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

Decision

[1] The appeal is allowed in part.

[2] The Appellant, P. M., isn’t eligible for a full Old Age Security (“OAS”) pension. But he is eligible for a partial OAS pension of 7/40. This is more than what the Minister of Employment and Social Development (“Minister”) granted in the reconsideration decision of December 11, 2020.

[3] Payments start as of July 2018.

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

Overview

[5] The Appellant was born in South Africa on April 20, 1941. He is now 81 years old. He came to Canada as an immigrant on May 7, 1975, and became a Canadian citizen in 1978. He moved to the United States (“US”) around December 11, 1979. He later lived for a time in the United Kingdom (“UK”). He owns what he describes as a small “pied-à-terre” in France. He has had it for about 30 years.^{Footnote 1} But he has also spent an exceptional amount of time pursuing personal interests in other countries. He might spend time in as many as 15 different countries in a calendar year. His passports are filled with various stamps and visas.

[6] While the Appellant visited Canada from time to time after 1979, he began spending more time here again in June 2012. In August 2015, he rented an apartment, and has been a tenant in Canada since then. However, at least until the COVID-19 pandemic started in early 2020, he continued to travel the world extensively.

[7] The Appellant applied for an OAS pension on September 17, 2018.^{Footnote 2} He said he wanted his pension to start in July 2018.

[8] The Minister granted the Appellant a partial pension. This partial pension was 4/40 of a full pension.^{Footnote 3} The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[9] The Appellant says he should get a full OAS pension. He says he meets the “10-year-rule” (or the related “3-for-1 rule”). In addition to residing in Canada from May 7, 1975, to December 11, 1979, he suggests that he may have legally resided in Canada until December 31, 1979.^{Footnote 4} He also says he has resided in Canada since 2012. He further points to his extended residence in the US, with which Canada has a social security treaty. He raises many concerns about how the Minister has handled his application. As a result, he has requested many remedies besides a full OAS pension.

[10] The Minister admits that the Appellant resided in Canada from May 7, 1975, to December 11, 1979. The Minister also admits that the Appellant has resided in Canada since April 6, 2019. However, the Minister denies that the Appellant resided in Canada for the last 20 days of 1979. The Minister also denies that the Appellant resided in Canada at any time from January 1, 2012, to April 5, 2019. The Minister points to the Appellant’s house in France, his family members in France and South Africa, his other connections to South Africa, and his nomadic lifestyle. The Minister also disagrees with the Appellant’s interpretation of the Old Age Security Act (the “Act”).

[11] This decision was made “on the record,” for the reasons set in the Tribunal’s letter dated April 20, 2022.^{Footnote 5}

What the Appellant must prove

[12] To receive a full OAS pension, a person usually has to prove he resided in Canada for at least 40 years after he turned 18.^{Footnote 6}

[13] The Appellant doesn’t claim he resided in Canada for 40 years after turning 18. He says he doesn’t need to, as he met other requirements to get a full OAS pension.

[14] If the Appellant doesn’t qualify for a full OAS pension, he might qualify for a partial pension. A partial pension is based on the number of years (out of 40) that a person resided in Canada after they turned 18. For example, a person with 12 years of residence receives a partial pension equal to 12/40 of the full amount.

[15] To receive a partial OAS pension, the Appellant must prove he resided in Canada for at least 10 years after he turned 18. But, if he didn’t reside in Canada the day before his application was approved, he must prove he already has 20 years of residence.^{Footnote 7}

[16] The Appellant must prove he resided in Canada. He must prove this on a balance of probabilities. This means that he must show it is more likely than not that he resided in Canada during the relevant periods.^{Footnote 8}

Reasons for my decision

[17] I find that the Appellant isn’t eligible for a full OAS pension. But he is eligible for a partial pension of 7/40. This is more than his current partial pension of 4/40.

[18] The Minister concedes that the Appellant resided in Canada from May 7, 1975, to December 11, 1979, and again starting on April 6, 2019. The Appellant submits that his latest Canadian residency actually started in 2012. He also suggests that he may have “legally” resided in Canada for the last 20 days of 1979.

[19] As a result, I considered the Appellant’s potential residency in Canada from January 1, 2012, up to and including April 5, 2019. I have also considered his potential residency in Canada from December 12, 1979, to December 31, 1979. These are the only periods of residency that the Appellant and the Minister dispute.

[20] Here are the reasons for my decision.

The test for residence

[21] The law says that being present in Canada isn’t the same as residing in Canada. “Residence” and “presence” each have their own definition. I must use these definitions in making my decision.

[22] A person resides in Canada if he makes his home and ordinarily lives in any part of Canada.^{Footnote 9}

[23] A person is present in Canada when he is physically present in any part of Canada.^{Footnote 10}

[24] When I am deciding whether the Appellant resided in Canada, I must look at the overall picture and other factors (the “Ding Factors”). The Ding Factors include:^{Footnote 11}

• where he had property, like furniture, bank accounts, and business interests
• where he had social ties, like friends, relatives, and membership in religious groups, clubs, or professional organizations
• where he had other ties, like medical coverage, rental agreements, mortgages, or loans
• where he filed income tax returns
• what ties he had to another country
• how much time he spent in Canada
• how often he was outside Canada, where he went, and how much time he spent there
• his lifestyle in Canada
• his intentions.

[25] This isn’t a complete list. Other factors may be important to consider. I have to look at all the Appellant’s circumstances.^{Footnote 12}

When the Appellant resided in Canada

[26] As noted above, the Appellant resided in Canada from May 7, 1975, up to and including December 11, 1979. He has also resided in Canada since April 6, 2019.

[27] I find that the Appellant also resided in Canada in the following periods:

• May 26, 2015, up to and including August 13, 2015 (80 days)
• November 1, 2015, up to and including January 30, 2016 (91 days)
• April 10, 2016, up to and including April 5, 2019 (1091 days)

[28] The Appellant didn’t reside in Canada in the following periods:

• December 12, 1979, up to and including December 31, 1979
• January 1, 2012, up to and including May 25, 2015
• August 14, 2015, up to and including October 31, 2015
• January 31, 2016, up to and including April 9, 2016.

[29] The periods of Canadian residence total 2,942 days (just over 8 years) up to April 5, 2019. I will now discuss each period, starting with the earliest one. For each period, I will explain why I have decided that the Appellant did or didn’t reside in Canada.

The Appellant didn’t reside in Canada from December 12, 1979, to December 31, 1979

[30] The Appellant said his Canadian employer transferred him to Seattle (US) in late 1979.^{Footnote 13} When he applied for the OAS pension, he said he resided in Canada until November 1979, and started residing in Seattle in December 1979.^{Footnote 14} He later said he immigrated to the US on December 11, 1979, to open a new office in Seattle.^{Footnote 15} This is supported by a US visa document showing his entry date as December 11, 1979.^{Footnote 16}

[31] The Appellant had significant Canadian earnings in 1979, although they do not specifically refer to the last 20 days of the year.^{Footnote 17} At the same time, he also had significant 1979 earnings in the US that specifically refer to each quarter of the year (including the last quarter). He had significant US earnings until the end of 1985.^{Footnote 18}

[32] The Canada Revenue Agency (“CRA”) said the Appellant became a non-resident of Canada as of January 1, 1980.^{Footnote 19} This is really the only evidence that he might still have resided in Canada after December 11, 1979. However, a CRA determination of residency is not binding on the Tribunal or the Minister. The Old Age Security Act contains a very specific definition of “residence”. In contrast, the Income Tax Act does not define it, leaving the exact meaning to the common law. The factors used to assess residency under each act may be similar, but context and a claimant’s specific factual circumstances must always be kept in mind.^{Footnote 20}

[33] Ultimately, I return to the definition of residence in the Old Age Security Act.^{Footnote 21} I cannot say that the Appellant made his home and ordinarily lived in Canada for the last 20 days of 1979, just because the CRA considered him to be a Canadian resident for tax purposes. His own actions and words mandate that he ceased to be a Canadian resident for OAS purposes when he immigrated to the US on December 11, 1979.

The Appellant didn’t reside in Canada from January 1, 2012, to May 25, 2015

[34] The Appellant is also a South African citizen. He appears to have made South Africa his base for many years. However, he said the unstable situation there in 2011 led him to revisit Canada as a potential base.^{Footnote 22}

[35] The Appellant re-entered Canada on June 4, 2012.^{Footnote 23} He soon took several steps that were consistent with residing in Canada. He got a Nova Scotia driver’s licence on July 24, 2012.^{Footnote 24} He set up a bank account with HSBC in Halifax in August 2012.^{Footnote 25} He appears to have acquired a Canadian SIM card for his mobile phone on a 2011 visit.^{Footnote 26} He appears to have investigated the purchase of land in 2012. However, he said the bank’s letter never arrived and he didn’t follow up the land matter until April 2015.^{Footnote 27}

[36] The Appellant executed his Last Will and Testament on February 22, 2013. In that Will, he said that he re-immigrated to Canada in June 2012 and intended to take up permanent residence in Nova Scotia. He also wanted his estate matters settled as a Canadian citizen and under the applicable provincial laws.^{Footnote 28}

[37] The Appellant produced a list of prescriptions, showing that he was prescribed Micardis in Canada on June 24, 2013. The other prescriptions were from after May 25, 2015.^{Footnote 29}

[38] As with the period in late 1979, the Appellant points out that he was considered a Canadian resident for tax purposes starting on January 1, 2012. He filed tax returns here from that year forward as a resident of Nova Scotia.^{Footnote 30}

[39] The Appellant provided the following summary of the time he spent in Canada from January 1, 2012, to May 25, 2015^{Footnote 31}:

[40] This shows that the Appellant was present in Canada for 107 days over a period lasting 1241 days. He was therefore present in Canada approximately 8.7% of the time. He spent most of those 107 days as a guest at Cape View Motel and Cottages in Nova Scotia. He had a private post office box at the Salmon River (Nova Scotia) post office.^{Footnote 32}

[41] I have considered whether the Ding Factors lead to a finding that the Appellant resided in Canada during this period. However, I find his presence in Canada during this period to be very intermittent and unsettled. His accommodations were very temporary. He did not have medical coverage in Canada until sometime in 2015.^{Footnote 33} At one point, he declared that he did not resume permanent residence in Canada until August 2015.^{Footnote 34} At other times, he has said that such residence resumed in 2012. He says the later date was based on incorrect advice from the Minister.

[42] The Appellant did take some steps toward a more rooted existence in Canada, such as getting a driver’s licence and opening a bank account. He also prepared a will and thought about buying land. While he often spoke of his intention to make Nova Scotia his home in 2012^{Footnote 35}, the fact is that he spent very little time there. I acknowledge that his extensive travels would necessarily reduce his presence in Nova Scotia. But he still managed to retain a significant presence in South Africa and France, besides having strong ties to those countries. These ties include a daughter and granddaughter in France, as well as a daughter and grandson in South Africa.^{Footnote 36} He has no family in Canada, although he says he has “some good friends”.^{Footnote 37}

[43] In South Africa, the Appellant spent significant time between January 1, 2012, and May 25, 2015. His South African passport suggests he was present in South Africa for the following periods^{Footnote 38}:

[44] The Appellant therefore appears to have been present in South Africa for 372 days from January 1, 2012, to May 25, 2015. This is roughly 30.0% of the period in question, compared to 8.7% in Canada.

[45] In France, he continued to own his “pied-à-terre”. He has had it since about 1990. He had a phone, utilities (including electricity and water), a debit card, insurance, a television licence, and a bank account there in his name.^{Footnote 39} He also had access to a car there.^{Footnote 40} He argues that he cannot be considered a resident of France because he is not allowed to stay for more than three months at a time without a special visa. He said France considers him a “visiteur”, and he cannot come and go as he pleases.^{Footnote 41}

[46] From January 1, 2015, to May 20, 2015, the Appellant spent 91 days at his home in St.-Guilhem, France.^{Footnote 42}

[47] It is more difficult to assess how much time the Appellant spent in France from 2012 to 2014. This is partly because of the European Union’s “no internal borders” approach. This means that we can only say where he entered the European Union, not when he entered France. Another complication is that his home in France is near Spain. Many of his passport stamps are from Barcelona, which is in Spain, rather than the closer but much smaller city of Montpellier, France.

[48] Many passport stamps are also unreadable. Nonetheless, it appears that the Appellant arrived in Spain (or France) on many occasions from 2012 to 2014. Such occasions include^{Footnote 43}:
2012 - (prior to) January 20, March 5,
2013 - January 26, March 14, April 16, July 9, December 3, December 21,
2014 – January 8, (prior to) July 22, August 7, December 10

[49] By emphasizing his legal status as a “visiteur” in France, the Appellant is trying to use French law to determine an issue of Canadian law. The name used by French officials to describe him cannot determine his residency for OAS purposes. I place very little weight on his legal status in France. I also note that he has regarded his residence in France as his “home” in the past, even when he was considered a “visiteur”.^{Footnote 44}

[50] I conclude that the Appellant was not resident in Canada from January 1, 2012, to May 25, 2015. Compared to his connections to both South Africa and France, his connection to Canada was very unsettled. He may well have been planning Canadian residency, but he had not yet achieved it.

The Appellant resided in Canada from May 26, 2015, to August 13, 2015

[51] The Appellant resided in Canada from May 26, 2015, to August 13, 2015.

[52] Starting on May 26, 2015, the Appellant’s residency situation changed significantly. He started taking steps in Canada that were more consistent with a settled existence here, even if he did not abandon his strong connections to South Africa and especially France.

[53] Most notably, in July 2015, the Appellant signed a lease for an apartment on X Road in X, Nova Scotia. The year-to-year lease was effective August 1, 2015, and gave him an actual “address” of his own.^{Footnote 45} He bought tenant’s insurance for the apartment.^{Footnote 46} Around this time, he also bought some vacant land in Beaver River, Nova Scotia. While I did not see any documents relating to the purchase in the Tribunal file, I did see a tax document that supports his ownership of this land for several years.^{Footnote 47} He ultimately did not do anything with the land, although he said he had intended to develop it as a residence. He sold the land in July 2020.^{Footnote 48}

[54] These factors are significant. They demonstrate stronger ties to Canada, although the Appellant continued to travel extensively throughout the world. He was a Canadian citizen who now owned some land and rented an apartment in Canada, while owning a small home and having family members in France. He also appears to have bought a car in Canada on August 4, 2015.^{Footnote 49}

[55] As the Appellant now had comparable ties to both Canada and France, I find that his physical presence in each of those countries becomes much more important in determining where he was resident at any particular time.

[56] The following chart (which I will call the “Presence Chart”) sets out the Appellant’s approximate whereabouts during the period from January 1, 2015, to the start of the COVID-19 pandemic^{Footnote 50}:

[57] The Appellant was present in Canada for a relatively long period of 80 days, between May 26 and August 13, 2015. In the context of his highly mobile lifestyle, this combines with his other Canadian ties to establish Canadian residence for this period.

The Appellant didn’t reside in Canada from August 14, 2015, to October 31, 2015

[58] The Presence Chart shows that the Appellant was not present in Canada at all during this period. This period was nearly as long as his preceding stay in Canada. In contrast to my finding for the preceding period, his lack of presence in Canada here decides the issue. I also note that he stayed in France for two separate periods before returning to Canada. While these stays were not very long, they are evidence that he had strong ties to France during this time. France was his “base”. As a result, I find that he did not reside in Canada during this time.

The Appellant resided in Canada from November 1, 2015, to January 30, 2016

[59] The Presence Chart shows that the Appellant spent the majority of this period in Canada. While it was interrupted by a 29-day stay in France, I find it significant that he returned to Canada immediately afterward. As with the preceding periods, his significant presence in Canada during this period tilts the scales in favour of Canadian residency. I therefore find that he resided in Canada during this time.

The Appellant didn’t reside in Canada from January 31, 2016, to April 9, 2016

[60] The Presence Chart shows that the Appellant was not present in Canada at all during this period. In contrast to my finding for the preceding period, his lack of presence in Canada is determinative. He spent roughly 90% of this period in France. I also note that he stayed in France for two separate periods before returning to Canada on April 10, 2016. These stays show that France was his “base” during this time. As a result, I find that he did not reside in Canada during this time.

The Appellant resided in Canada from April 10, 2016, to April 5, 2019

[61] During this period of 1091 days, the Appellant had eight separate stays in Canada for a total of 576 days. In contrast, he had only seven separate stays in France for a total of 371 days. As with the preceding periods, his significant presence in Canada during this period is the most persuasive factor in finding that he resided in Canada. I also note that he always had a stay in Canada between any two stays in France. However, on two occasions, I saw no stay in France between two stays in Canada. I therefore find that he resided in Canada during this time.

The Appellant is not entitled to an OAS pension until 2021, if only his periods of residence in Canada are considered

[62] As of April 5, 2019, the Appellant had just over eight years of residence in Canada. This is not enough for an OAS pension, as at least ten years are required. He wouldn’t meet this threshold until 2021.

[63] However, the Appellant had some prior periods of residence in the United States. These could help him qualify earlier for an OAS pension.

Canada’s agreement with the US may help the Appellant qualify

[64] Canada has a social security agreement with the US. This means that the periods in which the Appellant made social security contributions in the US may count toward his eligibility for an OAS pension.^{Footnote 51}

[65] US officials provided information showing that the Appellant made social security contributions in the US continuously from the first quarter of 1979 to the last quarter of 1985. That is a total of 28 quarters.^{Footnote 52} However, four of those quarters are in 1979, and therefore overlap with periods for which he was already resident in Canada. This means those four quarters must be excluded. As a result, he only has 24 quarters of social security contributions in the US that help him meet the OAS eligibility requirements. The agreement says this equals six years of residence in Canada when determining eligibility for an OAS pension.^{Footnote 53} It is important to remember that the US contributions do not affect the amount of the OAS pension: they only affect eligibility for the pension.

[66] Combined with the Appellant’s “actual” years of Canadian residence, the six years of residence imputed by the Canada-US Agreement make him eligible for an OAS Pension. However, the amount and timing of the pension depend on the approval date.

The Appellant’s approval date

[67] The Appellant has been a Canadian citizen (or a legal resident of Canada) for more than 40 years. This is not in dispute.^{Footnote 54}

[68] With that initial hurdle addressed, payment of an OAS pension starts the month after the application is approved. The approval date depends on the Appellant’s age when he applied, his application date, his eligibility for an OAS pension, and the date he requested in his application for the start of his OAS pension.^{Footnote 55}

[69] In this case, the Appellant applied for an OAS pension on September 17, 2018.^{Footnote 56} He was 77 years old when he applied. He would have met the minimum eligibility requirements for the OAS pension a couple of years before 2018. In his application, he said that he wanted his pension to start in July 2018.^{Footnote 57}

[70] The approval date is the latest of the following dates:

1. (i) One year before the day on which the application is received;
2. (ii) The day on which the applicant attained the age of 65 years;
3. (iii) The day on which the applicant became qualified for an OAS pension; and
4. (iv) The month immediately before the date specified in writing by the applicant.

[71] In this case, the latest date is June 2018. This is the month before the date specified in writing by the Appellant. This means that his OAS pension would start as of July 2018. His pension amount would be 7/40 of a full OAS pension. By June 2018, he had more than 7 years but less than 8 years of actual residence in Canada.^{Footnote 58}

Could the Appellant still qualify for a full OAS pension?

[72] The Appellant doesn’t claim he resided in Canada for 40 years after he turned 18. He says he meets other criteria to qualify for a full pension. However, I find that he hasn’t proven he is eligible for a full pension without 40 years of residence.

[73] To be eligible for a full OAS pension without 40 years of residence, the Appellant first had to meet these requirements:^{Footnote 59}

• He had to be at least 25 years old on July 1, 1977.
• He had to be residing in Canada on July 1, 1977. If he wasn’t, he must have resided in Canada for any period after he turned 18, but before July 1, 1977. Or he must have had a valid immigration visa.

[74] The Appellant met those requirements.

[75] But there is a third requirement. It can be broken down into two different rules: the 10-Year Rule and the 3-for-1 Rule.^{Footnote 60}

[76] To qualify under the 10-Year Rule, the Appellant has to prove he resided in Canada for the 10 years immediately before his application was approved.

[77] The Appellant doesn’t qualify under this rule. His application was approved as of June 1, 2018. But, as I explained above, he hasn’t proven he resided in Canada from June 1, 2008, to June 1, 2018.

[78] To qualify under the 3-for-1 Rule, the Appellant has to prove that, for one, he resided in Canada for one year immediately before his application was approved.

[79] The Appellant met this first factor. He resided in Canada from June 1, 2017, to June 1, 2018.

[80] But the Appellant still doesn’t qualify for a full OAS pension because there is another factor under the 3-for-1 Rule, and he didn’t meet it. I explain why below.

The 3-for-1 Rule about presence in Canada

[81] The 3-for-1 Rule actually looks at two periods:^{Footnote 61}

1. 1. The “First Period” is from April 20, 1959, to June 1, 2008. It started when the Appellant turned 18. It ended 10 years before his OAS application was approved.
2. 2. The “Second Period” is from June 1, 2008, to June 1, 2018. It is the 10 years immediately before the Appellant’s OAS application was approved.

[82] The Appellant has to prove he was present in Canada during the First Period. He has proven that.

[83] But this amount of time had to be at least three times as long as the amount of time he was absent from Canada during the Second Period. For example, if the Appellant was absent from Canada for five years during the Second Period, he has to prove he was present in Canada for at least 15 years during the First Period.

When was the Appellant present in Canada during the First and Second Periods?

[84] During the First Period (from April 20, 1959, to June 1, 2008), the Appellant was present in Canada in the following periods:^{Footnote 62}

[85] I have already found that the Appellant was resident in Canada from May 7, 1975, to December 11, 1979. This does not necessarily mean he was present in Canada throughout that period. He likely left Canada on at least one occasion, given the faint passport stamps at GD2-776 that appears to refer to 1978. However, I have given him the benefit of the doubt because he was working in Canada throughout this time. I must make my findings on a balance of probabilities, and it is possible that he only left Canada for day trips connected with his work. This is why I find that he had 1,680 days of presence in Canada up to December 11, 1979.

[86] I will now explain the numbers that appear with an asterisk in the above table. The Appellant claimed that he “returned to Canada on a regular basis” from 1980 to 1982, while he was working in the US for a Canadian company. While he also suggested that he “returned to Canada as a visitor on many occasions”, he did not provide specific dates or even years. He submitted that this continued, “into the nineties although on a less frequent basis.”^{Footnote 65}

[87] It is difficult to make findings about events that took place 40 or more years ago, when there are little or no supporting documents. Nonetheless, I find it reasonable to conclude that the Appellant spent at least some time in Canada during the years 1980, 1981, and 1982. This is consistent with his employment by a Canadian company.^{Footnote 66} As for the duration of his presence in Canada, I find that 21 days per year is reasonable. This totals 63 days from 1980 to 1982.

[88] I don’t see enough evidence to support a finding of presence in Canada between 1983 and February 28, 2002. However, I see records documenting entries to Canada in the years 2002, 2003, 2004, 2006, and 2008. While these do not appear to be work-related, the Appellant may have visited for leisure purposes. For each of those years, I find it likely that he spent 14 days in Canada. This is a reasonable amount of time to spend in Canada as a visitor. This totals 70 days from 2002 to 2008.

[89] Thus, during the First Period, the Appellant was present in Canada for 1,813 days. This is just short of 5 years.

[90] During the Second Period (from June 1, 2008, to June 1, 2018), the Appellant was present in Canada in the following periods:^{Footnote 67}

[91] During the Second Period, the Appellant was present in Canada for 713 days. The Second Period had 3,652 days. This means he was absent from Canada for 2,939 days in the Second Period.

[92] To be eligible for a full OAS pension under the 3-for-1 Rule, the Appellant must meet a strict test. He must prove he was present in Canada during the First Period for three times as long as he was absent during the Second Period. That would be for at least 8,817 days, or just over 24 years.

[93] The Appellant hasn’t proven he was present in Canada long enough. That is because he has proven he was present in Canada during the First Period for only 1,813 days (just under 5 years).

[94] This means he doesn’t qualify for a full OAS pension under the 3-for-1 Rule.

Other issues raised by the Appellant

[95] The Appellant has made extensive submissions about the Minister’s conduct in this matter. He has also submitted that he should get costs.

The Minister’s conduct

[96] Regarding the Minister’s conduct, I understand that the Appellant strongly disagreed with the “false choice” that the Minister offered him. He says it was unfair for the Minister to offer him several different options for his OAS pension, when he didn’t agree with the underlying basis for any of them. Furthermore, as those options were not in the form of an initial decision, he felt unable to dispute them.

[97] I acknowledge the Appellant’s frustration. He suggests that many Canadians are (or feel) forced to accept an option they do not agree with. This may be true. However, the Tribunal cannot help him in that regard. The Tribunal’s role is not to assess the Minister’s decision-making process or the way it interacts with applicants. Nor does the Tribunal manage the Minister. Instead, the Tribunal takes a fresh look at the facts underlying each case and renders a decision. It does not have the authority to censure or penalize the Minister. Nor can the Tribunal order the Minister to change its practices.

[98] In fact, the Appellant has already argued this issue at the Federal Court of Appeal (the “2021 FCA Decision”).^{Footnote 69} In the 2021 FCA Decision, the Court hoped that the Minister would take note of the Appellant’s predicament and clarify the matter when communicating with OAS pension applicants.^{Footnote 70} But the Court wouldn’t do more than that.

Costs of this appeal

[99] The Appellant also argued the costs issue at the Federal Court of Appeal. In the same 2021 FCA Decision, the Federal Court of Appeal concluded that the Tribunal’s Appeal Division did not have the authority to order costs or damages. This would also apply to the Tribunal’s General Division. Federal Court of Appeal decisions are binding on the Tribunal.^{Footnote 71}

[100] I understand that the Appellant sought leave to appeal the 2021 FCA Decision at the Supreme Court of Canada. However, I also understand that the Supreme Court of Canada did not grant leave to appeal. As a result, the 2021 FCA Decision remains binding on the Tribunal.

Rescinding the reconsideration decision

[101] The Appellant has frequently submitted that the Minister’s reconsideration decision of December 11, 2020 (the “2020 Recon Decision”) should be rescinded.^{Footnote 72} I agree that it is legally possible for the Tribunal to rescind the 2020 Recon Decision.^{Footnote 73} However, that happens as a matter of course if the Tribunal reaches a different conclusion in an appeal.

[102] It assists nobody to rescind the 2020 Recon Decision without reaching a different conclusion. It simply forces the Minister to make another reconsideration decision on the same issue it has already decided. If the Minister were inclined to reach a different conclusion than it did before, it surely would not be opposing the appeal at the Tribunal.

[103] The Appellant’s remedy would then be launching a new appeal to the Tribunal. However, that results in an excessive duplication of effort. It also violates the Tribunal’s regulations. Those regulations say that the Tribunal must conduct proceedings as informally and quickly as the considerations of fairness and natural justice permit.^{Footnote 74} I therefore decline to rescind the 2020 Recon Decision, because my decision on the merits does not require such a rescission. As I have set out above, the Appellant’s appeal is successful in part, but parts of the 2020 Recon Decision are also upheld.

Sufficiency of the Minister’s productions

[104] The Appellant made several demands for complete “Section 26 productions.” He suggests that the Minister withheld relevant information that should have been produced under s. 26(f) of the Tribunal’s Regulations. This includes “any documents relevant to the decision.” He focuses on documents relating to the Minister’s investigation and decision-making process.^{Footnote 75} However, as noted above, the Tribunal’s role is not to assess the Minister’s investigation or decision-making process. The Tribunal’s role is to assess whether the Appellant is entitled to a benefit. I note that documents showing how the Minister made its decision are different from documents that support the decision.

[105] In any case, the Tribunal does not have the authority to compel a party to produce any particular document. The Tribunal is not without options if documents are clearly missing. The Tribunal may make a negative inference about a party’s failure to produce a clearly relevant document. However, I am not satisfied that this principle applies in this case. The Minister’s decision-making and investigative processes are not clearly relevant for the Tribunal in assessing the Appellant’s appeal.

[106] If the Minister did not file documents that the Appellant had provided, the Appellant bears the onus of remedying the situation. He must prove his claim and adduce sufficient evidence. If he has documents or information that he wants the Tribunal to consider, it is incumbent upon him to provide that evidence.^{Footnote 76} The Tribunal is not required to compel the production of or obtain such evidence.^{Footnote 77}

The Appellant is eligible for a partial OAS pension

[107] The Appellant doesn’t qualify for a full OAS pension. But he qualified for a partial OAS pension of 7/40 in June 2018. This is more than the partial OAS pension awarded by the Minister.

When payments start

[108] The Appellant’s pension starts in July 2018.

[109] OAS pension payments start the first month after the pension is approved.^{Footnote 78} The Appellant’s pension was approved in June 2018.

Conclusion

[110] The Appellant is eligible for a partial OAS pension of 7/40. Payments start in July 2018.

[111] This means the appeal is allowed in part. The Minister had only awarded a 4/40 partial OAS pension.