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

Decision

[1] The appeal is summarily dismissed. This means there won’t be a hearing and the Tribunal is closing the appeal file.

[2] The Appellant’s (L. R.’s) Old Age Security (OAS) benefits are effectively suspended while he is incarcerated in a federal penitentiary.

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

Overview

[4] The Appellant applied for an OAS pension. The Minister of Employment and Social Development (Minister) received his application on February 21, 2017.

[5] On October 30, 2017, the Minister wrote to the Appellant^{Footnote 1} and approved his OAS pension application. The Minister also said that [translation] “benefits are suspended for individuals while they are incarcerated for a sentence of two years or more to be served in a federal penitentiary,”^{Footnote 2} which had been the Appellant’s case since April 1999.

[6] On November 9, 2017, the Appellant wrote to the Minister^{Footnote 3} to get certain information about the Minister’s refusal to give him his pension while he was in prison.

[7] On December 20, 2017, the Minister wrote to the Appellant^{Footnote 4} to give him certain information and to uphold its initial decision.

[8] On February 28, 2018, the Appellant appealed^{Footnote 5} the Minister’s decision to the Tribunal’s General Division.

[9] On November 29, 2019, my colleague Antoinette Cardillo issued a decision^{Footnote 6} dismissing the Respondent’s appeal. The matter was then the subject of several decisions by our General Division and Appeal Division.

[10] On March 28, 2022, my colleague Jude Samson, from our Appeal Division, allowed the Appellant’s appeal, saying: “The matter is returned to the General Division so that the constitutional challenge can follow the proper process, led by a different member.”^{Footnote 7}

[11] On October 6, 2022, my colleague Nathalie Léger, from our General Division, made an interlocutory decision. She [translation] “put an end to the Canadian Charter of Rights and Freedoms (Charter) process in this matter because the Appellant didn’t provide the required record for the appeal to proceed under the Charter process.”^{Footnote 8} She also said that [translation] “Since the Appellant hadn’t filed a valid record, the appeal would proceed as a regular appeal.”^{Footnote 9}

[12] It was after that decision that the file was assigned to me.

What summary dismissal means

[13] The Tribunal has to summarily dismiss an appeal if it considers that the appeal has no reasonable chance of success.^{Footnote 10} If an appeal doesn’t have a reasonable chance of success, it means an appellant doesn’t have an argument that could possibly succeed. No matter what evidence or arguments an appellant might present at a hearing, the appeal still would not have a reasonable chance of success.^{Footnote 11}

[14] If the Tribunal summarily dismisses an appeal, there won’t be a hearing and the Tribunal will close the appeal file.

[15] On October 19, 2022, I sent the Appellant a letter^{Footnote 12} explaining that I planned to summarily dismiss his appeal. I asked him to tell me in writing why he thinks his appeal should not be summarily dismissed. I gave the Appellant until November 21, 2022, to reply.

[16] The Appellant hasn’t replied to my letter or sent in submissions (arguments).

What I have to decide

[17] I have to decide whether the Appellant’s appeal has a reasonable chance of success.

Reasons for my decision

[18] The Appellant’s appeal doesn’t have a reasonable chance of success.

[19] The Appellant’s appeal concerns the non-payment of an OAS pension during his period of incarceration in a federal penitentiary. It appears that the Appellant has been incarcerated in a federal penitentiary since April 1999, which the Appellant has never disputed.^{Footnote 13}

[20] Section 5(3) of the Old Age Security Act^{Footnote 14} reads as follows:

Incarcerated persons

1. (3) No pension may be paid in respect of a period of incarceration — exclusive of the first month of that period — to a person who is subject to a sentence of imprisonment
1. (a) that is to be served in a penitentiary by virtue of any Act of Parliament;

[21] The Appellant’s February 28, 2018, appeal could have announced a challenge to that provision under the Charter.^{Footnote 15}Such challenges are also subject to a specific procedure.

[22] My colleague Nathalie Léger’s decision, which says that the appeal had to proceed as a regular appeal, wasn’t appealed by the Appellant. So, there is no challenge to the above provision under the Charter in this case.

[23] As a result, according to the above paragraph, the Appellant can’t get an OAS pension while serving a prison sentence in a penitentiary under federal law.

Conclusion

[24] I therefore find that not paying the Appellant an OAS pension while he is incarcerated in a federal penitentiary is correct and in accordance with the law.

[25] This means the appeal doesn’t have a reasonable chance of success.

[26] The appeal is summarily dismissed.