Veterans Affairs Canada (VAC) offers a comprehensive set of benefits and services, with the Disability Benefits Program (Disability Pensions and Pain and Suffering Compensation [formerly Disability Awards, etc.]) serving as one of the main gateways to accessing many benefits and services. The Department’s legislation, regulations, and policies outlining the review and appeal mechanisms (redress) related to the Disability Benefits Program have evolved over the years as a series of program adjustments and new benefits have been added.
Disability Benefits are tax-free financial recognition for the impact a service-related injury or disease can have on a client’s life. The payment amount depends on the degree to which the condition is related to service (entitlement) and the severity of the condition, including its impact on quality of life (assessment).
1.1 Redress Process Overview
Clients who have made an application for disability benefits from VAC and received a decision, and disagree with that decision, have the right to review or appeal it.
Clients who are dissatisfied with a Disability Benefits decision are encouraged to contact the Bureau of Pensions Advocates (BPA), a nation-wide organization of lawyers within Veterans Affairs Canada providing free legal advice and representation for this purpose. The BPA team will review the file and may recommend the client apply for a Departmental Review through VAC or take their case to the Veterans Review and Appeal Board (VRAB).
The BPA assists clients with preparing Departmental Review applications and written submissions and can represent the client at the VRAB. Clients may also choose to represent themselves, engage private representation (at the client’s cost), or seek help from Veterans Organizations like the Royal Canadian Legion.
1.2 Departmental Reviews
Departmental Reviews are completed by VAC Disability Adjudicators within Centralized Operations Division (COD). In a Departmental Review, an adjudicator from VAC examines the submission, including any new evidence, to determine if a new decision should be issued.
One of the most commonFootnote 2 reasons why first applications for Disability Benefits are not approved by VAC, or the assessment is less than the applicant expected, is due to a lack of sufficient evidence in the original application. If an applicant has new evidence that was not included in their application, they may request a Departmental Review and submit the new evidence.
If the applicant is dissatisfied with the Departmental Review decision (or they did not apply), they can take their case to the Veterans Review and Appeal Board.
1.3 The Veterans Review and Appeal Board – Review Process
Established by an Act of Parliament in 1995, the Veterans Review and Appeal Board is an independent federal tribunal to which clients have the right to two opportunities to appeal a Disability Benefit decision from VACFootnote 3.
The first step is a Review hearing. A request for Review with the VRAB is normally initiated by the BPA lawyer (or in some cases the client, private representation, or Royal Canadian Legion). After the request is made, a statement of case is prepared, and a hearing is scheduled.
Review hearings are held before a panel of not fewer than two Board MembersFootnote 4. Clients are encouraged to attend and testify. Prior to the COVID-19 pandemic, travel costs for the Veteran to attend were typically covered by VAC. However, since the pandemic, hearings are held virtually. The BPA lawyer will go through the evidence in the case with the Board Members; ask questions of the client or any other witnesses; introduce new evidence; and make oral arguments on the client’s behalf. If the client is unable to attend, the BPA lawyer can represent the client’s interests. The hearing is not an adversarial process and there is no lawyer or other representative of VAC who questions any piece of evidence provided. The VRAB Members may choose to ask questions to obtain clarifications that are required to make a decision.
Following the Review hearing, a decision is made by VRAB, and a decision letter is sent to the client. If a client disagrees with the decision, they have the right to appeal it. This next step is an Appeal hearing.
1.3.1 The Veterans Review and Appeal Board - Appeal Process
If the client is dissatisfied with the VRAB Review decision, they can request a VRAB Appeal. Appeal hearings are similar to a VRAB Review except they are heard before a different panel than the Review hearing, with no fewer than three Board Members.
For an Appeal hearing, the lawyer will either argue the client’s case on their behalf in front of a panel or file a written submission to the panel. Applicants rarely attend Appeal hearings because the legislation does not allow for oral testimony. The BPA lawyer will go through the evidence in the case with the Board Members, introduce new evidence and make oral arguments on the client’s behalf. Appeals may consider new evidence or focus on errors of fact or law.
The Board’s decision at an Appeal hearing is final and binding. That said, there are provisions in the Veterans Review and Appeal Board Act that allow the Board to further reconsider the matter if there has been an error in fact or law, or if new evidence becomes available. These reconsiderations are not routine.
1.3.2 The Veterans Review and Appeal Board - Reconsideration Process
If a client is dissatisfied with a final-and-binding Appeal decision, they can apply to the Board for a Reconsideration (i.e., a reopening of the case) if new, credible, and relevant evidence comes to light at a later date, or if an error in fact or law is found in the Appeal decision.
If the client has exhausted all redress options at the Board and remain dissatisfied, they have the right to apply to the Federal Court of Canada for a Judicial Review of the decision.
1.4 The Veterans Review and Appeal Board - Judicial Reviews
In certain and specific circumstances, clients may be able to pursue a Judicial Review through the Federal Court of Canada. This approach is considered in situations where the client and their lawyer are certain that VRAB has made an error in law or in fact, or that VRAB overlooked significant facts that could impact other applicants for disability benefits. This usually involves an issue of interpretation of specific law(s). The Federal Court cannot make a decision on VAC Disability Benefits, rather they can direct VRAB to set aside the decision and rehear the matter.
Lawyers from BPA are not mandated to represent clients before the Federal Court. They can advise clients if their case has merit, but in order to proceed, clients must hire their own legal counsel or represent themselves. However, BPA can proceed to Federal Court on issues of interpretation that impact not just a single client, but an entire class of clients. In these cases, the applicant is not a specific Veteran, but the Chief Pensions Advocate.