June 30, 1934

PENSION ACT AMENDMENT


Right Hon. R. B. BENNETT (Prime Minister) moved the second reading of Bill No. 127, to amend the Pension Act. Motion agreed to and the house went into committee thereon, Mr. MacDonald (Cape Breton South) in the chair. On section 1-


CON

Richard Bedford Bennett (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Conservative (1867-1942)

Mr. BENNETT:

Several difficulties have arisen in connection with this act, to which the attention of the house has been directed on more than one occasion by several hon. members, noticeably by the hon. member for Shelburne-Yarmouth (Mr. Ralston) and the hon. member for Vancouver Centre (Mr. Mackenzie). A difficulty arose some months ago and the government concluded that men were being deprived of rights without an opportunity to present their case in accordance with the well-known principle which has been established by judicial decisions in the courts of last resort. We felt that it was

illegal to deprive a man of his rights without affording him an opportunity to be heard, and we so indicated to the commission. As is known to the committee, they ultimately undertook to restore to their former positions those whose rights had been taken from them and proceedings or hearings were instituted to enable the parties affected to present their cases. I understand that that has not been wholly satisfactory

because of an attitude of mind, if I may use that term, which existed w'ith respect to some of the problems. I have had the advantage of discussing this matter fully with those who officially represent the pensioners of the country in more than one of the organizations which we have in Canada. They are all anxious to avoid friction as much as possible and to improve the administration of pensions to the greatest possible extent. It is believed that with the aid of a judge acting as chief commissioner and the application of the well-known rule that he who asserts must prove the administration would be relieved of much of the difficulty which now exists. We could not have a long discussion with respect to various cases which might be misunderstood in many quarters, but we have concluded that the situation might be met by endeavouring to deal with the difficult cases in the manner I have indicated and by the application of the general rule of our jurisprudence. I have mentioned that he who asserts must prove, and that the presumptions which arise from a long-continued living together in a community of a man and a woman of repute could not be overcome except by the application of the rules of evidence as applied in the way I have just indicated. This cannot continue longer than a few months in any event, and it is believed that it affords an opportunity by administration to solve the difficulties which have been the cause of a great deal of concern. I should like to convey my thanks to the hon. gentlemen I have named for giving me an opportunity to discuss this matter with them.

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LIB

Ian Alistair Mackenzie

Liberal

Mr. MACKENZIE (Vancouver):

Mr. Chairman, I have only a word or two to say with regard to this bill. I am personally in favour of the bill. My only reservation is the fact that on February 13 when this question was raised we received an announcement by the Prime Minister which was welcomed all through Canada. This matter was referred to the Department of Justice to see whether the hardships which resulted from a too rigid administration of the act could be met by administration or whether legislation

Pension Act

would be necessary. It has been suggested in many quarters that legislation might be necessary. There will be an interval of at least six or seven months, in all probability, before parliament meets again, and the suggestion has been made to me that possibly the act could be amended to provide that where entitlement has once been conceded, this should not be subject to alteration or reversal except on the specific ground of deliberate fraud. This would protect the marriage cases which have merit and which now stand as reinstated. It would also provide protection for all classes of entitlement cases in the future. This proposal is directly in line with the British practice and the rights of the applicant, of course, would stand as they are at present.

There is another point which has arisen and which has caused some elements of dissatisfaction. I think .there should be a definite delineation of the functions of the auditor general in regard to pensions. It should be made clear that findings of law or fact within the statutory jurisdiction conferred upon the commission should not be subject to question by the auditor general. The Prime Minister (Mr. Bennett) has referred to the attitude of mind of some people, and this undoubtedly has caused some trouble. In regard to other cases which arose somewhat recently a direction was given as to the policy of the pensions commission, and I think it would be very advisable in this case that a direction should be given to whoever is appointed under the bill to give these marriage cases every possible consideration upon their merits, and *that there should not be an unduly biased attitude of mind with regard to their disposal.

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LIB

James Layton Ralston

Liberal

Mr. RALSTON:

Like the hon. member

for Vancouver Centre (Mr. Mackenzie) I am disposed to try the method of administration. I must say that I do so with some reluctance as I have expressed myself in this house on more than one occasion as feeling that that means could not be entirely satisfactory, particularly for the class whose interest I was specially representing, until a change can be made in the Pension Act. It seemed to me that in view of the fact that the attitude of the board of pension commissioners was what it was, plus the fact that the auditor general had seemed to consider he had a right to go there and question decisions of the board, the position of pensioners and of their dependents was extremely precarious under any administrative regulations. However, the Prime Minister has endeavoured to meet the situation with regard to the matter of personnel and I am disposed, if there is any

difficulty about passing legislation, or if it is considered that legislation is not necessary, to try out an attempted revision of administration-and by administration I mean, not simply clerical work but the principles on which these pension cases are decided. I join with what my hon. friend from Vancouver Centre has said in suggesting to the Prime Minister that, in order to make the situation as definite as possible without legislation, the government or the minister indicate to the board of pension commissioners the principles on -which they are prepared to have the board decide, particularly the marriage cases, and in fact any cases where there is a question as to the basis of entitlement. I suggested, in connection with the commission with which I had to do a good many years ago, that there should be no difficulty whatever in regard to these pension cases, because it seemed to me that the board of pension commissioners were pretty well advised as to what the views of parliament and of the country were, and that when they struck a snag in connection with the act, all they had to do was to go to the government of the day and intimate to them that something unforeseen, something not contemplated had arisen, and I felt sure they would have directions from the government to carry out administratively what was the intention of parliament, leaving it to the next session of parliament to amend the act. That, I submit, can be done here, and if the board of pension commissioners approach the matter in the right spirit, guided by a declaration as to the intention of parliament as we understand it, namely, that entitlement to pension should not be disturbed in cases where they have been paid, unless there has been deliberate fraud, then it seems to me that with that declaration the board of pension commissioners can proceed on firm ground. And if it is found in administering the act that there are cases in which there is too much generosity, that can be easily dealt with when parliament meets. I rather believe, however, that the trouble will have been settled if the principle I suggest is adopted, and it will be found that we have been doing just exactly what parliament intended and what the people of the country desire. Therefore, with that understanding, I accept the amendment which is proposed in this act and I am willing to accept the Prime Minister's suggestion that an attempt be made to carry out the Pension Act and deal by way of administrative action with the cases in connection with which there has been hardship. Subject to these two reservations I accept the Prime Minister's suggestion, two reservations

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with which I think the Prime Minister will agree: The first is that there should be a definite declaration by the government or the board as to the principles on which they are expected to proceed in connection with any proposal to change the basis of entitlement, and secondly, if that administration does not result satisfactorily between now and next session, that the act be amended accordingly and made retroactive.

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CON

Arthur Edward Ross

Conservative (1867-1942)

Mr. ROSS:

I support some of the statements just made. If the Prime Minister had been at home at the time I brought this matter to the attention of the government last November-and December, pointing out to them that a campaign was under way along this line, perhaps a good deal of suffering and injustice might have been prevented. But the acting Prime Minister at that time said to me that no action could be taken nor any change made. There is another matter to be considered in addition to the marriage question, and that is the practice of going back on medical records to discover some little point on which they can upset a pension. I might bring to the attention of the Prime Minister one example. A certain ex-service man had received a pension for epilepsy. In reviewing the case an official of the board found that he had suffered from dizziness when _ eleven years old and therefore it was decided that his pension for epilepsy must be discontinued. There is nothing more ridiculous in the whole history of pensions than that example, but it is only one of very many.

I trust that, as the last speaker said, a declaration will be made by the government, or a gesture from this House of Commons, which will bring about a different attitude of mind towards the treatment of these cases.

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UFA

Alfred Speakman

United Farmers of Alberta

Mr. SPEAKMAN:

In common with other hon. members who have spoken, and having been made familiar with the situation, I had hoped for and looked forward to the introduction of some specific legislation to correct the point at issue. I realized however that that might be very difficult and further that it was the almost unanimous opinion of returned men's associations and of this house that the legislation itself as at present on the statutes was fairly just and satisfactory, the question being rather one of administration. That being so, I am prepared to accept the present amendment, trusting that a change in administration in these respects will bring about the results for which we have been looking. I do not think there is any question, from expressions of opinion in this house from time to time, as to the general view of parliament on these matters and the feeling that this law should be interpreted and administered in a reasonably sympathetic manner and not in a manner which would open it wide to unreasonable application. What is needed is a sympathetic interpretation in accordance with the intent of the various committees of parliament that have studied the subject and of parliament itself as a whole, and that intent as expressed by different members leaves no room for doubt in the matter. I assume that these peculiar cases, where they have been in good standing for many years and w-here recently a change has been made or suggested without additional evidence having been adduced, and in regard to which the attitude of the pension board has been so strongly criticized, will be dealt with by the acting chairman and dealt with, I hope, in a sympathetic manner in accordance with what I conceive to be the obvious intent of parliament, expressed so frequently in committee and in the house, as to the real meaning of the act. If that is done, I think the bulk of the trouble will be obviated. And if we then find that administration alone, however sympathetic or judicially proper, does not serve to correct one or two difficulties that still remain, it will be time at the next session for an amending act to be introduced which will put the matter completely beyond doubt. In the meantime, with others, I am prepared to accept the amendment in the hope, shared by all including the Prime Minister, that these various matters of discontent will be satisfactorily dealt with and that our pension legislation and administration will be placed on a proper and sure foundation.

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LIB

Peter John Veniot

Liberal

Mr. VENIOT:

Might I be permitted, before this goes through, to say that I agree with the suggestion made to try to remedy the abuses in the administration of the Pension Act? But from my experience before the pension commission in numerous cases, I do not believe we should wholly blame the pension commissioners. If we look carefully into the matter we shall find that the medical boards outside Ottawa, established in the different provinces, are greatly to blame for the way in which they make their reports. I have a case in point where a certain medical board-I do not want to give any names-have had a case outstanding before them for several years. This applicant, who has been receiving a small pension and who is applying for a larger one, they have trotted back and forth from one medical board to another and from one province to another and the reports are so

Pension Act

conflicting that it is almost impossible for the commission to reach an honest and proper decision in the matter. I wish to state right now that my experience in connection with certain medical boards in the dominion has been that they are not doing justice to themselves nor to the applicants. I know of the case of an applicant who after travelling all night and all day, gets before a medical board at ten o'clock in the morning and is not attended to until three or four o'clock in the afternoon. When he gets there in the morning, there are no doctors present although there should be, and that man is kept waiting, without anything to eat, until two or three o'clock in the afternoon. Then, instead of giving him a full medical examination, they merely talk to him, discuss his case with him and then send him away. After this a report goes in that there is nothing wrong with the man.

I know of several cases and I have the facts in regard to one under my hand. This man was sent from a medical board in New Brunswick to a medical board in Quebec. The minute he got to the latter place he was put into a cell for mental cases although according to the report of the medical board in New Brunswick there was absolutely no sign of any such trouble. For three days he was kept in a cell with iron bars across the window and without seeing a doctor. The nurse in charge took pity on him and pleaded that a doctor be brought to attend him. Then when the report was sent back there was a great deal of doubt as to the hysteria from which it was claimed this man was suffering. This man went back to his native province and since that time he has passed a couple of medical boards. He went before a medical board; he was taken in and after two or three days he was told to go back because there was no room for him; there were others to come in and he had to go home. As he required treatment he had to go to a private hospital and employ a doctor to attend to him. Instead of the pension hospital doing this work, this doctor gave him hospital attention free. I have absolute proof of this; I know whereof I speak; I have the record of the doctor who attended to this man in the private hospital and this doctor is one of the leading physicians of the province in which this medical board sits to-day. I have reported those facts to the commission; I was before the commission yesterday; I looked over the reports and when I drew the attention of the doctors on the commission to the record of this case and they reviewed it, they did not

know what to say about the matter. They were surprised to find that the case under examination revealed such a condition of affairs. Therefore I say that the commission at Ottawa is not always to blame for what are called injustices to the returned men. We must have a reorganization of the medical boards in the different sections of the dominion in order that at those medical boards those returned men will get at least a modicum of fair play and not be treated as they have been.

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CON

Murray MacLaren (Minister of Pensions and National Health)

Conservative (1867-1942)

Mr. MacLAREN:

Would the hon. member for Gloucester kindly furnish me with the names so that the case that he cites may be considered?

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LIB

Peter John Veniot

Liberal

Mr. VENIOT:

I gave the names to the board of pension commissioners yesterday and in doing that I thought I had done my duty. I am not going to go any further.

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CON

Murray MacLaren (Minister of Pensions and National Health)

Conservative (1867-1942)

Mr. MacLAREN:

Will he not also furnish the minister with the names because it is impossible to make any investigations into complaints and into that case until full particulars are available.

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LIB

Peter John Veniot

Liberal

Mr. VENIOT:

I am endeavouring to give fair play to the board of pension commissioners at Ottawa; they are not always to blame.

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CON

Murray MacLaren (Minister of Pensions and National Health)

Conservative (1867-1942)

Mr. MacLAREN:

I am not reflecting on my hon. friend, but I am asking that I be given an opportunity to look into this case personally and I can do so only if he will kindly let me have the names.

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CON

Richard Bedford Bennett (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Conservative (1867-1942)

Mr. BENNETT:

I should like the hon. gentleman (Mr. Ralston) to know I have taken up with the auditor general the questions to which he has referred. The auditor general directed my attention to the fact that under one of the provisions of the Audit Act he is entitled to make inquiries for the purpose of ascertaining whether he is warranted in issuing his cheques; He gave me a number of cases which I in turn reported to the commission and which were cases that went back to the very start of the commission and possibly the basis of entitlement was not quite as clear then as it is now. But I endeavoured to point out to the auditor general that I did not think his function was to determine the sufficiency of the evidence on which entitlement was predicated but rather that it was whether or not a judgment was arrived at and if so he had reason to feel that he had satisfied himself that the country was properly paying the pension in question until further action was taken by someone else.

Pension Act

There is one other ease, other than fraud, which possibly has some effect upon matters of that kind and that is "common mistake." There are a few of those cases that have come to my attention and I suspect the commission has no alternative but to act when by common consent there has been a misstatement that is not fraudulent but which arose from a misunderstanding of something, that amounts in law to an ordinary mistake.

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LIB

Charles Gavan Power

Liberal

Mr. POWER:

I have no objection whatever to the passing of this legislation which in all deference I submit has nothing whatever to do with the matters which we have been discussing on both sides of the house. This bill simply provides that in the case of a vacancy arising in the chairmanship of the commission, the government may appoint a judge of the superior court temporarily to fill that place. When the matter was being discussed in the house before, I did contend that legislation should be introduced in order to clear up those marriage and other cases. I do not know that you can change a law by changing the judge; it is the law and not a change in the person who interprets the law that requires amendment. As to the suggestion made from this side of the house that the government or the minister should issue instructions to the board of pension commissioners, may I say that I do not think that should be done. The board acts under the authority conferred upon it by parliament. It is supposed to be and so far as possible can be independent of this or any other government.

Further instructions, as full and as complete as it was possible to frame, were placed in the statute, I think it is section 73, that the board of pension commissioners should under all circumstances give the benefit of the doubt to the soldier who made application. Those instructions have not been followed out, possibly for some legal reason or because the law was not properly drafted. If it was not properly drafted, it should be redrafted and amended so that the will of parliament will be imposed upon the board. Personally I cannot see that the fact of changing the judge will have any effect in legalizing these so-called marriage cases and in giving to the people with reference to whom complaint has been made, the rights to which they are entitled.

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LIB

James Layton Ralston

Liberal

Mr. RALSTON:

I want to say a word in reply to what the hon. member for Quebec South has said. This is the way in which the matter strikes me with regard to marriage cases. The pension board is authorized to pay pension to a man on account of his wife. That is what the act says. Wife I presume means legal wife. The question of administration is, how much evidence shall the board of pension commissioners require as to the legality of that marriage. I submit my hon. friend is wrong when he suggests that we have put full instructions in the act. We have told the board that they may pay on account of the legal wife. The act as it stands is perhaps deficient because it does not provide that they may pay to what is known as a common law wife when the soldier is living. In the case of death there is a provision that payment may be made to a so-called common law wife, but there is no provision that they may pay to a soldier an additional allowance on account of a common law wife where the pension is a disability pension. I come back to this: I think what the Prime Minister is suggesting is that in the matter of administration, that is to decide how strict they shall be in connection with the proof that a woman living with a man is his legal wife, there may be some latitude. As to that I am suggesting that directions should be given to the board that where a pension has been awarded, where the board of pension commissioners has admitted by payment of pension that the woman is the wife of the man, unless deliberate fraud has been proven that decision shall not be disturbed or reversed, and that shall apply to the period back of the time when this wholesale review took place whereby hundreds of people were cut off who had been receiving pension before for many years. My hon. friend from Vancouver Centre (Mr. Mackenzie) mentions the date of February, 1933. But I think the Prime Minister has found some which go back beyond that, and I have sent him some myself. At any rate we know that in 1932 and 11)33 there was a general, almost wholesale review, with the result that the board of pension commissioners tightened up their requirements regarding proof by saying to the pensioner, You have to prove that your marriage is not adulterous. That is about the effect. Up to the time these revisions were made we have taken it that the woman you have been living with is your wife, now we find that previously you had another wife and we are going to put on you the burden of proving that you are not living in adultery. It seems to me that the board of pension commissioners should be instructed that where they have admitted by payment the legal relation between the man and the woman with whom he is living, that position should not be disturbed unless deliberate fraud is proved. That is my answer to my hon. friend from Quebec South (Mr. Power) when he suggests that we cannot make any change by administration. If that is not sufficient

Pension Act

we shall have to pass legislation, because I believe the country intended that the same rule should apply with regard to pension payable on account of disability, as to pension payable on account of death, namely that the woman with whom the man is living, who has borne his children, who has carried the responsibilities of wifehood, should receive the benefit of the pension which this country intended for the returned man and his dependents.

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CON

Richard Bedford Bennett (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Conservative (1867-1942)

Mr. BENNETT:

You are eliminating from discussion the bigamous situation?

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LIB

James Layton Ralston

Liberal

Mr. RALSTON:

Yes, I am discussing particularly the so-called marriage cases.

There is another class of cases interfered with by the auditor general. It is a most serious situation. That is, a man has been awarded a pension for a disability which was supposed to have been incurred during service. The auditor general has got in and rustled around among the papers and dug up files and medical reports and has come to the conclusion himself, gratuitously, that that man had some disability before enlistment and therefore what he has now and the thing for which he is pensioned is only an aggravation or increase of a pre-enlistment disability. While the Prime Minister calls attention to the fact that I am not referring to the bigamous cases; this is another class of cases in which the board has admitted from the time they started paying pension that the man had a war disability, not an aggravation, and was therefore entitled to the full amount. I say the board should not be allowed to interfere at this late stage with that and cut off pensions and start recovering back pension.

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CON

Arthur Edward Ross

Conservative (1867-1942)

Mr. ROSS:

Is not that the class of case

to which I referred?

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LIB

James Layton Ralston

Liberal

Mr. RALSTON:

Yes, my hon. friend from Kingston (Mr. Ross) is quite right. I only mentioned it now because the Prime Minister spoke of my having dealt particularly with the marriage cases. I say the class to which my hon. friend refers are equally meritorious in the sense that they may be dealt with by administration if the board just exercises good common sense and endeavours to carry out the spirit of parliament.

Two things further. First the Prime Minister worried me a little by his reference to the fact that there should be an exception in cases of common mistake. I did not quite understand what he meant in that respect.

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June 30, 1934