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

Decision and Reasons

Decision

[1] The appeal is dismissed.

Introduction

[2] The Appellant is a Canadian citizen who worked in Canada, Australia and Chile. He applied for an Old Age Security (OAS) pension in November 2010. The Respondent refused the application because the Appellant did not meet the residence requirements under the legislation. The Appellant appealed this decision to the Social Security Tribunal of Canada. The Tribunal’s General Division dismissed the appeal on May 6, 2016. The Appellant requested an extension of time to request leave to appeal as well as leave to appeal the decision to the Tribunal’s Appeal Division, and relief was granted on July 4, 2017.

Preliminary matter

[3] This appeal was decided on the basis of the documents filed with the Tribunal after considering the following:

1. The facts were not in dispute;
2. The only issue to be resolved is the application of the law to the facts; and
3. The Social Security Tribunal Regulations^{Footnote 1} require that appeals be resolved as quickly as the circumstances and considerations of fairness and natural justice permit.

Analysis

[4] The only grounds of appeal available under the Department of Employment and Social Development Act (DESD Act) are that the General Division failed to observe a principle 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.^{Footnote 2}

[5] The ground of appeal advanced by the Appellant is that the General Division erred when it concluded that his working life residence in Australia could not be used as periods of residence in Canada to help him qualify for the pension. I must decide whether the General Division erred in this regard.

[6] The relevant facts are not disputed. The Appellant’s residence is set out below:

[7] It is also clear that, under the Old Age Security Act (OAS Act), the Appellant must have 20 years of residence in Canada after the age of 18 and prior to his application for the pension being approved to receive an OAS pension.^{Footnote 3}

[8] The Appellant does not have 20 years of residence in Canada. His residence in all three countries must be totalized (added together) to meet the 20-year residence requirement under the OAS Act.

[9] Canada has entered into a treaty with Chile that provides for the totalization of periods of residence in that country and Canada for determining residence for OAS pensions. Canada also entered a treaty with similar provisions with Australia.

[10] Article XII of the Agreement on Social Security between the Government of Canada and the Government of the Republic of Chile^{Footnote 4} provides for the totalization of creditable periods under the legislation of both countries.

[11] Article 9 of the Agreement on Social Security between the Government of Canada and the Government of Australia^{Footnote 5} provides for the totalization of creditable periods under the legislation of these two countries.

[12] The General Division decision acknowledged that the Appellant resided in Canada, Australia and Chile. It considered his total periods of residence in Canada and Chile and concluded that they did not total 20 years of residence in Canada. The General Division did not include any Australian residence, which the Appellant says was an error.

[13] However, while the treaty between Canada and Chile permits totalization of residence for these countries, it does not provide for the totalization of residence in a third country such as Australia to meet the residence requirements. Similarly, the treaty between Canada and Australia does not provide for totalization of residence in a third country. Canada could have negotiated treaty terms that specifically provide for totalization of residence in a third country,^{Footnote 6} but it did not. The Tribunal must give meaning to the wording of the treaties.^{Footnote 7} The Tribunal has no authority to “read in” a provision to either treaty that would allow for the totalization of residence in three countries so that the Appellant can qualify for OAS benefits.

[14] Paragraph 18 of the General Division decision states, “Investigations into the agreements with Australia and Chile combined with his Canadian residency also did not meet the 20 years required.” I am therefore satisfied that the General Division turned its mind to the impact of Canada’s treaties with both Chile and Australia and correctly concluded that the Appellant did not have sufficient Canadian residence to receive an OAS pension. It made no error in not including the Appellant’s residence in Australia in reaching its decision. The decision is intelligible, logical and defensible on the law and the facts.

[15] The appeal must therefore be dismissed.