By SEAN BRUYEA

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Published: Monday, 07/02/2012 12:00 am EDT

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OTTAWA—Disabled Canadian Forces veterans and their families breathed a collective sigh of relief on May 29 when Defence Minister Peter MacKay announced the government would not be appealing a Federal Court decision that said it was illegal to deduct pain and suffering payments from the veterans’ long-term disability (LTD) income. This was quickly followed by an announcement from the minister two weeks later that beginning July 1, the illegal deductions would cease for all payments going forward.

However, as with far too many decisions by the federal government that affect Canada’s veterans, the devil is in the details. And the details show that Canada’s most disabled and unemployable CF veterans have been sidelined yet again. Government continues to effectively and illegally deduct pain and suffering payments from their LTD income.

It was hoped that Ottawa’s decision to not appeal ended a five-year court battle for Dennis Manuge, the lead plaintiff, and the initial 4,500 to 6,000 members who are all equally represented alongside Manuge in the class-action lawsuit. This hopefully also ends a nine-year battle for a number of these individuals who have been fighting a practice long before the court action against deductions that previous DND ombudsman André Marin condemned in 2003 and his successor Yves Côté labelled “profoundly” and “fundamentally unfair.”

Such strong words were used for good reason. Pain and suffering payments are indeed substantially different from lost income. The two have long been separated in workers’ compensation programs and insurance plans, including plans affecting the federal public servants who nevertheless ensured that pain and suffering payments were deducted from disabled Canadian Forces veterans’ long-term disability [LTD] income since as far back as 1976.

The courts are also adamant that pain and suffering payments are categorically different and the two cannot be mixed.

The LTD income for disabled CF members pays 75 per cent of a CF member’s release salary until age 65 if the member is unable to be suitably employed. This 75 per cent LTD income limit is a top-up which understandably deducts all other pension and disability income but also illegally deducted the pain and suffering payments.

By illegally confusing pain and suffering payments with income, the 75 per cent limit is easily exceeded for “the most seriously disabled CF members” noted Justice Robert Barnes in his May 1 ruling. The result is that the LTD policy is no longer obligated to pay anything. The “practical consequence” is to “extinguish the LTD coverage promised to [CF members]…with particularly harsh effect on the most seriously disabled CF members.”

The greater the disability, the greater the pain and suffering payment. As such, it has been the most disabled who, with the LTD extinguished, have watched while other less disabled members continue to collect their disability income cheques. The more seriously-disabled CF veterans are what are known as “zero-sum” clients. They are totally disabled and are put on the books but with zero dollars owing to them by the Canadian Forces LTD income plan.

On June 20, the LTD income cheques were deposited in many disabled veterans’ bank accounts for the first time without deducting pain and suffering payments. Meanwhile zero-sum clients looked helplessly on as once again they received nothing from the Canadian Forces LTD income plan. In effect, they therefore receive nothing from MacKay’s promise that the illegal deductions of pain and suffering payments “will not be deducted on any future cheques.”

The devilish detail in this announcement is that the most disabled had stopped receiving cheques perhaps last month, last year, or 10 years ago due to the illegal practice of including pain and suffering payments in the LTD income 75 per cent calculation. The “practical consequence” for the most seriously disabled is that they continue to suffer the illegal practice. There is no indication on the government’s part to start giving them a July, August, or any cheque for that matter. These highly-marginalized and vulnerable disabled CF veterans are now pawns in federal government negotiations.

These negotiations quickly stalled after the minister’s most recent announcement. They have since been restarted thankfully. However, zero-sum disabled veterans must wait yet again to see if government will stop the illegal practice which has a “particularly harsh effect” upon them and their families.

MacKay followed up his mid-June announcement with these words: “Our government’s strong action on this file is another example of our support for our men and women in uniform and our commitment to continue to meet the needs of those who need these benefits.”

Are disabled CF members, their families, and now Canadians to look at such words as empty platitudes which they have heard far too often when it comes to injured military and their families? The reality is that MacKay and the Prime Minister can instruct that initiatives be taken immediately to restart the LTD income benefits for these zero-sum veterans. Why is this not happening? Is there an administrative laziness at work here or perhaps a compassion paralysis so common in the federal bureaucracy?

Whatever the reasons, the delays, and complex processes are once again placed ahead of real people enduring needless suffering for far too long. All the zero-sum clients are disabled because of their unconditional commitment in military service to Canadians and to the Canadian government. It would be a pleasant and dignified change if Canada’s commitment to them was returned in kind, sooner rather than later.

Sean Bruyea is a columnist, graduate student in a masters of public ethics, and a former CF intelligence officer. He is also affected by the Federal Court decision.

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By Sean Bruyea -THE HILL TIMES

Published: Monday, 05/07/2012 12:00 am EDT

A Federal Court ruling that directs Ottawa to stop clawing back disability benefits from veterans restores a degree of dignity for former military personnel, the lead plaintiff in the case said Tuesday.

Dennis Manuge wiped a tear from his eye upon hearing the decision, which dismissed the federal government’s position as harsh, particularly for Canada’s most gravely injured veterans.

“Today’s ruling provides hope for Canada’s disabled veterans,” said Mr. Manuge, who led a five-year-old class-action lawsuit against the federal government.

“We saw them in court and we won.”

Lawyers representing Mr. Manuge and other veterans argued last November that the veterans’ benefits were being unjustly clawed back because the payments were unfairly deemed as income.

The lawyers said that veterans’ long-term disability benefits were being reduced by the amount of their disability pensions, with some of the most seriously injured not receiving any of their pension. In some cases, Ottawa’s policy cost some veterans as much as $3,500 per month, they argued.

Lawyers for the federal government cited other cases that have found such benefits to be income, adding that the definition of income can include a broad array of monies that are coming into a veteran’s household.

But in a decision released Tuesday, Judge Robert Barnes agreed that the monthly Veterans Affairs pensions aren’t “income benefits,” and therefore can’t be used to offset money they are owed.

“The practical consequences of the claimed offset is to substantially reduce or to extinguish the long-term disability coverage promised to members,” Judge Barnes wrote in his decision.

He added this would create “a particularly harsh effect on the most seriously disabled Canadian Forces members who have been released from active service.”

“That is an outcome that could not reasonably have been intended and I reject it unreservedly.”

Mr. Manuge, 43, said the ruling is a significant victory after years of battles before ombudsmen, Parliament and the Senate.

“The money will never fix any of us but it will provide that little bit of dignity,” he said.

The former vehicle technician was injured in an accident at Canadian Forces Base Petawawa just before being deployed to Bosnia in 2001. He left the military in 2003, suffering from a lower back injury and some bouts of depression.

In 2007, the native of Musquodoboit Harbour, N.S., launched the lawsuit against the government, saying he took the lead in the case because he was less seriously injured than many others and able to speak out.

Peter Driscoll, a lawyer for the veterans, said the decision could mean millions of dollars in retroactive compensation for former military members, if Ottawa doesn’t appeal.

“We’re overjoyed,” Mr. Driscoll said in a phone interview. “We’re pleased the court has found the clawbacks we’ve complained of are unlawful.”

Both he and Mr. Manuge urged the federal government not to appeal the decision, saying it would delay payments to veterans.

Jay Paxton, a spokesman for the defence minister, said Ottawa is studying the decision and considering its next steps.

The government has 30 days to consider if it will appeal.

“The government is committed to the care and well-being of Canadian Forces personnel and veterans,” Mr. Paxton said in an email.

“We take the ongoing care, health, well-being and benefits of military members and their families very seriously.”

Mr. Driscoll said thousands of veterans have been subjected to the clawbacks, estimating it would cost somewhere between $270 million and $340 million to stop and reimburse them.

He said his clients are expecting the money to be repaid.

“These soldiers have fought long enough. They’ve fought on the battlefield, they’ve fought before the Ombudsman for the Department of Defence, they fought before the House of Commons and now they’ve fought before the courts,” he said.

“We’re calling on the government of Canada to honour their ethical, moral and now legal obligation to immediately end the clawback.”

NDP veterans affairs critic Peter Stoffer also called on the federal government to abide by the ruling.

“Now that the court has ruled in favour of these injured veterans, the government must put things in place to fix this injustice,” Mr. Stoffer said in a statement.

Mr. Manuge said he hopes negotiations for compensation begin soon.

“There is some more legalese that has to play out, but this puts the ball in our court and is a way for us to force the federal government to settle this,” he said.

He said he stands to receive about two years worth of benefits, worth about $10,000.

Sean Bruyea, a retired army officer and advocate for the rights of disabled veterans, said in an email that the court decision is convincing.

“The feds do not have a legal leg to stand on to continue this practice,” he said in an email.

“To continue it smacks more of punishing and discriminating against disabled veterans than treating disabled Canadian Forces veterans with dignity in the most vulnerable stage of their lives.”

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Comment

Prime Minister Stephen Harper calls enlisting in the military the “highest form of public service.” Why then is Veterans Affairs, the department which cares for the Canadian Forces when its members are injured, facing the largest proportional cuts of any other public-service department?

The budget axe has been looming over all federal departments. The current “strategic and operational review” is a euphemism for reigning in a federal public service that is out of control. In the last 10 years, the core public service has grown by 34 per cent (versus 12 per cent at Veterans Affairs) and total government program expenses have swelled by 84 per cent (versus 67 per cent at Veterans Affairs).

Perhaps most galling for Canadians who have passed through two recessions in two decades and have seen no real growth in their earnings, public service salaries have increased by 22 per cent over and above inflation.

Few could credibly argue against the need for Ottawa to be managed better.

However, the axe started swinging at Veterans Affairs well before the current budget. As early as 2010, the department offered up more than 500 job cuts to begin this fiscal year. Bureaucrats eager to please Treasury Board then subsequently followed with $223-million in spending cuts in each of the next two years.

The government justifies these planned cuts by arguing the rapidly declining population of Second World War requires fewer employees to care for them. But ministers and senior bureaucrats rarely mention the fact there are nearly 700,000 veterans of post-Second World War conflicts. Last year, the casualty rate of injured Canadian Forces veterans reached 8.9 per cent, surpassing the casualty rate suffered during the Second World War.

Sadly, the department’s policies have been so restrictive that all of the universal programs that improved the well being of Second World War veterans, and Canada economically, have been denied to other Canadian Forces veterans. These programs, to name a few, included a choice of university or trade school as well as housing and business start-up grants. We often look disparagingly at our neighbour to the south but the G.I. Bill has put more than 22 million veterans and family members through post-secondary education and upgrading in the United States.

Such economically sound programs as well as the hundreds of ignored recommendations to repair the department will be impossible if there are any cutbacks at Veterans Affairs. The department has 3,753 full-time-equivalent positions spread among 4,457 employees. Eliminating 500 positions actually represents almost 600 jobs or more than 13 per cent of the department’s employees.

Veterans Affairs Minister Steven Blaney has repeatedly promised there will be no cuts to benefits or pensions. This is misleading. Departmental reports confirm that almost all of the annual $223-million in cuts will come directly from compensation and income programs.

In addition to these draconian measures, Veterans Affairs is also facing an additional cuts of between 5 or 10 per cent of this current budget. Since employee costs represent about 10 per cent of the department’s budget, it would be impossible not to cut programs and benefits or else there would be zero employees at Veterans Affairs.

Should the department sadly succeed in transferring its last remaining hospital to Quebec, an additional 1,400 jobs will be lost. Whatever plan goes forward, the result will reduce Veterans Affairs to its smallest size since it was created nearly 70 years ago.

Being the only federal department with its head office in Charlottetown, where it employs more than one third of its workforce, Veterans Affairs is a management nightmare for the government. The department is often criticized for having an insurance mentality. In some aspects, veterans and their families could only be so lucky. Stunningly, Ottawa does not set aside money for potential or real injured soldiers as insurance companies must do.

The government’s poor fiscal planning is in effect punishing veterans long after they have made their sacrifice. Broken bodies and broken minds are the soldiers’ end of the contract. Cutting programs and services when Canada has failed to uphold its end of the deal is wrong. Making proportionally greater cuts is easy when the targets are disabled veterans and their families, reluctant to defend themselves against the country for which they were willing to die.

Such cutbacks for veterans are not only mean-spirited; they are a clear breach of Canada’s contract with its troops.

Sean Bruyea is a retired Canadian Forces intelligence officer and a graduate student in public ethics at Saint Paul University in Ottawa

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By Ian Bron and Allan Cutler

Published: Monday, 02/27/2012 12:00 am EST

By: Murray Brewster, The Canadian Press

Winnipeg Free Press Online Posted: 02/16/2012 4:21 PM

OTTAWA – Veterans Affairs Canada and the independent board that reviews claims of ex-soldiers grappled with allegations of leaked personal information long before a privacy scandal blew up in public.

A series of leaked documents show the department and the agency tried — and ultimately failed — in the spring of 2009 to tighten up the system and clamp down on bureaucrats who’d been rifling through the files of veterans advocates and opponents.

A May 28, 2009 letter, signed by the deputy chair of the Veterans Review and Appeal Board, noted that a working group from the agency and the department itself had been assembled to examine privacy issues.

“Security Services has recently released two communiques on this topic, and will continue to educate employees on a regular basis,” wrote James MacPhee in a letter to follow board member Harold Leduc, whose medical file had become the source of gossip and innuendo around the review agency.

The letter noted that staff at the review board were to be given mandatory privacy training.

MacPhee assured the former warrant officer that his privacy invasion was taken seriously and that federal officials were looking at restricting access to the computer data base where the files were held.

Yet, the department was not fully galvanized to action for another 18 months until the scandal involving advocate Sean Bruyea blew up in public — prompting among other things a major audit of procedures and practises by the country’s privacy watchdog.

Access to the data base was not tightened until the fall of 2010 as part of the Harper government’s damage control exercise following revelations Bruyea’s medical records were sown into a ministerial briefing note.

A spokeswoman for the review board, Danielle Gauthier, said the independent agency took steps a year before the department to safeguard information and also adopted many of the steps taken by Veterans Affairs in its clean up efforts.

“The Chairman has made privacy and the protection of personal information top priorities at the board,” she wrote in an email response to questions posed by The Canadian Press.

“When a privacy breach occurs, we take immediate steps to address it, including corrective actions and disciplinary measures where appropriate.”

Despite that, the board was the source of a 2011 release of a report on Harold Leduc that had not been vetted for private information.

A request to interview board chair John Larlee was denied last week.

Liberal attempts to get the privacy issue heard by a House of Commons committee were swept behind closed doors this week.

“This information just strengthens the needs to deal with this in public,” said Liberal veterans critic Sean Casey.

“It’s apparent that Harold Leduc is only the tip of the iceberg. A Parliamentary committee is supposed to delve into these things.”

NDP veterans critic Peter Stoffer said it’s amazing the Harper government is asking Canadian to trust that it will protect online privacy in the controversial surveillance bill, yet it allows bureaucrats free rein with some of the country’s most vulnerable citizens.

“It is simply not credible for the department to claim they’ve cleaned up their act,” Stoffer said.

Officials at the federal Privacy Commissioner’s Office confirm that, in addition to conducting a major audit of Veterans Affairs, it is pursuing 12 separate complaints from individuals about the department.

All of the protests were filed in 2010.

Veterans Affairs Minister Steven Blaney said in the House of Commons this week that he’s open to strengthening privacy guarantees even further, but that the 10 point action plan implemented following the Bruyea case was having a positive effect.

Yet, Bruyea himself cast doubt on that Thursday, saying his battles with the department did not end with the 2010 settlement of his lawsuit against the federal government, which saw a $400,000 award for damages and legal costs.

He was initially able to track the leak of his information through Privacy Act requests. Most of the original 12,000 documents he received related to the 2005-06 timeframe.

His pursuit of more up-to-date records has hit a brick wall because the department has apparently stopped answering his requests. Before the gate came down he’d received an additional 18,000 pages — enough information for him to file further complaints last year with Privacy Commissioner Jennifer Stoddart.

Four of those complaints have come back as well-founded, according to letters obtained by The Canadian Press.

Bruyea was apparently accused last week by the deputy minister of veterans affairs in a private meeting of having an axe to grind and being biased.

“I don’t need to believe in conspiracies to see that (Veteran’s Affairs) culture is really just a conspiracy of incompetence,” he said.

Bruyea noted that the department has had a comprehensive policy on personal information since 1999 and all departments have been required to follow federal Treasury Board privacy guidelines since 1998.

That should have been enough to safeguard his medical files, as well as those belonging to Leduc and others, and promise to fix the system are merely window dressing, he said.

“Had (Veterans Affairs) followed either of these plans, none of any of these breaches would have happened,” he said. “Ignorance of the law is not an excuse. What we are talking about is ineptitude and a complete disregard for not just the law but the humanity of the victims.”

Original article on Winnipeg Free Press website

OTTAWA – A prominent, long-standing member of the country’s Veterans Review and Appeal Board had his privacy violated twice in an alleged smear campaign meant to discredit him using his private medical information as ammunition, The Canadian Press has learned.

The behind-the-scenes fight involving Harold Leduc has been so bad and so vicious that the Canadian Human Rights Commission quietly ordered the veterans board to pay the decorated, former warrant officer $4,000, including legal costs, for harassment he’d suffered from other agency members.

Leduc, who spent 22 years in the military, claims he was a target for gossip, innuendo and intimidation because he often sided with veterans in his review decisions.

It is the latest, and potentially the most wide-ranging, in a series of privacy breaches, which the Conservative government claimed was cleaned up at the department that oversees the care of ex-soldiers and RCMP.

In late 2010 following the privacy scandal involving advocate Sean Bruyea, the government said it instituted tighter controls over the personal information of veterans and who had access to files.

Yet, in the spring of 2011, an investigation report, which included Leduc’s personal information and examined the toxic in-fighting at the independent agency, was released un-censored following an access to information request.

“I am writing to notify you of a privacy breach that resulted in the improper disclosure of personal information,” said a July 6, 2011 letter to Leduc from the access co-ordinator of the veterans board, who apologized and described the incident as a clerical error.

Two years previously, the deputy chair of the board acknowledged in another letter, that Leduc had been the victim of a more serious breach, where over 40 officials accessed his file that included medical information. Some of the officials were from veterans affairs, others included those who oversaw the review and appeal board.

“I was devastated because it was a huge breach of trust that they can’t go back on,” Leduc said in an interview with The Canadian Press. “I’m very embarrassed about my service-related disabilities and I don’t think that’s anybody’s business, but mine. I was just shocked and devastated.”

Board chairman John Larlee declined a request for an interview, but spokeswomen for both the agency and the veterans affairs minister released statements in response to a series of questions posed by The Canadian Press.

Both Danielle Gauthier and Codi Taylor said safeguarding privacy has been of the utmost concern.

“When a privacy breach occurs, we take immediate steps to address it, including corrective actions and disciplinary measures where appropriate,” Gauthier wrote in an email Friday.

Neither of them would address Leduc’s circumstance, citing privacy concerns. They declined to explain how his privacy could have been violated twice — or what measures were taken in response.

“Minister Steven Blaney believes that any violation of our Veterans privacy is totally unacceptable,” Taylor wrote in an email.

“Our government took action over a year ago to ensure disciplinary measures for those who violate the law. Our government wants to ensure that the privacy of all veterans remains protected which is why Minister Blaney instructed departmental officials to look at how the Privacy Action Plan could be updated.”

Taylor would not explain what new measures might be introduced – or when.

The Canadian Press has obtained a series of documents, emails and findings, which stretch back almost four years and paint a picture of a 24-member board that has become a viper’s nest of intrigue, division, and petty vendettas.

The board is the place veterans can turn to if they’re unhappy with the decisions of department bureaucrats. Two member review panels and three member appeal panels adjudicate their grievances.

If one member says “yes,” the decision must go in favour of the veteran, regardless of how other members feel.

“I was told — I think as far back as January 2007 — directly by one of my colleagues, who said: ‘A bunch of us are keeping an eye on you because we’ve been told you have certain conditions and so, we think you are biased’,” Leduc said.

He was diagnosed with post traumatic stress disorder following over two decades of service in the military. And it was the conversations with other board members that prompted him to begin asking questions of officials about his privacy.

The gossip escalated to outright harassment after the Conservative government re-appointed him to a five-year term in 2007, said Leduc, who has also been awarded a veterans ombudsman commendation.

His fear that his medical reports had been spread around was realized in early 2009, but unlike Bruyea, the privacy commissioner was unable to investigate.

He said Jennifer Stoddard told him that Veterans Affairs Canada, or the Privy Council Office, the bureaucratic arm of Prime Minister Stephen Harper’s office, would have to carry out the probe.

Leduc asked for a judicial investigation under the veterans review board legislation, but the chair, John Larlee, chose instead to hire an outside investigator to conduct “a workplace assessment,” according to a Dec. 7, 2009 letter.

“This is a genuine attempt for an objective, independent 3rd party to assess VRAB as a workplace and make the Board a better more productive place to work for everyone,” Larlee wrote.

But the situation dissolved into tit-for-tat harassment claims. At least two other board members filed against Leduc, who among other things was also being pressured to submit to a Health Canada psychological assessment.

He said the harassment was aimed at getting him to quit.

Philip Chodos, who was hired to do the assessment, took it upon himself to attempt to mediate among the warring parties, according to a series of emails.

What remains unclear was whether that was within his mandate. He eventually gave up on the mediation attempt and filed his investigation report with the board.

Leduc was told the document focused on him, but he could not see it. It was suggested he apply for a copy under access to information laws.

Before he got the chance last spring, the unedited copy was released to someone else, in violation of the Privacy Act. Federal officials won’t say who obtained the document.

A veterans affairs official, speaking on background, claimed that staff had been disciplined in relation to the un-authorized release. But neither Gauthier, nor Taylor would confirm that.

The Canadian Human Rights Commission became involved in the summer of 2010 with a mediation of its own. It sided with Leduc and ordered the board to compensate him and cease harassment.

The document trail shows senior bureaucrats in PCO and in the veterans minister’s office promised to try and bridge the divide, but to no avail.

“I’m sorry to learn about this situation and how it has affected you,” former veteran affairs minister Jean-Pierre Blackburn wrote on July 19, 2010, referring to Leduc’s first privacy breach.

“I note that the management of the Veterans Review and Appeal Board has taken this matter seriously and has conducted an investigation, apologized to you and put in place measures to prevent similar situations in the future.”

When the second privacy breach occurred, Harper’s office took notice.

“We are very troubled to review the concerns you outlined,” wrote Salphie Stephanian, an assistant to the prime minister, in an Aug. 12, 2011 email. “Our government regards the protection of personal information as a priority. We have been in contact with the Minister of Veterans Affairs, the Hon. Steven Blaney. His office is aware of the situation, and you can be assured that an appropriate response is forthcoming.”

Yet, when asked what action was taken, Taylor pointed out that the board was meant to be an “arms-length, quasi-judicial body.”

Senior government officials say Leduc was offered further mediation last fall, but he declined.

In a letter to Harper, Leduc pleaded for a judicial investigation of the board, saying he didn’t want to take legal action or go to the media.

He said later in an interview last week that he kept his silence for years because he believed going public would only harm veterans.

But with continued in-fighting and no action by government, he said he had no choice but to speak out.

“The matter needs to be investigated ASAP if the government and people of Canada truly care about veterans as they’ve stated in the law,” he said.