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

Reasons and decision

Introduction

[1] On April 4, 2016, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that the evidence does not demonstrate that the Appellant resided in Canada pursuant to paragraph 21(1)(a) of the Old Age Security Regulations and, therefore, he is no longer eligible to the Guaranteed Income Supplement (GIS) from January 1998.

[2] The Applicant filed a typed letter, which was treated as an application for leave to appeal (Application) with the Tribunal’s Appeal Division on June 20, 2016. Enclosed with the Application were supporting documents.

[3] On July 4, 2016, the Tribunal asked the Applicant to provide additional information, as his Application was incomplete.

[4] The Applicant filed further information on July 25, 2016.

Issue

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

The law

[6] Pursuant to subsections 57(1) and (2) of the Department of Employment and Social Development Act (DESD Act), an application for leave to appeal must be made to the Appeal Division within 90 days after the day on which the decision appealed from was communicated to the appellant. Moreover, “The Appeal Division may allow further time within which an application for leave is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.”

[7] According to subsections 56(1) and 58(3) of the DESD Act, “An appeal to the Appeal Division may only be brought if leave to appeal is granted” and “The Appeal Division must either grant or refuse leave to appeal.”

[8] Subsection 58(2) of the DESD Act provides that “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[9] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:

1. (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) the General Division 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.

Submissions

[10] The Applicant’s reasons for appeal can be summarized as follows:

1. The General Division failed to give him an opportunity to prove all six of the Ding factors (see Canada (Minister of Human Resources Development) v. Ding, 2005 FC 76).
2. There is information on all six Ding factors that could change the decision, including:
   1. property in Quebec;
   2. membership in a ski club;
   3. contributions and tax returns, both provincial and federal, driver’s licence, Canadian passport;
   4. from 1970 to 2011, he was not outside of Canada for more than six months; since 2011, he has lived in Hungary and has visited Canada yearly for several weeks; “factual resident status”;
   5. a son living in Canada, a daughter raised in Canada and living in Hungary, and other family members in Canada (living or deceased).
3. The General Division ignored his “factual resident status” and failed to recognize his property ownership in Quebec.

Analysis

[11] The Applicant applied for the Old Age Security (OAS) pension in January 1994. He was granted a full OAS pension effective December 1994 and the GIS. After an investigation, the Respondent determined that the Appellant had not been a resident of Canada since June 1997 and that he therefore was no longer eligible to receive the GIS from January 1998 to March 2014. This resulted in an overpayment of benefits that were required to be repaid.

[12] The Applicant requested reconsideration of this decision. The Respondent maintained its decision upon reconsideration on the basis that the Applicant was not considered a resident of Canada after June 30, 1997.

[13] The Applicant appealed that decision to the Tribunal’s General Division. The appeal was joined to the appeal of his spouse (GP-14-2485) to be heard together. The General Division decided the appeal after conducting a teleconference hearing. The Applicant and his spouse attended the hearing and gave evidence. The Respondent was not present at the hearing but had filed written submissions.

[14] The issue before the General Division was whether the Applicant was eligible to receive the GIS benefits after June 1997.

[15] The General Division reviewed the evidence and the parties’ submissions. It rendered a written decision that was understandable, sufficiently detailed and that provided a logical basis for the decision. The General Division weighed the evidence and gave reasons for its analysis of the evidence and the law. These are the General Division’s proper roles.

[16] In the Application and enclosed documents submitted to the Appeal Division, the Applicant argues that he remained a resident of Canada after June 1997 and, therefore, there was no overpayment of benefits to him.

[17] The General Division stated the correct legislative basis and legal tests. It found, since 1997, the Applicant had had stronger ties abroad than to Canada. It set out the evidence presented and pertaining to his ties to Canada and his ties abroad. The General Division was not satisfied that the evidence demonstrated that the Applicant resided in Canada after June 1997.

[18] For the most part, the Application repeats the Applicant’s submissions before the General Division (that he remained a resident of Canada). The General Division decision mentions the arguments set out in paragraph 10 b) 3 to 5, above.

[19] The Applicant also seeks to introduce one document dated in 1987 and 1992 (a debenture to the Austrian Ski Club of Montreal) as proof that he was a member of the Austrian Ski Club of Montreal. He also enclosed copies of various cards, and he states that he has owned property in X, Quebec since 1987.

[20] New evidence is not a ground of appeal under section 58 of the DESD Act. The debenture to the Austrian Ski Club of Montreal is not in the appeal record, despite being dated in 1987 and 1992. The X property was mentioned in GD3-34 (a letter from the Applicant to the Respondent in March 2013) as “property part-owners”, but the Applicant produced no documents in relation to that property. In the Application, the Applicant states that the General Division “failed on recognising … my property ownership … in Quebec X [sic] Landing.” As for the debenture from the ski club, the document was issued in 1987 to a person whose name is undiscernible; it appears to have been surrendered to the Applicant in 1992.

[21] It was incumbent upon the Applicant to submit any evidence he had to the Respondent and to the General Division prior to or at the hearing. At this stage of the proceedings, new evidence is usually not accepted. In any event, “part-ownership” of a property in 1989 for an undisclosed period of time and membership in a social club in X in 1987 or 1992 would not have changed the General Division’s determination on the Applicant’s residency in 1997.

[22] As for the Ding factors, the General Division did assess them in paragraph 21 of the decision. The “factual resident status” is specifically referred to, and the General Division concluded that it does not apply to matters related to the OAS pension.

[23] The Applicant argues that the General Division “failed on giving me a chance to answer and prove the six questions of Ding.” To the extent that this is an allegation that he was denied the right to fully present his case, I will briefly discuss this natural justice issue.

[24] An appellant has the right to expect a fair hearing with a full opportunity to present his or her case before an impartial decision-maker: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC), at paras 21 and 22. In Arthur v. Canada (Attorney General), 2001 FCA 223, the Federal Court of Appeal stated that an allegation of a tribunal’s prejudice or bias is a serious allegation. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of the applicant. It must be supported by material evidence demonstrating conduct that derogates from the standard. The duty to act fairly has two components: the right to be heard and the right to an impartial hearing.

[25] Even with the Applicant’s arguments at face value, the evidence falls short of showing that the General Division did not give the Applicant sufficient opportunity to be heard or that the General Division was prejudiced or biased. While the Applicant may have thought of other points to argue since the General Division hearing, the evidence does not demonstrate that the General Division’s conduct derogated from the standards of the right to be heard and the right to an impartial hearing.

[26] Once leave to appeal has been granted, the Appeal Division’s role is to determine whether the General Division has made a reviewable error set out in subsection 58(1) of the DESD Act and, if so, to provide a remedy for that error. In the absence of such a reviewable error, the law does not permit the Appeal Division to intervene. It is not the Appeal Division’s role to rehear the case de novo. It is in this context that the Appeal Division must determine, at the leave to appeal stage, whether the appeal has a reasonable chance of success.

[27] I have read and carefully considered the General Division decision and the record. There is no suggestion that the General Division failed to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction in coming to its decision. The Applicant has not identified any errors in law or any erroneous findings of fact that the General Division may have made in a perverse or capricious manner or without regard for the material before it in coming to its decision.

[28] I am satisfied that the appeal has no reasonable chance of success.

Conclusion

[29] The Application is refused.