Legislative Program

This Proposed Legislative Program was adopted at the 2019 NCVA Annual Meeting, held in Toronto on December 6, 2019.

Brian Forbes, Chairman The National Council of Veteran Associations in Canada

Brian Forbes, Chairman The National Council of Veteran Associations in Canada

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Brian Forbes, Chairman The National Council of Veteran Associations in Canada

Brian Forbes, Chairman The National Council of Veteran Associations in Canada

Introduction

This year's NCVA Legislative Program will once again focus on the developments that have taken place in veterans' legislation and policy since our Annual General Meeting of November 2018. The report will evaluate the impact of Budget 2019 and describe the degree of progress that has been achieved and the outstanding issues and concerns that need to be addressed on a priority basis as we move forward.

Following the recent federal election, veterans remain vitally interested in the positions to be adopted by the Government and the Opposition parties in this minority Parliament to remedy the longstanding injustice and inequity impacting Canada's disabled veterans and their families.

NCVA will continue to take the position that there is much to do in improving veterans' legislation so as to address the financial and wellness requirements of Canada's disabled veterans and their families. This is particularly so with respect to the Pension for Life (PFL) provisions originally announced in December 2017 and formally implemented on April 1 of this year.

It is self-evident that only a very limited number of seriously disabled veterans and their survivors may benefit from the new legislation when compared to the level of entitlement available under the former New Veterans Charter – some seriously disabled veterans are actually worse off. However, the greater majority of disabled veterans will not be materially impacted by the legislation in that the new benefits under these legislative and regulatory amendments will have limited applicability.

This fails to satisfy the Prime Minister's initial commitment to address the inadequacies and deficiencies in the New Veterans Charter and continues to ignore the "elephant in the room" which has overshadowed this entire discussion.

As stated in our many submissions to Veterans Affairs Canada (VAC) and Parliament, the Government has not met veterans' expectations with regard to the fundamental mandated commitment to "re-establish lifelong pensions" under the charter so as to ensure that a comparable level of financial security is provided to all disabled veterans and their families over their life course. This financial disparity between the Pension Act and New Veterans Charter compensation has been fully validated by the recent Parliamentary Budget Office's report issued on February 21, 2019, which clearly underlines this longstanding discrimination.

In addition, given tumultuous events this year surrounding the conduct of the Government in relation to the SNC-Lavalin affair resulting in the resignation of two prominent federal Cabinet ministers and the damning report of the federal Ethics Commissioner, together with the Vice-Admiral Norman debacle, it is readily apparent that the integrity and credibility of the Prime Minister and his Government have been placed in serious question.

From the perspective of the veterans' community, there remains a substantial parallel concern. Not only has the VAC portfolio been negligently deprioritized in this process, but the Prime Minister has also betrayed a formal commitment he specifically made to Canada's veterans and their families during the 2015 election campaign.

In the context of the Equitas class action lawsuit, the Prime Minister made a promise to Canada's veterans that, should his party be successful, it would not be necessary for the disabled veterans to continue such a lawsuit as his Government would re-establish the lifelong pensions as an option to the lump sum disability award. It was clearly understood that this commitment would specifically address the basic discrimination that existed between the Pension Act and the New Veterans Charter disability benefits, which disparity has been from the outset at the fundamental core of the class action claim.

As further evidence of the Prime Minister's position on veterans' concerns, we would once again refer to the shocking and revealing exchange between young Canadian amputee veteran Brock Blaszczyk and the Prime Minister at a town hall meeting in Edmonton on January 31, 2018:

Brock Blaszczyk: I served in the Canadian Armed Forces for seven years, I deployed in Afghanistan back in 2009, until April 3, where I was obviously severely wounded by a roadside bomb or improvised explosive. As you can see, I've lost my left leg, I have 58 percent soft tissue loss and 88 percent nerve damage on my right leg. Back on August 24, 2015, you made the promise, and I'll quote it here: "No veteran will be forced to fight their own Government for the support and compensation they have earned." Yet you are still currently in a legal battle with veterans regarding equal support and compensation to their peers. As you can tell, you know, we have two standard of veterans who fought in the same war, the ones prior to 2006 and the ones after 2006. There are two standards, one on the old Pension Act and one under this new lump-sum or soon to be lifetime pension option… Because honestly, Mr. Prime Minister, I was prepared to be injured in the line of duty when I joined the military – nobody forced me to join the military. I was prepared to be killed in action. What I wasn't prepared for, Mr. Prime Minister, is Canada turning its back on me. So which veteran was it that you were talking about?

PM: …On a couple of elements you brought up: first of all, why are we still fighting against certain veterans' groups in court? Because they're asking for more than we are able to give right now…

It is fair to say that the Prime Minister's response produced serious outrage in the veterans' community, which was taken aback by his disdainful response to a severely disabled amputee veteran with respect to the Government's financial willingness and capacity to meet the reasonable expectations of disabled veterans in Canada.

In this regard, it is essential to recognize that VAC has been substantially impacted by government budgetary constraints in implementing the PFL and related benefits – producing half-measures and inadequate benefit components to overall veterans' legislation.

Notwithstanding the Prime Minister's protestations as to the ability of his Government to finance appropriate veterans' benefits and programs, one has to ask the fundamental question: What has happened to the millions of dollars saved by VAC with the passing of tens of thousands of traditional veterans and early peacekeepers over recent years?

In this context, in relation to the basic issue as to the "affordability" of veterans' programs, the Government has failed to acknowledge the impact on the overall VAC budget of the fact that the greater majority of traditional disabled veterans have passed on over the past several years, resulting in significant savings in VAC's budgetary funding requirements. With the continuing loss of this significant cohort of the veteran population, VAC is no longer required to pay pensions, allowances, health care benefits, treatment benefits, long-term care benefits, VIP et al for all of these disabled veterans.

In all fairness, it must be stated that, under the Harper Government's regime, the veterans' community was shoddily treated vis-à-vis budgetary expenditures for veterans' benefits and programs – numerous VAC district offices were closed, front line staffing to assist veterans was dramatically reduced, and budgetary constraints led to a lack of appropriate action to enact necessary reforms to veterans' programs and entitlements. What remains to be seen is whether the new Conservative Opposition will now stand up and be counted during the upcoming Parliament to reverse these years of neglect and injustice.

The NCVA Legislative Program for 2019-20 will continue to emphasize our fundamental position in the following core recommendations:

  • That VAC, working together with the relevant ministerial advisory groups and other veteran stakeholders, should think "outside the box" by jointly striving over time to create a comprehensive program model that would essentially treat all veterans with parallel disabilities in the same manner as to the application of benefits and wellness policies – thereby resulting in the elimination of artificial cut-off dates that arbitrarily distinguish veterans based on whether they were injured before or after 2006.
  • That VAC needs to fully implement the Ministerial Policy Advisory Group recommendations presented to the Minister and the Veterans Summit in October 2016, with particular emphasis on utilizing a combination of the best provisions from the Pension Act and the best provisions from the New Veterans Charter/Veterans Well‑being Act, producing a form of lifetime pension in a much more realistic manner in order to secure the financial security for those veterans who need this form of monetary support through their lifetime.

Given the results of the federal election campaign and the establishment of a minority government, a genuine opportunity still exists for a commitment to meaningful improvement to the legislation so as to eliminate the blatant discrimination suffered by disabled veterans since the enactment of the New Veterans Charter in 2006.

In this context, it should be recognized that the Standing Committees of Parliament, including the Standing Committee on Veterans Affairs and the Standing Committee on National Defence, will not be totally controlled by the government in the present minority scenario. The Chairman of such Standing Committees and the majority of members will be represented by members of Opposition parties who will have greater input in relation to the agenda, the calling of witnesses, and the substance of ultimate reports. In our experience, this form of minority government has led to a far better opportunity for significant legislative amendments in the veterans' field as a consequence of the need for all parties to reach compromise solutions in addressing outstanding issues.

NCVA and veterans at large will be closely monitoring all federal leaders to determine which party is prepared to make a substantial commitment to addressing the shortfalls and inequities which continue to exist in veterans' legislation. In this regard, it must be remembered that there are almost 700,000 veterans in Canada today and, when family, friends and supporters are considered, this number of potential voters is not without significance – particularly following an election year which has resulted in a minority government where, historically, a new election will in all probability ensue within the next 18 to 24 months.

If the "one veteran – one standard" philosophy advocated by VAC has any meaning, this glaring disparity between the Pension Act and the New Veterans Charter benefits for disabled veterans requires that the new Liberal Government and the Opposition parties seize the moment and satisfy the financial needs of Canadian veterans and their dependants. In so doing, Parliament would finally be recognizing that the longstanding social covenant between the Canadian people and the veterans' community demands nothing less.

Pension For Life

With specific reference to the provisions of the new legislation which became effective April 1, 2019, the statutory and regulatory amendments ostensibly reflect the Government's attempt to create a form of "pension for life" which includes the following three elements:

  1. A disabled veteran will have the option to receive the present lump sum disability award in the form of a new Pain and Suffering Compensation benefit representing a payment in the maximum amount of $1,150 per month for life. For those veterans in receipt of a disability award, retroactive assessment would potentially apply to produce a reduced monthly payment for life for such veterans. In effect, VAC has simply converted the amount of the lump sum disability award into a form of a lifetime annuity as an option for those disabled veterans who are eligible.
  2. A new Additional Pain and Suffering benefit will essentially replace the Career Impact Allowance (Permanent Impairment Allowance) under the New Veterans Charter, with similar grade levels and monthly payments which reflect a non‑taxable non‑economic benefit but would be limited in its application to those veterans suffering a "permanent and severe impairment which is creating a barrier to re‑establishment in life after service."
  3. A new, consolidated Income Replacement Benefit, which is taxable, would combine four pre‑existing benefits (Earnings Loss Benefit, Extended Earnings Loss Benefit, Supplementary Retirement Benefit, and Retirement Income Security Benefit) with a proviso that the IRB would be increased by one per cent every year until the veteran reaches what would have been 20 years of service or age 60. It is not without financial significance that the former Career Impact Allowance and Career Impact Allowance Supplement have been eliminated from the Income Replacement Benefit package as identified by the aforementioned Parliamentary Budget Office report in February 2019.
New Veterans Charter

Much more is required to improve the New Veterans Charter/Veterans Well‑being Act so as to address the proverbial "elephant in the room" in that the PFL legislation fails to satisfy the priority concerns of the veterans' community in relation to:

  1. Resolving the significant disparity between the financial compensation paid to disabled veterans under the Pension Act and the New Veterans Charter/Veterans Well‑being Act; and
  2. Ensuring that no veteran under the New Veterans Charter/Veterans Well‑being Act receives less compensation than the veteran under the Pension Act with the same disability or incapacity in accordance with the "one veteran – one standard" principle.

It is totally unacceptable that we continue to have veterans' legislation in Canada which provides a significantly higher level of compensation to a veteran who is injured prior to 2006 (date of enactment of the New Veterans Charter) when compared to a veteran who is injured post‑2006. If applied to the Afghanistan conflict this discrimination results in veterans of the same war having totally different pension benefits.

During the course of discussions following Budget 2017 leading up to the Minister's announcement, there was considerable concern in the veterans' community, which proved to be well founded, that the Government would simply establish an option wherein the lump sum payment (disability award) would be apportioned or reworked over the life of the veteran for the purposes of creating a lifelong pension. NCVA and other veteran stakeholders, together with the Ministerial Policy Advisory Group, strongly criticized this proposition as being totally inadequate and not providing the lifetime financial security which was envisaged by the veterans' community.

It is fair to say that the reasonable expectation of veteran stakeholders was that some form of substantive benefit stream needed to be established which would address the financial disparity between the benefits received under the Pension Act and the NVC for all individually disabled veterans.

It has been NCVA's consistent recommendation to the Minister and to the department that VAC should adopt the major conclusions of the Ministerial Advisory Group Report formally presented to the Veterans Summit in Ottawa in October 2016 together with the recommendations contained in the 2018 NCVA Legislative Program – both of these reports proposed that the combination of the best provisions of the Pension Act and the best provisions of the New Veterans Charter would produce a form of lifetime pension in a much more realistic manner in order to secure the financial security for those veterans who need this form of monetary support through their lifetime.

We would refer to recent NCVA op‑ed papers published over recent months and our analysis contained in Appendices A and B to this paper which address in considerable detail the fundamental deficiencies and flaws contained in the VAC position and outline a series of proposals as to what can be done to improve the PFL concept.

We strongly encourage the Government to seriously consider the implementation of the following major recommendation of the Ministerial Policy Advisory Group as a first step to addressing this problem of the "elephant in the room":

"[T]he enhancement of the Earnings Loss Benefit/Career Impact Allowance as a single stream of income for life, the addition of Exceptional Incapacity Allowance, Attendance Allowance and a new monthly family benefit for life in accordance with the Pension Act will ensure all veterans receive the care and support they deserve when they need it and through their lifetime."

In specific terms we would also suggest that the following steps would dramatically enhance the legislative provisions and amended regulations relevant to the present PFL proposition and go a long way to satisfying the "one veteran – one standard" approach ostensibly followed by VAC as a basic principle of administration:

  1. Liberalize the eligibility criteria in the legislation and regulatory amendments for the new Additional Pain and Suffering Compensation benefit so that more disabled veterans actually qualify for this benefit – currently, only veterans suffering from a severe and permanent impairment will be eligible. It bears repeating that the greater majority of disabled veterans simply will not qualify for this new component of the proposed lifelong pension.

    It is noteworthy that the new regulations with respect to the Additional Pain and Suffering Compensation benefit ostensibly replicate the eligibility prerequisites of the Permanent Impairment Allowance/Career Impact Allowance. These PIA/CIA provisions have produced restrictive and arbitrary results over the years since their inception and were further complicated with the formula established by VAC in 2017 in relation to the interpretation of the CIA grades through the employment of the "Diminished Earnings Capacity" test.

    A more generous and readily understood approach is required in the amended regulations for the APSC benefit so as to generate a more inclusive class of disabled veterans. It has been the longstanding position of NCVA that the traditional PIA/CIA regulations and policy guideline requirements reflected a "blunt instrument" as opposed to a "precise tool" in evaluating the overall impact that an injury may have on a disabled veteran.

    In NCVA's 2018 Legislative Program, we have argued that the veterans Disability Award (Pain and Suffering Compensation benefit) initially granted should be a major determinant in evaluating CIA (APSC) qualifications. The above‑mentioned "Diminished Earnings Capacity" test employed by VAC and the apparent new criteria set out in the regulatory amendments for APSC qualification represent, in our judgment, a more restrictive approach to the Disability Award evaluation.

    In effect, it is the position of NCVA that this employment of the Disability Award (PSC) percentage would produce a more straightforward and easier‑understood solution to this ongoing issue of CIA (APSC) eligibility. The following would reflect this form of evaluation criteria for CIA (APSC):

    Veteran Disability Award (PSC) CIA (APSC) Grade
    78% or over 1
    48% – 78% 2

    Alternatively, the DA (PSC) percentage could be applied in a more precise manner by using the percentile against the maximum CIA/APSC compensation available – for example, if a veteran is in receipt of a DA (PSC) of 65% the veteran would receive 65% of the maximum CIA (APSC) allowance. For the purposes of Grade 3 assessment, it is our recommendation that the DA (PSC) percentile could be similarly applied; i.e. if a veteran is in receipt of a DA (PSC) of 25%, the veteran would receive 25% of the maximum CIA (APSC) allowance. Note that this quantification of career impact has been utilized under the Pension Act for almost one hundred years in assessing the loss of earning capacity of a disabled veteran for lifetime pension purposes.

The adoption of this type of approach would have the added advantage of enhancing the PFL so as to incorporate more disabled veterans and address the fundamental parity question in relation to Pension Act benefits.

With reference to the regulatory amendments emanating from the new PFL provision, we would also express concern that the regulatory prerequisite for the APSC benefit with regard to the disability of amputation remains arbitrarily defined, both as to eligibility and designated grade level.

It is to be noted that amputation at or above the knee or at or above the elbow is retained as a fundamental requirement for qualification in relation to a single‑limb amputee – our years of experience with The War Amputations of Canada make clear that the loss of a limb at any level represents a "severe and permanent impairment" for the veteran amputee – the current arbitrary distinction is not justified and should be amended.

  1. Create a new family benefit to parallel the Pension Act provision in relation to spousal and child allowances to recognize the impact of the veteran's disability on his or her family.
  2. Incorporate the special allowances under the Pension Act, i.e. Exceptional Incapacity Allowance and Attendance Allowance, into the New Veterans Charter/Veterans Well‑being Act to help address the financial disparity between the two statutory regimes.

In my over 40 years of working with The War Amps of Canada, we have literally handled hundreds of special allowance claims and were specifically involved in the formulation of the Exceptional Incapacity Allowance/Attendance Allowance guidelines and grade profiles from the outset. We would indicate that these two special allowances, EIA and AA, represent an integral portion of the compensation available to war amputees and other seriously disabled veterans governed by the Pension Act.

It is of further interest in our judgment that the grade levels for these allowances tend to increase over the life of the veterans as the "ravages of age" are confronted – indeed, non‑pensioned conditions such as the onset of a heart, cancer or diabetic condition, for example, are part and parcel of the EIA/AA adjudication uniquely carried out under the Pension Act policies in this context.

As a sidebar, it is interesting that VAC refers to the new Caregiver Recognition Benefit of $1,000 a month as an indication of the Government's attempt to address the needs of families of disabled veterans. What continues to mystify the veterans' community is why the Government has chosen to "reinvent the wheel" in this area when addressing this need for attendance/caregiving under the New Veterans Charter/Veterans Well‑being Act. For many decades, Attendance Allowance (with its five grade levels) has been an effective vehicle in this regard, providing a substantially higher level of compensation and more generous eligibility criteria to satisfy this requirement. In this context, it is noteworthy that the spouses or families of seriously disabled veterans often have to give up significant employment opportunities to fulfill the caregiving needs of the disabled veteran – $1,000 a month is simply not sufficient recognition of this income loss. VAC should return to the Attendance Allowance provision and pay such benefit to the caregiver directly if so desired.

We would strongly suggest that VAC pursue the incorporation of the EIA/AA special allowances into the New Veterans Charter/Veterans Well‑being Act with appropriate legislative/regulatory amendments so as to address these deficiencies in the PFL.

  1. Establish a newly‑structured Career Impact Allowance which would reflect the following standard of compensation: "What would the veteran have earned in his or her military career had the veteran not been injured?" This form of progressive income model, which has been recommended by the Ministerial Policy Advisory Group and the Veterans Ombudsman's Office, would be unique to the New Veterans Charter/Veterans Well‑being Act, and would bolster the potential lifetime compensation of a disabled veteran as to his or her projected lost career earnings as opposed to the nominal one per cent increase provided in the proposed legislation.

As a general observation in relation to the new legislation and the regulatory amendments with regard to the evaluation of the calculation surrounding the new Income Replacement Benefit, we would suggest the following concerns are material:

We would strongly suggest that the department consider the impact of these factors relative to the new Income Replacement Benefit so as to ensure this one percent increase has substantive and meaningful impact for disabled veterans who require such income replacement for life. In addition, we would submit that VAC ultimately adopt the above‑mentioned progressive income model for a newly structured form of CIA in accord with the approach utilized by the Canadian courts as to "future loss of income."

In summary, it is fundamental to understand that it was truly the expectation of the disabled veteran community that the "re‑establishment" of a PFL option would not just attempt to address the concerns of the small minority of disabled veterans but would include a recognition of all disabled veterans who require financial security in coping with their levels of incapacity.

As a final observation, VAC consistently talks of the significance that the Government attaches to the wellness, rehabilitation and education programs under the New Veterans Charter/Veterans Well‑being Act. As we have stated on a number of occasions, we commend VAC for its efforts to improve these important policies. NCVA recognizes the value and importance of wellness and rehabilitation programs; however, we take the position that financial security remains a fundamental necessity to the successful implementation of any wellness or rehabilitation strategy. It is readily apparent that this is not a choice between wellness and financial compensation as advanced by the Minister and the Prime Minister, but a combined requirement to any optimal re‑establishment approach to medically released veterans.

Ideally, we would like to believe that VAC, working together with relevant Ministerial Advisory Groups and other veteran stakeholders, could think "outside the box" by jointly striving over time to create a comprehensive program model that would essentially treat all veterans with parallel disabilities in the same manner as to the application of benefits and wellness policies – thereby resulting in the elimination of artificial cut‑off dates that arbitrarily distinguish veterans based on whether they were injured before or after 2006.

In our judgment, the adoption of this innovative policy objective would have the added advantage of signaling to the veterans' community that VAC is prepared to take progressive steps to tackle legislative reform beyond the current PFL provision so as to address this fundamental core issue of concern to Canada's veterans.

Appendix A

A realistic comparison on an "apples to apples" basis reveals that a significant disparity will continue to exist between compensation for seriously disabled veterans under the Pension Act and the New Veterans Charter/Veterans Well‑being Act which took effect in April 2019. It is essential in this context to recognize that the actual maximum amounts of compensation under each statutory regime will be as follows:

NEW VETERANS CHARTER/VETERANS WELL-BEING ACT (2019)
Pain and Suffering Compensation (per month or lump sum) $1,150.00
Additional Pain and Suffering Compensation
(limited to veterans suffering permanent and severe impairment)
$1,500.00
Caregiver Allowance (per month) $1,000.00
Total (maximum per month) $3,650.00
PENSION ACT
Veteran plus two children
Disability Pension (maximum per month)
Note: Pension Compensation for family/dependants is not available under the New Veterans Charter
$4,213.00
Exceptional Incapacity Allowance (maximum per month) $1,512.00
Attendance Allowance (maximum per month) $1,890.00
Total (maximum per month) $7,615.00
PENSION ACT
Veteran plus spouse
Disability Pension (maximum per month)
Note: Pension Compensation for family/dependants is not available under the New Veterans Charter
$3,570.00
Exceptional Incapacity Allowance (maximum per month) $1,512.00
Attendance Allowance (maximum per month) $1,890.00
Total (maximum per month) $6,972.00
PENSION ACT
Single veteran
Disability Pension (maximum per month) $2,856.00
Exceptional Incapacity Allowance (maximum per month) $1,512.00
Attendance Allowance (maximum per month) $1,980.00
Total (maximum per month) $6,258.00

In this context, it is noteworthy that the Minister and senior governmental officials of VAC, over recent months in their public pronouncements, have emphasized that additional benefits and services are uniquely available under the New Veterans Charter/Veterans Well‑being Act with respect to income replacement, rehabilitation, and wellness programs.

We commend Veterans Affairs Canada for its efforts to improve the Department's wellness and educational policies. However, it should be noted that a number of programs dealing with essentially parallel income replacement and rehabilitation policies already exist under the Pension Act regime by means of services and benefits administered by the Department of National Defence through their SISIP Long Term Disability insurance policy and Vocational Rehabilitation (VOC‑REHAB) Programs.

Although, at the time of the enactment of the New Veterans Charter in 2006, Veterans Affairs Canada committed to eliminating SISIP LTD and VOC‑REHAB programs and creating a new gold standard in regard to these wellness programs, the reality is that the SISIP LTD and VOC‑REHAB insurance policy has been and continues today to be "the first responder" for the greater majority of disabled veterans who have been medically released from the Canadian Armed Forces in relation to both the Pension Act and the New Veterans Charter.

As a fundamental tenet of our position we would like to think that the Government could be convinced that, rather than choosing one statutory regime over the other, the best parts of the Pension Act and the best parts of the New Veterans Charter/Veterans Well‑being Act would provide a better compensation/wellness model for all disabled veterans in Canada.

Appendix B

It is of even greater significance to recognize the effect of the Pension for Life policy, in accordance with the Veterans Well‑being Act in effect on April 1, 2019, on those disabled veterans who might be considered moderately disabled as the disparity in financial compensation is even more dramatic.

Let us take the illustration of a veteran with a 35% disability assessment:

It is important to be cognizant of the fact that, once such a veteran earns 66‑2/3% of his or her pre‑release military income, the veteran is no longer eligible for the Income Replacement Benefit and, due to the fact that the veteran's disability does not equate to a "severe and permanent impairment," the veteran does not qualify for the new Additional Pain and Suffering Compensation Benefit.

Thus, in accord with the Minister's announcement of December 20, 2017, the veteran will receive the following Pain and Suffering compensation benefit:

On the other hand, the Pension Act veteran at 35% will receive as a Disability Pension:

We would underline that this analysis demonstrates the extremely significant financial disparity which results for this type of moderately disabled veteran. It is essential to recognize that over 80 percent of disabled veterans under the New Veterans Charter/Veterans Well‑being Act will fall into this category of compensation. Unfortunately, the perpetuation of these two distinct classes of veteran pensioner is self‑evident and remains unacceptable to the overall veterans' community.

2019 Election Platforms

During the course of the recent election campaign, federal party leaders made a limited number of pronouncements relevant to their positions on outstanding veterans' issues. Notwithstanding the scarcity of substantive proposals and given the onset of a minority government, it is important to evaluate the various recommendations as to where common ground may exist for establishing appropriate resolutions amongst the parties to begin to address veterans' concerns.

Liberal Platform

The Liberal party made the following proposals with respect to veterans' legislation and policy:

  • As part of the transition process, to give veterans up to $3,000 in free counselling services before a disability claim is required. This will ostensibly give veterans in need of help nearly six months of free support provided directly by VAC and will help as many as 20,000 veterans each year.
  • To simplify and shorten the transition process, the Government would move forward with automatic approval for the most common disability applications including depression, post‑traumatic stress disorder, arthritis et al.
  • To ensure veterans have access to high quality mental health care when and where they need it, the Government would move forward with a new rapid response service staffed by social workers, case management counsellors and peer support workers.
  • To address veterans' homelessness, the Government would move forward with building new purpose-built accessible and affordable housing units with a full range of health, social and employment supports for veterans who need extra help. The Government would support this work with an additional investment of $15 million per year.

Conservative Platform

The following reflects the recommendations of the Conservative party as laid out in their election platform:

  • Enshrine in legislation a military covenant between the Government of Canada and Canada's veterans
  • Clear the unacceptable backlog of veterans' benefit applications within 24 months
  • Fix the Government's failures on pensions by correcting the problem identified by the Parliamentary Budget Office which found that veterans with severe and permanent injuries will be worse off by an average of $300,000 over their lifetime under the Liberal PFL policy
  • Take action on transition services by reviewing rules around service attribution and mandating that the CAF retain medically releasing veterans until all benefits and services from the CAF, VAC and SISIP have been confirmed and are put in place
  • Put vital commemoration projects like the National Memorial for Canada's War in Afghanistan back on track Conduct an independent enquiry to study the effects of the anti-malarial drug mefloquine on members of the CAF Establish guidelines and fund a program to provide service dogs to Canada's veterans

NDP Platform

The following reflects the proposals emanating from the NDP during the election campaign:

  • Eliminate backlogs and improve service by providing one case worker for every 25 veterans
  • Expand the education benefit to cover more veterans
  • Work with community services to end veteran homelessness
  • Automatically carry forward all annual lapsed spending in VAC to improve veterans' services

Green Party and People's Party Platform

  • Rather remarkably, both of these parties proposed the reinstatement of the disability pension as previously provided for under the Pension Act – the pension would apply retroactively to 2006 and lump sum payments received since then would be treated as advance payments on the amended disability pension.
  • Re-emphasize the legislative guarantee of the "benefit of the doubt" standard under the Pension Act.

Upon an evaluation of these various election platforms, it becomes readily apparent that none of the political parties expressed any meaningful intention to tackle the significant issues material to the fundamental reform of veterans' legislation.

These lists of election promises failed to address the "elephant in the room" in relation to addressing the two/three layers of legislation that currently apply to Canada's veterans and their families and the basic need to establish a "one veteran – one standard" philosophy for all veterans.

In my judgment, the veterans' community was left with no clear option in regard to the October 21 federal election and, in all probability, this resulted in the greater majority of veterans either staying at home or withdrawing their support from the major parties due to their inadequate and unresponsive track record in respect to veterans' concerns over the last 15 years.

NCVA will continue to pursue our ongoing legislative agenda as delineated in this 2019‑20 report in recognition of the fact that the major federal parties will in all likelihood be facing a new election in the foreseeable future and, in my considered opinion, will become aware of the need to seek the hundreds of thousands of votes found in the veterans' community.

Legislative Achievements

Although the ongoing battle for a more comprehensive and equitable Pension for Life is essential to accomplishing a "one veteran – one standard" solution, it is important to recognize the extent of NVC reform that has been achieved over the last few years. I believe it is fair to say that NCVA has been at the forefront of this crusade, working with VAC, Ministerial Advisory Groups, the Veterans and DND Ombudsmen and other veteran stakeholders to attain the following major objectives of our legislative agenda:

  1. Increasing the Disability Award maximum from $250,000 to $360,000 so as to parallel court awards in Canada for "pain and suffering" damages – retroactively impacting all Disability Award recipients from 2006.
  2. Increasing the Income Replacement Benefit for all medically released veterans from 75 percent to 90 percent of former military wage (SISIP LTD, Earnings Loss Benefit, Income Replacement Benefit) – in addition, any veteran who wishes to join the work force may also earn up to $20,000 from employment before any reduction will be made to their IRB payment.
  3. Extending the Earnings Loss Benefit/Income Replacement Benefit to veterans and their surviving spouses beyond the age of 65, even though it is recognized that this expanded entitlement will only apply to those veterans suffering a diminished earnings capacity and will ultimately produce a reduced level of income which is subject to statutory offsets.
  4. Improving the eligibility and grade levels for Permanent Impairment Allowance/Career Impact Allowance (now Additional Pain and Suffering Compensation benefit which is non‑taxable).
  5. Maintaining the priority for seriously disabled veterans with regard to benefits and entitlements in accord with our longstanding NCVA commitments.
  6. Supporting the improvements with respect to wellness, rehabilitation, education and re‑establishment programs emanating from VAC/DND for releasing CF members, veterans and their dependants.
  7. Enhancing fractional entitlements pursuant to the new Partial Entitlement Policy of VAC so that a minimum of four-fifths and a maximum of five‑fifths will be awarded where a veteran suffers a disability arising in part out of military service or consequentially arising in part from a pensioned disability.
  8. Paying the Caregiver Recognition Benefit directly to caregivers with the ongoing intent of re-establishing the more generous provisions of the Attendance Allowance section of the Pension Act for such caregivers.
  9. Convincing VAC to utilize presumptions under the legislation to expedite applications and reduce the dramatic backlog in adjudication. N.B.: The recent Liberal election platform contemplates automatic entitlement awards for specific conditions including PTSD, depression, arthritis et al which potentially reflects a good first step in this context.
  10. Implementing government policy to the effect that no CAF member would be medically released until his or her benefit package is completed and his or her rehabilitation/reestablishment program is finalized.
  11. In recognition of the systemic discrimination experienced by World War II/Korea Métis veterans, the 2019 federal budget provides ex gratia payments of $20,000 in compensation to Métis veterans still alive and to the estates of Métis veterans who have died in the past three years, together with the establishment of a legacy fund commemorating the exemplary service of Métis veterans in support of Canada's war effort.
  12. Compelling VAC to implement a new progressive policy to expand the eligibility of long-term care beds in traditional veterans' hospitals to include modern day veterans, e.g. Sunnybrook Hospital.

It will be readily apparent that much more needs to be done. Our experience over many decades has unfortunately taught us that progress with regard to veterans' legislative reform is usually incremental and often painstakingly slow.

However, it is important that we gauge from time to time the legislative and policy measures that have been achieved as we develop our strategies for next steps moving forward.

Veterans Legislation and Policies

Career Impact Allowance

Notwithstanding the fact that VAC has converted the former Career Impact Allowance provision into the Additional Pain and Suffering Compensation benefit, it remains the position of NCVA, in concert with the Policy Advisory Group, that the department revisit the concept of CIA and address the future loss of income suffered by a disabled veteran on the basis of the following fundamental question – "What would the disabled veteran have earned in his or her projected military career if the veteran had not been injured?"

It will be recalled that it is the position of the Policy Advisory Group, as endorsed by the longstanding view of NCVA, that, once this benchmark for CIA is established, a newly structured benefit be developed as delineated in various reports emanating from the Veterans Ombudsman's office over recent years and as proposed by the New Veterans Charter Advisory Group in 2009. The evaluation of the Veterans Ombudsman demonstrates the relative predictability of the elevation of a CAF member through his or her military career in recognizing the specific ranks the member would have achieved had the member not been injured.

It is also of considerable import that the Canadian Civil Courts over the last number of decades have evaluated the plight of severely injured plaintiffs by consistently applying the concept of future loss of income in assessing monetary damages. In a similar fashion to the proposals emanating from our Policy Advisory Group on Career Impact Allowance, the courts consider the probable career earnings of an injured plaintiff from the perspective of future loss of income or, alternatively, future loss of earnings capacity as part and parcel of the damage award granted to plaintiffs in the Canadian judicial system.

It is of interest that, in the context of VAC, the department has a distinct advantage over the courts, as the judicial system only has "one bite at the apple" at the time of the court hearing or settlement. VAC, on the other hand, is able to monitor the income position of a disabled veteran throughout his or her life to determine the differential between the benchmark established by the CIA concept and the actual income received by the veteran. Query: why should an injured Canadian veteran receive less than an injured plaintiff with reference to "future loss of income"? We have, in effect, paralleled the Disability Award under the New Veterans Charter with general damage awards in the Canadian courts – why not replicate the philosophy of the future loss of income concept as well?

New Veterans Education and Training Benefit

It is the opinion of VAC and, more particularly, Deputy Minister Walt Natynczyk, that this program represents a landmark proposal which substantially enhances the Education and Training Benefit for all eligible veterans. The Deputy Minister suggested at the time of the formal announcement that it was based on the United States G.I. Bill in relation to extending educational benefits beyond disabled veterans so as to include all released veterans who qualify under this new program.

The benefit will be available for ten years going forward following the release of the veteran and will be retroactive to April 1, 2006. Unfortunately, veterans released from the CAF prior to 2006 will not qualify for this benefit which, in my judgment, reflects a rather arbitrary cut-off date and conceivably is a government decision founded on budgetary constraints.

This program was initiated on April 1, 2018 for all veterans honourably released on or after April 1, 2006 – veterans with six years of eligible service will be entitled to up to $40,000 of benefits, while veterans with twelve years of eligible service will be entitled to up to $80,000 of benefits. The Minister/Deputy Minister emphasized that the benefit would provide more money for veterans to go to college, university or technical school after they complete their service.

There is little question that this newly expanded educational benefit will be potentially beneficial to a much larger segment of the veterans' community. My one caveat is that the "devil is often in the details" and questions of eligibility criteria will have to be examined closely and, in addition, it will be necessary to determine whether the rather restrictive policy in the past regarding educational programs for disabled veterans will be addressed and that more liberal access in general will be achieved by this initiative.

It will also be important to understand whether a released veteran wishing to take advantage of the educational benefit will be covered through some form of income replacement program to address the potential diminishment in income received for the maximum four‑year period, i.e. will the SISIP LTD program or the VAC IRB program accompany this educational benefit particularly for disabled veterans who might qualify though this REHAB/Education Program?

Deputy Minister Natynczyk has also indicated that, for those veterans who find education is not their solution, there would be further monies available under this program for career development courses in the neighbourhood of $5,000 per veteran.

Transitional Provisions

Although Deputy Minister Natynczyk has initiated significant policy revisions to provide for an early intervention well in advance of the ultimate medical release of the disabled veteran, there remains much more work to be done to ensure that this transitional process is improved. It is extremely noteworthy that both the Veterans Ombudsman and the DND Ombudsman in the past four years have made significant proposals to the Minister and the Standing Committee on Veterans Affairs in relation to improving the transitional protocols in this context.

Quite clearly, one of the most significant priorities with reference to this transitional phase is to ensure that disabled veterans are fully apprised of benefits and entitlements, rehabilitation options and job alternatives well before their medical discharge from the Canadian Armed Forces.

In this regard, it remains the strong opinion of NCVA that VAC should be able to identify those benefits a veteran is entitled to and implement these benefits on the veteran's behalf. In general terms, the utilization of a knowledgeable case manager together with administrative aides at an early point in the transitional process should expedite this procedure, as opposed to the current protocol where a veteran is often asked to describe his or her needs and the precise benefits that the veteran is seeking. It has been our recommendation that the case manager must be in a position in nearly all cases to identify these benefits and entitlements to the individual veteran under the various VAC programs, and that this should occur in collaborative partnership with DND prior to the discharge of the disabled veteran in question. With particular reference to seriously disabled veterans, the onus should be removed from the veteran and the VAC administrative function should be fine‑tuned and more proactive in establishing entitlements for such veterans.

Delays in Adjudication

In the context of transition, it is to be noted that the Veterans Ombudsman issued a scathing report in September 2018 criticizing the Federal Government for causing added frustration and stress to many injured veterans as they are forced to wait months longer than promised to find out if they qualify for disability benefits and other treatment supports. This remains particularly concerning given the unacceptable backlog of cases in the VAC adjudicative system, which now exceeds 40,000 claims.

Canadian veterans were told at the time that they could expect to find out within 16 weeks whether they are eligible for financial assistance and medical treatment for injuries related to their service. The Veterans Ombudsman's review found that the target was achieved when it came to applications by veterans from the Second World War and Korea, but that many applications from other veterans – including those who served in Afghanistan – experienced delays.

The average turnaround time for those applications was 23 weeks to 29 weeks, depending on which files were counted, while more than a quarter of those took 32 weeks or longer, a situation that is getting worse thanks to a growing backlog of files.

The findings were particularly troublesome for Francophone and female veterans, some of whom have been waiting for more than a year for a decision and whose files were disproportionately represented in those suffering from the longest delays.

The Ombudsman's office also underlines that, because of discrepancies with how the "service standard start date" – or the date the "clock starts ticking"– is determined, veterans with less need may see their applications move forward in the queue before others. The extensive Veterans Ombudsman's report makes seven major recommendations which will ensure that:

  • All veterans receive timely decisions – regardless of gender, language or other factors
  • Applications are triaged based on need
  • The negative consequences of delays are eliminated
  • More accurate and transparent information is provided to veterans about expected turnaround times, reasons for delay and incomplete applications

NCVA supports the findings of the Veterans Ombudsman and praises his comprehensive and thorough analysis of a longstanding concern to the veterans' community – turnaround times have been a substantial problem within VAC going back many years.

It is also noteworthy that, due to the complexity and confusion surrounding a number of new benefits which have been promulgated over the last couple of years, the process has been further backlogged, resulting in many veterans being unable to access these new benefits and, as significantly, struggling to understand the criteria for application. In effect, the Government has created a legislative "monster" insofar as the nature and scope of the benefit grid which currently exists within VAC. With the introduction of the new Pension for Life provision, statutory eligibility and policy guidelines have been dramatically complicated to the point where both the applicant veteran and the corresponding VAC adjudicator are confronted with many legalistic and interpretative obstacles with respect to achieving speedy decision-making and satisfactory entitlement results.

In a very recent development, the Federal Court of Canada has certified a class action lawsuit estimated at $100 million or more on behalf of ex-reserve members of the Canadian Armed Forces who contend that Ottawa has illegally delayed their retirement benefits.

On November 4, 2019, Federal Court Justice James O'Reilly rejected all the federal government's arguments that the latest class action against Ottawa by CAF veterans for alleged mishandling of their pension benefits fails to meet the five preconditions for class certification (Jost v. A.G. Canada).

The CAF ex-members contend in their lawsuit launched June 30, 2017 that alleged pension delays, spanning from weeks to 3.5 years in one case, amounted to government negligence, breach of contract, and breach of fiduciary duty. The veterans claim damages for alleged financial losses and other hardships.

Once again, the Department of Justice on behalf of Veterans Affairs Canada has argued in this class action suit that the Government does not owe a special duty to veterans in this context. Interestingly, Mr. Justice O'Reilly has disagreed vehemently in his ruling which places this entire issue of the inordinate delays and backlogs in VAC/DND before the Canadian courts.

Hopefully this class action decision will provide VAC and DND sufficient impetus to take appropriate measures to address this intolerable situation.

Certainly the utilization of presumptions, the benefit of the doubt, and emphasis on "getting to yes faster" will expedite and accelerate the adjudicative and administrative process. We will keep a close eye on developments with regard to this class action litigation.

Partial Disabilities

In early 2018, VAC created a new policy with reference to partial entitlement flowing from veterans' legislation, i.e. disabilities arising in part out of military service or consequential disabilities arising in part from a primary disability.

The VAC policy amendment established a principle that any partial entitlement award would either be granted at four‑fifths or five‑fifths. In the past, fractional entitlements in this context were granted in fifths – one‑fifth, two‑fifths, three‑fifths et al. The backgrounder information given to our Advisory Group from VAC indicated that these fractional entitlements were often appealed one‑fifth at a time, clogging up the entire VAC adjudicative system. It was felt that it would be prudent to simply eliminate the one‑fifth, two‑fifths and three‑fifths entitlements and grant a four‑fifths for any partial entitlement award.

This is clearly a beneficial policy insofar as a substantive increase in pension to be received by a veteran, but we felt it was important to raise a number of questions following the introduction of this amendment:

  1. Will these fractional entitlements be granted retroactively to all veterans who have received a one‑fifth, two‑fifths or three‑fifths entitlement in the past? It has now been established by VAC that this will not be done automatically but will only be triggered by individual veterans initiating a review of their files by the department in order to achieve a potential increase in their fractional entitlement.
  2. Will there eventually be any limitation period as to how far back this form of increased fractional entitlement will be granted, given the magnitude of appeals that have been generated by this new policy?
  3. Will the standard of assessment be more stringent when it is recognized that the partial entitlement award will be granted at a minimum of four‑fifths – in the past, one‑fifth awards were occasionally granted on the basis of giving the veteran applicant the benefit of the doubt – will this relative generosity be altered in the new policy guideline adjudication?

SISIP LTD/VOC‑REHAB Programs

NCVA continues to have a fundamental concern as to whether SISIP LTD for service‑related disabilities should be continued at all or whether it should be eliminated due to the multiple standards which exist not only with the SISIP LTD program but also the SISIP VOC‑REHAB program.

One of the priority recommendations of NCVA, the Ministerial Policy Advisory Group, the New Veterans Charter Advisory Group, numerous veteran consultation groups, the Standing Committee on Veterans Affairs and the Veterans Ombudsman's office for many years has been to suggest that the insurance culture needs to be removed from the compensation made available to veterans and their families. The compensation of veterans and their dependants should not be a function of the insurance industry whose mandate, in many situations, is to minimize exposure of the insurer's policy when applied to injured or disabled individuals.

As a matter of background, a fundamental commitment made by the Government at the time of the enactment of the New Veterans Charter was the recognition that the SISIP LTD program should be eliminated and fully replaced by a liberalized income replacement loss benefit administered by VAC. The constraints placed on the New Veterans Charter by the restrictive provisions of the SISIP LTD program and the SISIP VOC‑REHAB program are felt in the present context and should be removed as soon as possible. This government commitment made by the Minister and Deputy Minister of the day was part and parcel of the understanding between the veteran stakeholder community and VAC in consideration of the immediate passage of the Charter by Parliament in 2006.

It is to be noted that the "wellness program" strongly advocated by VAC and, more particularly, Deputy Minister Natynczyk, is clearly impacted by the fact that the greater majority of medically released CAF members fall under the administration of the SISIP VOC‑REHAB program. In effect, VAC does not have the capacity to control and operate this portion of the VOC‑REHAB program and is left with little accountability as to the impact that the SISIP program will have on veterans in regard to this essential element of the New Veterans Charter/Veterans Well‑being Act.

With reference to the question of service and non‑service related disabilities, it has been the experience of the veterans' community that this entire question of whether a member of the Canadian Armed Forces is to be considered "on duty" for the purposes of pensionability either under the Pension Act or the New Veterans Charter/Veterans Well‑being Act has been a longstanding grievance. The regulations in this area would be far clearer and more equitable if the government/department agreed to adopt the "insurance principle" in this context so that all members of the military would be considered "on duty" at all times and thus eligible for various financial benefits such as the Disability Award and Income Replacement programs once they put on a uniform. This would clear up the potential interpretive issues which are raised in the regulations to the New Veterans Charter/Veterans Well‑being Act and would address the confusion and ambiguity which often results when individual hypothetical cases reflect "gray areas" or areas of dispute. The resultant effect of this recognition would also further the objective of eliminating the SISIP LTD program even for non‑service‑related disabilities which, of course, was its original and exclusive mandate in the 1970s when it was first created.

Benefits to Support Families

NCVA remains concerned that the Government has not sufficiently addressed the plight of families, particularly in circumstances where a member of a family, often a spouse, is required to act in the role of a caregiver to a disabled veteran.

As a matter of background, the Family Caregiver Relief Benefit (FCRB) introduced in 2015 proved to be clearly inadequate and certainly required further re‑evaluation, as it failed to comprehensively provide adequate financial support for the families of seriously disabled veterans where significant needs of attendance must be provided by a caregiver who often has had to leave his or her employment to do so.

It is noteworthy that the Caregiver Recognition Benefit has replaced the existing Family Caregiver Relief Benefit as of April 1, 2018 and provides a slightly more generous non‑taxable $1,000 a month benefit payable directly to caregivers to ostensibly recognize and honour their vital role. NCVA has raised obvious questions as to why the quantum of the Attendance Allowance or Attendant Care Benefit was not utilized as opposed to the rather meagre $12,000 a year. In addition, we have questioned the fact that this new CRB still requires that rather stringent eligibility criteria be satisfied in order for veterans' caregivers to gain entitlement to this benefit.

It is readily apparent that VAC need not "reinvent the wheel" with regard to such caregiver allowances as:

  1. DND through its "Attendant Care Benefit" program has provided reimbursement to seriously disabled veterans of Afghanistan for payments made to an attendant to look after the Canadian Armed Forces member on a full‑time basis. This benefit is paid to the CAF member at a daily rate of $100 ($3,000 a month – $36,000 a year). This benefit also implicitly represents a recognition that the financial costs of attendants far exceed the need to address respite. More importantly, a serious question remains in the context of the veteran's transition from DND to VAC as to whether the financial assistance to such families will dramatically drop from the DND program to the VAC FCRB; and
  2. Alternatively, the Attendance Allowance, founded under the Pension Act, which has been in place for many decades and is a far more generous provision when compared to the FCRB/CRB, produces $15,000‑$22,000 a year of non‑taxable benefits to those veterans in significant need of attendance.

In addition, we have particularly emphasized with Ministerial officials the concern that there should be more flexibility attached to this new Caregiver Recognition Benefit as, clearly, "one size does not fit all." It is not without significance in this area that the grading levels available under the Attendance Allowance provisions of the Pension Act give the department a certain degree of discretion and flexibility as to the attendance needs of individual veterans. In my experience, there are numerous examples where substantial distinctions exist as to the need for attendance encountered by seriously disabled veterans.

It is also of significance that the Ministerial Policy Advisory Group is proposing a new Family Benefit for all veterans in receipt of a Disability Award based on the level of disability assessment which would provide further support to families and address, to a certain extent, the cost of the veteran's disability to his or her spouse and/or dependant children. The amount of this benefit would parallel the payments which have been made under the Pension Act for many years as part of the pension received by a disabled veteran who has a spouse and/or dependant children. Once again, the resultant impact of balancing benefits in this manner under both statutory regimes would be particularly responsive to the current shortcoming in the New Veterans Charter/Veterans Well‑being Act insofar as financial assistance to families of disabled veterans is concerned.

Post‑65 Benefits

It is also to be noted that the new legislative amendments emanating from Budget 2018 (which consolidate a number of income replacement provisions into one benefit, the Income Replacement Benefit (IRB)) unfortunately still retain the inadequacies of the Retirement Income Security Benefit (RISB) which was enacted earlier by the former Conservative Government in its attempt to address the post‑65 financial security for seriously disabled veterans and their families. The new post‑65 benefit provides specific veterans with 70 percent of the Income Replacement Benefit, should the veteran be deemed as suffering a "diminished earnings capacity" as defined under the regulatory provisions of the new Act, less certain potentially significant deductions prescribed by these policy provisions.

In our view, to apply a 70 percent formula to the post‑65 period for a permanently incapacitated veteran based on a public/private sector pension model is not appropriate when it is recognized that the plight of such a seriously disabled veteran post‑65 remains unchanged and his or her financial costs continue to be essentially the same.

During the course of initial discussions surrounding the enactment of these post‑65 provisions, strong arguments were made by NCVA and various veteran stakeholder groups that the full Earnings Loss Benefit/Income Replacement Benefit should be continued for life, particularly given the fact that the principal recipients of this post‑65 "pension" will be totally incapacitated veterans.

It is interesting to note that our Policy Advisory Group recommendations address this specific issue by establishing that a single stream of ELB/CIA payments should be continued for life, as is the case for similar Pension Act benefits, and that the RISB or post‑65 benefit be eliminated – as it is self‑evident that these provisions are far too complex and impact negatively on many seriously disabled veterans and, particularly, surviving spouses.

In addition, the Policy Advisory Group financial compensation model provided that, in the event ELB/CIA is indeed continued for life without deduction, surviving spouses should be entitled to 70 percent of this amount which would equate to the proposed levels of the new Canadian Forces Superannuation Act survivor benefit committed to under the Minister's mandate letter. Although the resultant net effect will not provide as much financial support as the MPAG is recommending, we would confirm that the department has at least implemented a parallel provision in this context providing a survivor benefit of 70 percent for the new consolidated IRB post‑65 benefit under the legislation flowing from the new PFL.

Recommendation

NCVA takes the position that VAC, working together with relevant Ministerial Advisory Groups and other veteran stakeholders, could think "outside the box" by jointly striving over time to create a comprehensive program model that would essentially treat all veterans with parallel disabilities in the same manner as to the application of benefits and wellness policies – thereby resulting in the elimination of artificial cut‑off dates that arbitrarily distinguish veterans based on whether they were injured before or after 2006.

Recommendation

NCVA adopts the position that much more is required to improve the New Veterans Charter/Veterans Well‑being Act and that the Government needs to fully implement the Ministerial Policy Advisory Group recommendations presented to the Minister of Veterans Affairs and the Veterans Summit in October 2016 with particular emphasis on:

  1. Resolving the significant disparity between the financial compensation available under the Pension Act and the New Veterans Charter/Veterans Well‑being Act;
  2. Ensuring that no veteran under the New Veterans Charter/Veterans Well‑being Act would receive less compensation than a veteran under the Pension Act with the same disability or incapacity in accordance with the "one veteran – one standard principle;
  3. Utilizing a combination of the best provisions from the Pension Act and the best provisions from the New Veterans Charter/Veterans Well‑being Act, producing a form of lifetime pension in a much more realistic manner in order to secure the financial security for those veterans who need this form of monetary support through their lifetime; and
  4. Eliminating SISIP LTD/VOC‑REHAB and placing all SISIP LTD and VOC‑REHAB under VAC for all service attributable and non‑service attributable medical releases with no premiums – one program/one service delivery model.

In addition to the above‑mentioned fundamental proposals as to the overriding guiding principles for legislative reform, the following recommendations represent specific statutory and policy amendments in furtherance of this objective:

  1. Liberalize the eligibility criteria in the legislation and regulatory amendments for the new Additional Pain and Suffering Compensation benefit so that more disabled veterans actually qualify for this benefit. Currently only veterans suffering from a severe and permanent impairment will be eligible. It bears repeating that the greater majority of disabled veterans simply will not qualify for this new component of the proposed lifelong pension.
  2. The Veterans Disability Award (Pain and Suffering Compensation benefit) initially granted to the veteran should be a major determinant in evaluating CIA (APSC) qualifications. It is the position of NCVA that this employment of the Disability Award (PSC) percentage would produce a more straightforward and easier understood solution to this ongoing issue of CIA (APSC) eligibility.
  3. Create a new family benefit for all veterans in receipt of a Disability Award to parallel the Pension Act provisions in relation to spousal and child allowances to recognize the impact of the veteran's disability on his or her family.
  4. Incorporate the special allowances under the Pension Act, i.e. Exceptional Incapacity Allowance and Attendance Allowance, into the New Veterans Charter/Veterans Well‑being Act to help address the financial disparity between the two statutory regimes.
  5. Finetune the concept of Attendance Allowance, payable to informal caregivers to recognize and compensate the significant effort and economic loss to support injured veterans, and ensure access reflects consideration for the effects of mental health injuries.
  6. Lower the eligibility criteria for Exceptional Incapacity Allowance to cover those veterans under 98 percent disabled and who are confronting extraordinary incapacities as a result of their service‑related disabilities.
  7. Establish a newly structured Career Impact Allowance which would reflect the following standard of compensation: "What would the veteran have earned in his or her military career had the veteran not been injured?" This form of progressive income model, which has been recommended by the MPAG and the Veterans Ombudsman's office, would be unique to the New Veterans Charter/Veterans Well‑being Act and would bolster the potential lifetime compensation of the disabled veteran as to his or her projected lost career earnings, as opposed to the nominal one percent increase provided in the proposed legislation.
    • NCVA encourages VAC to revisit the MPAG proposition of consolidating the Income Replacement Benefit and a newly structured CIA to provide a single stream of income which would include the "projected career earnings" approach.
    • Access to the new structured CIA benefit should be available through the lifetime of the veteran, providing a financial safety net that includes application to pre‑ and post‑release income scenarios.
  8. Improve the eligibility criteria for the Critical Injury benefit to include mental health injuries and evolving injuries.
  9. Extend eligibility of the death benefit to the families of all deceased veterans.
  10. In relation to the regulatory amendments emanating from the new legislation, NCVA expresses concern that the prerequisite for the APSC benefit with regard to the disability of amputation remains arbitrarily defined both as to eligibility and designated grade level. It is to be noted that amputation at or above the elbow, or at or above the knee is retained as a fundamental requirement for qualification in relation to a single limb amputee – the loss of a limb at any level represents a severe and permanent impairment for a veteran amputee. The current arbitrary distinction is not justified and should be amended.

Recommendation

NCVA continues to support the contention that the seriously disabled veteran should be given the highest priority in the implementation of the Government's plan of action for legislative reform in regard to the New Veterans Charter/Veterans Well‑being Act and other related legislative provisions.

Recommendation

NCVA endorses the position that the Federal Government's failure to fully implement a plan of action on reforming the New Veterans Charter violated the social covenant owed to Canadian veterans and their families.

Recommendation

That NCVA require that DND and VAC employ all necessary financial, professional and personnel resources to identify, care and compensate veterans' suffering from post‑traumatic stress disorder and that it is recognized that this insidious disability must be continually monitored to ensure the well being of such veterans.

N.B.: DND/VAC released a comprehensive report in 2018 entitled "Joint Suicide Prevention Strategy" which established a comprehensive set of protocols to address this entire question of PTSD and suicide. The veterans' community will be monitoring this new policy very closely to determine how effective these proposals will be in addressing what many in the veterans' community have described as a significant crisis.

Recommendation

NCVA supports the Veterans Ombudsman's report, issued in September 2018, with reference to the inordinate delays and turnaround times with regard to applications for veterans' disability benefits and treatment entitlement, in order to address this longstanding concern.

Recommendation

That NCVA continue to apply "relentless scrutiny" to departmental service delivery, so that we are able to draw our own conclusions as to the impact of the budgetary staffing enhancements currently being implemented by VAC and promised in the future by the Liberal Government in order to make our own judgment as to the question of whether VAC has become more administratively efficient through the "red tape cutting" initiative.

Recommendation

That NCVA member‑organizations contribute proposals based on their own members' experiences to be included in the effective work of The War Amps Task Force for the purposes of a further submission to VAC in addressing bureaucratic obstacles and eliminating red tape.

Recommendation

That NCVA continue to promote the utilization of presumptions in the VAC adjudicative system as outlined in NCVA's 2014 Legislative Agenda, so as to create administrative efficiencies and provide financial savings to the Department in this period of budgetary analysis.

N.B.: NCVA welcomes the Liberal election campaign proposal to automatically award entitlement for PTSD, depression, arthritis et al to expedite the application process and address the significant adjudication backlog currently in existence with VAC, which potentially reflects a good first step in this context.

Long‑Term Care/Intermediary Care

One of the major developments in this last year with respect to long-term care has been the initiation of a policy by VAC to widen the scope of eligibility to so‑called traditional veterans' beds in historical veterans' hospitals to modern day veterans. With specific reference to individual hospitals such as Sunnybrook in Toronto, the department has taken steps to exercise this operational discretion where vacant beds have resulted from the passing of traditional veterans and the demand from the modern day veteran community exists.

In addition, as many of you will be aware, there have been a number of high‑profile cases in the last number of years which have been described in national media articles with reference to specific veterans attempting to gain admission to long-term care facilities in various provinces across the country. It is of interest that VAC has ostensibly developed a flexible position in this context, so as to provide access to Traditional veterans' facilities on the basis of designating certain priority access beds as community beds (preferred veterans beds) for the purposes of VAC Policy Guidelines. This development of a form of freedom of choice for veterans attempting to gain admission to long‑term care facilities should be encouraged on an ongoing basis.

It is also to be noted, as discussed at last year's Annual General Meeting, that the class action lawsuit initiated in 2018 by a 95‑year‑old resident at Ste‑Anne's Hospital in Montreal by the name of Wolf Solkin continues to wind its way through the courts. Mr. Solkin takes the position that there have been significant violations in the Transfer Agreement between the Federal Government (VAC) and the Province of Quebec as to the quality and standard of care at the hospital, together with a failure to satisfy the bilingual language requirements. It is our understanding in this context from VAC officials that efforts are currently being made to resolve this legal dispute and address the shortfalls emanating from these transfer agreement violations at Ste‑Anne's.

Again, as emphasized over the course of the last number of NCVA meetings, it is self‑evident that VAC, through VIP, has the authority to cover specific costs and expenditures while a qualified veteran resides in his or her home. In addition, once such a veteran pensioner has reached the stage where a long‑term care facility is required, the Veteran Health Care Regulations establish financial support at this time in the health care process.

As we have consistently argued with departmental officials for many years, what has been missing has been the financial assistance for the middle ground or intermediary level of institutionalization where many of our members currently find themselves, i.e. seniors' residences and assisted living facilities.

We have had a number of intensive meetings with departmental officials over the last two years in an attempt to close this gap, and I remain encouraged, through the recent discussions we have just completed with senior members of the VAC team, that attempts are continuing to be made to address this longstanding concern.

Previously, I advised this meeting that I continue to work closely with the Veterans Ombudsman's office in this context. It is of significant interest that the Ombudsman's office has adopted our position and has issued a number of reports with regard to Long‑Term Care/Intermediary Care which fully recognize the shortcomings that currently exist in the VAC Health Care Regulations concerning this particular gap in financial coverage. This will add further ammunition and support to our ongoing initiative to ensure that these inequities are eliminated.

In this regard, it is noteworthy that the Veterans Ombudsman released an excellent report in 2018 entitled "CONTINUUM OF CARE: A JOURNEY FROM HOME TO LONG TERM CARE" which contains a comprehensive analysis of the current VAC long-term care and health care policies. The report further provides a series of recommendations which are consistent and in line with NCVA's longstanding position on this important subject. We will continue to collaborate with Craig Dalton, the new Veterans Ombudsman, in pursing the implementation of these mutually desired recommendations.

In summary, the Veterans Ombudsman's proposals are as follows:

Recommendation

That NCVA ensure that VAC continues to develop a flexible policy to provide veterans with a freedom of choice between a community bed and a priority access bed for purposes of admission to long‑term care facilities.

Recommendation

That NCVA continue to express the concerns of our member‑organizations to the Minister and the Deputy Minister with reference to the administration of Ste‑Anne's Hospital. NCVA intends to hold ongoing discussions with the Minister's office to protect the interests of veterans affected by this transfer and ensure that the provisions found in the transfer agreement established to support the commitments made in relation to priority beds for veterans, language rights, and the standard of care be strictly enforced and funded by the Federal Government as promised.

Recommendation

That NCVA continue to collaborate with VAC to ensure that the adult residential care needs of the veteran are addressed through the expansion of the current VIP program and long‑term care policy of the department so as to provide financial assistance in this area of institutionalized care.

Recommendation

That NCVA continue to work with the Veterans Ombudsman's office in drawing to the attention of the Liberal Government the inequity that has resulted in the gap that currently exists in the VAC health care regulations concerning financial coverage for adult residential care.

VIP For Life for Surviving Spouses

It remains a priority issue of NCVA to underline the need to expand the eligibility of VIP to include, at a minimum, those surviving spouses of seriously disabled veterans whose veteran spouses did not apply for VIP prior to their death. Our position continues to be that in many cases the veteran was unable or reluctant to apply for VIP in the years prior to his or her passing. It is our strong argument that a presumption could be established that, in the event the seriously disabled veteran had applied or was able to apply for VIP, he or she would have received the benefit given his or her significant incapacity. It is submitted that the department would have great difficulty in refuting the logic of our argument and we remain hopeful that this particular presumption will be of great value to our surviving spouses in achieving VIP benefits.

As a matter of historic development, you will recall that the federal budget of 2008 partially expanded the current regulations for the continuation of VIP for life for surviving spouses provided the surviving spouse is either in receipt of the Guaranteed Income Supplement or has entitlement to the Disability Tax Credit under the Income Tax Act. It remains our position that this partial expansion is far too restrictive and that the required criteria should be removed with respect to surviving spouses of seriously disabled veterans.

Recommendation

That NCVA continue to pressure the Minister and departmental officials to review the present policy on the continuation of VIP for Life for surviving spouses with a view to providing, at a minimum, this benefit to all surviving spouses of seriously disabled veterans who are not eligible because the veteran never applied for the benefits.

Recommendation

That the Minister of Veterans Affairs alter the Government's current position so that:

  1. The needs of the surviving spouse should determine the benefit required (housekeeping or groundskeeping) instead of the present practice of basing the decisions on the specific VIP benefit the veteran was receiving prior to his or her death; and
  2. Section 16 and Section 16.1 of regulations be amended so as to eliminate the absurd anomaly whereby a surviving spouse who fails to qualify for VIP based on their spouse's VIP status cannot utilize their GIS or DTC eligibility for the purposes of their own VIP entitlement.

Last Post Fund/Veterans Burial Regulations

Budget 2016 provided an expansion of the eligibility for The Last Post Fund Program so that more families of low‑income veterans will receive financial assistance under this program. The Budget proposed to increase the estate exemption for The Last Post Fund from roughly $12,000 to roughly $35,000 and applied an annual cost of living adjustment to this estate exemption going forward.

Although these are improvements over previous government policies in this area, it remains our position that it is necessary for VAC to recognize that a seriously disabled veteran should be entitled, as a Matter of Right, to receive funeral and burial benefits pursuant to the Veterans Burial Regulations.

As we have often stated, it is puzzling indeed that, during the lives of seriously disabled veterans, the department has recognized the cumulative and synergistic impact of both their pensioned and non‑pensioned conditions, approving many health care and treatment benefits on their behalf but, in death, ignores the relationship between these conditions.

In this context, it is inconceivable in our submission that the impact of the seriously disabled veteran's pensioned and non‑pensioned disabilities did not play a part in his or her ultimate demise. In this overall analysis, the principle of presumption should be fully applicable to this area of VAC adjudication.

I would advise, however, that with the odd exception, recent developments in this area insofar as the treatment of seriously disabled veterans continue to be extremely encouraging.

You will recall that, two years ago, through the course of our advocacy, we were deeply disturbed to learn of the rejection of a Hong Kong veteran's claim for Last Post funding. As many of you will be aware, The War Amps of Canada has acted for the Hong Kong Veterans Association and all of its members for many decades – rarely have we been required to appeal a claim for Last Post funding under the Veterans Burial Regulations as VAC has long recognized the beneficial entitlement of this unique group of Canadian veterans.

We must say that we are somewhat shocked that this appeal had proven necessary, given the history of the Canadian Hong Kong veterans and the horrific experience they suffered as POWs of the Japanese in World War II for some 44 months – the devastating story of the abuse, torture, starvation and gross violations of human rights has long led us to the irrefutable conclusion that the family of a Hong Kong veteran should automatically receive Last Post funding as a "Matter of Right."

In our submission, no family of a Hong Kong veteran who suffered the physical, mental and psychological trauma of life in Japanese POW camps in World War II should be required to demonstrate the interrelationship of this experience on the ultimate demise of the veteran – surely it is self‑evident.

There is no doubt, in our considered opinion, that the death of a Hong Kong veteran is at least, in part, a consequence of his World War II experience and the multiple pensioned conditions that such a veteran has endured his entire life.

It remains our hope that this particular case reflects an aberration with regard to Last Post funding claims, and we would advise that, in the past two years, we have achieved success in the greater majority of Hong Kong veteran claims with regard to Last Post funding. However, it is clear that we must be vigilant in this context and thus we have continued to mount a comprehensive campaign to provide an "education" to the department and ensure that all adjudicators are properly informed as to the tragic history of Canada's Hong Kong veterans.

Recommendation

That NCVA continue to pressure the Minister of Veterans Affairs to ensure that, at a very minimum, seriously disabled veterans entitled to a disability pension at 78 percent or more (SDVs) qualify, as a matter of right, under the Veterans Burial Regulations/Last Post Fund.

Recommendation

That VAC address the inequities that still exist in the Last Post Fund in relation to widening the standard for income/asset exemption under the regulations and expanding the eligibility criteria to include a higher number of deserving traditional veterans and modern‑day veterans.

Public Service Pensions and Health Care Programs/Marriage After Sixty

Over the last number of years, we have discussed at considerable length that the Federal Government had proposed or implemented major changes to Public Service benefits and pensions including:

  1. An implemented increase in the contribution level of public servants and retirees to the federal Public Service Health Care Plan (PSHCP) from 25 percent to 50 percent, such premium increases to be phased in over four years and culminating in 2018; and
  2. A proposed amendment to the defined benefit pension plan currently enjoyed by federal public servants through the introduction of a "target pension" concept which reflects a hybrid of the defined contribution model and the defined benefit pension plan.

Once again, I have requested Chuck McCabe of the Armed Forces Pensioners'/Annuitants' Association of Canada and Paul Baiden, our Vice Chairman, to brief this year's NCVA Annual General Meeting on these contentious issues with reference to impact on the veterans' community.

With respect to our ongoing initiative vis‑à‑vis CAF retirees and "marriage after sixty":

  • This continues to be a very important issue within the NCVA Legislative Program in view of the fact that more and more Canadian Armed Forces (CAF) retirees are living longer and many are marrying for the second time.
  • As it stands, the CAF retirees contribute to the Canadian Forces Superannuation account throughout their entire career and one of the important benefits is a 50 percent Survivor's Benefit, except in those cases where the CAF retiree marries after age 60.

It is again noteworthy that the Liberal 2015 election platform specifically indicated that it was the intention to "…eliminate the marriage after sixty clawback clause so that surviving spouses of veterans receive appropriate pension and health benefits." Unfortunately, the 2019 federal budget contained a rather nebulous provision which was ostensibly proposed to address this longstanding concern.

The budget provided:

"To better support veterans who married over the age of 60 and their spouses, Budget 2019 announces a new Veterans Survivors Fund committing $150 million over five years starting in 2019-20 to VAC. With these funds, the Government will work with the community to identify impacted survivors, process their claims, and ensure survivors have the financial support they need. The Government will announce additional details on this measure in the coming months."

It is revealing that our enquiries to the department resulted in the rather shocking conclusion that no one in VAC was aware of the substance of any legislative provision that actually would apply to this new policy. Our further communication with Ministerial officials was to little avail, save and except that we were advised that a new policy was under consideration. The mystery continues as to why the Government did not simply eliminate the Marriage After Sixty clawback provision as opposed to establishing a brand new policy with little or no substantive detail.

In addition, other concerns and inequities resulting from the operation of the Canadian Forces Superannuation Act (CFSA) have been identified and deserve our attention:

  1. In relation to the new administration of CFSA benefits by Public Works and Government Services Canada, it has become readily apparent that significant delays are occurring in the delivery of veterans' survivor benefits. This is totally unacceptable at a time when surviving spouses require a sense of financial security upon the passing of a veteran spouse.
  2. As discussed at previous Annual General Meetings, the Public Service Superannuation Act does not currently account for prior military service that has been transferred to the plan when determining the age at which a plan member can begin to draw an unreduced pension. As a result, some veterans employed in the Public Service will have to wait five years longer to receive a pension when compared to non‑veteran employees with the same period of pensionable service with the Federal Government. It is noteworthy that an exception is already made in the law to avoid a similar situation facing RCMP civilian members and it is essential that NCVA advocate a similar change for military veterans.

    In reality, when transitioning from the CAF to the Public Service, veterans with at least two years of service have the option to transfer their service from the CFSA to the PSSA, thus consolidating their pensionable service with the Federal Government under the PSSA.

    As part of the Jobs and Growth Act (2012), the PSSA was amended to divide plan members into two groups: those who joined the plan before January 1, 2013 (Group I) and those who joined on or after that date (Group II). Members of Group I are entitled to an unreduced pension at age 60, or at age 55 with at least 30 years of service, while members of Group II must wait until age 65, or age 60 with at least 30 years of service.

    At the time of this change, no provision was made to include in Group I CAF veterans who transferred pre‑2013 military service to the PSSA. As a result, all CAF veterans joining the Public Service after January 1, 2013 become members of Group II, even if their combined military and civilian pensionable service under the PSSA began before that date.

Recommendation

That NCVA monitor developments with reference to the Federal Government's position on public service pensions ("target pensions") and health care programs and engage the Government as required to protect the interests of veterans and their dependants.

Recommendation

NCVA adopts the position that the Public Service Health Care Plan be amended so that seriously disabled veterans and their families be exempted from paying premiums for such coverage or, alternatively, that VAC should cover these contributions so as to alleviate this financial burden on seriously disabled veterans and their dependants.

Recommendation

That NCVA continue to pressure the Minister of Veterans Affairs and the Minister of National Defence so as to allow the spouse of a Canadian Armed Forces retiree marrying after 60 to be eligible for survivor's benefits without reducing the amount of superannuation in payment to the retiree in accordance with the Liberal Party's election platform of 2015. NCVA takes the position that this amendment to the CFSA would be a more optimal solution when compared to the nebulous Veterans Survivors Fund contained in the 2019 federal budget.

Recommendation

NCVA recommends that, to ensure fairness for CAF veterans employed in the public service and consistency with existing government policies, the definition of Group I under the PSSA be amended to include CAF members who have elected to transfer their pensionable military service from the CFSA to the PSSA where the start date of the military service was before January 1, 2013.

Recommendation

NCVA will continue to monitor the operation of the Canadian Forces Superannuation Act to ensure that the interests of veterans and their dependants are protected and that inequities are remedied by the Federal Government departments charged with the responsibility of administering the CFSA.

Aboriginal Veterans

With reference to the longstanding grievance of the Aboriginal veterans in relation to their claim for compensation for post‑World War II/Korea benefits, I am pleased to reaffirm the Government announcement contained in the 2019 federal budget to provide an ex gratia payment of $20,000 to those Métis veterans still alive and to provide a similar amount to the estates of those Métis veterans who have died in the last three years. In addition, the $30 million fund created in the budget will largely be employed to establish a legacy fund to recognize the contribution of Métis veterans to the country's Second World War and Korea efforts, and to commemorate the sacrifices and achievements of all Métis veterans.

It must be stated that this announcement unfortunately fits into the description of "better late than never" as it is a real shame that this governmental policy was not initiated many years ago when a greater number of Métis veterans were still alive. It is also noteworthy that the restriction in eligibility to those estate beneficiaries where the Métis veteran has died within the last three years is rather arbitrary and less than generous.

It will be remembered that, some years ago, The War Amputations of Canada initiated a legal petition in the United Nations Human Rights Committee in an attempt to pressure the Canadian Government on the substance of the claim on the basis of this systemic discrimination. The claim, although gaining appropriate exposure to this particular grievance, was not fully successful in the United Nations Human Rights Tribunal due to the ostensible limitation periods that exist in that particular jurisdiction.

Recommendation

NCVA will continue to monitor the implementation of the 2019 budgetary proposal to provide ex gratia payments of $20,000 in compensation to Métis veterans still alive and to the estates of Métis veterans who have died in the past three years, together with the establishment of the legacy fund commemorating the exemplary service of Métis veterans in support of Canada's war effort.

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