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

Reasons and decision

Decision

[1] The appeal is allowed and the matter is referred back to the General Division for reconsideration.

Introduction

[2] The Appellant was born in Vietnam. He immigrated to Canada in 1979. In September 2010, the Office of the Public Guardian and Trustee became his guardian for property because the Appellant was mentally ill. The Appellant first applied for an Old Age Security (OAS) pension in April 2011. In this application, he stated that he also wished to receive a Guaranteed Income Supplement (GIS). The application was dismissed for lack of evidence regarding his residence in Canada. In August 2012, the Appellant applied again for an OAS pension. This application was granted. The Appellant applied again for a GIS in May 2014, which was also granted. The Appellant disagreed with the date that the GIS began to be paid. He appealed the decision regarding the start date of the GIS payment to the Tribunal. On December 22, 2016, the Tribunal’s General Division summarily dismissed his appeal. The General Division erred in law in making this decision, so the appeal is allowed.

Legal test

[3] The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operations. The only grounds of appeal that I can consider are set out in subsection 58(1) of the DESD Act, namely, that the General Division failed to observe the principles of natural justice or made a jurisdictional error, made an error of law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

[4] I must therefore decide whether the General Division erred under subsection 58(1) of the DESD Act by summarily dismissing the appeal.

Analysis

[5] The facts in this matter are not in dispute. The Appellant first applied for an OAS pension in April 2011 and stated that he also wanted to receive a GIS. This application was refused by the Respondent because the Appellant did not provide sufficient information regarding his Canadian residence.

[6] The Appellant applied again for an OAS pension in 2012, and it was granted. The Appellant again indicated that he wished to apply for a GIS on this application form. The actual GIS application was not completed and sent to the Respondent until 2014. The Respondent granted the GIS benefit to the Appellant, with payment to begin 11 months prior to the month the application was received (pursuant to paragraph 11(7)(a) of the OAS Act, no benefit can be paid more than 11 months retroactive to the date of application).

[7] Later, the Respondent discovered that an administrative error had occurred in the handling of this matter and awarded the GIS starting in March 2012.

[8] The Appellant argues that because of his unique circumstances, that his property is managed by the Office of the Public Guardian and Trustee, who had to obtain documents from third parties, his application for GIS should be deemed to have been received when he first applied for the OAS pension. He argues further that the Respondent violated the principles of the Human Rights Act by not accommodating his mental disability to allow for further time to provide the necessary information for the 2011 application to be processed.

Summary dismissal

[9] The first issue to be decided is whether the General Division erred when it summarily dismissed the appeal. Section 53 of the DESD Act states that the General Division must summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success. Based on the wording of subsection 11(7) of the OAS Act, the General Division concluded that the Respondent had granted the Appellant the greatest retroactivity it could.

[10] However, section 28.1 of the OAS Act provides an exception to this. It provides that where an application for a benefit is made and the Respondent is satisfied that the person was incapable of forming or expressing an intention to make the application on the date the application was made, the application may be deemed to be made in the month preceding the first month that the benefit could have been commenced to be paid. This provision is relevant in this case.

[11] The Appellant did not file a declaration of incapacity form (which is not required in every case), and did not specifically make written arguments about his mental illness or that he was incapable of forming or expressing an intention to apply for the GIS benefit. However, the fact that the Appellant has been found to be unable to manage his property, and the Office of the Public Guardian and Trustee has had sole authority to do this since 2010, clearly identifies the issue of whether the Appellant was capable of forming or expressing an intention to make the GIS application.

[12] The General Division did not inquire about this issue. While I acknowledge that parties to a legal proceeding have an obligation to present their case and to identify the legal issues to the General Division, in this case, as the decision maker, the Tribunal should have given the parties an opportunity to address the obvious issue of the Appellant’s capacity to form or express an intention to apply for the GIS. The General Division erred when it summarily dismissed the appeal without considering this issue or giving the parties the opportunity to address it. This was an error in law. Since no deference is owed to the General Division when an error in law is made (see Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93), the appeal must be allowed.

Human rights arguments

The Appellant’s representative also made arguments to support the appeal based on the Human Rights Act. I need not consider them as I have decided that the appeal should be allowed for other reasons.

Remedy

[13] Subsection 59(1) of the DESD Act sets out the remedies that the Appeal Division can give. This matter is referred back to the General Division for reconsideration as evidence will have to be received and weighed for a decision to be made.

Appearances

Crystal Liu: Student-at-law for the Appellant