Conservatives Whitewashed Commons Report on Veterans Review and Appeal Board, Liberals Say
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The Liberal Party disagrees with the Commons report on VRAB. It has released their own minority report on the issue: Minority Report of the Liberal Party of Canada
The Standing Committee on Veterans Affairs: Restoring Confidence in the Veterans Review and Appeal Board, December2012
The Liberal Party is unable to agree with the Conservative majority on the process or the substance of this report. The flaws are numerous, and yet the Conservatives have made no effort to find common ground and have imposed a three page limit on this Liberal Minority Report.
Accordingly, the failure to specifically mention any particular shortcoming in the Conservative majority report should not be taken as agreement.
The parliamentary study on the Veterans Review and Appeal Board (VRAB) was undertaken as a result of a Liberal motion made at the Standing Committee of the House of Commons. The motion was triggered after the Veterans Ombudsman commissioned a study showing an unacceptably high rate of reversal at the Federal Court of VRAB decisions.
Witnesses Excluded
The Liberal Party put forward 12 witnesses to appear. The Conservative majority on the Committee controlled the witness list with an iron fist. The Conservative majority rejected 11 of the 12 witnesses put forward and limited witnesses’ testimony to less than 4 days. Compare this to the time devoted to the Committee’s study on Commemoration (14 days) and Service Delivery (8 days).
Among the witnesses rejected were veterans who had firsthand experience presenting their own case to VRAB, including Jim Newton and veterans’ advocates like former Veterans Ombudsman Pat Stogran, Mike Blais, Dennis Manuge and Don Leonardo. The latter is particularly troubling as Mr. Leonardo represents Veterans of Canada; an organization which counts a large number of modern day veterans as members. Their voices were not welcomed.
Most importantly, in our view, the Conservative majority refused to allow retired members of the Bureau of Pensions Advocates to appear. This is especially egregious, as these lawyers would undoubtedly have had meaningful insight into the workings of the Board and how to improve it, without fear of reprisals.
Strengthening the Benefit of The Doubt
Even with the appallingly flawed process and cursory review preferred and undertaken by the Conservative majority, it is clear that the biggest single issue causing a profound lack of confidence in VRAB is Section 39 of the Veterans Review and Appeal Board Act which reads:
In all proceedings under this Act, the Board shall 2
(a) 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;
(b) accept any un-contradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
(c) 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.
As the Conservatives point out at paragraph 18 of their Majority Report, VRAB interprets Section 39 as imposing a civil standard of proof on veterans. The “benefit of the doubt“ is only accorded to a veteran when the evidence for and against his claim is equal.
This is not in keeping with the expectations of veterans or, we submit, most Canadians.
Veterans Affairs Canada is sometimes accused (unfairly, in our view) of having “an insurance company mentality”. Applying Section 39 as they do,
VRAB and the Department are applying the exact same standard of proof as a plaintiff must meet in civil court when suing an insurance company for benefits. If we, as Canadians, want Veterans Affairs to be less rigid than an insurance company, then we have a duty to legislate different rules. In our view, the existing legal hurdle facing veterans is unacceptable.
Recommendation
The Liberal Party recommends that the Veterans Review and Appeal Board Act be amended to make “the benefit of the doubt” meaningful and more broadly applied. This is best done by lowering the burden of proof to one less onerous than one facing plaintiffs engaged in civil suits against insurers.
Specifically, the burden of proof should be lowered such that the applicable test is the same one contained in Section 19(1)(j) of the Immigration Act, known as the “reasonable grounds to believe” standard.
The Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100 offered the following comments on this legal test:
The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), 1993 CanLII 3012 (FCA), [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration),2000 CanLII 16793 (FCA), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the 3
belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm L.R. (3d) 61 (F.C.T.D.).
In imposing this standard in the Immigration Act in respect of war crimes and crimes against humanity, Parliament has made clear that these most serious crimes deserve extraordinary condemnation. As a result, no person will be admissible to Canada if there are reasonable grounds to believe that he or she has committed a crime against humanity, even if the crime is not made out on a higher standard of proof. (Emphasis added)
Conclusion
The Liberal Party of Canada therefore recommends amending applicable legislation to adopt this standard of proof for veterans. The proposed wording to amend the Veterans Review and Appeal Board Act would be similar or identical to that contained in Section 19 of the Immigration Act.
Veterans should be treated better than litigants suing insurance companies. This lowered burden would enable that. A legislative amendment to lower the burden of proof would be a major step forward to give real meaning to “the benefit of the doubt”.
The Conservatives rejected this essential recommendation.
It is also unfortunate that the New Democratic Party (NDP) is so entrenched in their overly simplistic position that they are unwilling to support a more nuanced and realistic approach.
As a whole, the final Majority Report of the Standing Committee on Veterans Affairs, controlled by the Conservatives, reflects a half-hearted, imbalanced, superficial inquiry into a very serious issue facing Canada’s veterans. They let their duty and loyalty to the Prime Minister’s Office supersede their responsibility to Canadians and to veterans.
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