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Reasons and decision
Overview
[1] The Respondent received the Appellant’s Old Age Security (OAS) pension application on August 11, 2015. The Respondent approved the application with benefits effective in June 2016. Then, on May 5, 2016, the Respondent informed the Appellant that his OAS pension benefits would be suspended in June 2016 since Correctional Services Canada had informed the Respondent that the Appellant was incarcerated. The Appellant requested a reconsideration of the Respondent’s decision, and on June 28, 2016, the Respondent upheld its initial decision. The Appellant appealed the reconsideration decision to the Social Security Tribunal (Tribunal).
[2] Section 3(1) of the Old Age Security Act (OAS Act) states the following:
3(1) Subject to this Act and the regulations, a full monthly pension may be paid to
- (a) every person who was a pensioner on July 1, 1977;
- (b) every person who
- (i) on July 1, 1977 was not a pensioner but had attained twenty-five years of age and resided in Canada or, if that person did not reside in Canada, had resided in Canada for any period after attaining eighteen years of age or possessed a valid immigration visa,
- (ii) has attained sixty-five years of age, and
- (iii) has resided in Canada for the ten years immediately preceding the day on which that person’s application is approved or, if that person has not so resided, has, after attaining eighteen years of age, been present in Canada prior to those ten years for an aggregate period at least equal to three times the aggregate periods of absence from Canada during those ten years, and has resided in Canada for at least one year immediately preceding the day on which that person’s application is approved;
- (c) every person who
- (i) was not a pensioner on July 1, 1977,
- (ii) has attained sixty-five years of age, and
- (iii) has resided in Canada after attaining eighteen years of age and prior to the day on which that person’s application is approved for an aggregate period of at least forty years.
[3] The OAS Act was amended so that, as of January 1, 2011, the OAS pension, Guaranteed Income Supplement, and Allowance are no longer payable during periods of incarceration. Section 5(3) of the OAS Act states the following:
Incarcerated persons
(3) No pension may be paid in respect of a period of incarceration—exclusive of the first month of that period—to a person who is subject to a sentence of imprisonment
- (a) that is to be served in a penitentiary by virtue of any Act of Parliament; or
- (b) that exceeds 90 days and is to be served in a prison, as defined in subsection 2(1) of the Prisons and Reformatories Act, if the government of the province in which the prison is located has entered into an agreement under section 41 of the Department of Employment and Social Development Act.
[4] The appeal was scheduled to be heard by teleconference for the following reasons:
- the issues under appeal are complex;
- there were gaps in the information on file or clarification was needed; and
- the form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness, and natural justice permit.
[5] Still, given that the Appellant did not show up on the scheduled date and time for the teleconference, the decision was made on the record. According to inquiries made, it appears that the Appellant would have received the notice of hearing. The notice of hearing was sent to him by priority post, and there was a signature confirming receipt of the notice. For this reason, in accordance with section 12(1) of the Social Security Tribunal Regulations (Regulations), the Tribunal is satisfied that the notice of hearing was received and decided to proceed in the Appellant’s absence.
Evidence
[6] The Appellant turned 65 in May 2016.
[7] The Respondent received the OAS pension application on August 11, 2015, and it was approved with benefits effective in June 2016.
[8] On May 5, 2016, the Appellant was informed that his OAS pension benefits would be suspended in June 2016, since on April 20, 2016, Correctional Services Canada had informed the Respondent that the Appellant was incarcerated.
[9] Based on the evidence on file, a document from Correctional Services Canada was sent to the Respondent indicating that the Appellant was incarcerated.
Submissions
[10] The Appellant submits that he is eligible for an OAS pension and that the provisions of the OAS Act concerning incarcerated persons are of no force or effect.
[11] The Respondent argued, in writing, that the Appellant is not eligible for an OAS pension because the evidence and legislation are clear. According to section 5(3) of the OAS Act, the OAS pension must be suspended because the Appellant is incarcerated.
Analysis
Preliminary matters—Constitutional challenge
[12] The Appellant raised constitutional questions on May 12, 2016, when he disputed the Respondent’s May 5, 2016, decision to suspend his OAS benefits because he was incarcerated.
[13] In an interlocutory decision (interlocutory decision) dated December 5, 2016, the Tribunal determined that the Appellant had met the necessary criteria to pursue a constitutional appeal under section 20(1)(a) of the Regulations. The interlocutory decision indicated that, if the requirements listed in the decision were not met, the appeal could be treated as a regular appeal, and the Appellant would not be allowed to raise the constitutional challenge.
[14] On December 19, 2016, the Appellant filed a notice of withdrawal of the constitutional challenge. Therefore, as the interlocutory decision indicated, the appeal was treated as a regular appeal.
[15] A letter was sent to the Appellant on January 3, 2017, informing him that a Tribunal member had examined his file and was considering summarily dismissing the appeal because, according to section 5(3) of the OAS Act, the OAS pension should be suspended because the Appellant was incarcerated. The letter also indicated that, if the Appellant believed that the appeal should not be summarily dismissed, he had to explain, in writing, why the appeal had a reasonable chance of success by January 27, 2017.
[16] On January 31, 2017, the Appellant filed a document in response to the January 3, 2017, letter and raised constitutional questions again.
[17] On May 10, 2017, the Appellant was informed that his appeal would not be summarily dismissed, and on May 15, 2017, he was sent a notice of hearing informing him that a teleconference had been scheduled for June 15, 2017. Unfortunately, the Appellant did not attend the hearing. The Tribunal finds that the Appellant could not raise constitutional questions again, as he requested in his January 31, 2017, letter, since he had filed a notice of withdrawal of the constitutional challenge on December 19, 2016, and that the appeal was to proceed as a regular appeal.
Appeal
[18] The evidence on file shows that the Appellant turned 65 in May 2016. He applied for an OAS pension, which was date stamped on August 11, 2015. His application was approved with benefits starting in June 2016.
[19] Then, the Appellant’s OAS benefits were suspended in June 2016 because, on April 20, 2016, Correctional Services Canada informed the Respondent that the Appellant was incarcerated.
[20] The Appellant was eligible to receive OAS benefits under section 3(1)(c) of the OAS Act. But, because the Appellant is incarcerated, section 5(3) of the OAS Act applies in the case, which states that no pension may be paid in respect of a period of incarceration—exclusive of the first month of that period—to a person who is subject to a sentence of imprisonment (a) that is to be served in a penitentiary by virtue of any Act of Parliament; or b) that exceeds 90 days and is to be served in a prison, as defined in subsection 2(1) of the Prisons and Reformatories Act, if the government of the province in which the prison is located has entered into an agreement under section 41 of the Department of Employment and Social Development Act.
[21] Therefore, based on the evidence on file and section 5(3) of the OAS Act, the Tribunal finds that the Appellant is not eligible for OAS benefits while he is incarcerated.
[22] As a statutory entity, the Tribunal has only the powers that the law gives it. The Tribunal interprets and applies the provisions as they are set out in the OAS Act.
Conclusion
[23] The appeal is dismissed.