Bureau of Pensions Advocates

The Bureau of Pensions Advocates (BPA) is a unique, semi-independent directorate of Canada's Department of Veterans Affairs, also known as Veterans Affairs Canada. It provides counsel and legal representation to Canadian Veterans and members of the Royal Canadian Mounted Police in appeals before the Veterans Review and Appeal Board regarding Veterans Affairs Canada decisions on their disability pension and award applications.


List of Chief Pensions Advocates

NAMETENURENOTES
Anthony Saez(2012 - present)
Brian McKenna(2009 - 2012)*Acting
Anthony Saez(2005 - 2009)*The position title expanded to become 'Executive Director and Chief Pensions Advocate'
Rick MacLeod(2001 - 2004)
Simon Coakeley(1996 - 2001)*The Chief Pensions Advocate ceased to be a governor-in-council appointment and became a public servant
Keith D. Bell(1992 - 1995)*Was the last governor-in-council appointment
André Lemieux(1985 - 1992)
Lawrence M. "Chub" Hanway, M.C., E.D., C.D.(1982 - 1984)
Lloyd T. Aiken(1977 - 1982)
Donald Kinsey Ward, Q.C.(1969 - 1977)*The Veterans' Bureau became the Bureau of Pensions Advocates in 1971
Donald Kinsey Ward(1969)*Acting
Brigadier P.E. Reynolds, E.D.(1955 - 1969)
Colonel C. Beresford Topp, D.S.O., M.C.(1945 - 1955)
E.V. Wilson *acting(1943 - 1945)
Colonel C. Beresford Topp, D.S.O., M.C.(1940 - 1945)*Active Service
Colonel C. Beresford Topp, D.S.O., M.C.(1931 - 1939)*Became the 1st Chief Pensions Advocate with the creation of the new Veterans' Bureau in 1931

Mandate

Unique in the world, the Bureau of Pensions Advocates offers free legal advice and representation to Veterans and serving members of the Canadian Armed Forces, members of the Royal Canadian Mounted Police, former members of Canada's Merchant Navy, and eligible family members before the Veterans Review and Appeal Board of Canada (VRAB) on decisions related to disability pensions and awards from the Department of Veterans Affairs.

BPA lawyers, also referred to as "advocates", and support staff assist clients with reviews, appeals and reconsiderations before VRAB. Given their experience in pension and disability matters, they are considered specialists in the area of claims for disability pensions and awards. Over 95% of people appearing before VRAB are represented by BPA lawyers. BPA lawyers do not work for VRAB.

BPA was established pursuant to section 6.1(1) of the Department of Veterans Affairs Act. Although administratively BPA's executive director and chief pensions advocate reports to the deputy minister of Veterans Affairs Canada, the Bureau works under the direction of its individual clients. Section 6.2(2) of the act states that "the relationship between the Bureau and a person requesting its assistance is that of solicitor and client..." Consequently, where there is a conflict between departmental policy and the best interests of the client, the client's interests prevail. Thanks to this solicitor-client relationship, the Bureau's work is directed by its Veteran clients and not by the department. As a result, BPA's Executive Director and Chief Pensions Advocate reports to the Deputy Minister of Veterans Affairs for administrative purposes, and to the Bureau's clients (i.e., individual Veterans) for legal operational purposes. Furthermore, BPA lawyers are subject to the professional code of conduct of their respective law societies, of which they must be practicing members in good standing. According to the Woods Committee of 1968, "The role of the advocate is unique in that his responsibility is to assist the applicant for pension, and the only duty he owes to his employer (the Crown) is to do his utmost to assist this applicant. An applicant for pension has the right to expect from the advocate, without charge, the same service as an applicant would demand of his solicitor in civil legislation."[1]

The Bureau of Pensions Advocates employs 100 lawyers, legal assistants and support staff, and maintains 14 offices in the following cities: St. John's, Halifax, Saint John, Quebec City, Montreal, Ottawa, Toronto, London, Winnipeg, Edmonton, Penticton, Vancouver and Victoria. Its head office, like that of the rest of the Department of Veterans Affairs, is located in Charlottetown, Prince Edward Island (Veterans Affairs Canada is the only major federal department to have its headquarters located outside of Ottawa).

Services Offered

Applicants for a disability pension or award who are not satisfied with the Department of Veterans Affairs' decision may seek the services of the Bureau of Pensions Advocates. A BPA lawyer will review the client's file and may offer the following advice:

  • Departmental Review

Recommend a Departmental Review. In this case, the client may have been missing a piece of documentation or evidence in their application to the Department that could help the Department award the disability pension or award requested. The lawyer will assist the client in submitting the information to the Department.

  • Accept the Department's Decision

Recommend against appealing because the Department's decision on the client's first application appears to be correct. Regardless of the lawyer's recommendation, the client has an absolute right (absent any fraud or issues of ethics) to instruct the lawyer to proceed to Review should the client wish to do so.

  • VRAB Review

Recommend proceeding to the Veterans Review and Appeal Board for a Review. The lawyer will prepare and present an oral argument to a two-member panel. In a split decision, where one panel member agrees and the other does not, the tie is resolved in favour of the client. At this level, the client is entitled to appear personally (at the Department's expense) and provide oral evidence with the assistance of his/her BPA lawyer. Regardless of the lawyer's recommendation, the client has an absolute right (absent any fraud or issues of ethics) to instruct the lawyer to proceed should the client wish to do so.

  • VRAB Appeal

Recommend proceeding to the Veterans Review and Appeal Board for an Appeal. The lawyer will prepare and present a submission in writing (which sometimes is presented orally as well) to a three-member panel. Appeals do not consider new evidence that was not already presented at the Review stage, but rather deal with any errors in law or fact that the Review Board may have made. Errors in law or fact may include, for example, a misinterpretation of the law, or the improper consideration of evidence presented. The lawyer will provide the client with a copy of the written argument before the hearing. Only two of the three panel members need agree with the client for the disability pension or award to be granted. Although clients do not normally address the Board at the Appeal stage, they are entitled to attend the hearing (at their own expense). Regardless of the lawyer's recommendation to proceed to an Appeal or not, the client has an absolute right (absent any fraud or issues of ethics) to instruct the lawyer to proceed should the client wish to do so.

  • Application for Reconsideration

Discuss the possibilities for an Application for Reconsideration. Reconsiderations are not available to clients as of right and must be granted by VRAB, which happens only in exceptional circumstances.


If, after having exhausted his/her appeal options a client is still dissatisfied, s/he may (at their own expense) appeal to the Federal Court of Canada. The Bureau of Pensions Advocates does not currently have the authority to represent individual clients at the Federal Court. Clients proceeding to the Federal Court of Canada with their own private lawyer should be aware that the Federal Court does not have the jurisdiction to impose its own decision and grant a disability pension or award. Instead, the Court considers how the Veterans Review and Appeal Board made its decision. If the Court deems that the decision was arrived at in an incorrect manner (e.g., the Board misinterpreted the law, or did not properly consider evidence presented), it can advise the Board of the error and direct it to reconsider the case (not to be confused with an Application for Reconsideration discussed above). At this point, the Bureau of Pensions Advocates may again represent the client (free of charge) before the Board as it reconsiders the matter.

Partners

The Bureau of Pensions Advocates maintains a close working relationship with the Royal Canadian Legion (RCL) which includes training of RCL service officers as well as the co-representation of numerous clients before the Veterans Review and Appeal Board. BPA also cooperates with the Office of the Veterans Ombudsman to resolve complex cases and discuss policy approaches to Veterans' benefits. In addition, the Bureau works with Veterans Affairs Canada's Service Delivery Branch to divert cases away from the VRAB redress process and back to the department where possible, in an effort to resolve cases expeditiously. BPA and the Royal Canadian Mounted Police maintain a working relationship through the RCMP-VAC Liaison Officer, and collaborate on training initiatives as well as on complex files.

History and Evolution

Pre-Confederation

The concept of compensation of veterans in Canada began even before Confederation for demobilized soldiers of New France, and soldiers of the American Revolutionary War, the War of 1812, and the Fenian Raids. These veterans were given land as a way of helping them ease back into civilian life.[2]

The first disability pensions were introduced in 1866 to compensate militiamen wounded or disabled as a result of hostile invasion of Canada during the Fenian Raids, as well as to the widows and children of those killed in battle.[3] These benefits were subsequently extended to those who took part in quelling the North West Rebellion of 1885.

World War I

The First World War, with its heavy casualties, large number of wounded, and the need to help over 400,000 returning veterans ease back into civilian life, required a greater degree of government involvement. The first initiative came in 1915. As a result of the lack of any public health system in Canada in the early 20th century, and in order to deal with the growing number of returning wounded veterans, the Canadian government established the Military Hospitals Commission. In the century following the First World War, new programs and services have been added to the list of resources available to veterans.

The first right of appeal for veterans related to their pension decisions came in the Pension Act of 1919 where, pursuant to section 18, "Two or more Commissioners shall sit for the purpose of hearing the appeals of dissatisfied applicants..."[4]

1922 Royal Commission on Pensions and Re-establishment

In 1922 the Royal Commission on Pensions and Re-establishment noted, "The complaint is made that it has been found necessary for applicants to procure the intervention of some third person or organization in presenting their claims. There is evidence that where the claim has been taken up intelligently and aggressively by an organization, the application which had previously failed finally succeeded ..." (Report, Royal Commission on Pensions and Re-establishment 1922-24, Sessional Paper 154, page 118.) As a result, the Commission recommended that

"(a) ... officials should give to the applicant 'correct and clear statements as to the principles upon which pensions are granted, indicate the lines along which evidence is required, and, where possible, utilize any available staff in assisting the soldier in procuring and putting into shape this information'; (b) That wide publicity be given to the appointment of the soldier adviser so that applicants and their friends will automatically take up cases with him direct and regard him as the most effective channel of communication." (Royal Commission on Pensions and Re-establishment 1922-24, Sessional Paper 203a, page 83.)

The Government of Canada's Department of Soldiers Civil Re-establishment accepted and implemented this recommendation in 1923, before the Royal Commission had even finished its work. The Department of Soldiers' Civil Re-establishment Act 1923 provided for the following: "Section 7. The Governor in Council may... appoint... an ex-member of the forces, to be known as the Official Soldiers' Adviser, whose duties shall be generally to advise and assist ex-members of the forces in matters pertaining to re-establishment, treatment and pension..."

1930 Special Committee on Pensions and Returned Soldiers' Problems and 1932 Special Committee to Investigate Complaints Regarding the Administration of the Pension Act

In 1930 the role of the Official Soldiers' Advisor was formalized as a result of the recommendation of the Special Committee on Pensions and Returned Soldiers' Problems (5th Report 1930, page IX): "...authority should be given for the organization of a Veterans' Bureau staffed with pension advocates... It will be the duty of the pension advocates to prepare on behalf of the applicant the material which should be submitted to the Tribunal in support of the application..."

While the formal establishment of a Veterans' Bureau in 1931 helped veterans work their way through the application process, it did not solve all of the challenges being faced by the Pension Commission. The Special Committee established in 1932 to investigate complaints made by veterans organizations stated in its Report at page 33, "... the Board of Pension Commissioners is seriously hampered in its work by having to consider cases, not prepared or insufficiently prepared... Up to August 31, 1931, ... more than 10 per cent had been referred back to the Tribunal for rehearing generally on the ground that the case had not been properly presented... nothing can be accomplished unless we make provision for extending and strengthening the Veterans' Bureau..."

Consequently, in 1933 the role of the Veterans' Bureau's pension advocates was enhanced with the following amendment (Bill 78): "Section 10(g)(2). Pension advocates hereafter appointed shall, as far as may be practicable, be barristers or advocates of good standing at the bar of any of the provinces of Canada." This requirement that, where feasible, pension advocates be lawyers was intended to improve the quality of cases being presented to the Pension Commission. It was not meant to establish a solicitor and client relationship between the advocate and the veteran. That would come later, after further reforms.

World War II

In the mid 1940s the responsibilities of the Veterans' Bureau to assist in the preparation of applications arising out of service in World War I were continued for veterans of World War II.

1968 Wood's Committee to Survey the Organization and Work of the Canadian Pension Committee

In 1968, "The Committee to Survey the Organization and Work of the Canadian Pension Commission", more commonly known as "The Woods Committee", presented its extensive report. Headed by Saskatchewan Court of Appeal Justice Mervyn Woods, its recommendations enhanced and solidified the Bureau of Pensions Advocates. It included the following steps intended to increase the credibility and independence of the Bureau:

  • the re-naming of the Veterans' Bureau as the Bureau of Pensions Advocates,
  • the establishment of the Bureau as a separate agency reporting directly to the Minister,
  • the creation of a solicitor-client relationship between the Veteran and his/her Bureau lawyer,
  • that the Bureau represent the veteran regardless of the merits of the case if that be the wish of the applicant, and
  • that Pension Advocates, who as far back as 1933 were lawyers, now also provide 'counselling services' to their Veteran clients.

These recommendations and structural changes were implemented in 1971. Among the Woods Committee's recommendations not adopted by the government was that authority for the Bureau's existence be removed from the Pension Act and placed in separate legislation.

1995 Pension Reform

The Pension Reform initiative of 1995 was intended to reduce the number of organizations involved in the veterans' benefits process, thereby streamlining the entire structure and making it more efficient. With respect to the Bureau of Pensions Advocates, it led to the following changes:

  • BPA's agency status was revoked and the Bureau became a part of the newly-structured Department of Veterans Affairs,
  • BPA's Chief Pensions Advocate would no longer be a Governor-in-Council appointment and became a full public servant, and
  • BPA would no longer be involved in assisting clients with their first applications, and would focus entirely on representing Veterans appealing VAC pension decisions before the newly-created Veterans Review and Appeal Board.

(Occurring almost concurrently with these Pension Reform initiatives, BPA's right to appeal cases to the Federal Court of Canada was clarified and limited to matters of interpretation of the Pension Act.)

The part of BPA's resources dedicated to helping Veterans submit their first applications for benefits were moved from BPA to VAC's Veteran Services (later to be known as the Service Delivery branch), where newly-established Pension Officers helped Veterans prepare and submit first applications to Pension Adjudicators, also within the VS branch. (In addition, the Department of Veterans Affairs went from simply paying the pensions awarded to Veterans by the Canadian Pension Commission, to making the decision itself. Also, the Canadian Pension Commission, which heard first-level appeals, and the Veterans Appeal Board, which heard second-level appeals, were amalgamated into the then newly-established Veterans Review and Appeal Board, which became a quasi-judicial tribunal.)

In addition to assisting Veterans with appeals, until 1995 lawyers from the Bureau of Pensions Advocates also prepared and submitted all first applications to the Canadian Pension Commission (CPC) for disability pensions on behalf of Veterans. The CPC would then make its decision, and the Department of Veterans Affairs would make the pension payments. If a Veteran was not satisfied with the CPC's decision on first application, he/she could appeal to the Canadian Pension Commission for a review of its first application decision using a BPA lawyer. If the Veteran was still dissatisfied, he/she could launch an appeal to the Veterans Appeal Board, again with BPA legal representation.

As a result of the 1995 pension reform, the Department of Veterans Affairs became responsible for all veterans' programs, services and benefits, payment of pensions, and the appeal process. The Bureau of Pensions Advocates became a part of the department and was responsible solely for representing clients before the newly-established Veterans Review and Appeal Board.

2007 Advocates Without Borders Initiative

In 2007, the Bureau of Pensions Advocates was internally restructured pursuant to the Advocates Without Borders Initiative. It moved from an organization of 15 separate law firms from coast to coast working in isolation, to one national law firm with offices sharing standardized business processes, coordinating and equitably distributing client cases across the country. This major initiative helped equalize both workloads for Bureau staff, and turn-around-times for Bureau clients.

Evolution of Departments Responsible for BPA and Other Services to Veterans

  • Department of Veterans Affairs (1944 - present)
  • Department of Pensions and National Health (1928 - 1944)
  • Department of Soldiers' Re-establishment (1918 - 1928)

References

  1. ↑ Report of the Committee to Survey the Work and Organization of the Canadian Pension Commission, Pg 364, Vol 1, 1968
  2. ↑ Pg 6, "An Historical Perspective of Veteran Legislation, Department of Veterans Affairs, 1985 (internal Departmental publication)
  3. ↑ Directorate of Planning and Evaluation, Department of Veterans Affairs, "A History of Veterans Affairs In Canada", Ottawa, 1979 (unpublished)
  4. ↑ The Pension Act, 1919, 9-10 George V, Ch. 43
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