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

Decision and reasons

Decision

[1] The appeal is allowed.

Overview

[2] C. D. (Appellant) has Canadian and French citizenship and frequently travels between Canada and France. Since July 2005, the Appellant has received a partial Old Age Security pension and the Guaranteed Income Supplement (GIS). To maintain his eligibility for the GIS, the Applicant had to maintain his Canadian residency, a concept defined in the Old Age Security Act.

[3] In August 2014, the Minister of Employment and Social Development (Minister) launched an investigation into the Appellant’s residency and finally found that the Appellant had established a mode of living in France as of January 2010. Consequently, the Minister claimed from the Appellant the sum of $41,583.08 for the GIS benefits he received for the period from August 2010 to September 2016.

[4] The Appellant appealed the reconsideration decision to the General Division, but it dismissed his appeal. The Appellant then requested leave to appeal the General Division decision, which I have already granted.

[5] According to its submissions, the Minister now agrees to the appeal being allowed and referred back to the General Division for reconsideration, including the holding of a hearing. I agree with the Minister’s submissions.

Preliminary matters

[6] I found that the appeal could be decided based on the documents and submissions on file given the following:

1. The Minister’s agreement;
2. The Tribunal’s obligation to proceed as informally and as quickly as the circumstances and the considerations of fairness and natural justice permit.^{Footnote 1}

Analysis

[7] The issue before the General Division was whether, since January 2010, the Applicant resided in Canada or France. To answer this question, the General Division had to assess numerous factors and decide to which country the Applicant’s ties were stronger. The Federal Court’s teachings indicate that determining a person’s residency requires an examination of the whole context of the individual under scrutiny.^{Footnote 2}

[8] In paragraph 17 of its decision, the General Division drew the following conclusion: [translation] “Based on the evidence after January 2010, other than his home in Québec that he frequently rents, the Applicant has no other property or ties in Canada ....” There is ample relevant evidence in the file that contradicts this conclusion, but the General Division never referred to it.^{Footnote 3}

[9] I therefore agree with the Minister’s submissions that the General Division made a decision without regard for the material before it. What is more, I am satisfied that the error the General Division made meets the requirements of section 58(1)(c) of the Department of Employment and Social Development Act (DESD Act), which authorizes my intervention in this case.

[10] The Minister also admits that this matter is complex and that it includes largely factual issues as well as a claim for a sizeable amount. The Minister acknowledges that the General Division failed to observe a principle of natural justice by deciding to proceed on the record, specifically without any form of hearing.

[11] I recognize that the General Division failed to observe the principles of natural justice in this case under section 58(1)(a) of the DESD Act. Furthermore, I note that the General Division did not provide reasons for its decision to proceed on the record.

[12] Finally, for the reasons set out by the Minister, I agree with the remedy it proposed: the matter must be referred back to the General Division for reconsideration and a hearing.^{Footnote 4}

[13] To avoid any confusion, I am not stating that the Appellant’s GIS must be restored. The General Division may dismiss the appeal a second time, but it must do so while respecting the principles of natural justice and by considering the relevant evidence in the appeal file.

Conclusion

[14] The appeal is allowed. The matter is referred back to the General Division for reconsideration. The reconsideration must proceed by a hearing. To avoid any potential apprehension of bias, the matter should be assigned to a different General Division member.