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Reasons and decision
Persons in attendance
The Appellant
Jude Samson, Tribunal Member, observer
Key facts
[1] The Appellant is Francophone and prefers to communicate in French.
[2] This appeal involves the deferral of the Appellant’s Old Age Security (OAS) pension. The Appellant applied for an OAS pension (or pension) on June 29, 2011 (GD3-12). On March 8, 2012, she submitted a written request to have her pension deferred, indicating that she wanted her pension to start in January 2013 (the first deferral request, or the March 2012 request; see GD3‑16). On April 5, 2012, the pension request was granted on a 40/40 basis, but her pension started in August 2011 rather than January 2013 further to her verbal authorization. According to the Respondent, during a conversation with one of its English-speaking agents on April 5, 2012, the Appellant was given two choices: she could take a lump-sum payment in August 2011 or have her pension deferred until January 2013. The Appellant opted for the first choice, i.e. the lump-sum payment (GD1-10, GD2-2, GD6-2). She therefore received a lump-sum payment in May 2012 retroactive to August 2011(GD3-22; GD4-1, 3). The Appellant denied that the agent had offered these choices to her; she said she was offered only one option, which she accepted, i.e. a lump-sum payment in August 2011. She added that if she had been offered a choice as the Respondent had indicated, there is no doubt she would have chosen to have her pension deferred until January 1, 2013 (GD1-7, GD4-1, testimony).
[3] In November 2013, the Appellant received a statement from the pension and benefits department of York University (her employer) regarding some recent changes to the OAS pension and the actuarial adjustment rate for the pension. On November 17, 2013, the Appellant submitted a second request to have her pension deferred (the second deferral request or the November 2013 request). She provided a letter regarding deferral of the OAS pension to that end (GD3-56 to 57).
[4] The Appellant did not repay the total amounts paid as pension and related benefits within six months of the date on which the deferral request was granted (in April 2012) (GD4‑2). The Respondent refused the second deferral request on April 17, 2014.
[5] On April 29, 2014, the Appellant asked the Respondent to reconsider its decision.
[6] On May 12, 2014, the Respondent upheld its decision of April 17, 2014, rejecting the Appellant’s request for reconsideration. In June 2014, the Appellant appealed that decision to the Tribunal’s General Division.
[7] This appeal was heard by teleconference for the reason indicated in the Notice of Hearing dated November 9, 2015:
[Translation]
- This method of proceeding respects the requirement under the Social Security Tribunal Regulations to conduct proceedings as informally and quickly as circumstances, fairness and natural justice permit.
The law
[8] The relevant legislation is as follows. Section 9.3 of the Old Age Security Act (OASA) pertains to requests for cancellation of a pension. That provision is reproduced here:
Request to cancel pension
9.3 (1) A pensioner may, in the prescribed manner and within the prescribed time after payment of a pension has commenced, request cancellation of that pension.
Effect of cancellation
(2) If the request is granted and the amount of any pension and related supplement and allowance is repaid within the prescribed time,
- (a) the application for that pension is deemed never to have been made; and
- (b) the pension is deemed for the purposes of this Act not to have been payable during the period in question.
[9] Section 9.3 of the OASA refers to the Old Age Security Regulations (OASR), and to section 26.1 in particular. That provision reads as follows:
Cancellation of Pension
26.1 (1) For the purposes of subsection 9.3(1) of the Act, a request for cancellation of a pension shall be made to the Minister in writing no later than six months after the day on which payment of the pension begins.
(2) For the purposes of subsection 9.3(1) of the Act, a request for cancellation of a pension shall be made to the Minister in writing no later than six months after the day on which payment of the pension begins.
[10] Pursuant to section 32 of the OASA, the Tribunal does not have the authority to rule on matters involving administrative errors or erroneous advice given by the Respondent:
32. Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied a benefit, or a portion of a benefit, to which that person would have been entitled under this Act, the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made.
Issue
[11] In this case, the Tribunal must determine whether the Appellant was eligible to defer her pension until January 2013.
Submissions
[12] The Appellant asserts that she has the right to defer her OAS pension (see GD1, Notice of Appeal). More specifically, her arguments are as follows:
- The refusal to defer the OAS benefits was based on the November 2013 request and not that of March 8, 2012, the first request having been completely disregarded.
- The reason for the delay in the second deferral request (of November 2013) was that she had not learned about the legislative changes before that. The Respondent did not give her any notice of the changes, and thus there was a lack of communication on the part of the Respondent.
- The decision made on April 5, 2012, to receive a lump-sum payment should be set aside since the Respondent’s agent did not provide complete or accurate advice and as a result the Appellant did not receive the proper guidance in making her choice. At the hearing she contested the evidence on which the Respondent had relied in staying with its version of the conversation of April 5, 2012. She questioned the process behind the analysis presented at page GD6-4 and the lack of response to the third question indicated there (in section D of the report relating to erroneous advice or administrative errors).
[13] The Respondent argues that the Appellant is not entitled to cancel her OAS pension because she does not meet the minimum requirement for cancellation of the pension that would enable her to defer her pension to a future date. (GD2)
Analysis
[14] The Appellant must prove on a balance of probabilities that she was eligible to defer her OAS pension to January 2013.
[15] As a legislative body, the Tribunal must interpret and apply the law as set out in the OASA and the OASR.
[16] In this case, the fact remains that on April 5, 2012, the Appellant elected to receive her pension as of August 2011 (lump-sum payment). Although the first payment of her pension was deposited into her bank account in May 2012, for the purposes of the law the benefits took effect in August 2011. She submitted two written requests to have the pension deferred until January 2013, on March 8, 2012, and November 17, 2013, i.e. outside the six-month time frame provided for under section 26.1 of the OASR. In other words, she did not repay the total amounts paid in pension and related benefits within six months of the date on which the request was granted, pursuant to subsection 26.1(2) of the OASR.
[17] The Tribunal has taken note of the Appellant’s comments regarding the Respondent’s agent’s advice (GD1-2, 4, 7). However, the Tribunal does not have the authority to consider matters involving erroneous advice under section 32 of the OASA. It appears from the file that this matter was dealt with by the Respondent under that provision (GD6).
[18] The Tribunal has also taken note of the Appellant’s comments to the effect that she submitted her request in November 2013 after she had learned about the changes to the legislation (GD1-6). However, ignorance of the law is not a valid reason for the Tribunal not to apply the law, as it has done in this case.
[19] Lastly, the Appellant argues that she would have acted without delay if she had received a notice from the Respondent (GD1-6). However, the burden rests with the Appellant to submit a request in writing under 9.3 of the OASA and section 26.1 of the OASR. The Respondent has no statutory duty to provide such advice or to submit requests on behalf of individuals.
Conclusion
[20] The Tribunal finds that the Appellant cannot defer her pension until January 2013.
[21] The appeal is dismissed.