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

Decision

[1] The appeal is allowed in part.

[2] The Claimant, F. Z., has been resident in Canada for 6 years and 41 days, as of March 2, 2020. This is more Canadian residence than the Minister granted in its reconsideration decision of March 2, 2020.

[3] However, the Claimant is still not eligible for an Old Age Security (“OAS”) pension or the Guaranteed Income Supplement (“GIS”). This means she must repay the benefits she received from August 2012 to June 2019. She may have Canadian residency after March 2, 2020. This means she may qualify for the OAS pension and the GIS at some point in the future.

[4] This decision explains why I am allowing the appeal in part.

Overview

[5] The Claimant is 76 years old. She was born in Iran and first entered Canada on July 24, 2002. Her legal status is “permanent resident” of Canada. She does not appear to have become a Canadian citizen.

[6] In July 2011, the Claimant applied for an OAS pension. She was granted a partial (10/40^ths) OAS pension, effective August 2012. She also applied for and received the GIS, effective August 2012. She received the GIS for several years. The Minister eventually investigated her eligibility for the OAS pension and the GIS. Her benefits were suspended after the June 2019 payments, as the Minister decided that she had resided in Canada for very few of the preceding 17 years.

[7] The Minister determined that the Claimant had only 5 years and 81 days of residence in Canada. As a result, she was never eligible for either the OAS pension or the GIS. The Minister demanded a repayment of $89,440.45. This represented the Claimant’s OAS pension and GIS payments from August 2012 to June 2019. On May 14, 2020, the Claimant appealed to the Tribunal.

[8] The Claimant said the Minister originally determined she had resided in Canada, so she should be able to rely on the Minister’s expertise and approval. She added that she mostly lived in Canada. She also said that she was living in a bad situation because she had no property, income, job or money.^{Footnote 1}

[9] The Minister says that some periods of Canadian residence granted to the Claimant were improper because she did not disclose all her absences from Canada in her application. Some of her time in Canada was mere “presence” as opposed to “residence”. Her frequent long absences from Canada show that she was residing in Iran. As a result, the Minister says she only resided in Canada for four periods totalling 5 years and 81 days. This means she was never entitled to the OAS pension and GIS.

What the Claimant must prove

[10] For the Claimant to succeed, she must first prove that she was entitled to an OAS pension. To do this, she must prove she was “resident” in Canada for at least ten years. Furthermore, she can only receive the GIS if she is entitled to an OAS pension and also meets the GIS financial criteria. Finally, if she does qualify for the OAS pension and the GIS, she can only continue to get them if she still resides in Canada.^{Footnote 2}

Matters I have to consider first

The Claimant didn’t participate in the hearing

[11] The Claimant wanted her hearing conducted by written questions and answers.^{Footnote 3} Written questions were sent to her and the Minister on May 20, 2021, with a response deadline of June 21, 2021.^{Footnote 4} Neither party answered the questions. On August 17, 2021, the Tribunal gave the Claimant and the Minister a final deadline of October 1, 2021, to answer the written questions. The parties were told that the Tribunal could make a final decision after that deadline. Only the Minister answered.^{Footnote 5} The Claimant was even given a further month to comment on the Minister’s answers.^{Footnote 6} However, nothing was heard from her. Attempts to reach her by phone have not been successful: the numbers she provided were not in service. I note that the Claimant must advise the Tribunal “without delay” of any change in her contact information.^{Footnote 7}

[12] A hearing can go ahead without the Claimant if she got the notice of hearing.^{Footnote 8} I decided that the Claimant got the notice of hearing because the Tribunal sent everything to the London, Ontario, address given by the Claimant. None of the letters were “returned to sender.” Documents mailed by the Tribunal are deemed to have been received 10 days after mailing.^{Footnote 9} This means the original questions are deemed to have been communicated to the Claimant on May 30, 2021. So, the hearing took place by written questions, but without any answers from the Claimant.

Reasons for my decision

[13] Before I consider the Claimant’s periods of residence in Canada, I must first decide whether the Minister is allowed to revisit the original decision to grant an OAS pension to the Claimant. The Minister made the original decision less than three months after receiving the Claimant’s application for the OAS pension.^{Footnote 10}

Can the Minister revisit the original eligibility decision?

[14] The Minister’s decision to reverse its original grant of an OAS pension to the Claimant is a significant one. This is especially so when considering the amount that must be repaid ($89,440.45). The Tribunal’s Appeal Division recently considered whether the Minister could do this, in a decision called SF & CF.^{Footnote 11}

[15] The SF & CF decision said the Minister may revisit initial eligibility decisions. However, the Minister must do this “in a judicial manner.” The Minister can only reopen previous decisions if there is new information likely to change the original result. In addition, for timelines within the Minister’s control, the Minister must promptly decide whether to reopen a previous decision. The Minister must then tell the claimant about the revised decision. This is because excessive delay could be an abuse of process.^{Footnote 12}

[16] In this case, the Minister made the initial decision very quickly. When the Claimant applied, she said she had lived in Canada from July 2002 until the present. She applied on July 26, 2011, and her pension was approved on November 21, 2011.^{Footnote 13} While the Claimant’s exact GIS application date is not clear, her GIS was approved on October 9, 2012, with an effective date of August 2012.^{Footnote 14}

[17] In response to a letter from the Minister, the Claimant filed a declaration in July 2018. She said she had spent some time in Iran.^{Footnote 15} The Minister then asked her to complete additional questionnaires, which she filed in August 2018 and April 2019.^{Footnote 16} The Minister received other documents between January 2019 and June 2019. These included passports, a Canada Border Services Agency (“CBSA”) report, and an Ontario Health Insurance Plan (“OHIP”) claims history.^{Footnote 17}

[18] I find that the Minister received new information in July 2018, upon which it was reasonable to decide that an investigation was necessary. A questionnaire was promptly sent. I also find that the Minister did not unnecessarily delay the process. Within a month of receiving the OHIP claims history in June 2019, the Minister decided to terminate the Claimant’s OAS pension and GIS benefits.^{Footnote 18}

[19] I further find that, by June 2019, the Minister had new information that was likely to change the original decision. This began with the July 2018 discovery that the Claimant was spending time in Iran. By April 2019, the Minister found out that these absences were as long as 31 months at a time. The 31-month absence started in 2008, but the Claimant did not disclose it in her 2011 application.^{Footnote 19} The Minister also learned that the Claimant’s husband was ill in Iran.^{Footnote 20} In June 2019, the OHIP history showed “clustering” of the Claimant’s medical appointments. She had gaps of up to 30 months between appointments.^{Footnote 21}

[20] All this information is highly suggestive of residence outside Canada. The Minister did not know any of it when approving the 2011 application. As a result, I find that the Minister was entitled to revisit the initial eligibility decision. This is consistent with the SF & CF decision.

[21] I will now assess when the Claimant was resident in Canada.

When was the Claimant resident in Canada?

[22] The Claimant’s OAS eligibility depends on whether she was a resident of Canada for at least ten years. It is important to distinguish being “resident” in Canada from merely being “present” in Canada. A person resides in Canada if she “makes her home and ordinarily lives in any part of Canada.” This is different from merely being physically present in Canada.^{Footnote 22} A person can be present in Canada without being resident in Canada. Merely providing a Canadian address is different from residing in Canada.

[23] While being “present” in Canada does not decide the Claimant’s appeal, it is still an important factor. As a result, I complied the following chart based mostly on information provided by the Claimant.^{Footnote 23} It only shows “presence”, so I will refer to it as the “Presence Chart”.

[24] Some Presence Chart entries appear in bold italics. The Minister admits that the Claimant was resident in Canada during these periods.

[25] I note that the period between December 27, 2013, and December 27, 2014, is uncertain. The Claimant suggests her apparent December 27, 2013, departure from Iran resulted in an immediate entry into Canada. However, I see no entry to Canada around December 27, 2013. In addition, the Claimant’s own version of this chart wrongly suggests that she entered Canada on December 27, 2014, after leaving Canada on October 8, 2015.^{Footnote 24} This is impossible. In the circumstances, I find it likely that the Claimant did not enter Canada in December 2013. She either went to a third country at that time, or the December 2013 “exit” stamp from Iran is actually from December 2014. I also note that she did not receive any medical care in Ontario between September 2012 and January 2015.^{Footnote 25} I conclude that she was not in Canada between February 22, 2013, and December 27, 2014.

[26] The Minister appears to have accepted much of the Claimant’s presence in Canada as “residence”, when such presence lasted more than six months. The lone exception is the period from April 5, 2012, to February 22, 2013 (the “2012 Stay”). I will return to the 2012 Stay later.

[27] While presence is important in determining residence, it is not the only factor. Residence is a factual issue that requires looking at the Claimant’s “big picture”. The Federal Court of Canada says I should consider the following factors (known as the “Ding Factors”):^{Footnote 26}

1. (a) ties in the form of personal property;
2. (b) social ties in Canada;
3. (c) other ties in Canada (medical coverage, driver’s licence, rental lease, tax records, etc.);
4. (d) ties in another country;
5. (e) regularity and length of stay in Canada, and the frequency and length of absences from Canada; and
6. (f) the person’s mode of living, or whether the person living in Canada is sufficiently deep-rooted and settled.

[28] I will now apply the Ding Factors to the facts of this case.

Applying the ding factors

[29] The Claimant said she did not have property in any country.^{Footnote 27} As for social ties in Canada, in 2018 she reported living with her son in London, Ontario. She said her son had the authority to represent her when she was not available.^{Footnote 28} Her son called the Minister’s agent in August 2019.^{Footnote 29} When she applied for the OAS pension, her son was living in a different city but some friends helped her.^{Footnote 30} I see no evidence of community participation, such as in clubs or organizations. She says her ability to communicate in English is limited.^{Footnote 31} I conclude that the Claimant had some limited social ties in Canada.

[30] The Claimant had some other ties in Canada, although they are not very extensive. She received medical care in Ontario from time to time, although this tended to be in clusters.^{Footnote 32} She filed an Ontario health card that was valid from July 2017 to October 2020.^{Footnote 33} She said she paid rent, although she did not file a lease and her son also appears to live at the same address.^{Footnote 34} I did not see any tax or driving records.

[31] The Claimant clearly has significant ties to Iran. She retains Iranian citizenship and does not appear to have become a Canadian citizen. She admits visiting there sometimes.^{Footnote 35} She said she had to nurse and attend to her husband when he was ill in Iran.^{Footnote 36} She would stay there for up to 31 months at a time.

[32] The Claimant has had fairly regular stays in Canada, although many of them were quite short. The Presence Chart confirms that these stays were usually shorter than her stays in Iran, especially in the first few years. It was only in 2017 that the Claimant spent more than 11 months at a time in Canada. Between 2002 and 2010 alone, she had three stays in Iran that lasted more than 600 days each. She also was in Iran for a 562-day period starting in 2015, and likely was in Iran for 673 days between February 2013 and December 2014.

[33] The Claimant’s mode of living in Canada was certainly not deep-rooted and settled for the first five years. Her stays in Canada during that time were all less than six months long. I see more evidence of a settled existence since 2017. The Claimant refers to the difficulty of meeting to day-to-day expenses such as rent, food and clothing.^{Footnote 37} Nonetheless, her mode of living in Canada up to 2017 still appears unsettled. She would often be out of Canada for more than a year.

[34] I accept that the Claimant has residency in Canada for the periods admitted by the Minister. These periods are shown in bold italics in the Presence Chart. Applying the Ding Factors, I also accept the 2012 Stay as a period of Canadian residency for 324 days. The 2012 Stay was longer than her previous stay in Iran, and was also longer than her previous stay in Canada (which was already accepted as residence in Canada). I give more weight to the length of her stay than to the other Ding Factors, as many of those are inconclusive. I do note, however, that she got medical care in Ontario on more than one day in September 2012.^{Footnote 38} Although I attach very little weight to it, I also note that her son said she had lived in Canada since 2012.^{Footnote 39}

[35] I decline to grant the Claimant Canadian residency for the periods in Iran between periods of Canadian residency. The shortest such period in Iran was 232 days, while the longest was 956 days. These periods are too long for her to have maintained Canadian residency, as the Ding Factors are otherwise not persuasive.

[36] I am not making any findings about residency after the reconsideration decision date of March 2, 2020. While the Claimant may have earned additional Canadian residency since then, the parties have not turned their minds to this period. It would be unfair to make any findings about residency after March 2, 2020.

[37] Taken together, I find that the Claimant has 2,232 days (6 years and 41 days) of Canadian residency up to March 2, 2020. This is more than the Minister granted in the reconsideration decision of March 2, 2020. However, it is not enough to qualify for the OAS pension. In turn, with no OAS pension, she is not entitled to the GIS. At some time in the future, she might reach ten years of Canadian residency and qualify for the OAS pension.

[38] The Claimant says she should still receive the OAS pension and GIS because she will not be able to pay her living expenses without them. I agree that the GIS is intended to assist low-income seniors with living expenses. However, the GIS is only available to low-income seniors who qualify for the OAS pension. OAS pension eligibility is not based on need. It is based on age, status, and the duration of residence in Canada. As the Claimant does not meet the duration requirement, her financial situation is not relevant.

What is the impact on the Claimant’s OAS pension and GIS?

[39] The Claimant was never entitled to an OAS pension. As she only had 6 years and 41 days of Canadian residence up to March 2, 2020, she never had ten years of Canadian residence. This means she was never entitled to the GIS either.^{Footnote 40} In turn, this means that she is responsible for repaying the $89,440.45 in benefits she received from August 2012 to September 2019.^{Footnote 41}

Must the Claimant repay the entire overpayment?

[40] The Claimant suggests that the Minister is to blame for any overpayment, and should therefore not require repayment.^{Footnote 42} The law does allow the Minister to forgive part or all of the overpayment amount.^{Footnote 43} However, this is a discretionary power of the Minister. The Tribunal does not have the authority to make findings on the Minister’s discretionary decisions. If the Claimant does not think she should have to repay, she will have to ask the Minister for “remission” of the overpayment. If the Claimant is not satisfied with the Minister’s decision on “remission,” her only recourse is applying to the Federal Court for judicial review of the Minister’s decision.^{Footnote 44}

Conclusion

[41] I find that the Claimant had 6 years and 41 days of Canadian residence up to March 2, 2020. This means she was never eligible for the OAS pension or the GIS, although she may become eligible for them in the future. As a result, she was not eligible for the OAS pension or the GIS benefits she received. This means she must repay $89,440.45. If she believes that some or all of that amount should be waived, she must request this directly from the Minister.

[42] The Minister had only granted the Claimant 5 years and 81 days of residence up to March 2, 2020. I granted the Claimant an additional period of Canadian residence. This means the appeal is allowed in part, even though the Claimant still has a repayment obligation.