Old Age Security (OAS) and Guaranteed Income Supplement (GIS)

Reasons and decision

Decision

Leave to appeal is refused.

Introduction

[1] The Applicants seek leave to appeal decisions of the General Division (GD) of the Social Security Tribunal dated January 11, 2016. The GD conducted a joint in-person hearing On January 5, 2016 and determined that the Applicants were not eligible for pensions under the Old Age Security Act (OASA), as it found that they had not resided in Canada for the requite minimum of 10 years.

[2] On April 6, 2016, within the specified time limitation, the Applicants submitted to the Appeal Division (AD) Applications Requesting Leave to Appeal detailing alleged grounds for appeal.

[3] For these applications to succeed, I must be satisfied that the appeal has a reasonable chance of success.

Overview

[4] The Applicants are a husband and wife who were born in India in 1944 and 1946, respectively. For many years, they lived and worked Libya, where they also raised three children. In June 1993, they entered Canada as landed immigrants and purchased property in the Toronto area. Mr. R. C. continued to work in Libya, travelling with his wife between countries, while their children continued their schooling in Canada. Mr. R. C. retired in December 2009.

[5] The Applicants’ applications for an OAS pension were date stamped by the Respondent on April 14, 2011. The Respondent denied the applications initially and upon reconsideration. The Respondent determined the Applicants had insufficient periods of residence in Canada to qualify for a partial OAS pension. The Applicants then appealed the reconsideration decisions to the GD.

[6] At the hearing before the GD on January 5, 2016, the Applicants testified about their ties to Canada and answered questions about their movements to and from Libya and India over the years. Mr. R. C. noted that he had filed Canadian income tax returns since 1993 and had never been absent from Canada more than six months at a time.

[7] In its decisions of January 11, 2016, the GD dismissed the Applicants’ appeals, finding that, on a balance of probabilities, they were not residents of Canada. The GD based its decisions in part on evidence that they had spent 80 percent of their time in Libya during the nearly 18-year period between June 1993 and April 2011.

[8] As the two applications share common questions of law (with only immaterial differences in their respective facts), I think it is appropriate to deal with them jointly, as permitted under section 13 of the Social Security Tribunal Regulations. In taking this action, I am satisfied that no injustice would be likely caused to either party.

The law

OASA and associated regulations

[9] Under section 3 of the OASA, a person must have resided in Canada for at least 40 or more years after his or her 18th birthday in order to receive a full OAS pension. To receive a partial pension, an applicant must have resided in Canada for at least 10 years if he or she resides in Canada on the day before the application is approved.

[10] Subsection 21(1) of the Old Age Security Regulations makes the distinction between “residence” and “presence” in Canada. A person resides in Canada if he or she makes his or her home and ordinarily lives in any part of Canada, but a person is merely present when he or she is physically in any part of Canada.

DESDA

[11] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the AD may only be brought if leave to appeal is granted and the AD must either grant or refuse leave to appeal.

[12] Subsection 58(2) of the DESDA provides that leave to appeal is refused if the AD is satisfied that the appeal has no reasonable chance of success.

[13] According to subsection 58(1) of the DESDA the only grounds of appeal are the following:

1. (a) The GD failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The GD erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The GD based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[14] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada.^{Footnote 1} The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether legally an appeal has a reasonable chance of success: Fancy v. Canada.^{Footnote 2}

[15] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for the Applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the Applicant does not have to prove the case.

Issue

[16] Does the appeal have a reasonable chance of success?

Submissions

[17] In their joint Application Requesting Leave to Appeal, the Applicants made the following allegations:

1. Their appeal was heard by a single member of the GD, rather than a panel of three.
2. No representative from Service Canada was present.
3. The GD asked about personal details that had no relevance to the issue of whether their OAS pension should be granted or denied.
4. Although they attended the hearing believing it would be an opportunity to review, revisit and reconsider their OAS application, they were left with the impression that the decision had already been made.
5. The GD ignored the following facts:
   • They have fully complied with the residential requirements since first entering Canada on June 20, 1993;
   • They never left Canada for longer than 180 days and thus complied with clause 14 of the guidelines that accompany the application for the OAS pension;
   • Mr. R. C. maintained his resident status to ensure that his permanent resident status remained valid;
   • Mrs. R. K. was resident in Canada long enough that she acquired Canadian citizenship in March 2005—more than 10 years ago.
6. The decision not to grant the OAS pension based on their supposed absences from Canada is unreasonable and unfounded in law. The Applicants ask the AD to conduct a complete review of their file.

Analysis

(a) Single Member

[18] The Applicants argued that they had expected that a three-person panel would hear their appeal. It is true that when the Applicants applied for OAS benefits in April 2011, appeals were made to the Office of the Commissioner of Review Tribunals (OCRT), which held hearings before tribunals composed of three persons. However, by the time the Applicants submitted their appeal in October 2013, the Social Security Tribunal had assumed the OCRT’s functions pursuant to the DESDA. According to section 61, the GD and the AD must hold hearings with one member sitting alone. Conducting hearings in this way is not a breach of any of the principles of natural justice. Therefore, the Applicants’ expectation of who would hear and decide their case is not a ground of appeal that has a reasonable chance of success on appeal.

(b) Nonappearance by Service Canada

[19] Service Canada is an arm of the Department of Employment and Social Development Canada and a party to this proceeding. I see from the evidentiary record that it stated its position in written submissions to the GD dated November 2, 2015. It declined to participate in the oral hearing, as was its right. In this I see no breach of any principle of natural justice and find that the Applicants have no arguable case on this ground.

(c) Irrelevant questions

[20] An administrative tribunal such as the GD is charged in part with finding fact and is not constrained by the evidentiary rules that govern judicial proceedings. It has wide latitude to pose questions to the parties, provided that their right to fairness is not compromised. I have not listened to the recording of the hearing, but I have reviewed the written decisions, and I see nothing to suggest the GD’s reasons were based on irrelevant or extraneous information. The evidence cited in the decisions was entirely concerned with factors—such as time spent in Canada, work history, listed addresses and residential real estate holdings—that go to whether the Applicants had significant ties to this country during the period in question. As such, I see no reasonable chance of success on this ground.

(d) Apprehension decision already made

[21] In suggesting that the GD had already made up its mind prior to the hearing, the Applicants are essentially alleging that they were subjected to bias and thereby denied an opportunity to present their case in a full and fair hearing. This type of allegation is serious, but a negative outcome is not by itself an indicator of bias. In the absence of any specific evidence to support a reasonable apprehension of bias, allegations alone are insufficient to make out an arguable case.

(e) Disregard for key facts

[22] To receive a partial OAS pension, an applicant must have resided in Canada for at least 10 years if he or she resides in Canada on the day before the application is approved. The Applicants suggest the GD erred in finding that they had failed to comply with the OASA residence requirements since immigrating to Canada in June 1993.

[23] In its decisions, the GD found that the Applicants lived in Canada for an aggregate period of a little more than three years during the almost 18-year period ending April 2011. It appears that the GD placed greater weight on the fact that Mr. R. C. worked in Libya until his retirement in 2009 than other factors, such as his Ontario driver’s license and Canadian bank statements. In concluding that the Applicants were non-residents, the GD was acting within its jurisdiction to weigh the evidence, determining what facts, if any, it chose to accept or disregard, before ultimately coming to a decision based on its interpretation and analysis of the material before it. Hence, I do not see how this ground has a reasonable chance of success, arising out of the fact that the GD chose to place more or less weight on some of the evidence than the Applicant submits was appropriate. In Simpson v. Canada,^{Footnote 3} the Federal Court of Appeal held that

assigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact.

[24] The Applicants allege that the GD disregarded the fact that Mr. R. C. has maintained his permanent resident status and that Mrs. R. K. became a Canadian citizen in 2005. However, the rules governing immigration and citizenship impose residence requirements that differ significantly from those demanded by the OASA, and in my view the GD was justified in giving little or no weight to these factors. Being a citizen or permanent resident of Canada does not necessarily mean that one is also a resident of Canada for the purpose of qualifying for the OAS pension.

[25] The Applicants believe that the provisions governing OAS permitted them to preserve their residence status as long as their absences from Canada did not exceed six months. They cite the instructions in Box 14 of the Application for OAS benefits: “Applicants are invited to list all countries they have lived since the age of 18. Do not include periods when you were outside Canada for more than six months at a time.”

[26] Words on an application form do not have the force of law. Nowhere in legislation or regulation does it categorically say that restricting one’s absences from Canada to less than six months preserve Canadian residency for the purpose of OAS eligibility. The instructions in Box 14 are likely no more than an administrative shortcut meant to reduce the production of extraneous information during the initial application process. Subsection 3(2) of the OASA requires an applicant to have at least ten years of residence in Canada, but “residence” is more than just physical presence in Canada. Case law^{Footnote 4} has held that residence—whether someone makes his or her home and ordinarily lives in Canada—is a question of fact and may depend on a number of factors, including:

• Ties in the form of personal property such as land, businesses, furniture, a car, a bank account and credit cards;
• Social ties in Canada (for example, participation in religious or professional organizations);
• Ties in another country;
• Other ties (such as health insurance, a driver’s license, rent, a lease, a mortgage, property tax statements, insurance policies, contracts, passport declarations, and provincial or federal tax returns);
• Regularity and length of stay in Canada, and the frequency and length of absences from Canada; and
• An applicant’s mode of living, or whether he or she is sufficiently deep-rooted and settled in Canada.

[27] Merely leaving Canada for a limited period does not necessarily imperil OAS entitlement if one is already a resident, but the question before the GD was whether the Applicants were ever residents in the first place. My review of the GD’s decisions satisfy me that it applied the law and appropriately considered a wide range of factors, based on the available evidence, in concluding that the Applicants’ ties to Canada during the relevant period were insufficiently strong to qualify as residence.

[28] I see no arguable case on any of these grounds.

(f) Denial of OAS pension unreasonable and unfounded in law

[29] As discussed, the Applicants have not identified any specific errors that might warrant granting leave to appeal. In asking the AD to conduct a complete review of their file, they are in essence asking for a de novo hearing and decisions in their favour. However, I am unable to do this, as my authority under subsection 58(1) permits me to determine only whether any of the Applicants’ reasons for appealing fall within the specified grounds and whether any of them have a reasonable chance of success.

[30] As the Applicants have not identified any specific errors of fact or law, I am unable to consider granting leave under the claimed grounds of appeal.

Conclusion

[31] The Applications are refused.