Canada Gazette, Part I, Volume 152, Number 11: Veterans Review and Appeal Board Rules of Practice and Procedure

March 17, 2018

Statutory authority

Veterans Review and Appeal Board Act

Sponsoring agency

Veterans Review and Appeal Board

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

The Veterans Review and Appeal Board (the Board) is a quasi-judicial tribunal. Its primary responsibility is to adjudicate appeal decisions regarding disability pensions and awards for individuals dissatisfied with the decisions rendered by Veterans Affairs Canada. Unlike many other quasi-judicial tribunals, the Board has no formal rules to govern its practices and procedures. This has been reasonably effective in the Board's context because of its ongoing working relationship with the Bureau of Pensions Advocates, an organization of lawyers within Veterans Affairs Canada who represent almost all applicants (approximately 99%). Still, the Board has identified a need to address delays and inefficiencies caused by uncertainty around some of its requirements, including how and when to submit evidence. For this reason, it is taking the opportunity to explain its practices and procedures in a set of rules and make them accessible to veterans and Canadians.

Background

The Veterans Review and Appeal Board has existed since 1995, having been created pursuant to the Veterans Review and Appeal Board Act (the Act). The Act provides the organizational structure of the Board, the jurisdiction of the Board, and the various levels of redress and types of decisions that the Board may render. The Act and regulations made pursuant to the Act do not contain much prescriptive detail regarding procedures before the Board, and Board practices and procedures have developed over time.

Section 44 of the Act provides that procedural rules may be made by the Board; however, the Statutory Instruments Act (the SIA) requires procedural rules of federal quasi-judicial tribunals to be submitted to the Clerk of the Privy Council for registration, review, approval and publication in the Canada Gazette. The Board believes that codifying its practices and procedures in a set of rules formalized pursuant to the SIA will create transparency for individuals coming before the Board, guiding them by providing detailed information about procedures involved in the tribunal's adjudications.

Drafting of a set of rules respecting the Board's practices and procedures began in 2015. The Board is now proposing to make the Veterans Review and Appeal Board Rules of Practice and Procedure.

Objectives

The primary objective of this proposal is to create rules that will provide clarity and transparency to applicants and appellants and their representatives respecting Board proceedings. A second objective is to make the Board's decision-making process more efficient and to avoid unnecessary delays caused by uncertainty with respect to Board practices and procedures.

Description

The proposed Rules would accomplish the following:

• define specific terminology and concepts referred to in the Rules;
• guide applicants and appellants by explaining how to submit and cite reference materials, lengthy documents, and other evidence, and provide time lines for the submission of evidence to the Board;
• clarify what the Board will consider when expert medical evidence is submitted; and
• provide greater detail with respect to procedures for raising a question of interpretation before the Board and for seeking a compassionate award from the Board.

"One-for-One" Rule

The "One-for-One" Rule does not apply to this proposal, as there are no costs to private sector business as a result of these Rules.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business as a result of these Rules.

Consultation

Through the Board Chairman's regular updates, stakeholders have been kept informed of the Board's intent to publish its Rules as a statutory instrument, as defined by the SIA. The Chairman also indicated that stakeholders would be informed, prior to prepublication of the proposed rules in the Canada Gazette, of the opportunity to comment on these rules. There has been no response from stakeholders other than an indication that they are awaiting learning more about the proposal once it is made public. The Board will carefully consider any comments that may be provided by stakeholders during the prepublication stage.

Rationale

The proposed Rules codify current practices and thereby make them enforceable. They are not expected to have a negative impact on applicants and appellants. They are expected to provide greater clarity and achieve enhanced efficiencies for veterans and their families and stakeholder groups, and more efficient adjudications of pension claims before the Board. Veterans will understand the terminology used by the Board, and will better understand how and when to submit evidence and avoid undue delays or adjournments necessary due to late filing of evidence. Those contemplating seeking a compassionate award or an interpretation from the Board will know what is necessary in those proceedings.

The proposed Rules were designed to impose no or minimal cost or additional burden for veterans, and have no impact on business, or on public money (except perhaps savings through greater efficiency). There will be no new additional cost to the Government of Canada associated with these Rules.

Implementation, enforcement and service standards

The proposed Rules would come into force upon registration.

During the prepublication period, the public may provide comments, and any comments provided will be considered. Stakeholders will be informed of the published Rules through publication on the Board website, and through an email distribution list. As of the coming-into-force date, the Rules will be applied to all proceedings that are before the Board.

Contact

PROPOSED REGULATORY TEXT

Notice is given that the Veterans Review and Appeal Board, pursuant to subsection 44(1) of the Veterans Review and Appeal Board Act ^{footnote a}, proposes to make the annexed Veterans Review and Appeal Board Rules of Practice and Procedure.

Interested persons may make representations concerning the proposed Rules within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Thomas Jarmyn, Chairperson of the Veterans Review and Appeal Board, 161 Grafton Street, P.O. Box 9900, Charlottetown, Prince Edward Island C1A 8V7 (email: VRAB-Chair-President-TACRA@vrab-tacra.gc.ca).

Charlottetown, March 5, 2018

Thomas Jarmyn

Chairperson of the Veterans Review and Appeal Board

Veterans Review and Appeal Board Rules of Practice and Procedure

Interpretation

Definitions

1 The following definitions apply in these Rules.

Act means the Veterans Review and Appeal Board Act. (Loi)

expert means a person who has special knowledge, through education or experience, of a matter for which they provide an opinion to the Board. (expert)

expert report means a report that is prepared by an expert for the purpose of assisting the Board and presented as evidence in support of a proceeding under the Act. (rapport d'expert)

Regulations means the Veterans Review and Appeal Board Regulations. (Règlement)

General Principle

Interpretation and application of Rules

2 These Rules must be interpreted and applied so as to permit the claims of veterans and their families to be determined in a manner that is just and as inexpensive and expeditious as possible.

Reference Materials

Materials to be provided

3 (1) An applicant or appellant who intends to rely on a text or a statute, regulation or other authority in support of a proceeding under the Act must

• (a) provide a copy of the document to the Board and indicate the relevant portions by highlighting or underlining them; and
• (b) if the document is obtained from an electronic database or a website, provide the electronic address at which the document is available.
  

Longer than 25 pages

(2) Despite paragraph (1)(a), if the document is longer than 25 pages, the applicant or appellant must provide to the Board only the relevant portions of the document, including the paragraphs immediately above and below each relevant portion and, if applicable, the headnote.

Complete copies kept

(3) The applicant or appellant must keep a complete copy of each document, other than a statute or regulation, the portions of which are provided under subsection (2). The complete copy must be kept for the duration of the proceeding and be provided to the Board on request.

Evidence

General

Time limit to provide evidence

4 An applicant or appellant who intends to present evidence in support of a proceeding under the Act must provide that evidence to the Board

• (a) in the case of an application for review, no later than two days before the day on which the hearing is scheduled to begin; and
• (b) in the case of any other proceeding, no later than 14 days before the day on which the hearing is scheduled to begin.

Audio and Video Recordings

Affidavit required

5 (1) An audio or video recording that is relied on in support of a proceeding must be supported by the affidavit of an individual who attests to the following facts regarding the document:

• (a) the date on which it was created;
• (b) the purpose for which it was created; and
• (c) that it is accurate and has not been edited or otherwise altered since it was created.

Application for review with oral submissions

(2) However, in the case of an application for review in which oral submissions are to be made, the attestation may be given orally by the witness whose testimony will include the audio or video recording.

Information required

6 For each audio or video recording that is provided to the Board under section 4, the applicant or appellant must also provide

• (a) an explanation of how the recording is relevant to the matters at issue in the proceeding;
• (b) the name of the individual or witness, as the case may be, who will provide the attestation under section 5; and
• (c) a description of the equipment that is necessary to view or listen to the recording.

Expert Reports

Instructions required

7 For each expert report that is provided under section 4, the applicant or appellant must provide a copy of the instructions that were provided to the expert for the preparation of the report.

Factors considered by Board

8 The Board must consider the following factors when weighing the evidence that is contained in an expert report:

• (a) the instructions that were provided to the expert for the preparation of the report;
• (b) whether the expert signed the report;
• (c) the expert's training, education and qualifications;
• (d) if the report is prepared by a physician or a psychologist, whether they are licensed to practise under the laws of a province or other jurisdiction and whether the individual to whom the report pertains is, or was, their patient;
• (e) the facts, assumptions and documents, including the claimant's medical history and any texts, articles or other sources of information, that the expert relied on in support of the opinions expressed in the report; and
• (f) whether the report is objective.
  

Questions of Interpretation Under Sections 30 and 37 of Act

Facts and arguments

9 (1) Facts and arguments that are submitted under paragraph 6(1)(b) of the Regulations must include references to the statutes, regulations or other authorities that the appellant, person or organization intends to rely on at the hearing of the question.

Supplementary facts and arguments

(2) If the appeal panel or the Board, as the case may be, concludes that those facts and arguments are not sufficient to allow it to decide the question of interpretation, the appellant, person or organization must, if requested by the Board, provide the Board with the supplementary facts and arguments that the Board believes are necessary for it to decide the question.

Trivial, frivolous or vexatious question — section 30

10 If the appeal panel is of the opinion that a question raised under section 30 of the Act is trivial, frivolous or vexatious, the appeal panel must provide its reasons for that opinion in its decision of the appeal.

Notice under the Regulations

11 (1) In a notice that the Board is required to provide to persons and organizations under paragraph 6(2)(b) of the Regulations, the Board must identify the issues for which it will require arguments and set out the time period in which those arguments must be presented.

Intention to present arguments

(2) Every person or organization who is provided with a notice must inform the Board of whether they intend to present arguments on the issues and, if so, whether the arguments are to be presented orally or in writing.

Pre-hearing conference

12 After providing the notice referred to in section 11 and before the start of the hearing, the Board may convene a pre-hearing conference for the purpose of discussing any of the following issues with the persons and organizations who were provided with the notice and the appellant, person or organization who raised or referred the question to the Board:

• (a) the scope of the issues that are to be argued at the hearing;
• (b) the manner in which arguments will be made;
• (c) the scheduling of the hearing; and
• (d) any other issues that are relevant to deciding the question.

Applications Under section 34 of Act

Content

13 (1) An application for a compassionate award under section 34 of the Act must contain the following information:

• (a) a statement of the applicant's income and expenses that is signed and dated by the applicant and that sets out
  • (i) the applicant's name and mailing address,
  • (ii) the applicant's employment status,
  • (iii) the applicant's gross income for the taxation year before the one in which the application is made,
  • (iv) the amount of income that the applicant expects to earn in the taxation year in which the application is made, the sources of that income and, for each source, the amount of income earned from the source,
  • (v) the applicant's monthly income for the taxation year in which the application is made, calculated using the amount of income referred to in subparagraph (iv), and
  • (vi) the applicant's monthly expenses for the taxation year in which the application is made — less any amount of those expenses that are paid by another person — the types of those expenses and, for each type, the amount of that expense;
• (b) a list of all individuals who are dependants of the applicant;
• (c) copies of the applicant's notices of assessment and reassessment, provided to the applicant under the Income Tax Act, for the two taxation years before the one in which the application is made;
• (d) the amount to which the applicant would have been entitled if the applicant's claim under the Pension Act or the Canadian Forces Members and Veterans Re-establishment and Compensation Act had been upheld; and
• (e) the amount of the compassionate award that the applicant is claiming and the grounds for that claim, including why the case is specially meritorious and why the applicant is unqualified to receive an award, benefit or allowance under the Pension Act or the Canadian Forces Members and Veterans Re-establishment and Compensation Act, as the case may be.

Change of information

(2) Before the Board's determination of the application, the applicant must notify the Board of any changes to the information provided under subsection (1).

Coming into Force

14 These Rules come into force on the day on which they are registered.