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

Decision and Reasons

Decision

[1] Leave to appeal is granted

Overview

[2] The deceased, A. C., applied for an Old Age Security (OAS) pension on October 9, 2013. However, his application was refused by the Respondent, the Minister of Employment and Social Development (Minister), initially and on reconsideration. In the Minister’s view, the deceased did not meet the minimum residence requirement for a partial OAS pension.

[3] The deceased appealed the reconsideration decision to the General Division. Unfortunately he passed away in July 2015. The General Division dismissed the appeal in January 2018 after a teleconference hearing followed by written submissions.

[4] Before the case can move forward, the Applicant (the estate) must have leave to appeal the General Division decision. Leave is granted for the reasons set out below.

Issue

[5] Is there an arguable case that the General Division made a material error with regard to the facts in dismissing the deceased’s appeal?

Analysis

The Tribunal’s legal framework

[6] At the Appeal Division, the emphasis is on determining whether the General Division committed at least one of the three errors (or grounds of appeal) set out in s. 58(1) of the Department of Employment and Social Development Act (DESD Act). Generally, did the General Division make one of the following errors:

1. a) failed to observe a principle of natural justice or otherwise erred in jurisdiction;
2. b) erred in law; or
3. c) 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?

[7] Most appeals to the Appeal Division must take place in two stages: the leave to appeal stage and the hearing on the merits stage. This appeal is currently at the leave to appeal stage, which means that the Tribunal must grant permission for the appeal to continue. This preliminary step is intended to filter out appeals with no reasonable chance of success.^{Footnote 1} At this point, applicants have a minimal legal test to meet: is there any arguable ground on which the appeal might succeed?^{Footnote 2}

Is there an arguable case that the General Division made a material error with regard to the facts in dismissing the deceased's appeal?

[8] In support of its application, the Applicant states that numerous pieces of evidence submitted to the General Division should have been interpreted in its favour. It argues that the General Division did not interpret the facts objectively or based on a factual cultural background.

[9] The General Division is authorized to give precedence to certain evidence over other evidence. It is not the Appeal Division’s role to reassess or reweigh the evidence to reach a different conclusion.^{Footnote 3} However, the General Division can err if it does not fulfill its obligation to perform a meaningful analysis of the evidence or explain how it chose between two contradictory pieces of evidence.^{Footnote 4}

[10] The following findings are noted in the General Division decision:

1. At paragraph 19: [translation] “Based on the evidence, it is very clear [that the deceased had] no property or connections other than his son in Canada...;”
2. At paragraph 20: [translation] “... there is no evidence enabling the Tribunal to determine, based on the criteria set out in case law and applicable legislation, that the [deceased] had lived in Canada since his arrival in May 2001.”

[11] However, it is possible that the following could constitute connections with Canada:^{Footnote 5}

1. From 2002 on, the deceased spent most of his time in Canada, and he did not return to Morocco after February 2013;
2. He filed his income tax returns in Canada regularly;
3. He was registered for Quebec’s health insurance plan and received a number of medical services in Quebec;
4. He had a bank account in Quebec;
5. He exercised his right to vote in Canada;
6. He had been a cellular telephone service subscriber since 2002.

[12] Furthermore, the Applicant maintains that the connections the deceased maintained with Morocco were explained. For example:

1. The deceased had three daughters still living in Morocco, and they are single and have no income;
2. Familial assistance is part of Moroccan culture;
3. The health insurance he had in Morocco is one of the benefits he was entitled to as a retired police officer.

[13] Since this evidence could contradict the General Division’s findings mentioned above and could constitute important evidence the General Division overlooked in its analysis, I find that the Applicant has raised an arguable ground on which the appeal might succeed under s. 58(1)(c) of the DESD Act.

Next stage: Assessment on the merits

[14] Although I have noted that there is an arguable ground on which the appeal might succeed, this decision does not presume the result at the second stage of this process, the assessment on the merits.

[15] At the second stage, the Applicant must establish that it is more likely than not that the General Division made at least one of the errors stated in s. 58(1) of the DESD Act. This second hurdle is higher than the one the Applicant has just met.

[16] Since leave is granted, the parties now have an opportunity to file submission on the merits of the appeal. The parties are invited to address the following points in their submissions:

1. Of the remedies offered in s. 59(1) of the DESD Act, which is the most appropriate based on the facts of this case?
2. Should the Appeal Division schedule a hearing at the second stage of this process? For example, the Tribunal could conduct a hearing by teleconference, by videoconference, or in person.

Conclusion

[17] The application for leave to appeal is granted.