Referring matters back to the Minister

  1. This directive:
    • concerns the process of referring matters back to the Minister once they have been the subject of a decision of the Board.
    • outlines the format and content of supporting materials and addresses possible options open to the requester.
  2. The legislation:
    • In order to preserve the independence of the appeal process, there are provisions in both laws that prohibit the Minister/Department from considering an application that has already been heard by the Board.
    • Section 86 of the Veterans Well-being Act reads as follows:

      86. The Minister may not consider an application made under Part 3 or under section 84 that has already been the subject of a determination by the Board unless

      • (a) the applicant has obtained the permission of the Board; or
      • (b) the Board has referred the application to the Minister for reconsideration.
    • This provision echoes wording in section 85 of the Pension Act.
    • Section 31 of the Veterans Review and Appeal Board Act ("VRAB Act") provides that appeal decisions of the Board are final and binding.
    • The discretionary power to give jurisdiction back to the Minister exists even though the Board has full and exclusive jurisdiction to hear reviews and appeals under the VRAB Act.
    • The Board needs a compelling reason to grant permission to the Minister to consider an application that the Board has already adjudicated. The Board Referral back may be appropriate under certain circumstances. Some factors include:
      • decisions and orders of the Federal Court or Federal Court of Appeal (e.g. Nelson v. Canada) that may have changed the legal approach to the issue in dispute;
      • new medical-scientific understanding of causation of a condition that did not exist at the time of the original adjudication of the case;
      • new departmental policies concerning certain conditions (e.g. ALS or Lou Gehrig's); and
      • an issue or basis of claim that had not been raised before or considered by the Minister (e.g. an allegation of medical mismanagement) that should be referred back for a first-level decision.
    • Matters are referred back so that novel law, policy, medical understanding or issues can be considered and ruled upon by the Minister at first level; the process is not a mechanism for the same cases to be re-litigated.
    • When a matter is referred back for a first-level adjudication by the Department, the Veteran's appeal rights to the Board are preserved.
    • New evidence does not constitute a reason to refer a matter back to the Minister; it would be appropriately before the Board for either an Appeal or a reconsideration of an Appeal, depending on the level of redress of the Board's previous decision.
  3. Who may apply:
    • A request to the Board to refer a matter back to the Minister may be made by a requester or his or her representative.
  4. Available Determinations:
    • In responding to a request made under s.85 of the Pension Act or s.86 of the Veterans Well-being Act, the Board may
      • grant permission to the requester to have the matter reconsidered by the Minister;
      • refuse to grant permission to the requester to have the matter reconsidered by the Minister; or
      • refuse to grant permission but offer to hear the matter as an Appeal or Reconsideration by the Board, depending on the circumstances.
  5. Request and Materials:
    • Each request to the Board for a referral back to the Minister must:
      • Be in writing, and if the preferred method of correspondence is by email, this must be specified;
      • Be addressed to the Chair; and
      • Identify the grounds or justification for a referral back to the Minister, such as new law, policy, medical understanding or a novel issue to be determined or considered and ruled upon by the Minister at first level.
    • Once this has been received by the Board, the request will be processed.
       
  6. Processing of the Request:

    • The Board is committed to processing these requests in a timely manner and will provide a written response (or email response where this has been identified as the preferred method of correspondence).

    • The Board will provide its response within 15 business days of receiving from the requester all relevant materials and the reasons or grounds for the request.

  7. Following the Board's Response:
    • Where the Board has granted permission for a referral back, the onus is on the requester to approach the Department and seek a reconsideration of the matter at first level.
    • Where the Board has refused permission to refer the matter back, further levels of redress before the Board may be possible, as provided under the Veterans Review and Appeal Board Act.
    • Where the Board has refused but has suggested alternatives in its response, the requester should follow the steps or direction outlined in the response.
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