Other Canada Pension Plan (CPP)

Decision and reasons

Decision

[1] I am allowing the Claimant’s appeal and sending his file back to the General Division for reconsideration.

Overview

[2] The Claimant applied for an Old Age Security (OAS) pension in May 2014. He later applied for the Guaranteed Income Supplement (GIS) too. The amount of the Claimant’s OAS pension depends on the years that he resided in Canada between his 18th and 65th birthdays. To be eligible for the GIS, the Claimant had to continue residing in Canada after his 65th birthday.^{Footnote 1}

[3] The Minister of Employment and Social Development spent about 15 months reviewing the Claimant’s applications and asking him follow-up questions. Then, in August 2015, the Minister approved the Claimant’s applications, concluding that he was eligible for both benefits.

[4] Just a few months later, however, the Minister started a review of the Claimant’s residence in Canada. In May 2016, the Minister said that it would stop paying the GIS to the Claimant. Then, in October 2016, the Minister changed its initial approval decision. The Minister decided that the Claimant was not entitled to the GIS benefits that he had received from July 2014 to May 2016. As a result, the Minister demanded that the Claimant repay over $15,000 in benefits. The Minister maintained that decision in November 2017.

[5] The Tribunal’s General Division agreed with the Minister’s decision. The Claimant is now appealing the General Division decision to the Tribunal’s Appeal Division. I have decided that the General Division decision contains errors of law and jurisdiction and needs to be set aside. I have also decided to send the file back to the General Division for reconsideration.

Preliminary issues

[6] Three issues are worth discussing in a preliminary way.

The Appeal Division hearing went ahead on March 11, 2020

[7] The Appeal Division hearing was supposed to start on January 29, 2020. But when the parties met on that day, they agreed to delay its start.

[8] Since the Minister’s October 2016 decision, the Claimant has often alleged that the Minister made a mistake when approving his GIS application. The General Division noted that the Minister has a discretionary power to remit (or waive) overpayments that are caused by an administrative error.^{Footnote 2} Therefore, at the start of the hearing in January, I asked whether the Minister had yet decided whether to exercise this discretionary power. Much to the Claimant’s frustration, the Minister’s representative answered no to this question.

[9] The Minister’s representative was hopeful, however, that the Minister could make that type of decision within about six weeks. He also confirmed that the Minister would not deduct any amounts from the Claimant’s other benefits as long as this appeal was ongoing.

[10] In the circumstances, the parties agreed to postpone the hearing for six weeks.

[11] Between hearing dates, the Claimant became upset to learn that the Minister had reassessed his residence in Canada once again, and it was now affecting his OAS pension too.^{Footnote 3} On February 19, 2020, the Minister decided that the Claimant was not entitled to the full OAS pension that he had been receiving since July 2014. Instead, the Claimant was entitled to receive only 32/40ths of a full OAS pension.

[12] This decision created an additional overpayment (or debt) of nearly $8,000 on the Claimant’s account. The Minister said that it would recover this amount by reducing the Claimant’s OAS pension to less than $300 per month, starting in April 2020.

[13] I am mentioning the Minister’s February 19, 2020, decision by way of background only. That decision, including the amount of the Claimant’s OAS pension, is not before the Tribunal at this time. If the Claimant wants to challenge that decision, he should follow the instructions starting on page AD5‑3, under the heading “If you disagree with our decision”.

[14] When the hearing resumed on March 11, 2020, I began by asking the Minister’s representative whether the Minister had yet decided whether to use its discretionary powers to waive some or all of the Claimant’s debt. It had not. I also asked the Minister’s representative whether he could provide any sort of update on when that decision might be made. He could not.

[15] Nevertheless, the Minister’s representative suggested that a further adjournment might be appropriate to give the Minister more time to decide this issue.

[16] In response, the Claimant repeated his frequent complaints about bloated governments, along with their callous and unending bureaucracy. He said that he was struggling to understand and cope with the number of decisions the Minister was making in his file. He also asked how anyone could survive on the small amount that the Minister said it would pay him.^{Footnote 4}

[17] In the circumstances, I decided that the hearing should go ahead on March 11, 2020. I based that decision on:

1. the Claimant’s concerns about delay and the Tribunal’s need to conduct appeals as quickly as possible;^{Footnote 5}
2. the lack of a clear timeline as to when the Minister might exercise its discretionary power to waive some or all of the Claimant’s debt; and
3. the number and complexity of the outstanding issues concerning the Claimant’s OAS benefits.

[18] Shortly after the hearing, the Minister’s representative did provide an update on the timing of the Minister’s discretionary decision to waive some or all of the Claimant’s debt.^{Footnote 6} Then, on March 26, 2020, the Minister denied that an administrative error had occurred in this case and refused to waive any of the Claimant’s debt.^{Footnote 7}

[19] Again, I cannot review the Minister’s March 26, 2020, decision as part of this appeal. If the Claimant wants to challenge that decision, he can follow the instructions on page AD11‑2, under the heading “If you disagree with the decision”.

The Appeal Division’s ability to raise new issues

[20] In its written and oral submissions, the Minister was very critical of my earlier decision in this case.^{Footnote 8} Specifically, the Minister alleges that I committed errors of law and jurisdiction by granting leave to appeal on an issue that the Claimant had not raised and by shifting the burden of proof from the Claimant to the Minister.

[21] If the Minister had wanted to challenge my earlier decision, it could have asked the Federal Court to review it. It did not. As a result, that decision is final.^{Footnote 9} There is little more that I can, or should, say about that decision except that it has provided the parties with a fair opportunity to comment on the issues discussed below.

The Minister’s new evidence

[22] As part of its submissions to the Appeal Division, the Minister included the Affidavit of Elizabeth Charron, a legislative officer within the Minister’s OAS Policy Division.^{Footnote 10} This is new evidence that the Minister had not filed at the General Division level. However, the Appeal Division’s limited role means that new evidence is usually irrelevant to the issues that I need to decide. As a result, I do not normally consider new evidence.

[23] In the end, I do not need to decide this issue. Since I am returning the file to the General Division for reconsideration, the General Division will be free to consider the Charron Affidavit as part of that process.

Issues

[24] When reaching my decision, I focused on the following issues:

1. Did the General Division commit errors of law and jurisdiction by assuming that the Minister had the power to change its August 2015 approval decision?
2. If so, what is the best remedy in this case?

Analysis

[25] I must follow the law and procedures set out in the Department of Employment and Social Development Act (DESD ;Act). As a result, I can intervene in this case only if the General Division committed a relevant error.^{Footnote 11}

[26] In this case, I focused on whether the General Division made a jurisdictional error by failing to decide all of the relevant issues and whether its decision contains an error of law.^{Footnote 12} Based on the wording of the DESD ;Act, any error of these types could allow me to intervene in this case.^{Footnote 13}

Issue 1: Did the General Division commit errors of law and jurisdiction?

[27] Yes, the General Division incorrectly assumed that the Minister had the power to change its August 2015 approval decision. The scope of the Minister’s powers were at issue in this case, but the General Division never decided the issue.

[28] To begin, I recognize that the Claimant has repeatedly asked a number of questions about the OAS program. Not all of the Claimant’s questions are directly relevant to this decision. In the paragraphs below, I will nevertheless try to provide some additional background information about the Old Age Security Act (OAS Act) and its requirements. However, there are some questions that I cannot answer, like when the Minister might have changed its forms. I do not have this type of information because the Minister and the Tribunal are independent from one another.

[29] The Claimant’s questions touch on two important requirements under the OAS Act:

1. Residence in Canada: A person resides in Canada if they make their home and ordinarily live in the country.^{Footnote 14} There is no hard and fast rule about how many days a person must spend in the country to reside here. Instead, it is one of many factors to be considered when assessing a person’s residence.^{Footnote 15} Practically speaking, however, the less time a person spends in Canada, the less likely they are to be residing in this country.
2. Absences from Canada of more than six months: A person can lose their entitlement to certain OAS benefits if they remain outside of the country for more than six months at a time.^{Footnote 16}

[30] The Claimant has received two OAS benefits: an OAS pension and the GIS. The requirements above have different implications depending on the benefit at issue.

[31] The number of years that a person resided in Canada will determine whether they are eligible for an OAS pension and the amount of that pension.^{Footnote 17} A person, like the Claimant, who has 20 or more years of residence in Canada is entitled to a permanent (or portable) OAS pension.^{Footnote 18} This means that they can continue receiving their OAS pension no matter where they reside, and regardless of the length of their absences from Canada.

[32] Only OAS pension recipients can receive the GIS. In addition, that person must maintain their residence in Canada and must not be absent from the country for more than six months at a time. In other words, the GIS never becomes permanent. The two requirements above apply to GIS recipients, meaning that their eligibility can change over time.

[33] None of what I have written above has changed between the time when the Claimant applied for his OAS benefits and now. However, the questions on the Claimant’s OAS application form may have caused some confusion in this case because they are not perfectly aligned with the requirements of the OAS Act.^{Footnote 19}

[34] I return now to the specific issues in this appeal. As mentioned above, this appeal is about the Claimant’s GIS only. In particular, the Minister concluded that the Claimant was not entitled to the GIS benefits that he had received from July 2014 to May 2016. The Minister based this decision on its reassessment of the Claimant’s residence in Canada.

[35] In fact, at the time of his application, the Claimant did not seem to think that he would be eligible for the GIS. However, a Service Canada agent encouraged him to apply anyway, and so he did.

[36] Indeed, the Minister had concerns about the Claimant’s residence in Canada, so it investigated the issue.^{Footnote 20} The Minister’s questions were sometimes difficult for the Claimant to answer because he has moved around a lot.^{Footnote 21}

[37] Ultimately, the Minister approved the Claimant’s application on August 12, 2015.^{Footnote 22} The Minister confirmed its decision in a letter to the Claimant dated August 18, 2015, which said that the Claimant would receive a full OAS pension, with the GIS, starting from July 2014.^{Footnote 23}

[38] But within three months of this letter, the Minister began investigating the Claimant’s residence in Canada once again.^{Footnote 24} In June 2016, the Minister suspended the Claimant’s GIS benefits.^{Footnote 25}

[39] Then, on October 27, 2016, the Minister changed its August 2015 approval decision: The Claimant was never entitled to the GIS and should reimburse all of the benefits that he had received from July 2014 to May 2016.^{Footnote 26} The Minister took about a year to reconsider its decision, but ultimately came to the same conclusion.

[40] The General Division agreed: It found that the Claimant had not resided in Canada since 1999.^{Footnote 27}

[41] However, the General Division did not consider the Minister’s power to change its August 2015 approval decision in the first place. In my view, the General Division committed an error of law by overlooking that issue. I reached this conclusion for three reasons:

1. The Claimant’s arguments, read generously, raised this issue at the General Division level;
2. Justice required the General Division to raise the issue, even if the Claimant had not done so; and
3. The General Division made no mention of the Appeal Division’s decision in BR v Minister of Employment and Social Development^{Footnote 28}

[42] The Minister argues that the Claimant advanced no arguments challenging the Minister’s ability to change its approval decisions. It also argues that the Tribunal should follow a more adversarial (or court-like) model, where the issues are defined based only on the pleadings (or written arguments) of the parties.^{Footnote 29}

[43] The courts have already rejected the more adversarial model that the Minister is proposing in this case. Instead, the courts have told this Tribunal to avoid taking a mechanistic approach to the pleadings.^{Footnote 30} Indeed, even the case the Minister relied on—which concerns the role of the Federal Court and not of this Tribunal—says that a party’s arguments must be read generously.^{Footnote 31}

[44] Read generously, the Claimant’s arguments did challenge the Minister’s ability to change its approval decision. For example:

1. In his reconsideration request, the Claimant emphasized how it was one thing for the Minister to stop his GIS payments going forward, but quite another thing for the Minister to demand that the amounts already paid be reimbursed. He urged the Minister to take responsibility for its decision and said that he should not be made to pay for the Minister’s mistakes;^{Footnote 32}
2. In his Notice of Appeal to the General Division, the Claimant said that he could live with the Minister cutting off his GIS benefits but that it was an injustice to demand that he repay any benefits received because of a poorly made decision.^{Footnote 33}

[45] The Claimant’s arguments may be inelegant at times. They are not expressed in a lawyerly way. Nevertheless, the General Division should have seen that the Claimant was attacking the Minister’s ability to change its approval decision and demand the repayment of benefits, even if the earlier decision was poorly made.

[46] The Claimant’s overpayment and repeated references to the Minister’s error might have led the General Division to think of the Minister’s power to waive an overpayment under section 37(4) of the OAS Act. But the General Division should not have restricted the Claimant’s arguments to that provision alone.

[47] The Claimant took aim at the Minister’s ever-changing decisions.^{Footnote 34} First, he was awarded the GIS. Later, his GIS was suspended. And finally, the Minister demanded that it all be reimbursed. He urged the Minister to take responsibility for its decision and objected particularly to having to repay amounts that the Minister had already decided he was entitled to receive.

[48] The General Division should have recognized that the Claimant’s arguments about a poorly made decision do not fit entirely within the notion of “administrative error”, as described under section 37(4) of the OAS Act. He was also attacking the Minister’s ability to go back on its previous decisions.

[49] Even if the Claimant did not directly challenge the Minister’s ability to change its approval decision, he did invoke the notion of justice. Indeed, the General Division has a duty to raise new issues when justice requires it.^{Footnote 35}

[50] In this case, the Minister has taken the position that it can reassess the Claimant’s residence in Canada whenever it wants and however many times it wants. Such broad powers are extraordinary. Justice required that the General Division look into this issue and question the source of these powers. Justice also required that the General Division clearly define the periods during which it could reassess the Claimant’s residence in Canada.

[51] The Minister’s ability to change its approval decision goes to the very heart of the Claimant’s concerns. If the Minister was unable to change its approval decision, then the Minister went beyond its powers by asking the Claimant to reimburse all of the GIS benefits that he had ever received. Instead, the Minister (and the Tribunal’s) powers would be limited to reassessing the Claimant’s residence in Canada only for the period after August 18, 2015.

[52] Based on the interests of justice, the General Division should have considered these possible limits on the powers of the Minister, and of this Tribunal, but they were overlooked.

[53] In fact, I ruled that the Minister does not have the power to change its approval decisions in a case called BR v Minister of Employment and Social Development.^{Footnote 36}

[54] I recognize that the General Division was not obliged to follow BR. However, BR raises an important issue that limits the powers of the Minister and of the Tribunal. And the Minister never challenged BR in the courts. Therefore, BR potentially applies in every case where the Minister revisits an earlier approval decision.

[55] In my view, if the General Division was not going to follow BR, then it should have at least explained why.^{Footnote 37} Indeed, the Supreme Court of Canada recently stressed the importance of consistent decision-making: Like cases should generally be treated alike.^{Footnote 38} Perfection is not required. However, decision-makers should use their reasons to explain why they are departing from other decisions.

[56] For all of these reasons, I concluded that it was an error of law under section 58(1)(b) of the DESD Act for the General Division to assume that the Minister had the power to change its August 2015 approval decision.

[57] Viewed from a different angle, the Minister’s power to change its August 2015 approval decision was an issue that the General Division needed to decide, but it failed to do so. This can also be seen as a jurisdictional error, as described under section 58(1)(a) of the DESD Act.

Issue 2: What is the best remedy in this case?

[58] I have decided to send this file back to the General Division for reconsideration.^{Footnote 39}

[59] In reaching this decision, I realize that the Claimant might consider me to be part of the “gargantuan workings of the Canadian Government”^{Footnote 40} and might even accuse me of contributing to the psychological warfare that he feels the government is waging against him.

[60] I sympathize with the Claimant’s circumstances. The Minister’s numerous investigations into the Claimant’s residence in Canada and ever-changing decisions about his residence in Canada have created an ongoing saga and perpetual stress from which the Claimant is desperate to escape. In the circumstances, he urged me to come to a final decision in his case. I regret that I am unable to do so.

[61] I must balance the Claimant’s situation against what is fair to the Minister. In that respect, the Minister argued that it did not realize that this case was raising the issue of the Minister’s powers to change an approval decision. And if that issue is indeed at play, then the Minister would need to return to the General Division so that it could advance more evidence (even beyond the Charron Affidavit).^{Footnote 41}

[62] In fairness to the Minister, therefore, I am returning this file to the General Division for reconsideration. As part of that process, the General Division will have to decide whether the Minister had the power to change its approval decision. This will affect the relevant period during which the Claimant’s residence in Canada can be reassessed.

[63] I sincerely hope that the Minister will start to gather its additional evidence right away and would urge the General Division to proceed with this matter as quickly and efficiently as the parties desire and fairness allows.

[64] That said, it might be possible for the General Division to consider all of the issues surrounding the Claimant’s residence in Canada at the same time. For that to happen, however, the Claimant would have to ask the Minister to reconsider its decision dated February 19, 2020, concerning his OAS pension.^{Footnote 42} Should the Minister’s reconsideration decision be unfavourable, the Claimant would then have to appeal that decision to the Tribunal’s General Division. The General Division might then be able to join the two files together.

Conclusion

[65] I am allowing this appeal. I concluded that the General Division committed errors of law and jurisdiction and that its decision should be set aside. I also decided to return the matter to the General Division for reconsideration, with the following directions:

1. To avoid any concern of bias, the file should be assigned to a different General Division member;
2. The General Division must clearly define the period during which it is reassessing the Claimant’s residence in Canada. If the General Division is only deciding the Claimant’s entitlement to the GIS, then its reassessment could start from June 2014 at the earliest. However, the General Division will also have to decide whether the Minister had the power to change its August 2015 approval decision. If not, then the General Division’s reassessment should start from the date of the approval decision.

Appendix