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

Decision

[1] The appeal is allowed.

[2] The Appellant, T. A., was resident in Canada between August 2000 and November 10, 2014. Therefore, he was resident in Canada from his arrival in November 1987 until his departure for Haiti on November 10, 2014.

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

Overview

[4] The Appellant was 80 years old on the day of the hearing.

[5] On February 27, 2007, the Minister received the Appellant’s application for an Old Age Security (OAS) pension.^{Footnote 1} On November 27, 2007, the Minister approved the application,^{Footnote 2} finding that the Appellant was entitled to a partial pension of 20/40 from January 2008 and that he was also entitled to the Guaranteed Income Supplement (GIS).

[6] On August 10, 2015, the Minister contacted the Appellant to have him complete a questionnaire and provide information about his trips outside Canada.^{Footnote 3} The GIS benefits were suspended on August 12, 2015,^{Footnote 4} and the OAS benefits, in September 2015.^{Footnote 5}

[7] From September 2015 to February 2018, the investigation ran its course. On February 14, 2018, the Minister sent the Appellant a letter asking him to refund an overpayment of $78,526.40 in OAS and GIS benefits.^{Footnote 6} On April 25, 2018, the Appellant asked the Minister to reconsider.^{Footnote 7} On February 8, 2019, the Minister issued a Reconsideration Decision Letter^{Footnote 8} maintaining the original decision.

[8] On May 1, 2019, the Appellant appealed that last decision to our Tribunal.^{Footnote 9}

[9] On October 25, 2021, I allowed the Appellant’s appeal on the ground that the Minister did not have the power to reassess its November 27, 2007, decision. I also found that the Appellant had ceased being resident in Canada on November 10, 2014.

[10] The Respondent appealed my decision to our Appeal Division. On June 15, 2022, my colleague Jude Samson allowed the Respondent’s appeal, rescinded (cancelled) my decision, and sent the matter back to our General Division with certain directions, including assigning the matter to me, if possible.

Issue

[11] The Respondent admits that the Appellant was resident in Canada between November 1987 and July 2000.

[12] The Appellant admits that he left Canada permanently on November 10, 2014.

[13] In light of the above, the issue is the Appellant’s residence between August 2000 and November 2014.

Reasons for my decision

[14] I find that the Appellant was resident in Canada until he left permanently for Haiti on November 10, 2014. These are my reasons below.

The Appellant was resident in Canada between August 2000 and November 10, 2014

[15] I will first summarize the parties’ arguments.

Appellant’s arguments

[16] The Appellant argues that he arrived in Canada in November 1987 and that he did not cease being a Canadian resident until November 10, 2014. He says that he was resident in Canada continuously during that time. He did not travel to Haiti before 2007 and only travelled a number of times and for limited periods between 2007 and 2014, before he left Canada permanently in November 2014.

Respondent’s arguments

[17] The Respondent is of the view that the Appellant ceased to reside in Canada in August 2000.^{Footnote 10} In its view, he did not use medical services in Canada very often as of 2000 and did not always renew his Régie de l’assurance maladie du Québec [Quebec health insurance board] (RAMQ) card. The Respondent also argues that [translation] “T. A.’s many activities in Haiti show that he maintained significant residential ties to this country.”^{Footnote 11}

The law

[18] In Canada (Minister of Human Resources Development) v Ding, the Federal Court set out the factors I have to consider to determine whether the Appellant had periods of residence in Canada:^{Footnote 12}

• ties in the form of personal property
• social ties in Canada
• other ties in Canada (medical coverage, driver’s licence, rental lease, tax records, etc.)
• ties in another country
• regularity and length of stay in Canada, and the frequency and length of absences from Canada
• the person’s mode of living, or whether the person living in Canada is sufficiently deep rooted and settled

[19] The burden of proof for periods of residence in Canada is on the Appellant.^{Footnote 13}

Evidence and analysis

[20] I believe that the Respondent was only able to admit that the Appellant was resident in Canada from November 1987 to July 2000 because of significant documentary evidence filed by the parties. I have listed the key items below, with some comments:

• A document from Immigration Canada showing the Appellant’s arrival in Canada is at GD2-29.
• Documents from the Canada Revenue Agency are at GD2-42 to GD2-106. The Appellant apparently did not file tax returns for the years 1988 through 1997.^{Footnote 14} He apparently filed returns for the years 1998 through 2010.^{Footnote 15}
• Information from the Canada Border Services Agency is at GD2-108 and GD2-109. It is difficult to draw inferences from it, since entries and exits are not clearly indicated.
• Bank account statements from Scotia Bank are at GD2-110 to GD2-243 and GD2-311 to GD2-320. There are entries from 2009 to 2016. It seems the account was opened on November 7, 1989.^{Footnote 16}
• The Appellant’s medical history according to RAMQ is at GD2-253 to GD2-256. It nevertheless shows infrequent use of the health system by the Appellant, including a gap between July 2000 and December 2006, apart from two visits in October and November 2001. There were only 17 visits in the 11-year period from 1989 to 2000. There were 16 visits between 2006 and March 2015—hardly more than before.
• The Appellant’s statements from the Régie des rentes du Québec [Quebec pension board] are at GD2-257 to GD2-260. It should be noted that the Appellant had no eligible employment income during all his years in Canada.
• The Appellant’s passport applications are at GD2-262 to GD2-276. There are applications from 2000, 2003, 2008, and 2012.
• Information from the Registraire des entreprises du Québec [Quebec enterprise registrar] about the Appellant’s businesses is at GD2-187 to GD2-287. A publishing house existed from February 2003 to August 2014, with annual declarations filed, though sometimes late. Another one existed from September 1998 to September 2001.
• Invoices for book purchases by the Appellant in 2009 and 2011 are at GD2-321 and GD2-322. They include his Montréal address at the time and the address of his carwash business.
• The Appellant’s Union des écrivaines et des écrivains québécois [Quebec writers’ union] card for 2011–2012 is at GD2-323 and GD2-324.
• Invoices to X for March and April 2004 are at GD2-328 to GD2-330. They include the Appellant’s Montréal address at the time.
• Executive summaries of the Appellant’s corporation income tax returns for the years 2004 through 2014, whether for his publishing house or for his carwash, are at GD2-331 to GD2-344. Losses were always incurred for both businesses, in all years.
• Information from Industry Canada about the Appellant’s companies is at GD2-345 to GD2-350. The company operating the carwash was incorporated from May 2008 to April 2012, while the publishing house was incorporated from February 2003 to August 2014.
• Monthly Videotron bills from December 2011 to November 2014 for television and Internet services are at GD2-351 to GD2-425.
• A letter from an insurance company at GD2-426 confirms that the Appellant’s Montréal residence was insured for the period from 2002 to December 4, 2014.
• Documents from Hydro-Québec at GD2-427 to GD2-520 show that the Appellant was billed from November 1997 to November 2014.
• The deed of purchase for the Appellant’s Montréal residence, dated July 15, 1988, is at GD4-25 to GD4-28 (an un-redacted version is at GD7-6 to GD7-10), while the deed of sale for that same residence, dated December 4, 2014, is at GD4-29 to GD4-35.
• The counter letter agreement showing the true ownership of the Appellant’s Montréal residence is at GD6-3 to GD6-5.
• Judgments from Haiti from 2007 and 2012 are at GD6-6 to GD6-12.
• Blog posts showing that the Appellant returned to Haiti in June 2007 are at GD6-13 to GD6-15.
• An auto insurance statement for the Appellant for the period from July 2012 to May 2014 is at GD6-16 and GD6-17; a registration renewal statement dated January 31, 2012, concerning T. A.’s vehicle is at GD6-18; and the Appellant’s Quebec driver’s licence, valid from 2014 to 2022, is at GD6-19.
• An affidavit from the Appellant and his spouse concerning their departure from Canada is at GD6-20.
• Documents relating to the moving of the Appellant’s furniture from Canada to Haiti on November 19, 2014, are at GD6-21 to GD6-34.
• The Appellant’s 1994 diploma from the Université de Montréal, his 1996 diploma from the Université du Québec à Montréal, and his 1997 diploma from the Université de Montréal are at GD6-35 to GD6-37.
• References from 2007 to the book that the Appellant wrote on dual nationality are at GD6-38 to GD6-41.
• Other invoices to the X publishing house, from 2004 to 2010, are at GD6-42 to GD6-52.
• A contract for services with Haiti’s Office National de l’Aviation Civile [national office of civil aviation] (OFNAC), dated September 11, 2015, is at GD6-53 to GD6-56; and letters from the OFNAC are at GD6-57 to GD6-59.
• A certificate from the Ordre des avocats de Port-au-Prince [Port-au-Prince law society] from September 2019 is at GD7-4. It says: [translation] “Having lived abroad from 1987 to 2011, T. A. was no longer an active member of the bar.” It says that he became a member in 2012.

[21] The Respondent did admit to the Appellant’s Canadian residence from November 1987 to July 2000. I would say that the above documentation thoroughly shows the Appellant’s residence. There are countless cases where the evidence is not as significant.

[22] And I agree with counsel for the Appellant that the evidence showing that the Appellant’s Canadian residence ended as of August 2020 is very weak. At the hearing, the Respondent’s representative had difficulty explaining July 2000 as the Appellant’s last date of residence, indicating a few times that the date had been determined because of [translation] “the entire record.”

[23] Yet even I struggled to find how this date was determined. The only thing that points to it is the gap between July 2000 and December 2006 in the RAMQ report. However, a number of pieces of the documentary evidence on file seem to show continuous residence between 2000 and 2014:

• The fact that the Appellant was the owner of his Montréal residence from July 1988 to December 2014. The residence was insured from 2002 to 2014. There are bills from Hydro-Québec for this residence from 1997 to 2014. There are Videotron bills from 2011 to 2014.
• Tax returns for the years 2000 through 2010
• Bank account statements from 2009 to 2016, for an account that was opened in November 1989
• Applications from 2000, 2003, 2008, and 2012 to renew the Appellant’s passport
• The Appellant’s businesses that existed from February 2003 to August 2014. These business filed tax returns from 2004 to 2014. His businesses always incurred losses, but again, to be resident, it is not necessary to have a business that makes a profit.
• A few invoices for book purchases with the Appellant’s name and address for this period, and the Appellant’s Union des écrivaines et des écrivains québécois card for 2011–2012

[24] Concerning the Appellant’s medical history, there is in fact a six-year gap between 2000 and 2006. However, given the Appellant’s infrequent visits both before and after this period, it is difficult for me to draw a negative inference against the Appellant from this gap. A person’s medical history can be helpful in attempting to establish their residence, but I note the obvious: To be resident, it is not necessary to be sick or to use the health system.

[25] In addition, I was able to hear the Appellant’s testimony and that of his son-in-law concerning the Appellant’s trips to Haiti, which were supposedly frequent as of 2000. There is no evidence of this before 2007.

[26] The Appellant said that he was suing the Haitian government and that this had required a number of trips. The Haitian judgment from 2007 and the blog posts filed in evidence corroborate the Appellant’s testimony that his trips to Haiti in 2007 were his first since his entry to Canada in 1987.

[27] Therefore, the Appellant testified having travelled to Haiti, France, and the United States a few times between 2000 and 2014, but for short periods.

[28] It is very difficult for me to reconcile the above with the Respondent’s arguments that the Appellant had gone on [translation] “many trips” as of 2000 and that his “activities outside the country” strengthen the entire record, justifying the decision to choose July 2000 as the date his residence ended.

[29] The Appellant testified having been a Canadian resident continuously from his arrival in Canada in November 1987 until November 2014. He testified that all his ties were here from 1987 to 2014—family, friends, businesses, house, belongings—and that he had few, if any, ties to Haiti during that time, apart from when he was preparing for his departure in 2014.

[30] I believed the Appellant. I found that he testified in a credible and spontaneous way. When he did not remember something, he admitted it. I believed that he was telling me the truth. His testimony is corroborated by evidence and is plausible given the evidence as a whole.

[31] There is also evidence of a large shipment from Canada to Haiti in December 2014. The document from AMJ Campbell International talks about 308 pieces, weighing a total of 10,350 lb. The Appellant testified that, at that time, he was moving all his furniture from his Montréal residence—which he sold in December 2014—to leave Canada permanently.

[32] As a result, I cannot accept the Respondent’s argument that the Appellant’s residence ended after July 2000. The evidence is overwhelmingly to the contrary. The Appellant has met his burden of proof.

Conclusion

[33] I find that the Appellant, T. A., was resident in Canada between August 2000 and November 10, 2014. Therefore, he was resident in Canada from his arrival in November 1987 until his departure for Haiti on November 10, 2014.

[34] This means the appeal is allowed.