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

Decision

[1] I. B. is the Claimant in this case. I am allowing his appeal in part.

[2] The Minister of Employment and Social Development (Minister) and the Tribunal’s General Division have already recognized that the Claimant resided in Canada for 20 years, 6 months, and 12 days.^{Footnote 1} In addition, I find that he resided in Canada from May 1, 1992, to September 30, 2003.

Overview

[3] The Claimant applied for his Old Age Security (OAS) pension in 2018. The Minister approved his application and agreed to pay him a partial pension.

[4] The amount of the Claimant’s OAS pension depends on the number of years he resided in Canada after turning 18.^{Footnote 2}

[5] The Minister decided that the Claimant had resided in Canada for 19 years, 2 months, and 12 days. So, the Minister agreed to pay the Claimant a partial OAS pension calculated at 19/40ths of the value of a full pension.

[6] According to the Minister, the Claimant did not reside in Canada after August 31, 1990. That is when the Claimant moved to the United States (US) to start a doctoral degree. After graduating in 2000, the Claimant completed two postdoctoral programs in the US. In 2008, he found steadier employment in the US. And, in 2015, he got his American “green card”.

[7] The Claimant says that his professional talents, combined with discrimination within the Canadian musical establishment, pushed him towards the US for his training and career. He describes experiencing an “inevitable gravitational pull away from Canada” due to factors beyond his control.^{Footnote 3}

[8] Still, the Claimant remains proudly Canadian. He says that he represents Canada abroad when sharing his many gifts as a musician and musicologist.

[9] The Claimant appealed the Minister’s decision to the Tribunal’s General Division and asked it to award him a larger OAS pension. The Claimant based many of his arguments on his contributions to Canadian culture and on the injustices he has faced because of his faith, language, and culture.

[10] The General Division ruled in the Claimant’s favour, giving him an additional 16 months of residence in Canada. So, the Claimant’s partial OAS pension grew to 20/40ths of the value of a full pension.

[11] The Claimant is now appealing the General Division decision to the Tribunal’s Appeal Division. He argues that the General Division member was biased against him and that he should be awarded a full OAS pension.

[12] I am allowing the Claimant’s appeal in part. The General Division provided the Claimant with a fair hearing. However, the General Division made legal and jurisdictional errors in this case. As a result, I am giving the decision the General Division should have given.

[13] Beyond the periods of residence that the Minister and General Division have already recognized, I find that the Claimant also resided in Canada from May 1, 1992, to September 30, 2003.

Issues

[14] My decision focuses on the following issues:^{Footnote 4}

1. Can I consider the Claimant’s new evidence?
2. Was the Claimant denied a fair hearing because the General Division member’s questions showed that he was biased?
3. Did the General Division make errors of law and jurisdiction by failing to consider whether “attending a school or university” includes the Claimant’s postdoctoral programs?
4. If the General Division made any errors, how should I fix them?

Analysis

[15] I can intervene in this case only if the General Division made a relevant error. So, I have to consider whether the General Division:^{Footnote 5}

• acted unfairly;
• failed to decide an issue that it should have decided, or decided an issue that it should not have decided;
• misinterpreted or misapplied the law; or
• based its decision on an important mistake about the facts of the case.

I cannot consider the Claimant’s new evidence

[16] New evidence is evidence that the General Division did not have in front of it when it made its decision.

[17] I cannot normally consider new evidence because of the Appeal Division’s limited role.^{Footnote 6} The law says that I must focus on whether the General Division made any of the relevant errors listed above. I cannot take a fresh look at the case and come to my own conclusions based on new and updated evidence.

[18] There are exceptions to the general rule against considering new evidence.^{Footnote 7} For example, I can consider new evidence that provides general background information only or that describes how the General Division might have acted unfairly.

[19] As part of his appeal, the Claimant filed a lot of new evidence, mostly about his research and musical talents.^{Footnote 8} None of this evidence falls within an exception to the general rule against considering new evidence, so I did not consider it.

The Claimant had a fair hearing

[20] The General Division needed to decide when the Claimant resided in Canada. In other words, when did the Claimant make his home and ordinarily live in Canada?^{Footnote 9}

[21] As part of this assessment, the General Division considered the relative strength of the Claimant’s ties to Canada and the US using the factors from a decision called Ding (Ding factors).^{Footnote 10}

[22] The recording of the General Division hearing makes clear that the member was canvassing the Ding factors with the Claimant. But, the Claimant says that the member crossed a line by asking this question toward the end of the hearing:^{Footnote 11}

And, lastly, I saw a reference letter from your Rabbi in Brookline, and he wrote that you had been a member since 1990. Have you belonged to any other religious, community, cultural, social, or political organizations since 1990?

[23] The Claimant answered the question without hesitation. The General Division member then followed up by asking whether there were any other organizations that the Claimant wanted to add to his answer.

[24] The Claimant now describes the General Division member’s questions in the following ways:

• “[H]ighly personal and private matters questioning the fervency of my religious practice and political advocacy were questioned”^{Footnote 12}
• an “egregious intrusion into my spiritual life and political orientations”^{Footnote 13}
• “highly inappropriate, and perhaps even illegal”^{Footnote 14}
• “Such egregious misconduct raises, at the very least, the appearance of overt, if not actual racial/religious discrimination, which is the very foundation of the Appeal I have launched.”^{Footnote 15}

[25] The Claimant says that he was “stunned to stupefaction by the questions” but that he answered them “under the pressures of the circumstances.”^{Footnote 16}

[26] The Claimant alleges that the General Division member’s questions showed bias, or at least a perception of bias, and that he lost his right to a fair hearing.^{Footnote 17} In other words, the Claimant is concerned that the member treated him unfairly because of his Jewish faith.^{Footnote 18}

[27] I disagree with the Claimant’s arguments on this point.

[28] I cannot conclude that the General Division member’s questions would lead an informed person, viewing the matter realistically and practically, to conclude that he did not decide this case fairly.^{Footnote 19}

[29] When looking into the Ding factors, the Tribunal sometimes ends up discussing personal or private subjects. For example, one of the Ding factors is about a person’s social ties: Did the person participate in any religious, cultural, political, social, or professional organizations?

[30] As a result, the General Division member’s questions were relevant to the issues he needed to decide. In fact, the Claimant had emphasized his religious and cultural affiliations throughout his case. He also provided a letter of support from his Rabbi.^{Footnote 20}

[31] The General Division member also asked his questions appropriately and respectfully. The member did not probe for details about the Claimant’s exact faith or political leanings. And, at the end of the hearing, the General Division member asked the Claimant whether he had anything more to add. The Claimant responded by saying: “I think you have posed very good questions, and I thank you for having allowed me to express myself as I did ….”^{Footnote 21}

[32] Regardless of the denomination, the Claimant’s membership in an American religious community since 1990 is relevant to one of the Ding factors. Notably, the Claimant did not mention being part of any similar community in Canada. Put simply, this is one way in which the Claimant’s ties to the US are stronger than his ties to Canada.

The General Division made legal and jurisdictional errors by not considering the Claimant’s postdoctoral programs

[33] Apart from the Ding factors, the Claimant might be able to rely on the so-called University Provision to help establish his residence in Canada after August 1990.^{Footnote 22}

[34] The University Provision is designed to protect Canadian residents from losing their residence in Canada when studying abroad. It says this:

21 (4) Any interval of absence from Canada of a person resident in Canada that is (a) […] (b) for the purpose of attending a school or university (c) […] shall be deemed not to have interrupted that person’s residence or presence in Canada.

21 (4) Lorsqu’une personne qui réside au Canada s’absente du Canada et que son absence a) […] b) a pour motif la fréquentation d’une école ou d’une université c) […] cette absence est réputée n’avoir pas interrompu la résidence ou la présence de cette personne au Canada.

[35] In this case, the Claimant studied for a Doctor of Musical Arts from Boston University (BU). He started the program in September 1990 and graduated in January 2000. He then did two postdoctoral programs:

• From 2000 to 2003, he completed an Optional Practical Training program at BU.
• From 2002 to 2008, he did postgraduate work at Harvard.

[36] When assessing the Claimant’s residence in Canada, the General Division never considered whether the University Provision might apply to the Claimant’s postdoctoral programs. This was an error of law. Viewed from a different angle, this was a jurisdictional error: The General Division failed to decide an issue that it needed to decide.

[37] The Minister argued that the General Division did not have to consider whether the Claimant’s postdoctoral programs might fall under the University Provision for the following reasons:

• The Claimant did not specifically ask the General Division to decide this issue.
• A doctorate is the highest academic degree. Rather than studying, the Claimant said that he worked full time on writing a book and getting it published.
• The Claimant’s postdoctoral programs were more like a paid internship or professional development opportunity.

[38] I disagree.

[39] Critically, the Claimant did ask the General Division to decide this issue, and it made an error by ignoring it.^{Footnote 23} The following parts of the General Division’s record support my conclusion:

• In one of his earlier submissions to the General Division, the Claimant argued that his residence in Canada should continue at least until 2008, when his postdoctoral studies ended.^{Footnote 24}
• The Minister’s written submissions to the General Division set out the University Provision and described how the Minister had applied it to the Claimant’s studies in the 1970s.^{Footnote 25}
• The Claimant then replied that he had studied in the US from 1990 to 2013. He provided supporting documents and asked the General Division to count these years toward the amount of his OAS pension.^{Footnote 26}
• In response, the Minister seemed to accept that the Claimant had studied in the US from 1990 to 2013. However, it maintained that the Claimant could not take advantage of the University Provision, since he did not return to live permanently in Canada after the end of his studies.^{Footnote 27}
• The Claimant responded again, writing: “Please view my years away from Canada from 1990 until 2013 in the same light as my undergraduate years, as temporary, and for study purposes, exclusively.”^{Footnote 28}
• Indeed, the Minister seemed to recognize that some of the Claimant’s years in the US might fall within the University Provision.^{Footnote 29}

[40] The supporting documents the Claimant provided on this issue included temporary US visas showing the Claimant as a student, along with his BU transcripts showing that he took courses in the fall of 2000, 2001, and 2002.^{Footnote 30}

[41] In other words, the facts and arguments in front of the General Division meant that it had to decide whether, after completing his doctorate, the Claimant remained absent from Canada for the purpose of attending university.

[42] The General Division made errors of law and jurisdiction by determining the Claimant’s residence in Canada without considering this issue.

[43] Perhaps the General Division thought that it could avoid this issue based on its finding that the University Provision applies only to people who re‑establish their Canadian residence immediately after attending school or university.

[44] However, this conclusion is based on another error of law.

[45] The Claimant provided a student visa associated with his Optional Practical Training at BU. The visa ended on June 18, 2003. Plus, the General Division found that the Claimant re-established his Canadian residence on October 1, 2003.^{Footnote 31}

[46] This raises an important—yet unanswered—question about what the General Division meant when it said that the Claimant needed to return to Canada immediately after his studies. Apparently, the Claimant’s three-and-a-half-month delay was not quick enough for the General Division. Did the Claimant need to return to Canada within a day, a week, or a month of finishing his studies?

[47] Throughout these proceedings, the Minister has argued that a person can take advantage of the University Provision only if they reside in Canada before and after attending school or university abroad. However, the Minister has never argued that a person must return to Canada immediately after their studies.

[48] On the contrary, the Minister conceded at the hearing before me that the Claimant could benefit from the University Provision if he had attended university in the US until June 2013 and re-established his Canadian residence a few months later, in October.

[49] The provisions surrounding the University Provision refer to temporary absences of less than a year and to an obligation to return to Canada within six months.^{Footnote 32} The University Provision has no similar timing requirement, yet the General Division interpreted it even more restrictively: To take advantage of the University Provision, former students must return to Canada immediately.

[50] The General Division did not explain why it was interpreting the University Provision to include this timing requirement. It did not explain what it meant by “immediately” either. The General Division made another error of law by interpreting the University Provision in this way.

I will fix the General Division’s errors by giving the decision it should have given

[51] As long as the Claimant had received a fair hearing, the parties agreed that I should give the decision the General Division should have given.^{Footnote 33}

[52] I agree. The Claimant was given every opportunity to present his case at the General Division level.

[53] This means that I can decide when the Claimant resided in Canada for the purpose of calculating the amount of his OAS pension.

The Claimant resided in Canada from May 1, 1992, to September 30, 2003

[54] The General Division was deciding this issue: Did the Claimant reside in Canada at any time after August 31, 1990?

[55] The parties agree that the Claimant was absent from Canada to attend university in the US from September 1990 to January 2000. During this time, the Claimant earned his doctorate from BU.

[56] In addition, I find that the Claimant was absent from Canada to attend university in the US from January 2000 to June 2003. During this time, the Claimant completed an Optional Practical Training program at BU.

[57] I reached this conclusion for the following reasons:

• The University Provision uses broad language—“for the purpose of attending a school or university”—and I should interpret it generously.^{Footnote 34}
• The Claimant’s BU transcripts show that he continued taking courses during this time.^{Footnote 35}
• The Claimant was in the US on temporary (J-1) visitor visas sponsored by BU, where he had just finished his doctorate. While the Claimant’s program was available to foreign students, professors, research scholars, and short‑term scholars, the US admitted him as a student, with a permanent address in Canada.^{Footnote 36}

[58] I cannot accept the Minister’s arguments that the Claimant’s years spent at BU before earning his doctorate were significantly different from the years spent doing his Optional Practical Training program.

[59] All of the time the Claimant spent at BU was in hopes of starting a new career as a researcher and academic. Plus, the University Provision is not restricted to people who are attending university to earn a degree.

[60] The General Division also found that the Claimant resided in Canada from October 1, 2003, to May 31, 2004.^{Footnote 37} During this time, the Claimant supported his mother while she was fighting cancer, and he intensified his attempts to find work in Canada. The Minister now accepts that the Claimant resided in Canada during this time.

[61] At the Appeal Division hearing, the Minister also accepted that, if I found the facts above to be true, then the Claimant could rely on the University Provision.

[62] So, beyond the periods of Canadian residence that the General Division has already recognized, I find that the Claimant also resided in Canada from May 1, 1992, to September 30, 2003. In other words, the Claimant resided in Canada while he was doing his doctoral studies and Optional Practical Training at BU.

The Claimant did not reside in Canada after May 31, 2004

[63] The Claimant also did postdoctoral work at Harvard from 2002 to 2008. He argues that this postdoctoral program should be treated the same as his Optional Practical Training at BU.

[64] I disagree.

[65] While the Claimant provided proof of the student visas he obtained and of the courses he took between 2000 and 2003, there are no similar documents covering his postdoctoral program at Harvard. So, I cannot say whether he was attending Harvard or working there. I cannot confirm whether he was taking courses during this time, or what the nature of his immigration status was.

[66] I acknowledge that there is evidence that the Claimant continued to register for courses at BU beyond 2003.^{Footnote 38} However, he withdrew from all his courses between 2004 and 2008.^{Footnote 39}

[67] In the circumstances, I am not persuaded that, beyond May 31, 2004, the Claimant was absent from Canada for the purpose of attending either Harvard or BU.

[68] Given this finding, I do not need to decide whether the University Provision applies only to people who re-establish their residence in Canada after their studies.

I cannot increase the amount of the Claimant’s OAS pension based on his moral and ethical claims

[69] The Claimant argues that there are moral and ethical reasons why I should award him a full OAS pension.^{Footnote 40}

[70] I am sympathetic to the Claimant’s circumstances. I acknowledge the many challenges he has faced throughout his life and career. I do not want to minimize or cast doubt on his experiences.

[71] But, however cold and mathematical it may seem, the law calculates OAS pension amounts based just on a person’s years of residence in Canada. No matter how much I might like to do so, I cannot bend the law and award the Claimant a larger pension based on his ongoing contributions to Canada, even while living permanently in the US. Similarly, I cannot compensate him for the injustices he has faced in Canada because of his culture, faith, or language.

What is the amount of the Claimant’s OAS pension?

[72] The Minister will recalculate the amount of the Claimant’s OAS pension based on the following periods of residence in Canada:

• June 4, 1969, to August 31, 1981
• September 16, 1983, to May 31, 2004

[73] Because the Claimant contributed to the US social security program, there are periods when the Claimant is considered to have resided in Canada and the US at the same time. However, the law does not allow periods of duplicate coverage.^{Footnote 41} So, when calculating the amount of the Claimant’s OAS pension, the Minister is entitled to reduce the Claimant’s residence in Canada by the number of months in which he contributed to the US social security program.^{Footnote 42}

Conclusion

[74] I am allowing the Claimant’s appeal in part. The General Division made errors of law and jurisdiction by determining the Claimant’s residence in Canada without considering whether the Claimant’s postdoctoral programs fell within the University Provision.

[75] In the circumstances, I decided to give the decision the General Division should have given. Beyond the periods of residence in Canada that were already recognized, the Claimant also resided in Canada from May 1, 1992, to September 30, 2003. The Minister will recalculate the amount of the Claimant’s OAS pension taking this additional period of Canadian residence into account.