Bureau of Pensions Advocates

The Bureau of Pensions Advocates (BPA) is a semi-independent directorate of Canada's Department of Veterans Affairs, also known as Veterans Affairs Canada.

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 benefits. 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. BPA lawyers are also 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 Commission 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:

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.

Recommend against appealing because the Department's decision on the client's first application appears to be correct. Regardless of the lawyer's recommendation to proceed to a Review or not, 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.

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 to proceed to a Review 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.

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.

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.

History and Evolution

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 the North West Rebellion of 1885.

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 of pension decisions, and the first incarnation of the Bureau of Pensions Advocates, 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] The Bureau of Pensions Advocates was established in its current form as a result of pension reform in 1971 and 1995.

In 1968, "The Committee to Survey the Organization and Work of the Canadian Pension Commission", more commoly known as "The Woods Committee", presented its report. Its recommendations included the following steps (which were implemented in 1971) to increase the credibility and independence of the Bureau: the establishment of the Bureau as a separate agency, and the creation of a solicitor/client relationship between the Veteran and his/her BPA lawyer.

The Pension Reform initiative in 1995 led to the following changes: BPA's agency status was revoked, BPA's Chief Pensions Advocate would no longer be a Governor-in-Council appointment and became a public servant, and the Bureau would no longer be involved in assisting clients with their first application to the department for pension. (In addition, the department went from simply paying the pensions that Veterans applied for to 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 newly established Veterans Review and Appeal Board.)

List of Chief Pensions Advocates

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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