INTRODUCTION

Over the years, many veterans have pointed out the need for an ombudsman to help them deal with the often complex process of obtaining disability pensions and various services administered by the Department of Veterans Affairs. A number of requests for benefits and services are processed quickly, but others are delayed for various reasons and there is often a need for an independent third party to help resolve a disagreement between a veteran and the Department or to identify the source of the delays in decisions. Over the last few months, the Department of Veterans Affairs has been examining the role and responsibilities of a veterans ombudsman who will be appointed in keeping with the Minister’s commitment to introduce a Bill of Rights for Veterans. The Committee decided to undertake a study on the veterans ombudsman in order to contribute to the development of the mandate and the design of the reporting process and capabilities of such a position. Indeed, it is time to give veterans a helping hand by moving forward with the appointment of a veterans ombudsman. This report indicates why veterans need an ombudsman, examines the various models of ombudsmen proposed in the past or developed in other countries which could be adapted to meet Canada’s current requirements, and outlines the measures which should be taken to ensure an independent and effective veterans ombudsman.

WHY VETERANS AND THEIR FAMILIES NEED AN OMBUDSMAN

The Committee undertook its study on a veterans ombudsman in the spring of 2006 in the wake of the various events held across Canada in 2005 to mark the Year of the Veteran. These events gave Canadians the opportunity to remember the courage and sacrifices of our War Service veterans, who served during the First World War, the Second World War, and the Korean War, and of our Canadian Forces personnel who served during and since the cold war. The Year of the Veteran also witnessed the introduction of the New Veterans Charter which went into force in 2006 with programs and services designed to meet the needs of Canadian Forces personnel who have recently become veterans or who will do so in the years to come. The casualties suffered by Canadian Forces personnel during operations in Afghanistan and elsewhere in recent months have provided yet another reminder of the risks faced by those who serve in the military. Thus, the Committee undertook its study amid not only greater recognition among Canadians of the debt of gratitude owed to all veterans, but also a renewed commitment to provide those injured during military service with the benefits and tools they need to recover and enjoy healthy and productive lives. Today, there is also greater awareness of the impact of the injuries suffered by veterans on the lives of their families. The spouses or other caregivers often shoulder much of the burden of caring for injured veterans, whether War Service or Canadian Forces veterans. Thus, while the report deals mainly with issues concerning veterans, it should be clearly understood that survivors of veterans and other eligible clients of the Department of Veterans Affairs as well as veterans should have access to a veterans ombudsman.

By and large, the benefits and services outlined in the original Veterans Charter of 1944 and in the New Charter address the needs of Canadian veterans. Once an application for a disability pension or award has been approved or a request for a service such as those provided under the Veterans Independence Program (VIP) has been accepted, veterans are generally satisfied with the help provided by the Department of Veterans Affairs, at least according to departmental surveys of client satisfaction. However, there is always room for improvements in the provision of benefits and services to veterans. Indeed, the expectations of some veterans in terms of speed and quality of service are not always met because of the complexity of the application process for disability and other benefits. Other veterans become frustrated because they cannot obtain the benefits they believe they should get given their disabilities. Perhaps one of the best examples of the time, measured in years, and effort some veterans have to make in order to gain the benefits they deserve is the case of the Korean War veteran who had to go to great lengths to demonstrate the link between the extensive use of chemicals such as DDT during the war and the illnesses he experienced years later.¹ When the application for disability benefits is rejected in the initial phase or when it is approved, but provides fewer benefits than expected, veterans can obtain a departmental review or appeal to the Veterans Review and Appeal Board (VRAB), a quasi-judicial body. If the appeal process runs its course and a veteran is still unsatisfied with the decisions, the case can be taken to the Federal Court which can order a re-examination of the application. When a case is taken to the Federal Court, the veteran is responsible for the legal costs, so other options may be considered. As Tom Hoppe, National President of the Canadian Peacekeeping Veterans Association, told the Committee: “When a wounded soldier or veteran is faced with the inflexible system, he or she has nowhere to turn except to the media or the Federal Court.”²

In some cases, the veteran may not be eligible for disability benefits because their situation is not within the criteria established by the legislation governing disability pensions or awards. However, one must not lose sight of the fact that these veterans risked their lives for the democratic freedoms enjoyed by all Canadians. As Mary Ann Burdett, the former Dominion President of the Royal Canadian Legion told the Committee on June 6, 2006: “In recognizing their sacrifice Canadians should come to realize that no death is more important than another. As long as that death or that injury is linked to military service, and whether or not they served in World War II or in modern times, these heroic Canadians are all veterans who should receive the benefits they deserve.”³ Thus, every effort possible should be made to ensure that veterans obtain the benefits and services they deserve and that these are not denied them simply because of a backlog in the processing of applications or a misunderstanding between a veteran and departmental or VRAB officials.

Various measures can be taken to ensure this. However, one of the most important initiatives is to give veterans and their families access to an ombudsman. As an independent and impartial third party, an ombudsman can clear up misunderstandings or identify systemic problems in the processing of applications for benefits and services which affect dozens if not hundreds of veterans. The origins of the modern day ombudsmen found throughout the world can be traced mainly to the appointment of the first parliamentary ombudsman in Sweden in 1809.⁴ While there is general agreement on what the term ombudsman means, it is not always clear exactly what such an official does. For the purposes of this study, the role of an ombudsman is the one described by André Marin, the Ontario Ombudsman and former Ombudsman for the Department of National Defence and the Canadian Forces: “It is the role of an ombudsman to investigate citizens’ complaints against the administration and to make recommendations to fix maladministration. In order to effectively conduct business, the ombudsman must be independent, impartial, function confidentially, and enjoy a credible investigative process.”⁵

The appointment of an ombudsman should not be viewed by the bureaucracy as a challenge to its authority and an encumbrance because the ombudsman’s efforts to resolve differences and to identify problems can be beneficial to all involved, including the bureaucracy. As one veteran, Sean Bruyea, told the Committee, while speaking about the work of an ombudsman: “Perhaps the problem can be resolved with information or a quick telephone call to the department, or a referral to an administrative review. The goal is to provide assistance, not to worry about offending the mandate of the bureaucracy.” Mr. Bruyea went on to remind the Committee why a number of veterans need such help: “We are often dealing with suffering individuals, not players in a chess tournament.”⁶ In other words, the emphasis is on helping veterans rather than on winning battles against the bureaucracy.

However, just the existence of an ombudsman who can investigate complaints can encourage the bureaucracy to review its procedures and to initiate modifications as quickly as possible when problems are detected. An Australian academic highlighted this fact in an assessment of the work done by an ombudsman: “The ‘being there’ syndrome whereby the very existence of the office causes bureaucrats to think about their ability to justify the decisions they are making to an independent body is significant in itself in improving the quality of administration.”⁷> In short, giving veterans access to an ombudsman not only gives them a helping hand to deal with any matter affecting their individual situations directly, but also provides a watchdog who can identify bureaucratic procedures causing problems for veterans in general. The value of the work done by an ombudsman and the need for such an office is widely recognized as demonstrated by the proliferation of ombudsman offices in parliaments, government departments, and corporations around the world since the 1960s. Thus, it is time to give Canadian veterans what many people around the world already have, access to an ombudsman who can help them.

THE MILITARY OMBUDSMAN IS NOT THE ANSWER

Besides, Canadian military personnel have been able to seek the help of the Ombudsman for the Department of National Defence and the Canadian Forces since 1998 when the first such ombudsman, André Marin, was appointed. Some veterans who recently left the Canadian Forces have either sought the help of the military ombudsman during their service in the military or have at least witnessed the attention paid to the often groundbreaking reports issued by that office. However, as soon as individuals leave the military and become veterans, they have little if any access to the services of the military ombudsman given the limitations of that office’s mandate. Only in exceptional cases and with the agreement of the Minister of National Defence can the military ombudsman deal with events which occurred before June 15, 1998. Furthermore, paragraph 16 of the mandate clearly states that the military ombudsman cannot deal with a complaint concerning pension or other issues within the jurisdiction of the Department of Veterans Affairs or the VRAB. This has not prevented the military ombudsman from producing major reports of direct interest to veterans on pensionor compensation issues related to events prior to 1998. However, the pension and other issues involved were mostly within the jurisdiction of the Department of National Defence and did not directly concern the disability benefits and services provided by the Department of Veterans Affairs.⁸

Indeed, the line between a National Defence issue and a Veterans Affairs one is not always clear. For example, the compensation offered to veterans who were involved in chemical warfare testing during the Second World War and afterwards while they were in the military is a recent example of how a report by the military ombudsman led to some resolution of an issue which had dragged on for years. However, the onus in this case was on the Department of National Defence, which had carried out the tests or allowed them to happen, to provide compensation while the Department of Veterans Affairs played a secondary role. Another veterans issue where the military ombudsman has been actively involved in trying to find some resolution concerns deductions from payments made by the Service Income Security Insurance Plan (SISIP) which provides long-term disability insurance coverage. The military ombudsman issued a report in 2003, Unfair Deductions From SISIP Payments to Former CF Members, and sent a follow-up letter to the Minister of National Defence on October 26, 2005.⁹ SISIP payments are primarily a National Defence issue, but disability benefits provided by the Department of Veterans Affairs are involved to some extent because they are taken into consideration when SISIP determines how much will be paid to a disabled Canadian Forces veteran in income replacement benefits. The military ombudsman, Yves Côté, told the Committee that the costs and other issues concerning any possible changes in current procedures concerning SISIP payments were still being examined and that he intended to issue another letter on the subject in 2007. On this as with other issues, the efforts of the military ombudsman benefit veterans in general.

The fact remains that after having had access to an ombudsman during their military service, Canadian Forces veterans are basically left on their own to deal with all the bureaucratic complexities involved in obtaining the disability benefits and services provided by Veterans Affairs Canada. They are also left on their own to determine who has jurisdiction over issues of concern to them, a task which is not always easy as noted in the previous paragraph. This can be a traumatic experience for veterans, especially those still grappling with all the changes in their lives caused by the serious injuries which prematurely ended their military careers. It can also be a troubling experience for elderly War Service veterans left on their own while appealing decisions concerning their disability benefits or while trying to obtain the long-term care they need. Departmental officials, veterans groups like the Royal Canadian Legion, and others do their best to provide help to both young and old veterans. However, there are many situations where veterans are frustrated by delays in decisions concerning their needs or by the decisions themselves which they may consider unfair. In such situations, they would like to turn to an independent and trustworthy helper.

Not surprisingly, there have been suggestions that the Ombudsman for the Department of National Defence and the Canadian Forces could also play the role of an independent and trustworthy helper for veterans in all matters under the jurisdiction of the Department of Veterans Affairs and the VRAB. The first military ombudsman, André Marin, expressed his frustration in his last report which reviewed the office’s mandate that over 250 veterans had been turned away by his office over a period of some seven years because their complaints were related to issues within VAC’s jurisdiction. He stated: “Denying to veterans access to the Ombudsman to address all of their issues, makes little practical sense. The door should not close on them once the scope of their problem reaches the realm of Veterans Affairs Canada.”¹⁰ Mr. Marin added that veterans could be given access to the military Ombudsman for all types of issues if the Minister of Veterans Affairs simply signed a ministerial directive or if the mandate, if and when it is entrenched in legislation, was amended to include issues under VAC’s jurisdiction.¹¹

There was some support among veterans for amending the mandate of the military ombudsman to include issues within VAC’s jurisdiction. A November 2005 report by a veterans group which focused on the programs provided for current and future disabled Canadian Forces veterans and their families noted the advantages of having a completely integrated military and veterans ombudsman, possibly with an expanded military ombudsman’s office with separate directorates for military and veterans issues.¹² However, there was also concern within the veterans’ community that a military ombudsman with a mandate expanded to include veterans issues would still be mainly preoccupied with complaints from Canadian Forces personnel and might not have the time and resources necessary to deal with issues concerning the Department of Veterans Affairs.

During the course of this study, many veterans made it clear to the Committee that they want their own ombudsman who can concentrate full time on the complexities of the VAC benefits and services. For example, in his testimony to the Committee, Jack Frost, the Dominion President of the Royal Canadian Legion, stated: “We feel it would definitely require a separate ombudsman. The DND ombudsman right now has a full plate, and he has different issues that he’s working with. We would be a little afraid that one side might taint the other side when it comes to his vision.”¹³ Colonel (Retired) Don Ethell, a former president of the Canadian Association of Veterans in United Nations Peacekeeping and a member of other veterans groups, also stated that there should be two separate ombudsmen. While discussing concerns raised by veterans about some of the benefits provided by the New Veterans Charter, Colonel Ethell stated that “It would be awkward, if not a tremendous increase in workload, in my opinion, if the DND ombudsman were to take that on.”¹⁴ Meanwhile, the current Ombudsman for the Department of National Defence and the Canadian Forces, Yves Côté, is also of the view that a veterans ombudsman could be separate from his office and work exclusively for veterans.¹⁵

In short, while simply adding VAC issues to the military ombudsman’s mandate has many advantages, much more can be gained by appointing a veterans ombudsman operating as a separate entity and focused only on helping veterans. While there has been some consultations between the Department of Veterans Affairs and veterans groups on the proposal for a veterans ombudsman and the possible roles of such an office, there is still a need for consultations before all the pieces are fitted together and before the ombudsman is appointed. For example, Jack Frost, the Dominion President of the Royal Canadian Legion, stated his organization’s position on the issue: “It is our official stand that, yes, we support an ombudsman, but we would like to have input before the final documentation is completed.”¹⁶

Indeed, the need for consultations between veterans, the Department, and other interested groups or individuals was a recurring theme during the Committee’s meetings on this issue. It is also evident that there are generational differences within the veterans community with some of the younger Canadian Forces veterans approaching issues with perspectives which are not quite the same as those of long-established veterans groups which have many War Service veterans as well as Canadian Forces veterans. Thus, it is important to ensure that consultations are done with as wide a cross-section of the veterans community as possible. Furthermore, nothing should prevent more consultations with veterans once the veterans ombudsman has been appointed. Tom Hoppe, the National President of the Canadian Peacekeeping Veterans Association, told the Committee about his involvement with the advisory committee of the military ombudsman. He suggested that any ombudsman specializing in veterans issues should also have access to an advisory committee composed of veterans.¹⁷

The establishment of an advisory committee is in keeping with the development of a good working relationship between the veterans ombudsman and veterans which will obviously be an important element of the work to be done. Hugh Clifford Chadderton, Chief Executive Officer of the War Amps and Chairman of the National Council of Veteran Associations in Canada made it very clear that a good working relationship is necessary. He told the Committee: “If it’s going to be an isolated situation where an ombudsman runs off into his corner and doesn’t tell the veterans organizations what he’s doing, it would be, in our view, a great mistake.”¹⁸ Also important will be the establishment of lines of communications with, among others, the departments, the VRAB, and the military ombudsman. During the first months in office, the military ombudsman prepared a report which made recommendations on how the office should be structured and on the procedures with which investigations and other activities would be carried out. This is a very worthwhile example to follow in the first months of the veterans ombudsman’s mandate.

Given the complexity of the work involved and the need for consultations to finalize procedures, it is essential that the office of the veterans ombudsman be established as quickly as possible. Many veterans see the appointment of a veterans ombudsman as a long overdue initiative, so they should not have to wait a long time to actually have access to such an office now that there is a commitment to move forward on the issue. It is difficult to assess how much time will be necessary to put everything into place. Other ombudsman positions in Canada and elsewhere have been established after months and in some cases years of discussions. However, things appear to move fairly quickly once governments have accepted to go ahead with the appointment of an ombudsman. For example, it has been suggested that the ombudsman of the province of Québec, the Protecteur du citoyen, was appointed in 1968 in the wake of a meeting at Expo 67 a year earlier between the Premier and New Zealand’s ombudsman.¹⁹ The Committee expects the process of appointing a veterans ombudsman and developing procedures and other aspects of the office to be done as quickly as possible.

A PROPOSAL FROM THE SIXTIES

The appointment of a veterans ombudsman does not by itself guarantee the effectiveness of such an ombudsman. Many factors have to be taken into consideration in order to design an independent and effective office of the veterans ombudsman. As a Canadian Forces veteran, Sean Bruyea, told the Committee, veterans would be “very grateful for an ombudsman. The important thing is to make it real, not window dressing.”²⁰ Thus, during the course of its study, the Committee considered various possible models for an effective and trustworthy veterans ombudsman. This involved the examination of past proposals for a veterans ombudsman and some exploration of the way ombudsmen in other countries deal with veterans issues.

Indeed, many witnesses mentioned a 1960s proposal for a veterans ombudsman which is still in many ways relevant to the current discussions. The Honourable W.J. Lindal, a retired judge of the County Court of Manitoba, championed the idea in a minority report attached to the report of the Committee to Survey the Work and Organization of the Canadian Pension Plan to the Minister of Veterans Affairs.²¹ The Woods Committee, as it was often called because it was chaired by Justice Mervyn J. Woods, was established in 1965 to study the adjudication of disability and other pensions paid to veterans under the provisions of the Pension Act. Its majority report recommended, among other things, the establishment of a pension appeal board, the forerunner of the current VRAB, to consider appeals of decisions concerning applications for pension benefits.²² The Woods Committee, and subsequently the government of the day, favoured this option rather than Judge Lindal’s proposal for a veterans ombudsman, as explained decades later during the testimony of Hugh Clifford Chadderton, the Chief Executive Officer of the War Amps, who was the Secretary of the Committee.²³

The debate on which of the two options examined by the Woods Committee report was the best one should perhaps be left to historians and veterans to decide. For the purposes of this study, the real value of examining Judge Lindal’s proposal today lies in the description of the powers and responsibilities of a veterans ombudsman. For example, Judge Lindal stated that the ombudsman should be a protector of the rights and claims of former members of the military who would be able to spot any deficiencies in the pension legislation and bring them to the attention of the Minister and of Parliament, thus paving the way for corrective measures.²⁴ Decades later, the ability of an ombudsman to detect systemic problems in the way benefits and services are provided to veterans and to make the Department and Parliament aware of the need for reforms is still seen as a major benefit of such an office.²⁵ Judge Lindal also recommended an independent ombudsman who would be free to take the initiative and investigate any issue in addition to dealing with complaints from veterans. He called for an ombudsman who could distribute reports at will to Parliament and to the news media on the investigation of complaints. This is still an important element of any ombudsman’s work today, for as André Marin, the Ontario Ombudsman, told the Committee: “As ombudsman, what you do is talk softly, but carry a big stick. And the stick is the ability to blow the whistle publicly on maladministration.”²⁶ Full access to the files of the Department of Veterans Affairs and the Department of National Defence is another recommendation which is still very relevant today.²⁷ However, a few others, such as the one calling for a lifetime appointment for the ombudsman, reflected the attitudes of the time and are now much less acceptable.

THE NEED FOR A BROAD MANDATE

The fact remains that Judge Lindal’s focus in the 1960s was on an ombudsman dealing specifically with the appeal process concerning disability pensions. Today, a veterans ombudsman needs a much broader mandate given the significant evolution in veterans benefits and services which has taken place during the four decades since the Woods Committee’s study. Indeed, the Dominion President of the Royal Canadian Legion, Jack Frost, told the Committee that he did not “see a place for the ombudsman strictly in pensions and benefits. I see it in all venues.”²⁸ In addition to disability benefits, veterans now have access to many programs and services such as the Veterans Independence Program (VIP) established in 1981 which helps elderly War Service veterans stay in their own home as long as possible by providing assistance for grounds keeping and other similar tasks. Other more recent developments include the establishment under the New Veterans Charter of specialized rehabilitation programs to help veterans who have recently left the Canadian Forces because of disabling injuries. These new programs and services were developed by the Department of Veterans Affairs in a bid to meet the wide variety of needs of both the War Service and the younger veterans and to a large extent, they do. However, some situations can generate complaints from veterans such as long delays in decisions concerning their access to these programs and services or the slow delivery of the help requested.

The veterans ombudsman will also have to deal with complaints concerning the quality of care and other services provided in veterans long-term care centres across Canada mainly to War Service veterans. Only one of these centres, Ste. Anne’s Hospital in Sainte-Anne-de-Bellevue, Quebec, is still administered directly by the Department of Veterans Affairs.²⁹ Care is provided in other veterans long‑term centres and in veterans priority beds in community health centres through contractual arrangements between the Department of Veterans Affairs and provincial and regional health authorities. Despite the efforts of the staff and administrators of these centres to meet the needs of residents, a number of issues concerning the quality of care and other services provided have been raised over the years by veterans, their families, and veterans groups, as documented by various parliamentary committee reports.³⁰ The issues range from the quality of food to long waiting lists for admission to such centres. The quality of long-term care has long been a major concern of veterans groups and the Royal Canadian Legion has advocated the appointment of an inspector general to monitor this issue. Such a task could be fulfilled by a veterans ombudsman who should also, according to the Legion, “ensure that the financial resources provided by Veterans Affairs Canada are allocated to the care of veterans. Indeed, this should be a prime responsibility of a veterans ombudsman.”³¹

During the study, the Committee visited two veterans long-term care centres, the Perley and Rideau Veterans’ Health Centre in Ottawa, Ontario, and Ste. Anne’s Hospital. It was only a coincidence that these visits, designed to give Committee members an overview of VAC activities, took place during this study. However, they helped to provide some insight into the type of long-term care issues a veterans ombudsman will have to deal with. The visit to Ste. Anne’s Hospital also gave the Committee the opportunity to discuss with its ombudsman how issues raised by its residents or their family members are dealt with. Indeed, many hospitals across Canada have recognized the need to appoint an ombudsman to help residents and administrators resolve problems. The number of requests, in all categories, received by the ombudsman of Ste. Anne’s Hospital, 381 in 2004-2005 and 549 in 2005-2006, gives an idea of the total number of complaints or requests for assistance a veterans ombudsman might have to deal with during a given year just from the residents of a dozen or so veterans long-term care centres across Canada.³²

These discussions also helped to clarify the relationship which would exist between the veterans ombudsman and hospital ombudsmen. Concerns have been raised about the independence of such ombudsmen, especially if they report to the chief executive officer or the board of directors of their hospital. Nevertheless, these ombudsmen play a useful role in helping veterans and their families. André Marin, the Ontario Ombudsman, when discussing ombudsmen in hospitals such as Ste. Anne’s, told the Committee that they had some value and added: “So I could see them continuing to co-exist with one properly constituted statutory ombudsman.”³³> The extent to which independence is guaranteed by having Ste. Anne’s ombudsman report to an assistant deputy minister in the Department of Veterans Affairs rather than to the administrators at Ste. Anne’s can be a subject for debate. However, given the valuable work hospital ombudsmen can do, the veterans ombudsman should develop a very cooperative relationship with the ombudsman at Ste. Anne’s and at other centres providing care to veterans. Of course, the presence of an ombudsman at Ste. Anne’s or other centres should not in any way prevent veterans and their families from having access to the veterans ombudsman.

EXAMPLES FROM OTHER COUNTRIES

While the duties and experiences of hospital ombudsmen like the one at Ste. Anne’s demonstrate the types of long-term care issues a veterans ombudsman will have to deal with, such issues are still a small, albeit important, part of the veterans ombudsman’s mandate. There are many other ombudsmen in Canada, including the provincial ombudsmen, but they generally have few direct dealings with veterans issues. As a result, the members of the Committee were interested in knowing what other countries have done. Based on the testimony of witnesses and further research, there does not appear to be any perfect model of a veterans ombudsman which can be easily transferred from another country to the Canadian context. Nevertheless, the examination of what has been done in other countries is useful to the development of the Canadian veterans ombudsman’s mandate, if only to allay fears that the wheel might be reinvented without taking into consideration the lessons learned elsewhere.

The main observation in any survey of what has been done in other countries is that only a few ombudsmen actually deal exclusively with veterans issues. There are a few examples in the United States, but they have very limited mandates. One example is the ombudsman of the Board of Veterans’ Appeals of the U.S. Department of Veterans Affairs.³⁴ This ombudsman helps veterans seeking information and deals with complaints about the way the Board of Veterans’ Appeals provides its services, but cannot provide legal advice or intervene in the substance of a claim. In short, this is basically a customer service operation relevant only to a small element of the mandate of the Canadian veterans ombudsman. Some states in the United States, such as Missouri, have either appointed a veterans ombudsman or have considered appointing one to provide financial and other assistance to military personnel, reservists, and members of the National Guard from the state when they leave or return from a deployment overseas. The mandate is again quite limited and the duties carried out are not quite the same as those the Canadian veterans ombudsman will undertake.³⁵

In other countries where veterans have access to an ombudsman, help is provided either by a military ombudsman, by the country’s ombudsman, or by an ombudsman fulfilling both of these roles simultaneously. Military ombudsmen in other countries provided useful models for the design of the Canadian military ombudsman’s mandate.³⁶ However, they offer few lessons for a veterans ombudsman since, like their Canadian counterpart, they deal mainly with issues raised by currently serving military personnel with limited, if any, involvement with matters concerning veterans. For example, the Parliamentary Commissioner for the Armed Forces of the German Bundestag investigates matters concerning the armed forces notably to safeguard the basic rights of military personnel.³⁷The mandate makes no direct reference to veteran issues except perhaps for the one concerning matters related to the entitlements of persons leaving the military. In the Netherlands, the Inspector General of the Armed Forces is basically a military ombudsman.³⁸The Inspector General of the Armed Forces is also the Inspector of Veterans.³⁹However, veterans and military personnel also have access to the services of the country’s ombudsman, the National Ombudsman of the Netherlands.

Indeed, in a number of countries, including those without a military ombudsman, veterans, like other citizens, can raise issues with their country’s ombudsman concerning pensions, health care, or other matters of concern to them. For example, the National Ombudsman of France, the Médiateur de la République, can deal with, among other things, matters related to civilian and military pensions and disability pensions.⁴⁰ In the United Kingdom, the Parliamentary and Health Service Ombudsman carries out investigations into complaints about government departments and agencies and about the National Health Service in England. The Veterans Agency, the equivalent to Canada’s Department of Veterans Affairs, is one of the agencies within the mandate so the country’s ombudsman can deal with issues concerning, among other things, pensions and services for veterans.⁴¹ However, veterans, like other citizens, can seek the ombudsman’s help basically when all the other options available to resolve a dispute have been tried and their complaints have to be referred to the ombudsman by their local Member of Parliament.⁴² André Marin, the Ontario Ombudsman, stated that he had dealt with the United Kingdom’s ombudsman in the past and found it to be an excellent office. He encouraged the Committee to look at that model.⁴³

Another interesting foreign example is Australia where the country’s ombudsman, the Commonwealth Ombudsman, is also simultaneously, among other things, the military ombudsman, the Defence Force Ombudsman.⁴⁴ Australian veterans appear to have extensive access to the services of an ombudsman without worrying about which ombudsman should receive their complaint. The military ombudsman deals with employment-related matters for serving and former members of the Australian Defence Force. The Australian ombudsman also investigates complaints about the administrative actions of the Department of Defence and the Department of Veterans Affairs. On veterans issues in particular, the ombudsman can investigate the processing by the Department of Veterans Affairs of applications for payment of disability, service pensions or compensation benefits and the provision of ancillary services including medical treatment. The ombudsman’s annual report for 2005-2006 states that 690 defence-related approaches and complaints were investigated during this period of which 253 concerned the Department of Veterans Affairs, 50 more than in the previous year.⁴⁵ These cases were part of the 28,227 approaches and complaints received by the Commonwealth Ombudsman in 2005-2006.⁴⁶

The Committee’s study was greatly assisted by the testimony of Roger Winzenberg, an officer of the Australian Department of Veterans Affairs working in Canada in the equivalent department as part of an exchange program, who graciously offered to provide some information on the work done by the ombudsman. Mr. Winzenberg explained that the “Australian ombudsman is in the traditional mould of ombudsmen around the world, in that he is a person who makes recommendations and suggests solutions. He has no power to make decisions or overturn decisions. The power is in the production of the report.”⁴⁷ The situation in Australia is of great interest to Canadians not only because the two countries were allies in past conflicts and their veterans shared similar experiences, but also because the structures and procedures of the departments dealing with veterans have much in common. For example, in Australia, appeals concerning applications for disability pensions are considered by the Veterans Review Board (VRB) which is similar to a large extent to Canada’s VRAB. Since decisions by the VRAB are often the source of complaints from veterans, the situation in Australia was of great interest to the Committee. Mr. Winzenberg pointed out that in Australia, the “ombudsman has no role in the VRB’s adjudicative functions and the conduct of hearings. He will investigate matters relating to the administration of applications for review by the VRB’s staff.” Mr. Winzenberg also noted that the ombudsman had received two complaints related to the VRB in 2004-2005 and none in 2005-2006.⁴⁸ Another issue of concern to the Committee was the reporting relationship and independence of the ombudsman. Mr. Winzenberg explained that the ombudsman was established by legislation and reports to the Prime Minister who has to table the annual report in Parliament within 15 days of its receipt.

In short, there are a number of examples in other countries where ombudsmen deal with veterans issues. However, in most cases, veterans have access to an ombudsman not because there is a veterans ombudsman, but because their issues fall within the jurisdiction of their country’s ombudsman who has a broad mandate covering the whole range of government services. Furthermore, in Australia, Denmark, Finland, France, the Netherlands, New Zealand, Norway, Sweden, and the United Kingdom, veterans enjoy such access because their country’s ombudsman is a parliamentary ombudsman whose mandate and reporting procedures are outlined in legislation. There are variations in the appointment process since in some cases, the ombudsman is chosen by the country’s parliament while in others, notably in Australia, France, and the United Kingdom, the executive branch of the government makes the decision.⁴⁹Nevertheless, the ability to table reports in Parliament and the fact that the mandate is enshrined in legislation greatly enhances the influence and independence of these ombudsmen.

PARAMETERS OF A VETERANS OMBUDSMAN

Unlike these countries, Canada does not have a parliamentary ombudsman with a country-wide mandate to investigate complaints concerning most if not all federal government programs. During the 1960s and 1970s, there was considerable interest in Canada as in other countries in the valuable role played by ombudsmen and a number of such positions were created, notably in many provinces which gave themselves parliamentary ombudsmen. For example, the Ontario Ombudsman, André Marin, is a parliamentary ombudsman with a mandate outlined in legislation. At the federal level, legislation was introduced in Parliament in 1978 to provide the country with an ombudsman with a broad mandate, but for various reasons, the legislation was not adopted and except for some statements of support over the years, there appears to be little interest in pursuing the matter. However, Canada does have officers of Parliament such as the Commissioner of Official Languages and the Privacy Commissioner who are basically parliamentary ombudsmen dealing with a specific issue. In the absence of a parliamentary ombudsman with a broad country-wide mandate, there is need to appoint a veterans ombudsman with a mandate broad enough to cover the full extent of veterans issues. Such a position must be designed carefully and many of the lessons learned abroad are still very relevant.

Foremost among the lessons learned that should be applied when establishing a veterans ombudsman’s office is the need to clearly outline the mandate and other matters in legislation. The current military ombudsman and his predecessor, André Marin, have long argued in favour of a mandate entrenched in legislation to ensure the stability and the effectiveness of that office and progress is apparently being made on this issue. There is no question that there should also be legislation covering the mandate and all other aspects of the work carried out by the veterans ombudsman. As a member of the Centre for Ombudsman Studies at the University of Reading in the United Kingdom stated in an article: “To be able to achieve effective redress for citizens who have been wronged by governmental authorities an Ombudsman’s Office requires authority and power firmly entrenched in the law of the land.”⁵⁰ The legislation should outline the powers and responsibilities of the veterans ombudsman including full access to departmental and other documents, subject to the Privacy Act, any other Act of Parliament, and the consent of any complainant. However, with regard to the mandate, Mr. Marin pointed out the need to keep it simple to avoid jurisdictional disputes during investigations of complaints.⁵¹ Thus, while it is essential to outline the mandate in the legislation, the general parameters should be indicated instead of going into every specific detail which may only complicate the task of the veterans ombudsman.

With regard to the mandate, one of the most complex issues the Committee had to grapple with was the extent to which the veterans ombudsman should deal with matters related to the VRAB. As already mentioned, the process concerning applications for veterans disability benefits is a major source of frustration for many veterans. Some veterans are dissatisfied with the decisions rendered and the long appeal process while others, because of age or injuries, find the process intimidating. Thus, some witnesses argued that an ombudsman should be able to deal to some extent with complaints about VRAB’s decisions. However, VAC and VRAB officials pointed out the quasi-judicial nature of VRAB and its independence from the Department and suggested that the ombudsman would have little to do with VRAB issues. The Associate Deputy Minister of the Department of Veterans Affairs, Verna Bruce, told the Committee: “The ombudsman wouldn’t have any authority over the decisions made by the Veterans Review and Appeal Board. Depending on how you design the ombudsman, you could give the ombudsman the opportunity to deal with the people who think the process is taking too long, who could complain to the ombudsman. But under the current legislation, the ombudsman doesn’t have a role and wouldn’t have a role in decision-making around pensions. The role would deal more with health care benefits, or whatever.” ⁵² This statement drew a sharp response from André Marin, the Ontario Ombudsman, who stated that the Committee was told "by the Chair of the Veterans Review and Appeal Board as well as the Associate Deputy Minister that the Ombudsman could not look at how the Board considers a given file or intervene with the Board as it is an independent, quasi-judicial board. That is a misunderstanding of the role of ombudsman." Mr. Marin added: “There is nothing in our common law that would prevent that kind of intervention. In fact, I oversee all administrative tribunals in Ontario, from the Ontario Human Rights Commission and the Ontario Human Rights Tribunal to the Assessment Review Board."⁵³

The closest example of a veterans ombudsman found anywhere in the world is the Australian ombudsman who, as noted previously, is not involved in the adjudicative functions of the Australian Veterans Review Board, similar to Canada's VRAB, but can investigate matters concerning the administration of applications for appeals by the Board. Thus, a veterans ombudsman should be able to deal with administrative issues involving the VRAB without getting into the adjudication side of things. However, the veterans ombudsman’s involvement in reviews of VRAB adjudication decisions is another matter. Some veterans such as Sean Bruyea favoured the extensive involvement of the veterans ombudsman in VRAB issues. He told the Committee: “In spite of numerous pleas, VRAB at this time will not articulate the conditions for sending a file back to the department. An ombudsman would be able to come in and say, ‘Wait a minute, why are we convening a tribunal for a file that could be sent back to the department under certain conditions?’ That’s an example of where the ombudsman would be able to work to greater efficiency.”⁵⁴ The Royal Canadian Legion also saw a role for the veterans ombudsman in VRAB issues, especially when the appeal process had run its course and a veteran has few options to appeal a decision, such as appealing to the Federal Court for a review. The Legion’s Dominion President, Jack Frost, told the Committee: “Simply said, instead of going directly to the Federal Court, a veteran should have a voice and a choice to request a review of his case by an ombudsman.”⁵⁵ Once the VRAB has rendered its decision and the appeal process has taken its full course, the veterans ombudsman, if the veteran involved files a complaint, should be able to review the issue to determine if there are grounds for a more complete investigation.

The veterans ombudsman cannot replace the appeal process, but there must be complete co-operation between the ombudsman and the VRAB so that access to information is not denied, especially if the veteran has no objection to the release of information concerning their case. This is especially important in situations where a veteran has been trying for years to obtain approval for or an increase in benefits. The veterans ombudsman should be able to look into a situation such as the one experienced by the Korean War veteran who tried for years to demonstrate the link between the use of DDT and his illnesses. However, exactly when the veterans ombudsman can provide the best assistance to veterans dealing with the appeal process through the VRAB is a question which the veterans ombudsman, once in place, will be in the best position to answer. A lot will depend on how much resources and experience the veterans ombudsman will have at hand and more consultations with veterans will be required to fine tune procedures when dealing with the VRAB. Given the recommendation concerning the review of the mandate by the veterans ombudsman within a year after the appointment, the relationship with the VRAB can be one of the main issues to be examined.

With this in mind and given the lessons learned by other ombudsmen, including Canada’s military ombudsman and ombudsmen in other countries dealing with veterans issues, the Committee recommends that:

RECOMMENDATION 1

The Government proceed as quickly as possible with the appointment of a veterans ombudsman and the establishment of the office of the veterans ombudsman.

RECOMMENDATION 2

The mandate and all other parameters concerning the veterans ombudsman be enshrined in new legislation dealing mainly with the establishment of this office rather than through the amendment of existing legislation.

RECOMMENDATION 3

The veterans ombudsman be given sufficient compensation, status, budget, resources, and staff to carry out the mandate in an independent and impartial fashion.

RECOMMENDATION 4

The widest possible cross-section of veterans, including War Service and Canadian Forces veterans, be involved in the final consultations concerning the appointment and mandate of the veterans ombudsman prior to the establishment of such a position.

RECOMMENDATION 5

An advisory committee, based on the model developed by the Ombudsman for the Department of National Defence and the Canadian Forces, composed of representatives from the various generations of veterans be established to advise the veterans ombudsman.

RECOMMENDATION 6

The veterans ombudsman, within one year of the establishment of the office, prepare a report, to be tabled in Parliament by the Standing Committee on Veterans Affairs, to review the mandate of the office and to make any recommendations considered necessary to ensure the effectiveness and credibility of the office of the veterans ombudsman.

RECOMMENDATION 7

The veterans ombudsman, as quickly as possible following the appointment, initiate discussions with the ombudsman for the Department of National Defence and the Canadian Forces to develop a memorandum of understanding to ensure the most effective co-operation possible between the two ombudsmen.

RECOMMENDATION 8

The veterans ombudsman develop a co-operative relationship with the ombudsman of Ste. Anne’s Hospital and with any other ombudsman dealing with complaints concerning health care and other services provided to veterans.

RECOMMENDATION 9

The existence of the ombudsman of Ste. Anne’s Hospital and any other ombudsman dealing with complaints concerning health care and any other services provided to veterans in no way restricts the access of veterans and their families to the veterans ombudsman.

RECOMMENDATION 10

The Governor in Council appoint the veterans ombudsman after a review by the Standing Committee on Veterans Affairs of the nominated candidate.

RECOMMENDATION 11

The veterans ombudsman report to Parliament which will refer all annual and other reports for review to the Standing Committee on Veterans Affairs or any standing committee responsible for veterans issues.

RECOMMENDATION 12

The term of office of the veterans ombudsman be fixed at five years with the opportunity of renewal of the incumbent.

RECOMMENDATION 13

The mandate of the veterans ombudsman includes the review of all issues pertaining to the care, support, and benefits for all veterans, their families, and any client of the Department of Veterans Affairs.

RECOMMENDATION 14

The veterans ombudsman examine the best ways of assisting veterans wishing to continue the appeal process following decisions of the Veterans Review and Appeal Board concerning their applications for disability benefits and make recommendations on the procedures to follow in the report to be tabled within one year of being appointed.

RECOMMENDATION 15

The mandate of the office of the veterans ombudsman be reviewed every five years by Parliament through the Standing Committee on Veterans Affairs or any committee responsible for veterans issues or at the pleasure of the Committee.

RECOMMENDATION 16

The Minister of Veterans Affairs be informed by the veterans ombudsman prior to the tabling of reports in Parliament or the release of reports to the public, as a courtesy.

RECOMMENDATION 17

The veterans ombudsman retain sole authority to select, direct, and discharge staff, subject to review.

RECOMMENDATION 18

The veterans ombudsman have full discretion in deciding which complaints and/or situations should be investigated and how they are to be made, received, and acted upon.

RECOMMENDATION 19

The veterans ombudsman have full discretion to determine the conclusions and recommendations of investigations and the freedom to make public any report or findings judged necessary, subject to Recommendation 16.

RECOMMENDATION 20

The veterans ombudsman be immune from prosecutions for claims arising out of the lawful performance of duty.

RECOMMENDATION 21

Full access on demand be given to the veterans ombudsman to all documents requested from the Department of Veterans Affairs, the Veterans Review and Appeal Board, the Department of National Defence, and any other department, groups or individuals, including the power to subpoena.

RECOMMENDATION 22

The veterans ombudsman have direct access to the Minister of Veterans Affairs to share information.

CONCLUSION

To some extent, Canada will be a pioneer when it moves forward with the appointment of a veterans ombudsman. There are few examples of ombudsmen elsewhere who deal almost exclusively with veterans issues. Veterans in countries such as Australia and the United Kingdom have access to an ombudsman because their countries have their own ombudsman with a mandate covering the whole range of public sector programs and services, including those providing benefits and care to veterans. However, this is precisely the point: veterans in many countries have access to an ombudsman to help them obtain benefits and services they deserve but cannot obtain because of misunderstandings, bureaucratic delays, or a lack of information. Given the complexity of legislation governing disability benefits and the regulations concerning access to services and programs, veterans often do need help to get what they need. Canadian veterans should not be denied access to the help of an ombudsman because there is no such office with a country-wide mandate dealing with federal government programs and services. It is time to fill the void by appointing an independent, impartial, and effective veterans ombudsman. The Committee trusts that the recommendations in this report provide the blueprint necessary to make such an ombudsman a reality.