Veterans Review and Appeal Board Act

An Act to establish the Veterans Review and Appeal Board, to amend the Pension Act, to make consequential amendments to other Acts and to repeal the Veterans Appeal Board Act Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title This Act may be cited as the Veterans Review and Appeal Board Act. Definitions In this Act, Board means the Veterans Review and Appeal Board established by section 4; (Tribunal) Bureau means the Bureau of Pensions Advocates continued by section 6.1 of the Department of Veterans Affairs Act; (Bureau) member means a permanent or temporary member of the Board; (Version anglaise seulement) Minister means the Minister of Veterans Affairs or such other member of the Queen’s Privy Council for Canada as may be designated by the Governor in Council as the Minister for the purposes of this Act; (ministre) prescribed means prescribed by the regulations. (Version anglaise seulement) Construction The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled. Establishment of Board There is established an independent board, to be known as the Veterans Review and Appeal Board, consisting of not more than 25 permanent members to be appointed by the Governor in Council and any number of temporary members that are appointed under section 6. Permanent members A permanent member holds office during good behaviour. Term A permanent member shall be appointed for a term not exceeding ten years and is eligible to be reappointed. Temporary members The Governor in Council may appoint temporary members of the Board whenever, in the opinion of the Governor in Council, the workload of the Board so requires. Tenure A temporary member holds office during good behaviour. A temporary member shall be appointed for a term not exceeding two years and is eligible to be reappointed for one additional term. Acting after ceasing to hold office A person who has resigned or otherwise ceased to hold office as a member may, at the request of the Chairperson, at any time within eight weeks after that event, make or take part in the disposition of any appeal, review, reference or other matter in which the person became engaged while holding that office, and a person performing duties under this subsection is deemed to be a temporary member of the Board. Disposition where member unable to take part Where a person to whom subsection (1) applies or any other member by whom a matter has been heard is unable to take part in the disposition of the matter or has died, the remaining members, if any, who heard the matter may make the disposition and, for that purpose, are deemed to constitute the Board. Chairperson and Deputy Chairperson The Governor in Council shall designate a Chairperson and a Deputy Chairperson from among the permanent members. Chief executive officer The Chairperson is the chief executive officer of the Board and has supervision over and direction of the work of the Board including the allocation of work among its members, the conduct of its work, the management of its internal affairs and the duties of its staff. Reports The Chairperson shall make such reports to the Minister as the Minister may require respecting the use of the resources allocated to the Board. Acting Chairperson If the Chairperson is absent or unable to act or the office of Chairperson is vacant, the Deputy Chairperson shall act as Chairperson. If both the Chairperson and Deputy Chairperson are absent or unable to act or both offices are vacant, a member designated by the Minister shall act as Chairperson. Full-time occupation A member shall perform their duties under this Act on a full-time basis and shall not hold any office or engage in any occupation inconsistent with those duties. Remuneration and allowances A member shall be paid such remuneration and allowances as may be fixed by the Governor in Council. Travel and living expenses A member is entitled to be paid reasonable travel and living expenses incurred by them while absent from their ordinary place of work in connection with the work of the Board. Presumption A member is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act. A member is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act. Head office The head office of the Board shall be at such place in Canada as the Governor in Council may designate. Officers and employees Such officers and employees as are necessary for the proper conduct of the work of the Board shall be appointed in accordance with the Public Service Employment Act. Powers The Board and each member have, with respect to the carrying out of the Board’s duties and functions under this Act, all the powers of a commissioner appointed under Part I of the Inquiries Act. Access to records Subject to any other Act of Parliament and any regulations made under any other Act of Parliament, the Board may inspect the records of the Department of Veterans Affairs and all material relating to any proceeding before the Board. Additional powers, duties and functions The Board shall exercise such powers and shall perform such duties and functions as are conferred or imposed on it by or pursuant to any other Act of Parliament or any order of the Governor in Council. Panels Subject to subsections 19(1), 27(1), 34(2) and 44(2), the Chairperson may establish panels of one or more members to exercise any power or perform any duty or function of the Board designated by the Chairperson. Exclusive jurisdiction The Board has full and exclusive juris­diction to hear, determine and deal with all applications for review that may be made to the Board under the Pension Act or the Veterans Well-being Act, and all matters related to those applications. Review panels Subject to subsection (2), an application for review shall be heard, determined and dealt with by a review panel consisting of not fewer than two members or, with the consent of the applicant, one member designated by the Chairperson. Refusal to establish review panel The Chairperson, or any member to whom the Chairperson has delegated the authority, may refuse to establish a review panel to hear an application for review of a decision concerning the amount of an award under the Pension Act, or the amount of a critical injury benefit, pain and suffering compensation, additional pain and suffering compensation, a death benefit, a clothing allowance or a detention benefit under Part 3 of the Veterans Well-being Act, if the Chairperson or member, as the case may be, considers the application to be such that no reasonable review panel could dispose of it in a manner favourable to the applicant. Written and oral submissions An applicant may make a written submission to the review panel or may appear before it, in person or by a representative, to present evidence and arguments. Disposition of application A review panel may affirm, vary or reverse the decision of the Minister being reviewed; refer any matter back to the Minister for reconsideration; or refer any matter not dealt with in the decision back to the Minister for a decision. Decision to be made as soon as possible A review panel shall make its decision as soon as possible and shall notify the applicant of the decision. Decision of majority A decision of a majority of the members of a review panel is a decision of the Board. Absence of majority decision In the absence of a majority decision, the decision most favourable to the applicant is the decision of the Board. Reconsideration of decisions A review panel may, on its own motion, reconsider a decision made by it under section 21 or this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law. Board may exercise powers The Board may exercise the powers of a review panel under subsection (1) if the members of the review panel have ceased to hold office as members. Applicant and witnesses to be paid expenses, etc. An applicant and each witness called by an applicant who attends a hearing by a review panel are entitled to be paid travel and living expenses incurred in attending the hearing, in accordance with regulations made in relation to veterans health care under section 5 of the Department of Veterans Affairs Act; and in the case of a witness who is a medical practitioner, such attendance fee as may be fixed by the Treasury Board. Appeal An applicant who is dissatisfied with a decision made under section 21 or 23 may appeal the decision to the Board. The Board has full and exclusive jurisdiction to hear, determine and deal with all appeals that may be made to the Board under section 25 or under the War Veterans Allowance Act or any other Act of Parliament, and all matters related to those appeals. Appeal panel An appeal shall be heard, determined and dealt with by an appeal panel consisting of not fewer than three members designated by the Chairperson. Prohibition A member of a review panel may not sit on an appeal panel that has been established to hear an appeal of a decision made by that review panel. Subject to subsection (2), an appellant may make a written submission to the appeal panel or may appear before it, in person or by representative and at their own expense, to present evidence and oral arguments. Documented evidence Only documented evidence may be submitted under subsection (1). Disposition of appeals An appeal panel may affirm, vary or reverse the decision being appealed; refer any matter back to the person or review panel that made the decision being appealed for reconsideration, re-hearing or further investigation; or refer any matter not dealt with in the decision back to that person or review panel for a decision. Where matter cannot be referred to review panel Where the members of a review panel have ceased to hold office or for any other reason a matter cannot be referred to that review panel under paragraph (1)(b) or (c), the appeal panel may refer the matter to the Chairperson who shall establish a new review panel in accordance with subsection 19(1) to consider, hear, investigate or decide the matter, as the case may be. Questions of interpretation Where the appellant raises a question of interpretation relating to this Act, to the Pension Act, to Part 3 of the Veterans Well-being Act, to any other Act of Parliament pursuant to which an appeal may be taken to the Board or to any regulations made under any such Act and the appeal panel is of the opinion that the question is not trivial, frivolous or vexatious, it shall notify the prescribed persons or organizations and give them an opportunity to present argument on the question before it makes its decision. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding. Notwithstanding section 31, an appeal panel may, on its own motion, reconsider a decision made by it under subsection 29(1) or this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may do so on application if the person making the application alleges that an error was made with respect to any finding of fact or the interpretation of any law or if new evidence is presented to the appeal panel. The Board may exercise the powers of an appeal panel under subsection (1) if the members of the appeal panel have ceased to hold office as members. Other sections applicable Sections 28 and 31 apply, with such modifications as the circumstances require, with respect to an application made under subsection (1). Appeal to Tax Court of Canada Notwithstanding section 31, an appeal lies to the Tax Court of Canada from any decision of an appeal panel as to income or as to the source of income, for the purposes of the War Veterans Allowance Act or Part XI of the Civilian War-related Benefits Act, of a person or their spouse, or both; or a person or their common-law partner, or both. Meaning of common-law partner In paragraph (1)(b), common-law partner has the same meaning as in subsection 2(1) of the War Veterans Allowance Act. Application for compassionate award A person who has been refused an award under the Pension Act or a critical injury benefit, a disability award, pain and suffering compensation, additional pain and suffering compensation, a death benefit, a clothing allowance or a detention benefit under Part 3 of the Veterans Well-being Act, and who has exhausted all procedures for review and appeal under this Act may apply to the Board for a compassionate award. Panel An application for a compassionate award shall be heard, determined and dealt with by a panel consisting of not fewer than three members designated by the Chairperson. Granting of compassionate award A panel may grant a compassionate award if it considers the case to be specially meritorious and the applicant is unqualified to receive an award under the Pension Act or a critical injury benefit, a disability award, pain and suffering compensation, additional pain and suffering compensation, a death benefit, a clothing allowance or a detention benefit under Part 3 of the Veterans Well-being Act. Amount The amount of a compassionate award shall be any sum that the panel may fix, but may not exceed the amount to which the applicant would have been entitled if the applicant’s claim under the Pension Act or the Veterans Well-being Act had been upheld. Review by Minister The Minister may from time to time vary the amount of a compassionate award that is subject to being varied in accordance with the applicant’s dependent condition. Adjustment The amount of a compassionate award shall be adjusted at the same times and by the same percentage as the basic pension is adjusted under subsection 75(1) of the Pension Act. Death of recipient On the death of a person to whom a compassionate award has been granted, the Pension Act applies in respect of a survivor or surviving child of that person in the same manner as it would apply if the compassionate award had been an award within the meaning of that Act. Meaning of survivor and child In subsection (6.1), survivor and child have the same meaning as in the Pension Act. The Board may, on its own motion, reconsider a decision made by it under this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may do so on application if new evidence is presented to the Board. Definition of compassionate award In this section, compassionate award means a compassionate pension, allowance or supplementary award. Representation In all proceedings under this Act, an applicant or appellant may choose to be represented by a pensions advocate from the Bureau, by a service bureau of a veterans’ organization or, at the person’s own expense, by any other representative of the person’s choice. Place and time of sittings The Board shall sit at such places in Canada and at such times as may be fixed by the Chairperson, having regard to the convenience of the applicant and the Board. Hearings to be public Every hearing before the Board shall be open to the public except where the applicant or appellant requests that the hearing be closed and the Board is of the opinion that a closed hearing would not be contrary to the public interest. The Minister, the Chief Pensions Advocate, any veterans’ organization incorporated by or under an Act of Parliament or any interested person may refer to the Board for a hearing and decision on any question of interpretation relating to this Act, to the Pension Act, to Part 3 of the Veterans Well-being Act, to any other Act of Parliament pursuant to which an appeal may be taken to the Board or to any regulations made under any such Act. Notice Before making a decision on a question referred to it, the Board shall notify the prescribed persons or organizations and give them an opportunity to present argument on the question. Refusal to hear trivial questions The Board may refuse to hear and decide any question referred to it under this section that it considers to be trivial, frivolous or vexatious. Medical opinion The Board may obtain independent medical advice for the purposes of any proceeding under this Act and may require an applicant or appellant to undergo any medical examination that the Board may direct. Notification of intention Before accepting as evidence any medical advice or report on an examination obtained pursuant to subsection (1), the Board shall notify the applicant or appellant of its intention to do so and give them an opportunity to present argument on the issue. Rules of evidence In all proceedings under this Act, the Board shall 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; accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and 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. Expeditious proceedings All proceedings before the Board shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit. Immunity No action or other proceeding lies against any person for or in respect of anything done, reported or said in good faith in any proceedings before the Board or anything reported or said in good faith in any material, information or report made or furnished by any person at the request of the Board. Inquiries The Chairperson may recommend to the Minister that an inquiry be held to determine whether a member should be subject to disciplinary or remedial measures for any reason set out in any of paragraphs 43(2)(a) to (d). Judge to conduct inquiry If the Minister considers it appropriate that an inquiry be held, a judge, supernumerary judge or former judge of the Federal Court of Canada, the Federal Court of Appeal or the Federal Court, in this section and section 43 referred to as a “judge”, shall conduct the inquiry. A judge conducting an inquiry has all the powers, rights and privileges that are vested in a superior court and, without restricting the generality of the foregoing, has the power to issue to any person a summons requiring them to appear at the time and place mentioned in the summons to testify with respect to all matters within their knowledge relative to the inquiry and to bring and produce any thing that they have or control relative to the inquiry; and to administer oaths and examine any person on oath. Inquiry public Subject to subsections (5) and (6), an inquiry shall be conducted in public. Confidentiality A judge conducting an inquiry may, on application, take any measures or make any order that the judge considers necessary to ensure the confidentiality of the inquiry if the judge is satisfied that financial or personal or other matters may be disclosed and are of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that the inquiry be conducted in public. Where the judge considers it appropriate to do so, the judge may take any measures or make any order that the judge considers necessary to ensure the confidentiality of any hearing held in respect of an application referred to in subsection (5). A judge conducting an inquiry is not bound by any legal or technical rules of evidence and, in any proceedings of the inquiry, the judge may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. Right to be heard Every member in respect of whom an inquiry is held shall be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to adduce evidence. Report of inquiry After an inquiry has been completed, the judge who conducted the inquiry shall submit a report of the conclusions of the inquiry to the Minister. Recommendations Where an inquiry has been held and, in the opinion of the judge who conducted the inquiry, the member in respect of whom the inquiry was held has become incapacitated from the due execution of their office by reason of infirmity, is guilty of misconduct, has failed in the due execution of their office, or has been placed, by conduct or otherwise, in a position that is incompatible with the due execution of their office, the judge may, in the report of the inquiry, recommend that the member be suspended without pay or removed from office or may recommend that such remedial measure as the judge considers necessary be taken. Governor in Council may suspend or remove Where the Minister receives a report under subsection (1), the Minister shall send a copy of the report to the Governor in Council, who may suspend the member to whom the report relates without pay, remove the member from office or take any remedial measure. Rules The Board may make rules, not inconsistent with the regulations, governing the proceedings, practice and procedures of the Board. Quorum A majority of permanent members in office constitutes a quorum for the purpose of making rules under subsection (1). Regulations The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect, including regulations prescribing the procedure to be followed in respect of applications, appeals or other matters under this Act; prescribing the information to be provided in connection with an application or appeal; prescribing the information to be included in the Board’s decisions; governing the giving of notice of the Board’s decisions; and prescribing persons or organizations for the purposes of sections 30 and 37. [Amendments] [Repeal] Members of Veterans Appeal Board cease to hold office The Chairman, Deputy Chairman and other members of the Veterans Appeal Board cease to hold office on the day on which this section comes into force. Staff Nothing in this Act shall be construed as affecting the status of an employee who, immediately before the coming into force of this section, occupies a position in the Veterans Appeal Board, except that the employee shall, on the coming into force of this section, occupy their position in the Veterans Review and Appeal Board under the authority of the Chairperson of that Board. Definition of employee In this section, employee has the same meaning as in subsection 2(1) of the Public Service Employment Act. Members of Canadian Pension Commission cease to hold office The Chairman, Deputy Chairman and other members of the Canadian Pension Commission cease to hold office on the day on which this section comes into force. Nothing in this Act shall be construed as affecting the status of an employee who, immediately before the coming into force of this section, occupies a position in the Canadian Pension Commission, except that the employee shall, on the coming into force of this section, occupy their position in the Veterans Review and Appeal Board under the authority of the Chairperson of that Board. Chief Pensions Advocate ceases to hold office The Chief Pensions Advocate appointed pursuant to subsection 18(1) of the Pension Act, as it read immediately before the day on which section 47 of this Act comes into force, ceases to hold office on the day on which that section comes into force. Nothing in this Act shall be construed as affecting the status of an employee who, immediately before the coming into force of this section, occupies a position in the Bureau of Pensions Advocates, except that the employee shall, on the coming into force of this section, occupy their position in the Department of Veterans Affairs under the authority of the Deputy Minister of Veterans Affairs. Pending applications for awards Applications for awards pending before the Canadian Pension Commission on the day on which section 47 of this Act comes into force shall be transferred to the Minister of Veterans Affairs and dealt with in accordance with the Pension Act, as amended by this Act. Pending applications for compassionate awards Applications made under section 33 of the Pension Act, as it read immediately before the day on which section 53 of this Act comes into force, that are pending before the Canadian Pension Commission on the day on which that section comes into force shall be transferred to the Veterans Review and Appeal Board and dealt with in accordance with section 34 of the Veterans Review and Appeal Board Act, as enacted by this Act. Pending proceedings Proceedings pending on the day on which section 73 of this Act comes into force before members of the Canadian Pension Commission or an Entitlement Board under section 87 or 88 of the Pension Act, as that Act read immediately before the day on which section 73 of this Act comes into force, shall be taken up and continued under and in conformity with the Veterans Review and Appeal Board Act, as enacted by this Act, and the Pension Act, as amended by this Act, before a review panel of the Veterans Review and Appeal Board established in accordance with section 19 of the Veterans Review and Appeal Board Act. Proceedings pending before the Veterans Appeal Board on the day on which section 105 of this Act comes into force shall be taken up and continued under and in conformity with the Veterans Review and Appeal Board Act, as enacted by this Act, and the Pension Act, as amended by this Act, before an appeal panel of the Veterans Review and Appeal Board established in accordance with section 27 of the Veterans Review and Appeal Board Act. Reconsideration of decisions of predecessor bodies The Veterans Review and Appeal Board may, on its own motion, reconsider any decision of the Veterans Appeal Board, the Pension Review Board, the War Veterans Allowance Board, or an Assessment Board or an Entitlement Board as defined in section 79 of the Pension Act, and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may, in the case of any decision of the Veterans Appeal Board, the Pension Review Board or the War Veterans Allowance Board, do so on application if new evidence is presented to it. Transfer of property and moneys in trust Any property and moneys conveyed in trust to the Canadian Pension Commission pursuant to section 10 of the Pension Act, as it read immediately before the day on which section 47 of this Act comes into force, are on that day transferred to the Minister of Veterans Affairs, and the Minister shall administer the property or moneys in accordance with section 6 of the Pension Act, as enacted by section 47 of this Act. Transfer of appropriations Any amount appropriated, for the fiscal year in which this Act comes into force, by an appropriation Act based on the Estimates for that year, for defraying the charges and expenses of the Veterans Appeal Board or the Canadian Pension Commission and that, on the day on which this section comes into force, is unexpended shall be applied, in such manner as the Treasury Board may determine, to defray the charges and expenses of the Department of Veterans Affairs and the Veterans Review and Appeal Board. Any amount appropriated, for the fiscal year in which this Act comes into force, by an appropriation Act based on the Estimates for that year, for defraying the charges and expenses of the Bureau of Pensions Advocates and that, on the day on which this section comes into force, is unexpended shall be applied, in such manner as the Treasury Board may determine, to defray the charges and expenses of the Department of Veterans Affairs. Coming into force Subject to subsection (2), this Act or any of its provisions comes into force on a day or days to be fixed by order of the Governor in Council. [Note: Sections 1 to 113 in force September 15, 1995, see SI/95-108.] Sections 114 to 118 come into force on the day on which this Act is assented to.