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

Decision

[1] The appeal is allowed.

[2] I find that the Minister did not have the power to reassess his decision dated May 15, 2002. I also find that the Claimant ceased being a resident of Canada in July 2011.

[3] This decision explains why I am allowing the appeal.

Overview

[4] The Claimant is an 84 year-old woman as of the date of this decision.

[5] On May 1, 2002, the Minister received her Application for the Old Age Security pension, Allowance and Allowance for the Survivor^{Footnote 1}. On May 15, 2002, the Minister approved an Allowance, effective retroactively in June 2001, as well as an OAS pension of 12/40ths, effective in July 2002^{Footnote 2}. The Claimant reached the age of 65 in June 2002 and the Allowance was converted to an OAS pension and Guaranteed Income Supplement (GIS).

[6] On May 17, 2016, following an investigation commenced in September 2013, the Minister sent the Claimant a letter informing her that she was “never eligible to receive the Allowance, the Old Age Security pension and the Guaranteed Income Supplement.”^{Footnote 3} The Minister asked the Claimant to refund an overpayment of $135,247.13 for the period of June 2001 to August 2013.

[7] The Claimant followed up with a letter from herself dated August 9, 2016^{Footnote 4}, and a letter from her counsel dated September 9, 2016^{Footnote 5}, both essentially asking for more time. The Minister considered these letters as a request for reconsideration and issued a Reconsideration Decision Letter on February 9, 2017^{Footnote 6}, which maintained the original decision of May 17, 2016.

[8] On May 18, 2017, to safeguard her rights, the Claimant filed for both reconsideration^{Footnote 7} and for an appeal of the Minister’s Reconsideration Decision Letter dated February 9, 2017^{Footnote 8}. As the matter was pending before our Tribunal, the Minister would not address the matter of reconsideration^{Footnote 9}.

[9] On December 9, 2018, my colleague Pierre Vandenhout of this Tribunal granted the Claimant’s appeal^{Footnote 10} and found that the Reconsideration Decision Letter of February 9, 2017, was not a valid reconsideration decision. He found that the letters dated August 9, and September 9, 2016, were not valid reconsideration requests.

[10] On January 23, 2019, the Claimant reiterated her request for reconsideration of the original decision dated May 17, 2016^{Footnote 11}. On September 17, 2019, the Minister issued a Reconsideration Decision Letter^{Footnote 12}, again maintaining the original decision.

[11] On December 13, 2019, the Claimant appealed that last decision to our Tribunal^{Footnote 13}.

Issues

[12] There are two issues in this appeal:

[13] First, did the Minister have the power to reassess his decision dated May 15, 2002?

[14] Second, did the Claimant ever cease being a resident of Canada, and if so, when?

Reasons for my decision

[15] I find that the Minister did not have the power to reassess his decision dated May 15, 2002. I also find the Claimant ceased being a resident of Canada in July 2011. These are my reasons below.

The Minister did not have the power to reassess his decision dated May 15, 2002

[16] I will first summarily review the parties’ arguments.

–     Claimant’s arguments

[17] The Claimant contends, “As recent decisions of this Tribunal amply demonstrate, the Minister did not have the power to change the Approval Decision issued in June 2002 in order to seek reimbursement of the benefits paid to the Appellant up to that date”^{Footnote 14}.

[18] The Claimant contends that I should follow the decisions that stemmed from the B.R. decision of our Tribunal’s Appeal decision^{Footnote 15}, which first ruled that the Minister does not have the power to reassess an initial eligibility decision.

–     Minister’s arguments

[19] The Minister contends that Section 23 of the Old Age Security Regulations grants him authority to investigate and assess the eligibility of claimants to benefits at any time.

[20] The Minister contends that I am not bound by past decisions of this Tribunal. At the same time, the Minister wants me to follow a General Division decision named R.S.^{Footnote 16}

–     Why I prefer the B.R. and M.B. decisions to R.S.

[21] Our Appeal Division, in B.R., after an exhaustive review of the enabling legislation – the Old Age Security Act and Old Age Security Regulations - and relevant case law, concluded that short of fraud or new facts, the Minister may not revisit an initial decision to “cancel an OAS benefit and demand that monies paid out be reimbursed”^{Footnote 17}.

[22] I find the Appeal Division’s analysis compelling, most notably of the language used in the enabling legislation, including the concept of cessation. I agree that “the power that the Minister claims to have – to change previous decisions at any time and for any reason – is extraordinary.”^{Footnote 18} I find the B.R. decision well reasoned and I am inclined to follow it.

[23] As I said above, the Minister would rather I follow the General Division decision in R.S. Our General Division in R.S. ruled that it is “necessary” for the Minister to have the power to revisit initial decisions in order to:

“…help to balance the goals of honoring the altruist nature of OAS benefits conferring legislation, by avoiding undue delay in processing applications with the need to safeguard the OAS purse strings by denying payment of benefits to those not entitled.”^{Footnote 19}

[24] I read my colleague’s decision to defend the argument that only those entitled should be receiving OAS benefits, and that the Minister’s power to reassess is a necessary protection in that regard.

[25] I have the benefit of having read a more recent decision of our Appeal Division in M.B.^{Footnote 20} In this decision, our Appeal Division interpreted the words “entitlement” and “eligibility” in order to circumscribe the Minister’s powers as to an initial decision: “Fraudulent applications nullify entitlement. New facts affect new decisions on eligibility."

[26] I read the Appeal Division’s decision in M.B. to state that a Minister’s decision on entitlement, based on fraud, could be retroactive, while a decision on eligibility could only have a forward effect. This conclusion is also found in B.R.: “And once applications are approved, the Minister can continue to assess a pensioner’s ongoing eligibility for benefits (or their amount).”^{Footnote 21}

[27] As to the above argument put forth in R.S., I believe our Appeal Division in M.B. disposes of the argument as to the “necessity” of the Minister’s power to reassess initial eligibility or entitlement decisions to prevent persons not entitled to benefits from receiving them:

“[131] In schemes designed to assist seniors with basic fundamental income security, there may be times when a person receives a benefit and, later, more information becomes available showing that they should not have received it. We live with that outcome because, in benefits-conferring schemes, getting benefits to those who need them requires an application process that moves with the speed and efficiency suited to the task.

[132] The OAS Act and Regulations are part of a social safety net for seniors. I cannot infer there is a power to reassess initial eligibility and collect giant overpayments when the legislation does not clearly state it.” ^{Footnote 22}

[28] The Appeal Division’s analysis in M.B., of the above wording (“entitlement” vs. “eligibility”, but also of Parliament’s intention in regards to the OAS Act, is thorough and compelling. I am inclined to follow it as well.

-    Why I choose to be bound by these Appeal Divisions decisions

[29] The Minister argues that I am not bound by past decisions. This is true, and includes decisions by our Appeal Division.

[30] However, there are important reasons why I may choose to follow such decisions. Consistency in our Tribunal is one such reason, but I would not want to be consistent with decisions I fundamentally disagreed with. My colleague in R.S. did not follow B.R. due to such a fundamental disagreement.

[31] I find that our Appeal Division’s decisions in B.R. and M.B. to be most consistent with the purpose or object of the OAS Act. I concur with our Appeal Division in M.B. that “…the object and purpose of the OAS Act are to provide modest income support for seniors in recognition of their contributions to Canada. This object and purpose do not require a mistake-free assessment.”^{Footnote 23}

[32] I believe that in interpreting the Minister’s powers, our Appeal Division’s decisions in B.R. and M.B. essentially grant the benefit of the doubt to the Claimant because the enabling legislation is not specific enough. I believe this is most consistent with the altruistic purpose or object of the OAS Act. It is why I choose to follow them.

The Claimant ceased being a Canadian resident in July 2011

[33] Considering I found that the Minister could not revisit his decision of May 15, 2002, I should not have to weigh the evidence in regards to the Claimant’s residency in Canada. However, since it is clear the Claimant ceased to be a resident of Canada, I believe it is important for me to make a finding on this issue. I will summarily review the parties’ arguments on this point.

–     Claimant’s arguments

[34] The Claimant contends that she resided in Canada “continuously from December 1989 until her departure from the country in 2011. She had by then accumulated over 22 years of continuous residence in Canada and therefore remained entitled to the benefits she received under the OAS Act”^{Footnote 24}.

–     Minister’s arguments

[35] The Minister contends that the evidence indicates a lack of ties to Canada after 2001.

–     I am convinced that the Claimant was a resident of Canada between until 2011

[36] I am swayed by the Claimant’s arguments and evidence. I find her affidavits dated May 18, 2017^{Footnote 25}, August 22, 2017^{Footnote 26}, and August 13, 2019^{Footnote 27}, compelling. I find her explanations as to her frequent travels – to take part in academic conferences and to visit her children - believable. I am also convinced by her recollections of the extensive health care her husband and herself received in Canada.

[37] I also find the summary of facts put forth by the Claimant’s representative in his submissions^{Footnote 28} to be most exhaustive and, as such, compelling.

[38] I contrast the above with the evidence put forth by the Minister, mostly the following:

• inferences from inconsistencies or lack of entries in the Lovell phone directory;
• inferences from incomplete evidence of the Claimant’s travels;
• inferences from partial Visa credit card statements; and
• inferences from the Claimant’s supposed non-cooperation, which was understandable considering she had effectively moved to Palestine.

[39] I agree with the Claimant’s counsel that “the Minister is essentially asking the Tribunal to dismiss the sworn and uncontradicted evidence of Appellant based on suppositions and inferences.”^{Footnote 29}

[40] I find that the preponderance of the evidence supports the Claimant being a resident of Canada between December 1989 and June 2011.

–     There is an admission that the Claimant ceased to be a resident of Canada in July 2011

[41] As to when the Claimant ceased to be a resident of Canada, the Claimant admits, both in her affidavit dated May 18, 2017^{Footnote 30}, as well as in her submissions^{Footnote 31}, that she ceased to be a resident of Canada in July 2011. This is when she left Canada with her husband to attend a conference in Germany, and then settled in Palestine after her husband’s death in August 2012. The Claimant only returned to Canada in June 2013 to clean out her apartment.

[42] Considering this clear and unambiguous admission, which appears in both the Claimant’s evidence and submissions, I find the Claimant ceased to be a resident of Canada in July 2011.

Conclusion

[43] I find that the Minister did not have the power to reassess his eligibility decision dated May 15, 2002. I also find that the Claimant ceased being a resident of Canada in July 2011.

[44] This means the appeal is allowed.