Law Times

Law Times • May 6, 2013 Page 11 FOCUS Veterans' advocacy program fails to answer need BY JuDY VAN RHIJN For Law Times T he bar's enthusiasm to assist injured veterans has failed to push a pro bono advocacy program over the practical hurdles involved. Personal injury advocates who took up the call have found the area to be a specialized one with the result that the high demand for assistance continues without redress. Diane Guilmet-Harris, senior counsel at the Office of the Veterans Ombudsman, originally placed the call to all provincial law societies asking if they'd be interested in providing a pro bono service to veterans. Ontario was the only one that answered and the Ontario Trial Lawyers Association took on the challenge of organizing a pro bono service. A flood of calls followed. "It did attract interest in a way that we didn't initially contemplate," recalls Andrew Murray, president of the OTLA. "When we launched it, we assumed it would be more recent veterans but we received calls from Korean War veterans, Vietnam veterans, and people who were involved in the Bosnia troubles." It was evident to Murray that there's an underserviced group of people out there who need help. "Often they just want someone to listen to them. They want someone to talk to and tell them what they've been through even if there isn't a remedy that remains. We look over all the documents and tell them whether what happened was appropriate. In other instances, we can give them active help." One problem that was immediately evident was a geographic mismatch between where the veterans and the OTLA members are. "Geographically, many of them are in Ottawa and eastern Ontario," notes Murray. "There is a greater need in those areas, but we only have so many members there. You don't know these things until you unroll it." The Making roads safer Continued from page 10 is moving forward with implementing the coroner's recommendations. "We are not going to allow the coroner's excellent report to sit on a shelf," says Koehl. "It's really up to advocacy groups now. We need to make sure our politicians not only say all the right things but do all the right things, too." "We are hoping for a complete streets policy statement directing the road authorities to adopt the concept," says Brown. "There is no doubt in my mind that if they do, we will have the safest roads in North America and a substantial reduction in fatalities." LT OTLA program isn't over, but the association isn't promoting it as actively. "What we didn't want was to solicit people we couldn't help," says Murray. Another problem emerged when lawyers didn't restrict themselves to judicial reviews before the Federal Court. They created work for themselves by taking matters before Veterans Review and Appeal Board. "That is very time-consuming and many lawyers didn't do enough," says Guilmet-Harris. "You have to deal with medical reports, witnesses, and services records, whereas the administrative review is a paper exercise. You just have to find an error of fact or law in the decision. They were taking on the complexity of the whole veteran's benefit scheme, which is like tax law." At the start of the program, she advised that there was no need to do tribunal applications. "I warned them that the tribunal might not be the best place to put their energy. That is handled very well by the Bureau of Pensions Advocates. The void existed to take those cases on to the Federal Court for judicial review. You don't have to be a subject-matter expert to do judicial reviews." Andrea Siew of the Royal Canadian Legion experienced all of these problems with the service. "Any time I've referred someone to it, there has been no capacity to deal with the matter. Also, not a lot of lawyers know about the sort of questions that are asked because they don't occur in the usual course of their practices. The process is really administrative. It's not supposed to be a legal service. Unless you do it every day, you can't provide the same level of service as the Bureau of Pensions Advocates." There are now recommendations before the minister of Veterans Affairs to renew the mandate for the Bureau of Pensions 'It did attract interest in a way that we didn't initially contemplate,' says Andrew Murray. Advocates to take some cases to judicial review. In a report on veterans' right to fair adjudication last year, authors at Borden Ladner Gervais LLP included that proposal with a number of other measures. The BLG panel found that since the Bureau of Pensions Advocates doesn't have a mandate to represent applicants at the Federal Court, applicants must either represent themselves or secure legal counsel at their own expense. Those represented by legal counsel during Federal Court proceedings were much more successful than those who represented themselves (72 per cent versus 40 per cent). The ombudsman became concerned that veterans' right to seek judicial review of board decisions was commensurate with their financial ability to secure legal representation. His office is working on a followup report to identify the shortfalls in the system. Officials are still gathering data and expect to issue a report later in the year. In the meantime, GuilmetHarris is still acting as an intermediary with the private bar. "Where there are problem decisions, the Bureau of Pensions Advocates needs to refer them directly to the private sector," she says. LT What do your clients need? The means to move on. 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