent favour veterans. In 2010-11, the court issued 13 decisions, dismissing four and requesting VRAB rehear nine.
But Parent points out more veterans would appeal to Federal Court but for legal costs, which can range from $15,000 to $50,000, and the fact that although the court can compel VRAB to reconsider a decision, it cannot substitute its own decision for that of the board. VRAB changed its decision in only 63 per cent of cases for which Federal Court requested reconsideration.
The ombudsman took VRAB to task for its performance standards, which have trended downward from 44 per cent of VRAB decisions upheld by Federal Court in 2007-2008, to 31 per cent in 2010-11. VRAB should set its sights higher, says the ombudsman, since its role is to determine whether VAC has properly applied laws governing disability programs.
The ombudsman recommends VRAB aim at having Federal Court uphold 100 per cent of its decisions; VRAB has committed to a target of 98 per cent. Parent recommends establishment of a formal review of court decisions in order to improve procedures and adjudication practices; VRAB has agreed to establish a task force with VAC and to review federal court decisions with an eye to improving fairness and interpretation of the law.
The ombudsman recommended VRAB communicate clearly with veterans, supporting its decisions; VRAB promises by year’s end to make changes to ensure veterans receive clear decisions in plain language.
The ombudsman’s report further recommended that the Bureau of Pensions Advocates be given a mandate to represent veterans at the Federal Court and not just the VRAB.
The ombudsman also put VAC on notice, saying that if more than half the cases appealed to VRAB overturn department decisions, VAC should be asking why and “consider ways to improve decision making at the department’s first adjudication and review levels.”