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

Decision

[1] The appeal is allowed in part. The General Division made an error of law in its interim decision. The Minister of Employment and Social Development Canada (Minister) has an implied discretionary power to revisit her^{Footnote 1} initial Old Age Security (OAS) decisions.^{Footnote 2} However, the Minister did not exercise her discretion properly, in this case. The 2011 entitlement decisions will not be reopened.

Overview

[2] In early 2011, S. F. applied for the OAS pension and the Guaranteed Income Supplement (GIS). S. F.’s spouse, C. F. applied for the Allowance for spouses of GIS recipients (Allowance). Following an investigation, the Minister^{Footnote 3} approved a full OAS pension and the GIS for S. F., and the Allowance for C. F., effective June 2011.

[3] In 2013, when C. F. applied for her OAS pension, the Minister began another investigation of the Respondents’ residency. The previous approval decisions were reversed, based on a determination that the Respondents had not resided in Canada after 1986. The Respondents asked for reconsideration, and the Minister then decided that the Respondents had resumed residence in Canada in 2009. S. F. was granted a partial OAS pension and the GIS, and C. F. was granted the Allowance, effective January 2013.^{Footnote 4}

[4] The Respondents appealed to the Social Security Tribunal’s General Division. The General Division issued an interim decision that the Minister did not have the authority to reassess and change her initial approvals of the Respondents’ OAS pension, GIS and Allowance.

[5] The Minister appealed to the Appeal Division. I have now found that the Minister has an implied discretionary power to revisit initial OAS decisions. However, I have also found that the Minister did not properly exercise her discretion in this case.

[6] I have made the decision that the General Division should have made. The initial entitlement decisions turned on the judgment of the decision-maker, and the second investigation did not reveal new information that would likely have changed the original result. In these circumstances, the importance of finality outweighs the benefit of reopening the previous decisions. The discretion to reopen the initial decisions will not be exercised, and so the initial decisions remain in effect.

Issues

[7] In this appeal, I answer the following questions:

1. a) Did the General Division make an error of law when it decided that the Minister does not have the power to change her initial decisions under the Old Age Security Act (OASA)?
2. b) If so, how should I fix that error?
   • Should I give the decision the General Division should have given?
   • Is the Minister’s power discretionary?
   • Does the Tribunal have jurisdiction to consider the Minister’s exercise of her discretion?
   • Did the Minister exercise her discretion in a judicial manner?
   • What decision should the Minister have made?

The General Division made an error of law: the Minister has an implied authority to reopen her initial decisions

[8] This appeal was heard alongside two other appeals raising a common legal issue: did the General Division err in law when it decided that the Minister could not change initial decisions made under the OASA?

[9] These reasons talk about the Minister’s “initial” decisions. “Initial” refers to the fact that the Minister makes this decision at the first level, after a claimant applies for benefits (or their application is waived). An “initial” decision is contrasted with a “reconsideration” decision made at the second level, in response to a claimant’s request for reconsideration. An initial decision may be a one-time decision or an annual decision. It is not preliminary, tentative or interim. Unless a claimant requests a reconsideration within 90 days, the decision is implemented by Service Canada.

I am deciding whether the General Division’s interpretation was right or wrong

[10] One of the grounds of appeal to the Appeal Division is that the General Division “erred in law in making its decision.”^{Footnote 5} Based on this unqualified language, I agree with the Minister’s representatives that I don’t owe the General Division any deference on questions of law. This means that I am deciding whether the General Division’s interpretation of the law is correct, and not whether it is reasonable.^{Footnote 6} Because of this, I can turn directly to the question of whether the Minister does or does not have the power to reopen her initial OAS decisions.

The General Division applied the doctrine of functus officio

[11] When courts and tribunals ask whether a decision-maker has the power to reopen or change a decision, they often talk about the doctrine of functus officio. Functus officio is a Latin term for the principle that a decision-maker, having made their decision, has no further power in the matter. As a general rule, judges, adjudicators and administrative officials can’t reopen their decisions; they “must get it right the first time, for that will be their only time.”^{Footnote 7} The principle of functus officio favours finality. It lets people rely on the decisions they receive.

[12] Sometimes, a law says that an administrative body can reopen its decisions. This overrides the doctrine of functus officio. For example, the Canada Pension Plan and the Employment Insurance Act both include specific provisions allowing the Minister or the Canada Employment Insurance Commission (Commission) to change an initial decision.^{Footnote 8} In contrast, the OASA says that the Minister must reconsider her initial decision if a claimant asks, but it doesn’t say whether the Minister can revisit an initial decision on her own initiative. I agree with the General Division that the OASA does not expressly give this power to the Minister.

[13] The General Division decided that this silence, especially compared to the explicit authority in other laws, means that the Minister has no power to reopen her initial OAS decisions (at least not in the absence of fraud or misrepresentation).^{Footnote 9} Without specifically saying so, the General Division effectively applied the doctrine of functus officio.

Functus officio doesn’t always apply

[14] Initially, functus officio prohibited the reopening of final decisions — those where the decision-maker had completed their task and the decision was ready for implementation — with limited exceptions.^{Footnote 10} But in 1989, in a case called Chandler, the Supreme Court of Canada called for greater flexibility in the administrative context. Among other things, the Court said that the principle of functus officio “should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.”^{Footnote 11} Courts have since found that some administrative decision-makers have an implied statutory power to reconsider.^{Footnote 12}

[15] Consistent with this approach, the Supreme Court of Canada has separately explained that the powers in a law include “not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature.”^{Footnote 13}  

[16] So, even though the power to reopen a decision may be unusual (or, as the General Division said, extraordinary), the absence of an explicit authority is not conclusive. Figuring out whether an administrative decision-maker has an implied power to reopen a decision is a matter of statutory interpretation.^{Footnote 14} Statutory interpretation (deciding what a law means) involves looking at the text, context and purpose of the statute: “The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”^{Footnote 15} Laws that grant benefits should be interpreted in a broad and generous manner, with any ambiguity resolved in favour of the claimant.^{Footnote 16}

[17] Since the OASA is silent about a power to reopen initial decisions, there is no single provision for me to interpret. I must consider the text, context and purpose of the OASA more broadly. Are there indications that the Minister can reopen her initial entitlement decisions? Is it sometimes a practical necessity to reopen such decisions?

[18] In my view, the answer to both these questions is “yes.” Consequently, I agree with the Minister’s representatives that there is implied authority to revisit entitlement decisions.^{Footnote 17}

There are several indicators that the Minister can reopen initial OAS decisions

Purpose and structure of the legislation

[19] The purpose of the OASA is to provide financial assistance to seniors who are, or were, Canadian residents for a period of time. Each of its benefits (the OAS pension, the GIS, the Allowance for spouses of GIS recipients, and the Allowance for the Survivor) has a direct or indirect residency requirement. Benefits vary depending on the length of Canadian residence, income and marital status. There is an emphasis on the alleviation of poverty: the OAS pension is universal but clawed back above a certain income level, and the GIS and Allowances are only available to low-income seniors and their spouses. As noted by the Federal Court, the OASA fulfills a social goal; it “should therefore be construed liberally, and persons should not be lightly disentitled to OAS benefits.”^{Footnote 18}

[20] At the same time, the OASA strives to give benefits only to those who qualify, and to recover any overpayment of benefits. These objectives are seen in the legislation, as described below.

[21] In order to receive benefits, a claimant must meet certain eligibility criteria and the Minister must approve the benefits.^{Footnote 19} An application is not always required; in some circumstances, the Minister will proceed based on information it already has about the claimant’s eligibility.^{Footnote 20}

[22] There are limitations on payment. For example, the OAS pension can’t be paid during certain prison terms;^{Footnote 21} the GIS and Allowances can’t be paid to those who have not been present or resident in Canada for six months, or to certain sponsored immigrants;^{Footnote 22} and the amount of the GIS varies (potentially to nil) depending on marital status and income.^{Footnote 23}

[23] The Minister undertakes the approval process once for the OAS pension, and annually for all other benefits. After an initial decision, the following provisions in the OASA and the Old Age Security Regulations (OASR) could come into play:

• Reconsiderations and appeals: a claimant can ask the Minister to reconsider her decision, and can appeal the reconsideration decision to the Tribunal;^{Footnote 24}
• Investigation: the Minister can “at any time before or after approval” obtain further information about, or make an investigation into, a claimant’s eligibility for a benefit;^{Footnote 25}
• Suspension of benefits related to eligibility: the Minister has to suspend benefits if it believes that the claimant is ineligible. The Minister may suspend benefits during an investigation;^{Footnote 26}
• Suspension of benefits for other reasons: the OAS pension is suspended when a claimant has not been present or resident in Canada for six months, unless the claimant had over 20 years’ residence in Canada; the OAS pension and Allowances may be suspended for failure to comply with a provision in the OASA or the OASR.^{Footnote 27}
• Adjustment of GIS payments: GIS payments are adjusted when actual income is different from estimated income;^{Footnote 28}
• Return and recovery: a claimant must return benefits they received but were “not entitled” to. The debt is recoverable in court or by set-off against other benefits;^{Footnote 29}
• Write-off of overpayment: Unless there has been a related conviction, the Minister can write off some or all of an overpayment for financial reasons or because of “erroneous advice or administrative error in the administration of this Act.”^{Footnote 30}
• Offences and penalties: certain wrongdoing may lead to a summary conviction or monetary penalty, if initiated within five years of the Minister becoming aware of the situation.^{Footnote 31}

[24] I recognize that the investigation and suspension provisions relating to eligibility are in the regulations rather than the statute. The OASA permits regulations for putting “the purposes and provisions of this Act into effect,” and specifically permits regulations “for the suspension of payment of a benefit during an investigation into the eligibility of the beneficiary.” As such, the OASA (and not just the OASR) contemplates the possibility of investigating eligibility and suspending payments after benefits have been approved.

[25] The Minister previously focused on the investigation power as the source of her authority to reopen initial decisions. I agree with the General Division that a power to investigate does not necessarily include a power to reopen a previous entitlement decision. But the power to investigate is not the focus in these appeals; it is just one piece of a larger puzzle.

[26] Collectively, the above provisions reflect a legislative intent to pay benefits only to individuals who qualify for them, and to recoup benefits that were paid to those who shouldn’t have received them.The latter objective is seen in section 37(1) of the OASA — which requires recipients to pay back benefits to which they were not entitled — and that objective is supported by the investigation, suspension, recovery and write-off procedures.

[27] Parliament chose not to simply suspend payments prospectively when entitlement is in doubt, but also to reach back and recover benefits wrongly paid. In my view, as described below, this necessarily implies that the Minister has the authority to go back and change her initial entitlement decisions in appropriate cases.

Primary indicator: The OASA requires the return of benefits if ineligible

[28] Section 37 of the OASA says that if you receive benefits that you aren’t entitled to, you have to return them, and the debt is recoverable:

37(1) A person who has received or obtained by cheque or otherwise a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be.

(2) If a person has received or obtained a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, the amount of the benefit payment or the excess amount, as the case may be constitutes a debt due to Her Majesty and is recoverable at any time … [Emphasis added.]

[29] The representative in one of the companion cases argued that approval in and of itself amounts to entitlement: once approved, you are entitled, and so section 37 would only require the return of benefits paid without approval. This argument relies on an Appeal Division decision that discusses the difference between eligibility and entitlement.^{Footnote 32} I agree that eligibility relates to the criteria needed to qualify for benefits (such as residency), and that entitlement is about the right to receive a benefit. But I can’t agree that entitlement “is the Minister approving the application and paying.”^{Footnote 33} As outlined previously, you have the right to receive OAS benefits if you apply (or your application is waived), you are eligible, and the Minister approves. These elements together amount to entitlement. Consequently, I don’t agree that section 37 only requires the return of benefits paid without approval.

[30] The General Division similarly suggests (without focusing on the meaning of entitlement) that section 37 could be limited to payment errors such as miscalculation of benefits or continued payment of benefits when entitlement ceases — in other words, errors that do not raise questions of eligibility (and so would not require a previous decision to be reopened). But section 37 does not limit the return of benefits to such payment errors. A plain reading of section 37 is that you must return benefits if it turns out that you weren’t supposed to get them, whether that is because of a payment error or because you weren’t actually eligible for them.

[31] There is historical and contextual support for this plain reading of section 37:

• A claimant’s obligation to return benefits is linked, in the same section, to the Minister’s power to recover or forgive the overpayment. For many years, the Minister could recover an overpayment due to wilful misrepresentation or fraud at any time, but could only recover other overpayments within the year following the year the benefits were received.^{Footnote 34} Then and now, the Minister cannot write off an overpayment if the person has committed an offence “in connection with the obtaining of the benefit payment.”^{Footnote 35} Offences such as making a false or misleading statement, and obtaining benefits by false pretences,^{Footnote 36} go to benefit eligibility. By prohibiting a write-off of the associated overpayments, Parliament must have intended the Minister to recover this type of overpayment under section 37.
• Since 1995, the Minister has had the power to forgive overpayments resulting from “administrative error in the administration of this Act.”^{Footnote 37} Administrative errors are not limited to payment errors; they could include, for example, mistakenly granting approval to an ineligible claimant. By allowing the Minister to write off the associated overpayments, Parliament must have intended such overpayments to be created in the first place. The fact that section 37 addresses the return of overpayments associated with administrative errors also refutes the argument made by the Respondent’s representative that section 37 only requires the return of benefits received as a result of fraud or misrepresentation.
• Elsewhere in the OASA, the possible consequences of wrongdoing are summary conviction or a monetary penalty of up to $10,000 “to promote compliance with this Act.”^{Footnote 38} The offence and penalty provisions of the OASA do not include recovery of the benefits to which the offender was not entitled. If ineligibility could not lead to an overpayment under section 37, there would be no mechanism to recover benefits obtained, for example, through wilful misrepresentation or fraud.^{Footnote 39} The General Division offers as a possible solution the suspension of payments followed by recovery under section 37 —yet that recovery would itself require a change to the initial entitlement decision.

[32] The requirement for people to return benefits that they weren’t entitled to, including benefits that they weren’t eligible for, is a strong indicator that Parliament intended the Minister to be able to reopen her initial entitlement decisions. How can you be asked to return benefits that were previously granted, without first receiving a revised decision from the Minister that you weren’t actually entitled to those benefits?

Other indicators: The options of suspending or resuming payment aren’t enough

[33] The suspension provisions are another indicator that Parliament intended the Minister to have the power to reopen initial decisions. Section 34(j) of the OASA permits regulations “providing for the suspension of payment of a benefit during an investigation into the eligibility of the beneficiary and the reinstatement or resumption of the payment thereof.” Section 26 of the OASR states that a suspension continues until there is satisfactory evidence of eligibility, and allows for retroactive payment for periods of eligibility.

[34] If, following a suspension and investigation, it turns out that you were not entitled to benefits, the initial decision may have to be revised in order for the overpayment to be recovered. This point was made above. But what if it turns out that you were not fully disentitled but instead entitled to a different period or level of benefits? This would happen if, for example, the Minister investigated and found that your years of residency permitted only a partial rather than full OAS pension.

[35] Without the ability to change the initial entitlement decision, there would be no way to pay the correct benefits. The options would be all or nothing: resumption of the full pension previously approved (paying more than entitled to), or continued suspension of benefits (paying less than entitled to). In this situation, the power to amend an initial decision may be necessary, to achieve the purpose of providing financial assistance to those seniors who qualify.

Other indicators: The Minister must respond to changes in status

[36] The income threshold for the GIS varies with marital status. A single person receiving the GIS may no longer be eligible once married or in a common-law relationship, or they may qualify for a lower payment. Conversely, a recently separated person may become eligible for the GIS, or for a higher payment.

[37] The Minister has to “approve payment of a supplement and fix its amount” annually.^{Footnote 40} If a claimant doesn’t report a change in marital status promptly, and the Minister can’t reopen the previous entitlement decisions, that claimant could potentially receive the wrong level of benefits (higher or lower) for years. The Minister needs the power to revisit her initial decisions in these circumstances, to ensure that the correct level of income assistance is provided to those who qualify.

Summary

[38] As outlined above, there are strong indications in the OASA that Parliament intended the Minister to be able to revisit her initial entitlement decisions. After benefits are in pay, the Minister can investigate eligibility, suspend benefits, and reach back to recover benefit payments for which there was no entitlement. Within this structure, the Minister may need to reopen her initial entitlement decision when it turns out that a claimant wasn’t eligible for benefits, or was eligible for different benefits. This power is “practically necessary,” so that seniors receive the benefits they are entitled to, and return benefits that they received but were not entitled to. Accordingly, the Minister has an implied power to reopen her initial decisions under the OASA. It was an error of law for the General Division to conclude otherwise.

[39] I recognize that my conclusion is different from that of other Appeal Division decisions, including those that the General Division relied upon.^{Footnote 41} I have had the benefit of new arguments and evidence; ultimately, a focus on whether the OASA indicates an implied power to reconsider led me to a different result. While consistency at the Appeal Division is important, the question of the Minister’s power to revisit initial decisions is still relatively novel. Precedent develops over time, and “the tribunal hearing a new question may thus render a number of contradictory judgments before a consensus naturally emerges.”^{Footnote 42}

[40] By finding an implied power to reopen initial decisions, I am not endorsing hasty OAS approvals with verification to follow — after all, the Minister is not supposed to approve anyone’s benefits unless they qualify. Rather, having the option of reopening initial decisions reflects the reality that Service Canada will occasionally make mistakes, and some claimants will misrepresent the facts or fail to meet their reporting obligations. I understand my colleagues’ concern that the Minister could in theory repeatedly or unfairly reassess eligibility. In my view, that concern is largely addressed through limits on the Minister’s discretion, which I address below. 

Remedy: I will replace the General Division’s interim decision with my own

[41] After finding an error of law, the Appeal Division can make the decision that the General Division should have made.^{Footnote 43} Since the General Division issued an interim decision, my decision replaces that interim decision only; it does not dispose of the balance of the appeal at the General Division.

[42] I can decide any question of law or fact necessary to dispose of an appeal.^{Footnote 44} I have already found that the Minister has an implied power to revisit her initial decisions under the OASA. But that is not the end of the story. How is that implied power to be exercised?

The Minister’s authority is discretionary and must be exercised “in a judicial manner”

[43] I am not persuaded by the Minister’s argument that, having investigated a claimant’s eligibility, the authority to revisit the initial decision is not discretionary.^{Footnote 45} As the Minister’s representative said, an investigation includes a recommendation, but it is not a decision. In other words, investigating eligibility and deciding to change a previous decision are separate tasks. The law does not oblige the Minister to reopen an initial decision, on her own initiative (even following an investigation).

[44] Elsewhere, even explicit authority to reopen decisions is typically discretionary.^{Footnote 46} And, when recognizing an implicit power to reopen for other administrative bodies, the courts have described a discretionary power. For example, in permitting an immigration officer to reconsider a decision, the Federal Court of Appeal noted the officer’s obligation “to consider, taking into account all relevant circumstances, whether to exercise the discretion to reconsider.”^{Footnote 47} Similarly, the Federal Court decided that the Canadian Human Rights Commission could reconsider its decisions even though no specific statutory provision provided for this, “but this is a discretionary power which must be used sparingly in exceptional and rare circumstances.”^{Footnote 48}

[45] The Minister’s representatives have separately acknowledged that the Minister’s discretion is not unrestricted, and that there are checks on the exercise of the power to revisit initial decisions. I agree that these checks exist: a discretionary power must be exercised “judicially.” This means that a discretionary decision will be set aside if the decision-maker “acted in bad faith or for an improper purpose or motive, took into account an irrelevant factor or ignored a relevant factor or acted in a discriminatory manner.”^{Footnote 49}

Discretion to fix incorrect decisions, while considering finality

[46] What is a proper purpose, for the exercise of the Minister’s discretion to reopen a previous decision? The obvious answer is to fix incorrect entitlement decisions^{Footnote 50} — so that benefits are paid correctly going forward and overpayments are recovered.

[47] What else must the Minister consider when deciding whether to reopen an entitlement decision? In my view, the policy of finality that underlies the doctrine of functus officio is a relevant and important factor in the exercise of the Minister’s discretion, and must be considered. This approach was endorsed by the British Columbia Court of Appeal (and cited by the Federal Court), when it found that applying the doctrine of functus officio wasn’t the only way to give effect to the “sound policy” of finality: “That policy [of finality] will necessarily govern the manner in which the jurisdiction to reconsider is exercised…”^{Footnote 51} [Emphasis added.]

[48] The OAS pension provides basic financial assistance to seniors, and the GIS and Allowances provide a modest income to those with limited means. In this context, it is especially important for claimants to be able to rely on their entitlement decisions, without fear that they will have to return money already spent. Because of the importance of finality, and because seniors “should not be lightly disentitled to OAS benefits,”^{Footnote 52} the discretionary power should be used sparingly. Yet the Minister does not seem to have a policy or guidelines outlining when decision-makers should exercise the discretion to reopen initial decisions.^{Footnote 53} And, the Minister’s Expert Report describes a routine, risk-based approach in which applications are approved on a presumption of eligibility, followed by a post-decision audit process.^{Footnote 54}

[49] The fact situations in the three appeals that I heard together suggest two ways in which the policy of finality limits the exercise of the Minister’s discretion. These overlap with factors that are sometimes considered when deciding whether to apply the doctrine of functus officio: the nature of the error, the circumstances giving rise to the possible reopening, and the passage of time and delay.^{Footnote 55} There may be others that I haven’t considered here.

Is this repeat assessment, without new material information?

[50] First, to respect the importance of finality, the purpose of reopening initial decisions (fixing incorrect decisions) should be interpreted narrowly. An initial entitlement decision might be incorrect because of a failure on the part of the claimant (such as non-disclosure, late reporting, contradictory information or misrepresentation of important information) or because of an error in the administration of the OASA (such as clerical or system errors, not collecting the right information, or overlooking conclusive information).^{Footnote 56} But an initial decision is not incorrect (or “inaccurate”) simply because a second decision-maker took a different view of similar facts. The purpose of the power to reopen decisions cannot be simply to repeat, for no compelling reason, the adjudicative task of applying the law to the facts to determine eligibility.

[51] In other words, in the absence of new information likely to change the original result, reopening a decision that turned on the judgment of the decision-maker would be an improper exercise of the Minister’s discretionary power. This is similar to the approach the Respondents’ representative recommended, that new and contradictory evidence should be required for reopening, to guard against repeated reassessment of claims. In this way, the discretionary power to fix incorrect entitlement decisions can be balanced against the importance of people being able to rely upon decisions made about their benefits.

Has there been excessive delay?

[52] Second, because the importance of finality increases with the passage of time, timeliness is also a relevant factor in the exercise of the discretion to reopen an initial decision. Over time, a claimant becomes more reliant on their existing entitlement, and it becomes more difficult for them to challenge a revised decision with historical evidence.

[53] The representative for one of the companion cases suggested that the five-year limitation period for commencing a proceeding for an offence under the OASA must, by implication, apply to the recovery of overpayments. I disagree: Parliament chose to establish a limitation period for offences but not for the recovery of overpayments.^{Footnote 57} Nevertheless, when deciding whether to exercise her discretion to reopen an initial decision, the Minister should consider the question of excessive delay.

[54] The Minister has the power to investigate a claimant’s eligibility “at any time.”^{Footnote 58} This makes sense, because new material information could come to the Minister’s attention long after an initial decision was made. But to the extent that the timelines are within the Minister’s control (particularly after initiating an investigation), it is the Minister’s responsibility to decide promptly whether to reopen a previous entitlement decision and, if so, to inform the claimant of the revised decision.^{Footnote 59} Excessive delay could possibly amount to an abuse of process,^{Footnote 60} such that the Minister should not exercise her discretion to revisit the initial decision.

Summary

[55] To summarize, the Minister does not have an unrestricted discretion to reopen initial entitlement decisions. Her authority must be exercised for the purpose of fixing incorrect decisions, and that purpose must be narrowly construed. She should consider the nature and timeliness of the proposed revised decision — Is this repeat assessment without important new information? Has there been excessive delay? In every case, the Minister should ensure that the benefit of reopening the original decision outweighs the importance of that decision being final.

The Tribunal has jurisdiction over the intertwined decision

[56] The Minister argues that, if the power to revisit decisions is discretionary, these discretionary decisions are not subject to appeal to the Tribunal. Any objection to the exercise of discretion would only be subject to review by the Federal Court. I disagree.

[57] The Tribunal has jurisdiction to hear an appeal of a reconsideration decision, and claimants have the right to request reconsideration of a decision about entitlement to, or the amount of, an OAS benefit.^{Footnote 61}

[58] A revised entitlement decision has two components. The Minister has to decide: Should I exercise my discretion to reopen the previous decision? And if I do, what is the new decision? These two components are intertwined and cannot reasonably be disentangled for recourse purposes. Under the Minister’s preferred approach, a claimant whose OAS entitlement was reopened would have to challenge the Minister’s discretion to do so at the Federal Court, while at the same time pursuing the reconsideration and appeal processes for the new substantive decision. That would make no sense.^{Footnote 62}

[59] The Tribunal should take a broad approach to its jurisdiction, within the limits of the law, to manage appeals efficiently and to allow for meaningful recourse. I am satisfied that both aspects of the revised decision — the exercise of discretion and the new decision — are ultimately about OAS benefit entitlement. Both aspects are subject to reconsideration by the Minister and appeal to the Tribunal.^{Footnote 63} 

The Minister did not properly exercise her discretion to revisit the previous decisions

The initial decision

[60] It is undisputed that S. F. immigrated to Canada in 1972, C. F. immigrated to Canada in 1971, the couple left Canada in 1978, and they returned in 1986. When they applied for benefits in 2011, the Respondents listed Canada as their residence from 1986 onwards. This is because the forms they completed told them not to include periods when they were outside Canada for less than six months at a time. The forms did not define or set out the legal test for residence in Canada. S. F. asked the Benefits Officer:

Do you take into account the years when I was absent from Canada for more than 183 days [in a year], despite the fact that I was not absent from Canada for more than 6 months at a time?^{Footnote 64}

[61] S. F. told the Benefits Officer, in writing, that he had not lived in Canada continuously between 1992 and 2008. He explained that he had filed non-resident tax returns during this period, and why. The Respondents produced their passports and their travel histories indicating frequent travel through Canadian airports. S. F. responded to a series of questions from the Benefits Officer, noting (among other things) that:

• his house in Canada was rented out when he was living abroad;
• he was a temporary resident overseas for the duration of his contracts;
• he lived in employer-provided housing when abroad;
• the amount of time spent overseas varied from year to year depending on the contract requirements; and
• he considered his home in Canada to be his permanent place of residence.

[62] Although S. F. did not have 40 years of residence in Canada, he could still get a full OAS pension under the transitional provisions if he had resided in Canada for the ten preceding years.^{Footnote 65} To get the Allowance, C. F. had to reside in Canada for twenty years, or for ten years including at the time of application.^{Footnote 66}

[63] In the result, the Benefits Officer accepted the Respondents’ residence in Canada as claimed. She approved the full OAS pension and GIS for S. F. and the Allowance for C. F., effective June 2011.

The revised decisions

[64] The second investigation began after C. F. applied for the OAS pension in 2013. C. F.’s application did not include any new or inconsistent information about her residence history. Rather, the investigation was triggered by Service Canada’s review of the information S. F. gave about his residence back in 2011.^{Footnote 67} While the second investigation inevitably produced additional information, it did not produce contradictory information, or new information that would have changed the original decision. For example, the Respondents described frequent travel to and from Canada, including spending every summer in Canada, together with their children; their family, business and social connections were in Canada; they kept a vehicle and driver’s license in Canada; and health records confirmed regular medical care in Canada.

[65] Following this investigation, the second Benefits Officer decided in October 2016 that “although you have a residence and attachments to Canada you have not been deep rooted and settled in Canada due to your many absences.” On reconsideration in May 2018, the third Benefits Officer agreed that the Respondents did not reside in Canada between 1986 and 2009, but decided that they had resumed their Canadian residence in 2009.^{Footnote 68}

[66] Neither of these two Benefits Officers turned their minds to whether they should exercise the discretion to reopen the initial approval decisions. They did not consider whether they were fixing incorrect decisions, or simply substituting their judgment for that of a colleague. They did not question whether their investigation had produced new evidence that would have led the original decision-maker to reach a different conclusion on residence. They did not consider the Respondents’ reliance on benefits that had been in place for several years before being suspended. They did not weigh the benefit of reopening the initial decisions against the importance of finality. Having failed to consider these relevant factors, I conclude that the discretion was not exercised judicially.

[67] When the Minister does not exercise her discretion judicially, the General Division can make the discretionary decision the Minister should have made; in turn, I can make the decision the General Division should have made.^{Footnote 69} So, I will decide whether the Minister should have exercised her discretion to reopen the 2011 entitlement decisions.

Substituted decision: the previous decisions will not be reopened

[68] There are two possible ways to characterize the decision-making in this case. It may be that the first Benefits Officer made a mistake when she accepted the Respondents’ residence and granted their benefits in 2011, and the other Benefits Officers fixed her mistake. Or, it may be that each of the Benefits Officers exercised their judgment in applying the law to the facts, reaching three different conclusions about when the Respondents resided in Canada. The representatives preferred the latter characterization, and so do I.^{Footnote 70}

[69] Determining residence — whether someone makes their home and ordinarily lives in Canada^{Footnote 71} — is a question of fact that depends on the circumstances of each case. The regularity and length of stays in and absences from Canada are relevant, but not conclusive. Other factors should also be considered, such as economic and social ties to Canada, ties to another country, and whether the person is “deep rooted and settled” in Canada.^{Footnote 72} The Federal Court has confirmed that there could be other relevant factors, and that “[t] here is no doubt that continuous presence is not required.”^{Footnote 73}

[70] The fact that the Respondents filed their taxes as non-residents for an extended period, and spent much of this time overseas, was brought repeatedly and directly to the attention of the first Benefits Officer in 2011. These details are not fatal to a claim of Canadian residence, and there is no reason to believe that the first Benefits Officer mistakenly overlooked them. As noted by the Respondents’ representative, the additional information produced between 2013 and 2016 did not undermine or contradict the information that was given in 2011. Indeed, the Minister’s representatives were unable to point me to any significant new information gleaned in the second investigation that would detract from the Respondents’ position or be conclusive of their residency status.

[71] I am satisfied that the initial decision accepting the Respondents’ residence in Canada turned on the Benefits Officer’s judgment. The second investigation did not produce contradictory information that would have changed the original result; rather, the second and third Benefits Officers took a different view of essentially the same facts. In these circumstances, the benefit of reopening the previous decisions — to what was essentially a repeat assessment — did not outweigh the importance of the previous decisions being final. The discretion should not be exercised, and the 2011 decisions will not be reopened.

Conclusion

[72] The appeal is allowed in part. The Minister has an implied discretionary power to revisit her initial OAS decisions. The Tribunal has jurisdiction over the Minister’s exercise of this discretion. In this case, the Minister did not exercise her discretion in a judicial manner. The initial decisions granting the full OAS pension, GIS and Allowance, effective June 2011, will not be reopened. Those decisions remain in effect.