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

Decision

[1] The appeal is dismissed.

[2] The Appellant, P. G., is not eligible to receive the Allowance (ALW) benefits that she received from June 2014 to May 2019 because she was not cohabiting in a common-law relationship with the deceased, S. F. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant applied for an ALW in October 2013. The Minister of Employment and Social Development (Minister) approved the Appellant’s ALW application on the basis that she was in a common-law relationship with the deceased. The Appellant began receiving the ALW in June 2014.

[4] The Minister received a letter from the Appellant in May 2015. She asked the Minister to cancel the ALW effective May 2015. But the Minister received another letter from the Appellant later that month. She changed her mind about cancelling the ALW.

[5] The Minister received an application for a Guaranteed Income Supplement (GIS) from the Appellant in September 2015. The Appellant said she was single on this application.

[6] The Minister sent the Appellant a letter in November 2016, asking for proof of her marital status. The Minister did not receive a response to this letter and sent a reminder letter in January 2017. The Minister wrote to the Appellant again in July 2017, requesting information about her marital status.

[7] The Minister began an investigation in May 2018, regarding the Appellant’s marital status. The Minister completed its investigation in July 2019. The Minister concluded the Appellant was not in a common-law relationship with the deceased while she collected ALW benefits from June 2014 to May 2019. This resulted in an ALW overpayment of $60,547.09.

[8] The Appellant asked the Minister to reconsider its decision that she was not eligible for the ALW benefit. The Minister delivered a reconsideration decision to the Appellant. It maintained its position that the Appellant was not eligible to receive ALW benefits from June 2014 to May 2019. The Appellant appealed the Minister’s reconsideration decision to the Social Security Tribunal of Canada (Tribunal).

[9] The Appellant says she was eligible to receive ALW benefits because she was in a common-law relationship with the deceased.

[10] The Minister says the Appellant could not receive ALW benefits from June 2014 to May 2019 because she was not in a common-law relationship with the deceased at that time. The Appellant therefore owes $60,547.09 for ALW benefits she received from June 2014 to May 2019.

What the Appellant must prove

[11] The Appellant has the burden of establishing her claim for an ALW benefit.^{Footnote 1}

[12] In order to receive an ALW benefit, an individual must be between 60 to 64 years of age and they must be the spouse or common-law partner of a pensioner receiving a GIS.^{Footnote 2}

[13] The Appellant was 60 to 64 when she collected the ALW benefit. The deceased was receiving a GIS benefit. This means the Appellant has to show that she was the deceased’s common-law partner when she collected the ALW benefit.

[14] The Old Age Security Act (OAS Act) defines the term “common-law partner” to mean a person who was cohabiting with someone in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year.^{Footnote 3}

[15] In McLaughlin v Attorney General of Canada (McLaughlin), the Federal Court of Canada ruled that the generally accepted characteristics of a conjugal relationship include the following:

• Shelter, including consideration of whether the parties lived under the same roof, slept together, and whether anyone else occupied or shared  the available accommodation;
• Sexual and personal behaviour, including whether the parties have sexual relations, maintain an attitude of fidelity to each other, communicate on a personal level, eat together, assist each other with problems or during illness or buy each other gifts;
• Services, including the roles they played in the preparation of meals, doing laundry, shopping, conducting household maintenance and other domestic services;
• Social, including whether they participated together or separately in neighbourhood and community activities and their relationship with respect to each other’s family members;
• Societal, including the attitude and conduct of the community towards each of them as a couple;
• Support, including the financial arrangements between the parties for provision of necessaries and acquisition and ownership of property;
• Attitude and conduct concerning any children.^{Footnote 4}

[16] All the characteristics of a conjugal relationship may be present in varying degrees, but not all are necessary for the relationship to be conjugal.^{Footnote 5}

[17] Common-law relationships differ from legal marriages. There is often no specific evidence to show when common-law partners make a commitment to each other, such as a marriage certificate. Parties in a common-law relationship have to show, by their acts and conduct, a mutual intention to live together in a marriage-like relationship of some permanence.^{Footnote 6}

Matters I have to consider first

I proceeded with the hearing in the absence of the deceased’s estate

[18] The deceased’s estate is an Added Party to the appeal. The estate representative did not dial into the teleconference. I asked our Registry Office (RO) to contact the estate representative on the date of the hearing. The estate representative advised the RO that it would not participate in the hearing. I decided to proceed without the Added Party. The Social Security Tribunal Regulations allow to me to proceed without a party when they receive notice of the hearing^{Footnote 7}, which happened in this appeal.

I do not have jurisdiction to deal with the Appellant’s entitlement to a survivor’s pension

[19] The Appellant in her Notice of Appeal stated that she was entitled to the ALW benefit and a survivor’s pension. I have no jurisdiction to deal with her entitlement to a survivor’s pension. My jurisdiction in this appeal is limited to dealing with the issue contained in the Minister’s reconsideration decision, which is the Appellant’s entitlement to the ALW benefit.^{Footnote 8}

Does the Minister have jurisdiction to change its mind about the Appellant’s eligibility for the ALW?

[20] The Minister initially decided the Appellant was entitled to the ALW. It later changed its mind.

[21] At the time of the hearing, there was a division in decisions at the Tribunal about whether the Minister had jurisdiction to change its initial eligibility decisions under the OAS Act.

[22] In BR v Minister of Employment and Social Development^{Footnote 9}, (BR), the Tribunal’s Appeal Division decided that the Minister does not have the power to change its initial eligibility decision in OAS Act cases.

[23] Other cases at the Tribunal disagreed with BR and decided that the Minister had the power to change its initial eligibility decisions in OAS Act cases.^{Footnote 10}

[24] The Appeal Division in the Minister of Employment and Social Development v AL,^{Footnote 11} (AL) decided that the Minister does not have an unrestricted discretion to reopen initial eligibility decisions. The Appeal Division ruled that the Minister’s authority must be exercised for the purpose of fixing incorrect decisions, and that purpose must be narrowly construed. The Minister 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.

[25] I asked the Appellant to make submissions about the issue of the Minister’s jurisdiction to change its initial eligibility decision.^{Footnote 12} I did not receive a response from the Appellant. I asked the Minister for submissions on its jurisdiction to change its initial eligibility decision.^{Footnote 13} The Minister asked me to hold this appeal in abeyance because there was a case pending before the Federal Court of Appeal that dealt with the Minister’s authority to change its initial eligibility decisions.^{Footnote 14} I agreed to the Minister’s request to place the appeal in abeyance.^{Footnote 15}

[26] The Federal Court of Appeal eventually released its decision in a case called Canada (Attorney General) v Burke^{Footnote 16}, on March 15, 2022. I asked the Minister and the Appellant for submissions on the Burke decision.^{Footnote 17} I received submissions from the Minister.^{Footnote 18} I did not receive submissions from the Appellant.

[27] I agree with the Minister that the Burke decision means the Minister has jurisdiction to change its initial eligibility decisions under the OAS Act. I also agree with the Minister that the Appeal Division’s decision in AL is not applicable. This is because I have to follow Federal Court of Appeal decisions. I do not have to follow the Appeal Division’s decision in AL. In addition, the Appeal Division has recently confirmed that the Minister has jurisdiction to reassess eligibility for benefits under the OAS Act in several decisions released after Burke.^{Footnote 19}

[28] The Federal Court of Appeal in Burke found that the text of the OAS Act was “precise and unequivocal”. The Federal Court of Appeal ruled that section 37 of the OAS Act and section 23 of the OAS Regulations authorized the Minister to reconsider the eligibility of an individual to OAS benefits “at any time” and to “recover payments that should not have been made.”^{Footnote 20}

[29] The Federal Court of Appeal also found the context of the OAS scheme supports an interpretation that allows for the reassessment of benefits at any time. The court concluded that just because a benefits application had been approved does not mean that a benefit may be paid to a person if they are not eligible to receive the benefit.^{Footnote 21}

[30] The Federal Court of Appeal ruled that:

. . . [A]n interpretation of the legislation that would preclude the Minister from reassessing initial eligibility for benefits and recovering benefits improperly paid is one that is not consistent with the purposes of the Act, which is to pay benefits to people who meet the eligibility criteria set out in the Act.^{Footnote 22}

[31] The Burke decision dealt with an Appellant’s eligibility for an OAS pension. It did not deal with a person’s eligibility for an ALW. But I agree with the Minister that the Burke decision applies to all benefits under the OAS Act, including the ALW.^{Footnote 23} The Federal Court of Appeal in Burke analyzed section 37 of the OAS Act, which deals with the return and recovery of a benefit that a person is not entitled to receive. It also analyzed section 23 of the OAS Regulations, which deals with the Minister’s power to investigate the eligibility of a person to receive a benefit. The OAS Act has a definition of a benefit, which includes an ALW.^{Footnote 24} I therefore accept that the Minister had the jurisdiction to change its mind about the Appellant’s initial eligibility for the ALW.

[32] I agree with the Minister that the AL decision does not apply to this case and that the Burke decision binds me. The Federal Court of Appeal in Burke did not recognize the framework set out in AL that “narrowly construed” the Minister’s jurisdiction to revisit eligibility decisions under the OAS Act.

[33] I agree with the Minister that the Burke decision means it has the broad authority to revisit its eligibility decision at any time.^{Footnote 25} The Minister’s discretion is limited only by the language of the OAS Act and common-law constraints on discretion. The Minister under the OAS Act must pay benefits to those who are entitled to receive them. Common-law constraints on discretion are judge-made rules that say that the Minister must exercise its decision judicially.^{Footnote 26}

[34] The Minister does not exercise its discretionary powers judicially if it can be established that it:

• acted in bad faith,
• acted for an improper purpose or motive,
• took into account an irrelevant factor,
• ignored a relevant factor, or
• acted in a discriminatory matter.^{Footnote 27}

[35] I accept the Minister’s submissions that it exercised its discretion judicially.^{Footnote 28} The Appellant applied for the ALW as a common-law spouse. She later applied for the GIS saying she was single. This contradiction triggered an investigation into the Appellant’s marital status. The Minister concluded that the Appellant failed to show that she and the deceased were in a common-law relationship while she collected ALW benefits from June 2014 to May 2019.

[36] The Minister’s decision does not bind me and the Appellant appealed its decision to the Tribunal. The Appellant says she was entitled to the ALW because she was in a common-law relationship. I will now turn my attention to whether the Appellant showed that she was in a common-law relationship with the deceased while collecting ALW benefits.

Reasons for my decision

[37] I find that the Appellant and deceased did not live in a common-law relationship as defined in the OAS Act while she collected ALW benefits from June 2014 to May 2019. I reached this decision by considering the factors for a conjugal relationship set out by the Federal Court in McLaughlin.

Shelter

[38] The Appellant was born in 1954. The deceased was born in 1927. The Appellant said she met the deceased in 1999. He lived beside her. They began living together in 2008. She said their common-law relationship began in 2008. She said they lived together for eight years, until she put him in a retirement home because of dementia in 2017. She said she maintained a relationship with the deceased until he passed away. But she could not remember the date of his death. She thinks it was about 1.5 years before the hearing date.

[39] I am satisfied that the Appellant and deceased lived together for a period of time. The Tribunal file has a tenancy agreement dated February 1, 2015, that lists both the Appellant and the deceased.^{Footnote 29} There are also letters from property management companies saying the Appellant and deceased lived together for periods of time.^{Footnote 30}

[40] However, the fact that the Appellant and deceased lived together at times does not automatically show that they lived in a common-law relationship.^{Footnote 31} When I look at the other McLaughlin factors, the evidence shows that a common-law relationship did not exist.

Sexual and personal behaviour

[41] The Appellant said she did not have a sexual relationship with the deceased. She did not have sexual relationships with other people and neither did the deceased. They both had separate bedrooms. They shared meals. She said she took care of the deceased when he was sick. The deceased took care of her after she broke her hip. They also bought each other gifts.

[42] However, the documentary evidence paints a different picture of the relationship.

[43] The Tribunal file shows that an investigator employed by the Minister received a call from a police constable on June 6, 2019.^{Footnote 32} The police constable advised the Minister that the deceased had passed away. The police constable heard that the Appellant was trying to obtain a death benefit. The police constable said that he had been investigating the Appellant for elder abuse against the deceased for years.

[44] The police constable said the Appellant committed fraudulent acts against the deceased. The deceased told the police that he did not want to live in the same apartment as the Appellant because she kept taking his money. The police constable believed the deceased only lived with the Appellant because he had no family. The police constable said the deceased had to be admitted into a nursing home. The Appellant would come to the nursing home and take the deceased for lunches. She would convince the deceased to give her money. The police constable said that the Appellant even got the deceased to sign false papers.

[45] The police constable also said that the Appellant did not put the deceased in a nursing home. The police worked with a community housing services agency got the deceased into a nursing home. The nursing home was advised that the Appellant should not be allowed to visit the deceased. A restraining order was put in place and the Appellant could not visit the deceased.

[46] The police constable told the Minister’s investigator that the Appellant not only took the deceased’s money, she sometimes did not feed him.^{Footnote 33}

[47] The Appellant denied the police constable’s allegations. She said she was the one who put the deceased in a nursing home. However, the Appellant’s story was contradicted by other documentary evidence.

[48] The Minister’s investigator received information from the nursing home on September 13, 2018. The deceased was admitted to the nursing home on August 9, 2017, from the emergency room. He was not accompanied by the Appellant. He was accompanied by a community housing worker. The nursing home told the investigator that the Public Guardian had a Power of Attorney for the deceased. His marital status on admission was single. The deceased told the retirement home that he had a “lady friend”, but he did not call it a common-law relationship.^{Footnote 34}

[49] An investigator for the Minister spoke to a community housing services organization representative on February 13, 2019. The representative told the investigator that the deceased lived on the streets before he entered the nursing home. A social worker had the deceased admitted to the nursing home.^{Footnote 35}

[50] A March 1, 2019, letter from a community housing services organization stated that the organization intervened because the deceased was “experiencing acutely elevated levels of risk.” When they visited the deceased in December 2015, he was living alone. But they said that he became “precariously housed” after they met him in December 2015. Their records did not show a common-law relationship between the Appellant and deceased.^{Footnote 36}

[51] The Tribunal file contains information from the nursing home, confirming that there was a restraining order against the Appellant.^{Footnote 37}

[52] The Appellant denied the information received by the police constable, the nursing home, and the community housing services organization. She denied that the deceased lived on the streets. She denied abusing him. However, I have no reason to disbelieve information from multiple sources that the Appellant neglected the deceased.

Social and services

[53] The Appellant said that she and the deceased socialized. They went for lunches and coffee. The Appellant’s daughter would take them shopping. She said the deceased had a good a relationship with her grandchildren. The Appellant says she cooked the meals and did all the laundry. They shopped together all the time. The deceased performed home maintenance tasks, even though he was elderly. However, the Appellant’s evidence about a close relationship is difficult to reconcile with evidence obtained from the police constable, the nursing home, and the community housing services organization. The deceased also told the Minister in May 2018 that although he went to restaurants with the Appellant, they did not go to social events.^{Footnote 38}

Societal

[54] The Appellant said that she and the deceased were recognized as a common-law couple. They were registered as a common-law couple by Service Canada. She also said their landlord recognized them as a common-law couple. The documents tell a different story.

[55] The police constable, nursing home, and the community housing services organization did not view the relationship between the Appellant and deceased as a common-law relationship. The Public Guardian and Trustee (PGT) also did not recognize a common-law relationship. The PGT advised the Minister that they began their trusteeship in January 2018. The PGT had no information that the deceased had ever been in a common-law relationship. The PGT told the Minister that the deceased had diminished mental capacity and “could be highly susceptible to suspicious activity.” The PGT said that it was working with police authorities on behalf of the deceased concerning his relationship with the Appellant. The PGT also advised the Minister that the deceased had described himself as single on his tax returns.^{Footnote 39}

[56] A letter from a property management company for the building where the Appellant and deceased lived from May 2014 to May 2015 did not confirm a common-law relationship.^{Footnote 40}

[57] The Tribunal file contains another letter from a property management company for the building where the Appellant and deceased lived from 2015 to 2017. The property manager described the deceased as the Appellant’s roommate.^{Footnote 41} The letters received from the property management companies contradict the Appellant’s testimony that they recognized a common-law relationship. I have no reason to disbelieve the information received from the property management companies.

Support

[58] The documents contained in the Tribunal file do not support a finding that the Appellant and deceased provided each other with mutual economic support.

[59] The Appellant said that she and the deceased did not work. The deceased collected an old age pension. They split the rent and the groceries. She paid for the cable and telephone. She had her own furniture when they began living together. They did not have life insurance or tenant insurance. She had her own medical plan, while the deceased paid for his medications on his own. She said that the deceased’s funeral had been paid for and preplanned years before he died. She did not receive a death benefit. She said she had a joint bank account with the deceased, but a police constable took that away. She also said that she had a Power of Attorney, but the police officer took that away.

[60] The documents in the file contradicted the Appellant’s evidence that she split the rent equally with the deceased. A letter from a property manager said the deceased had been paying room and board directly to the Appellant in the amount of $800.00 per month. The Tribunal records show that the rent in the apartment they lived in was $1,150.00 per month.^{Footnote 42} This meant the deceased paid most of the rent.

[61] The Tribunal file shows that the Appellant and deceased had joint bank accounts in 2013.^{Footnote 43} But these accounts were closed in 2016.^{Footnote 44}

[62] I strongly doubt that the Appellant provided financial support to the deceased in light of the allegations of abuse and neglect made by the police. The nursing home also advised the Minister’s investigator that they did not receive fees on time from the deceased because he had no money. The community services housing organization paid these fees and not the Appellant. The PGT began paying the deceased’s nursing home fees after they began managing his affairs.^{Footnote 45}

[63] The Tribunal file contains a Power of Attorney for property signed by the deceased in May 2018. The deceased revoked any previous powers of attorney and appointed the Appellant his attorney for property.^{Footnote 46} However, the Minister’s investigation showed that the deceased had been deemed incapable of making certain decisions by the PGT in February 2018.^{Footnote 47} This means that the Appellant’s Power of Attorney was likely invalid, which she seemed to confirm in her testimony when she said the police “took away” her Power of Attorney.

Attitude and conduct concerning children

[64] The Appellant says that the deceased knew her children and had a good relationship with them. She said her children considered the deceased a part of the family.

[65] However, the Appellant had little to do with the deceased’s family. She thinks the deceased had children. She never associated with his children. She said that the deceased did not have much family around him.

Final comments

[66] Parties to a common-law relationship have to show a mutual intention to live together in a marriage-like relationship of some permanence. A common-law relationship cannot exist without the mutual intention of both parties.^{Footnote 48}

[67] The deceased said he was living in a common-law relationship with the Appellant in a GIS application he signed in July 2017.^{Footnote 49} He completed a questionnaire in August 11, 2017, saying that he was still in a common-law relationship with the Appellant.^{Footnote 50}

[68] However, in August 2018 the deceased told the Minister’s investigator that he was not in a common-law relationship with the Appellant. He described the Appellant as “trouble” and confirmed that the police brought a retraining order against her.^{Footnote 51}

[69] I find that the Appellant failed to prove that she was in a common-law relationship with the deceased when she collected ALW benefits from June 2014 to May 2019.

[70] The Appellant and deceased lived together for periods of time. But I agree with the property manager’s characterization of their relationship as being roommates.

[71] The Appellant and deceased did not have sexual relations. I do not believe the Appellant provided the deceased with care when he was sick. The police, the nursing home, the community services housing organization, and the PGT all referenced either abuse or a lack of care on the part of the Appellant.

[72] The Appellant did not provide financial support to the deceased. The deceased appeared to have paid most of the rent. The police constable’s allegations of the Appellant taking money from the deceased are supported by the PGT. The PGT stepped in and became the deceased’s guardian of property. The PGT wrote to the Minister and asked it to cancel any previous electronic fund transfer instructions it might have had in its file.^{Footnote 52} The police, the nursing home, the community housing services organization, and the property manager did not recognize the Appellant and deceased as being in a common-law relationship.

[73] I also have serious doubts about the Appellant’s credibility. She obtained ALW benefits because she said she was in a common-law relationship. However, when she applied for the GIS in 2015 she said she was single. There were also multiple allegations in the file documents that she took advantage of the deceased.

[74] I do not see evidence that the Appellant and the deceased cohabited in a marriage like relationship when the Appellant received ALW benefits.

Conclusion

[75] I find that the Appellant is not eligible to receive the ALW from June 2014 to May 2019 because she was not cohabiting in a common-law relationship with the deceased.

[76] This means the appeal is dismissed.