There are a number of appeal levels which can lead to a favourable decision for disability benefits and other awards. The appeal process can take place within Veterans Affairs Canada (VAC), at Departmental level, or in front of the Veterans Review and Appeal Board (VRAB).
Section 82 of the Pension Act (PA) and Section 84 of the New Veterans Charter (NVC) along with Section 6 of the Award Regulations allow VAC to confirm, amend or rescind a Departmental decision if an error with respect to any finding of fact or interpretation of any law has occurred or, on application, if new evidence is presented. As a rule, a Departmental Review (DR) is considered the appropriate redress mechanism if new evidence is available. For errors of law or for errors of fact, the more appropriate redress mechanism is the VRAB.
The VRAB provides an independent redress process if an applicant is not satisfied with a disability decision made by VAC. The VRAB also provides the final level of appeal for War Veterans Allowance (WVA) claims.
The following applicants can request an independent hearing:
- Canadian Forces (CF) members;
- Serving or discharged members of the Royal Canadian Mounted Police (RCMP); and
- Eligible dependants / survivors.
The VRAB can review the Department’s decisions, or a decision of the former Canadian Pension Commission (CPC) related to:
- Disability pensions or awards;
- Special Awards, including Attendance Allowance, Exceptional Incapacity Allowance and Clothing Allowance; and
- Dependant / survivor benefits.
The VRAB does not have authority to review the Department’s decisions related to:
- Veterans Health Care benefits and services; and
- New Veterans’ Charter (NVC) programs for rehabilitation, financial benefits, group health insurance or job placement assistance.
There are two (2) levels of redress to the VRAB, including the Review Hearing and a subsequent Appeal Hearing. These two levels of redress are “as of right”. In other words, it is the inherent right of an eligible applicant to come forward to the VRAB to seek redress of a previous decision.
To be represented at the VRAB, you can seek assistance from the Bureau of Pensions Advocates (BPA) or from a Legion Command Service Officer (SO). Both of these services are free of charge. In some instances, representation at Review level can be provided in partnership with both a BPA lawyer and a Legion Service Officer. All Legion Appeals are conducted by Dominion Command Service Officers at Legion House in person with the VRAB.
Contact information for Legion Service Officers is as follows:
Toll Free: 1-877-534-4666
Web Page: Dominion Service Officers
at respective Legion Provincial Command web sites.
The Review Hearing is the only redress level at which an applicant can be present and can testify regarding the facts of a case. Review Hearings are normally conducted by two Board members and take place at various locations across Canada. This makes it easier for applicants to attend and to present testimony in person. At the Review Hearing, the representative will present arguments on behalf of the applicant, who will also have the opportunity to testify. Board members will likely as questions. The proceedings are generally informal and are recorded. VAC covers the expenses of the applicants and witnesses who attend Review Hearings. Both the applicant and the representative will receive a written decision from the Board. Your Legion representative will contact you to discuss the case ahead of time.
The Appeal Hearing is a further opportunity to seek redress of a decision at the Review level. Three Board members who were not involved in your Review Hearing conduct the Appeal Hearing. Appeals are usually held at the Board’s Head Office in Charlottetown though Legion Appeals are normally held at Legion House. Unlike a Review Hearing, applicants cannot testify in person during an Appeal Hearing. As a result, applicants seldom attend an Appeal Hearing though they can attend at their own expense. Both the applicant and the representative will receive a written decision from the Board. The applicant’s representative will normally contact the client to discuss the case ahead of time.
In exceptional cases, the Federal Court of Canada could be asked to review a decision of the Veterans Review and Appeal Board. Since the Federal Court Act provides for a 30-day limitation period from the date of receipt of the Board’s decision to commence such action, it would be necessary for an applicant to consult a private solicitor immediately upon receipt of the decision. Neither BPA nor the Legion provide representation services in that regard.
There is also a third level of redress, the Request for Reconsideration (RforR). This third level of redress is not considered “as of right”. In other words, if an Appeal level decision contains an error of fact or an error of law, or if new evidence comes to light at a later date, the VRAB can be approached for Reconsideration. The tabling of new evidence at Reconsideration must meet a test of “Due Diligence”. Additionally, the VRAB has the right to screen out a Request for Reconsideration. The same Board members who ruled on an Appeal Hearing will form the Reconsideration panel, if they are still available.