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

Decision

[1] The appeal is allowed.

[2] The Claimant, E. V., is eligible for a 14/40^ths partial Old Age Security (“OAS”) pension. Payments start as of February 2021. This decision explains why I am allowing the appeal. This decision also explains why the Claimant’s Charter claim has been dismissed and why he is not entitled to legal costs.

Overview

[3] This matter has a complex history, although little remains in dispute.

[4] The Claimant was born in Germany in 1950. He lived there for many years. He also had periods of residence in Switzerland and the United States. He entered Canada in January 2007. He applied for an OAS pension on January 20, 2015 (the “2015 OAS Application”), shortly before his 65th birthday.^{Footnote 1} At that time, he had been in Canada as a Permanent Resident since January 2007.^{Footnote 2}

[5] However, the Claimant contributed to Germany’s pension scheme from January 1, 2007, to October 31, 2015.^{Footnote 3} Because of this, the Minister maintained that the Claimant was not resident in Canada until November 1, 2015. The Minister’s December 2017 reconsideration decision said the 2015 OAS Application was only valid until January 2016. This meant that he had only 92 days of Canadian residence by his application date. As this was less than one year of Canadian residency, the Minister continued to deny the Claimant’s application.^{Footnote 4}

[6] The Minister based its position on its interpretation of the “Agreement between the Government of Canada and the Government of the Federal Republic of Germany on Social Security” (the “Canada-Germany Agreement”). The Claimant interpreted the Canada-Germany Agreement differently, and appealed the matter to the Tribunal. The Claimant argued that he had also been resident in Canada from January 23, 2007, to October 31, 2015.^{Footnote 5} This was on top of the Canadian residency granted by the Minister.

[7] A Tribunal hearing was held on June 13, 2019. However, at that hearing, the Claimant said he wanted to raise a challenge under the Canadian Charter of Rights and Freedoms (the “Charter”). As a result, this matter was reassigned to a second Tribunal member. The matter also entered the Tribunal’s more complex Charter appeal stream.

[8] In the meantime, the Minister began paying the Claimant a 4/40^ths OAS pension in November 2019. This appears to reflect residence in Canada since November 1, 2015, but not before. As a result, the issues raised by the Claimant remained alive. 

[9] The second Tribunal member tried to facilitate a resolution of the appeal. On February 3, 2021, the Minister and the Claimant agreed that the Claimant had established residence in Canada from January 2007 to January 2021: this created a 14/40^ths OAS pension entitlement starting in February 2021.^{Footnote 6} This was consistent with the position taken by the Claimant from the start.

[10] Despite appearing to resolve the appeal, the parties did not file Minutes of Settlement with the Tribunal. The Claimant still wanted a ruling from the Tribunal on two issues: an actual finding about the Charter issue involving the Canada-Germany Agreement, and an award of costs. He wanted the Charter ruling “for the benefit of all Canadians”. He also wanted compensatory costs of $26,713.20, representing his legal costs up to January 11, 2021. These costs were set out in an itemized invoice filed with the Minister, reflecting the time spent on the appeal by Professor Macklem (an expert in constitutional law).^{Footnote 7}

[11] The Minister resisted these two issues and filed a “Motion to Dismiss” on March 1, 2021. The Minister said the Charter challenge was moot because the Minister had accepted the Claimant’s position on residency. The Minister also said the Claimant lacked standing to advance a Charter argument on behalf of all other senior citizens to whom the Canada-Germany Agreement applied. Finally, the Minister denied that the Tribunal had the authority to award legal costs.^{Footnote 8}

[12] The matter was then reassigned to me, as the second Tribunal member had conducted settlement discussions between the parties. I asked the Minister to clarify the March 2021 Motion, as it suggested that I dismiss the entire appeal. In my view, a complete dismissal was not appropriate: the residency issue was resolved entirely in the Claimant’s favour.^{Footnote 9} The Minister then clarified that it only sought a dismissal of the Notice of Constitutional Question, and asked the Tribunal to render a decision based on the agreement signed by the parties.^{Footnote 10}

[13] I then asked the Claimant for submissions on the issue of costs. I also asked him if the Tribunal should still make a formal finding about the Charter claim.^{Footnote 11} The Claimant focused almost completely on the costs issue. He filed extensive submissions on the correctness of his position on the Canada-Germany Agreement, suggesting that he had unnecessary expenses because of errors by the Minister and its legal advisors. He felt that this entitled him to reimbursement for the time spent by Professor Macklem. However, the Claimant also said he no longer wished to pursue his Charter claim.^{Footnote 12}

[14] The parties agree on (or no longer wish to pursue) all but one of the issues raised in this appeal. The sole remaining dispute is the issue of costs. I received written submissions from both parties on this issue. Accordingly, it is not necessary to convene a further hearing. I have elected to proceed with a decision “on the record.”

What the Claimant must prove

[15] For the Claimant to succeed, he must prove he had sufficient periods of residence in Canada to qualify for an OAS pension. Given the unique circumstances of this appeal, I will also be making decisions on the Claimant’s Charter claim and the issue of costs.

Reasons for my decision

[16] I must address three questions in this appeal:

1. Has the Claimant been resident in Canada since January 2007?
2. What is the status of the Charter issue raised by the Claimant?
3. Is the Claimant entitled to reimbursement of any legal costs in this matter?

Has the Claimant been resident in Canada since January 2007?

[17] For the purposes of establishing OAS pension eligibility and entitlement, I find that the Claimant was resident in Canada from January 2007 to January 2021. This finding is supported by both an agreement between the parties and the evidence previously filed.

[18] On February 2, 2021, the Minister sent the Claimant’s Representative a letter about the resolution of the substantive issue in this appeal: the Claimant’s OAS pension entitlement. The letter confirms that the Claimant would begin receiving a 14/40^ths OAS pension effective February 2021. The letter also references a January 2021 e-mail from the Claimant’s Representative stating that the Claimant would like to receive an OAS pension on that basis. The Claimant then signed the Minister’s February 2, 2021, letter, establishing the Claimant’s agreement with the resolution and how it would affect the previous (4/40^ths) OAS pension paid to him since November 2019.^{Footnote 13}

[19] The Minister’s April 30, 2021, letter to the Tribunal further affirms the acceptance of the Claimant’s Canadian residency from January 2007 to January 2021.^{Footnote 14} I invited the Claimant to make submissions on the documents filed by the Minister^{Footnote 15} , but the Claimant did not dispute the period of residency. In fact, he affirmed his residence in Canada since January 2007.^{Footnote 16}

[20] Other evidence also supports the Claimant’s Canadian residence from January 2007 to at least January 2021. For example, he clearly entered Canada and became a permanent resident on January 23, 2007.^{Footnote 17} When he applied for the OAS pension in 2015, he affirmed his 2007 entry date. He also said that he was now a Canadian citizen living in Canada.^{Footnote 18} He later confirmed he had lived in Toronto continuously since January 23, 2007.^{Footnote 19} He also gave the name of an unrelated person who could confirm his periods of Canadian residency.^{Footnote 20}

What is the status of the Charter issue raised by the Claimant?

[21] In March 2021, the Minister made extensive submissions to support its request for a dismissal of the appeal.^{Footnote 21} The Minister later clarified that its dismissal request was just for the Notice of Constitutional Question.^{Footnote 22} The Minister’s argued that the Charter aspect of the appeal was now moot, as the Minister had granted Canadian residency for the periods in dispute. In the alternative, the Minister submitted that the Claimant had no standing to advance a Charter argument on behalf of other senior citizens impacted by the Canada-Germany Agreement.^{Footnote 23}

[22] In response to these submissions, the Claimant said that he no longer intended to pursue his Charter argument.^{Footnote 24} His responding submissions otherwise focused on the recovery of his legal costs.

[23] Given the Claimant’s clear desire to abandon his Charter argument, the Charter aspect of his appeal (based on the Notice of Constitutional Question filed on October 29, 2019)^{Footnote 25} is dismissed.

Is the Claimant entitled to reimbursement of any legal costs in this matter?

[24] For the reasons set out below, I find that the Claimant is not entitled to reimbursement of any legal costs in this matter.

[25] The Tribunal is created by statute. The Tribunal can only grant remedies that it has the specific statutory authority to grant.^{Footnote 26} In other words, the Tribunal can only award costs if its governing legislation says it can award costs. The Department of Employment and Social Development Act (“DESDA”) establishes the Tribunal’s authority. However, there is no explicit power in the DESDA to order costs against a party.

[26] Neither the power to decide questions of law and fact^{Footnote 27} , nor the inherent power to control its own procedures^{Footnote 28} , allows the Tribunal to make an order for costs. An order for costs is a substantive remedy: it is not a finding of fact or law, nor is it a procedural decision. Court decisions have confirmed that a tribunal cannot make an order for costs without explicit authority.^{Footnote 29}

[27] Decisions of the former Pensions Appeal Board are not binding on the Tribunal. However, in a 2001 case called Meron, the Pension Appeals Board confirmed there was no authority for it to make an award of appeal expenses.^{Footnote 30} I do not rely on Meron in reaching my conclusion on costs, but merely note that having authority for appeal expenses has been essential for at least 20 years.

[28] Decisions of the Tribunal’s Appeal Division are not binding on the Tribunal’s General Division either. However, those decisions can still be persuasive. In 2020, the Appeal Division declared that it did not have the “authority to order any costs under any circumstances.” The Appeal Division suggested that the limited hearing-related circumstances in s. 63 of DESDA would be the only possible recourse for a claimant seeking any expense recovery.^{Footnote 31} I find that the hearing-related expenses set out in s. 63 do not extend to the legal costs claimed by the Claimant. In another decision earlier this year, the Tribunal’s Appeal Division affirmed that it cannot order costs.^{Footnote 32}

[29] The Claimant’s submissions do not give any statutory authority for his costs request. Nor did he provide any court or tribunal decisions establishing a precedent for a costs award in these circumstances. Instead, his submissions focus on how the Minister could have avoided many years of uncertainty and expense by accepting the Claimant’s position in 2016 rather than in 2021.

[30] The Claimant’s frustration is evident, and I have sympathy for his position. He put considerable time and effort into arguing his case. He eventually enlisted a constitutional law expert to help him.

[31] The Claimant is essentially calling on the Tribunal to apply the principle of “costs follow the cause.” For civil litigation in the “regular court system,” the general principle is that the losing party has to pay some of the winning party’s legal costs. In this case, the Claimant is clearly the more successful party. The Minister ultimately accepted his position. The problem for the Claimant is that the Tribunal is not the “regular court system.” Nor is the Tribunal the only entity where the “costs follow the cause” principle does not apply. For example, the Saskatchewan Labour Relations Board reached the same conclusion.^{Footnote 33}

[32] Despite having sympathy for his position, I cannot grant the remedy sought by the Claimant.

When payments start

[33] As noted above, the Claimant has Canadian residency from January 2007 to January 2021. His OAS pension is deemed to have been approved in January 2021.^{Footnote 34} Accordingly, payment of his OAS pension begins as of February 2021.^{Footnote 35} This is consistent with the agreement reached between the parties.^{Footnote 36}

[34] Payment of the Claimant’s OAS pension will reflect the fact that he received a 4/40^ths OAS pension from November 2019 to January 2021. The parties have already agreed on how these previous payments will offset his increased 14/40^ths OAS pension. The Claimant will not receive any payments for the months of February 2021 to May 2021. He will only receive part of his June 2021 payment. He will then receive a full 14/40^ths OAS pension starting with July 2021.^{Footnote 37}  

Conclusion

[35] I find that the Claimant is eligible for a 14/40^ths OAS pension, effective February 2021. However, the Charter aspect of his appeal is dismissed. Furthermore, he is not entitled to costs.

[36] This means the appeal is allowed.