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

Decision

[1] The appeal is allowed.

[2] The Appellant, L. K., is eligible for a partial Old Age Security (OAS) pension of 11/40. Payments start as of August 2019.

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

Overview

[4] The Appellant was born in the Soviet Union on June 13, 1950. She lived in a number of Soviet republics, including Latvia and Estonia, until the Soviet Union broke up. After that, she lived in Uzbekistan. In 2005, she moved to Serbia as a refugee.

[5] The Appellant immigrated to Canada on September 25, 2007. She stayed in Canada until June 6, 2016, when she moved back to Serbia. She still lives in Serbia.

[6] The Appellant applied for an OAS pension in August 2020. She said she wanted her pension to start as soon as she qualified.

[7] The Minister of Employment and Social Development (Minister) refused the Appellant’s application. The Minister said the Appellant wasn’t residing in Canada, so she needed 20 years of residence to be eligible for an OAS pension. The Minister said she had only 10 full years of residence, based on when she actually resided in Canada plus time added through Canada’s social security agreement with Estonia.

[8] The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division.

[9] The Appellant says that she has resided in Canada for more than 20 years through a combination of the time when she made her home and ordinarily lived in Canada, the application of the Old Age Security Regulations (OAS Regulations), and Canada’s social security agreements with Estonia, Serbia, and Latvia.

What the Appellant must prove

[10] To receive a full OAS pension, the Appellant has to prove she resided in Canada for at least 40 years after she turned 18.^{Footnote 1} This rule has some exceptions. But the exceptions don’t apply to the Appellant.^{Footnote 2}

[11] If the Appellant doesn’t qualify for a full OAS pension, she 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 of 12/40 the full amount.

[12] To receive a partial OAS pension, the Appellant has to prove she resided in Canada for at least 10 years after she turned 18. But, if she didn’t reside in Canada the day before her application could have been approved, she has to prove she already has at least 20 years of residence.^{Footnote 3}

[13] The Appellant has to prove she resided in Canada. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not she resided in Canada during the relevant periods.^{Footnote 4}

Reasons for my decision

[14] I find that the Appellant is eligible for a partial OAS pension of 11/40. She had resided in Canada for 11 full years the day before her application could have been approved.

[15] I considered the Appellant’s eligibility from when she turned 18 on June 13, 1968, up to and including May 16, 2023. I chose the first date because the Appellant argued that the period she lived in the Soviet Union counted as residence in Canada. I chose the second date because I have relevant evidence up to that date.^{Footnote 5}

[16] In reaching my decision, I considered:

• the test for residence, to decide when the Appellant actually resided in Canada
• whether, under the OAS Regulations, the Appellant’s residence in Canada continued when she was absent
• whether Canada’s international social security agreements help the Appellant

[17] Here are the reasons for my decision.

The test for residence

[18] A person resides in Canada if they make their home and ordinarily live in any part of Canada.^{Footnote 6}

[19] When I am deciding whether the Appellant resided in Canada, I have to look at the overall picture and factors such as:^{Footnote 7}

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

[20] This isn’t a complete list. Other factors may be important to consider. I have to look at all the Appellant’s circumstances.^{Footnote 8}

When the Appellant made her home and ordinarily lived in Canada

[21] I find that the Appellant made her home and ordinarily lived in Canada from September 25, 2007, to June 6, 2016, or for 8 years and 257 days.

[22] The Minister and the Appellant agree on these dates. I see no reason why I shouldn’t accept them.

[23] After arriving in Canada in September 2007, the Appellant settled in Ontario. She made friends. She received health care and social benefits. She remained in Canada until June 6, 2016, when she moved to Serbia.

[24] The Appellant didn’t make her home and ordinarily live in Canada at any other time. She still has friends in Canada, but she hasn’t been in this country since 2016. She didn’t keep a home or any belongings here. There is no evidence she had any significant ties to Canada before she arrived in 2007, or after she left in 2016.

The Appellant’s residence continued after June 6, 2016

[25] The Appellant has been absent from Canada since June 6, 2016. However, because of the OAS Regulations, I find that this absence has not interrupted her residence in Canada.

[26] The law says that a person’s absence doesn’t interrupt their residence in Canada if they were residing in Canada and the absence was under circumstances that are specified in the OAS Regulations.^{Footnote 9} One of those circumstances is:

• where a person is engaged outside of Canada as an employee, member or officer of an international charitable organization, if
• they returned to Canada within six months of the end of their employment or engagement outside Canada or
• while employed or engaged out of Canada, they reached an age at which they were eligible to be paid an OAS pension^{Footnote 10}

[27] This law doesn’t apply to the Appellant’s absences before September 25, 2007. It only applies to absences of “a person residing in Canada.”^{Footnote 11} This means the Appellant had to be residing in Canada immediately before the absence began. She didn’t start residing in Canada until September 25, 2007. So, this law doesn’t give her residence before that date.

[28] However, the law does give the Appellant continued residence in Canada for the period after June 6, 2016. This is because, since that date, she has been engaged outside of Canada as a member of an international charitable organization and she has reached an age at which she is eligible to be paid an OAS pension.^{Footnote 12}

X is an international charitable organization

[29] The Appellant said she is a member of and has volunteered for an organization called X since September 2000. I find that X is an international charitable organization.

[30] The law doesn’t define “international charitable organization.” To decide what it means, I looked at the words in their entire context and in their grammatical and ordinary sense. I considered whether my interpretation of the words fit with the object and scheme of the law, and with Parliament’s intention.^{Footnote 13}

[31] The ordinary meaning of “international” is “involving more than one country.”^{Footnote 14} A “charitable” organization gives money, food, or help to those who are in need.^{Footnote 15} So, an international charitable organization is an organization that helps others and operates in more than one country.

[32] This interpretation fits with the object and scheme of the OAS Act, and with Parliament’s intention. One of the purposes of the law is to pay benefits to people who meet the eligibility rules.^{Footnote 16} But it also fulfills a broad social goal, so the rules should be interpreted liberally.^{Footnote 17}

[33] The OAS Regulations set out many circumstances where a person doesn’t lose residence when they are out of Canada. They include attending school or university and doing missionary work for a religious organization.^{Footnote 18}

[34] These activities may not benefit Canada or have any connection to it. Their inclusion shows that Parliament did not want to penalize people for leaving Canada to do certain things. Parliament could have required charitable organizations to be registered in Canada or active in Canada, but it did not. This shows that it intended the term to have a broad meaning and to apply to organizations without a connection to Canada.

[35] X was registered as an international non-profit association in Latvia on September 18, 2000.^{Footnote 19} The Appellant said that X operates in Latvia, the United States, Uzbekistan, and Serbia. Its charitable work includes providing food and clothing, fundraising, teaching computer and other skills, and human rights advocacy.^{Footnote 20}

[36] The Minister didn’t argue that X wasn’t international or wasn’t involved in charitable activities. I accept the Appellant’s evidence. Therefore, I find that X is an international charitable organization and has been since September 2000.

The Appellant was engaged out of Canada as a member of X

[37] The Appellant was elected to the X board in September 2000. She said that, since then, she has volunteered full-time as general manager. Her duties include project design, project management, training, fundraising, and consulting.^{Footnote 21}

[38] I find that, because of her position and activities, the Appellant was engaged out of Canada as a member of X.

[39] It doesn’t matter whether the Appellant was paid or not. As a volunteer, she was busy or occupied with her X duties. That is what “engaged” means.^{Footnote 22}

The Appellant reached an age when she was eligible for a pension

[40] The Appellant had to meet another requirement for her work with X to count towards her residence in Canada. She must: 

• return to Canada within six months of the end of her engagement out of Canada, or
• while employed or engaged outside of Canada, have reached an age at which she was eligible to be paid an OAS pension^{Footnote 23}

[41] The Appellant didn’t meet the first requirement, because her engagement with X has not ended. But I find that she met the second requirement. Although she was still in Canada when she turned 65 in 2015, she continued to be an age where she was eligible to be paid an OAS pension while she was out of Canada. If a strict reading of the law is required, the Appellant reached age 66 after she left Canada. That is also an age at which she was eligible.

The Minister’s arguments

[42] The Minister argues that the OAS Regulations don’t help the Appellant because:

• X isn’t registered as a charitable organization in Canada.
• The Appellant wasn’t assigned by a Canadian office of X to work outside Canada.
• The Appellant didn’t keep a home in Canada while she was away.^{Footnote 24}

[43] I don’t agree with the Minister.

[44] First, as I noted above, the law doesn’t require an international charitable organization to be registered in Canada. It has to be international, but nothing says that one of the countries has to be Canada. In contrast, other provisions do require a Canadian connection. For example, a person who is working outside Canada for a corporation must be working for a Canadian corporation.^{Footnote 25} A transport worker must be working between Canada and other countries.^{Footnote 26}

[45] Second, the law doesn’t say a person has to be assigned by a Canadian office of the organization. It doesn’t require any connection to Canada. Again, Parliament could have included such a requirement. But it did not.

[46] Finally, the law doesn’t say a person has to keep a home in Canada if they are out of the country while engaged with an international charitable organization. That is a requirement for the absences listed in section 21(5)(a) of the OAS Regulations. The Appellant’s absence falls under section 21(5)(b), which contains no such requirement.

Canada’s social security agreements don’t help the Appellant

[47] Canada has social security agreements with Estonia, Latvia, and Serbia. The Appellant argues that these agreements help her qualify for an OAS pension. I find that they do not.

[48] The agreements with these countries are similar. They say that creditable periods under the laws of the country are considered as periods of residence in Canada.^{Footnote 27} The Appellant has creditable periods from Estonia that add up to 2 years and 103 days.^{Footnote 28}

[49] These periods might have helped the Appellant qualify for the pension, but she didn’t need them. She had already qualified because of the OAS Regulations. They don’t affect the amount of her pension. The agreement with Estonia says that years of residence under the agreement don’t count when calculating the amount of the pension.^{Footnote 29}

[50] The Appellant doesn’t have any creditable periods from Latvia or Serbia.^{Footnote 30} The Appellant argues that she does have creditable periods from Serbia, and that the government of Canada should have done something to force Serbia to disclose them. She also argues that she has creditable periods from Latvia because of her close family connections there.

[51] I have to rely on what the governments of Latvia and Serbia say. But, even if the Appellant had creditable periods from those countries, it wouldn’t affect the amount of her pension. Canada’s social security agreements with Latvia and Serbia have the same provision as the agreement with Estonia. Creditable periods help a person qualify for the pension, but they don’t affect the amount.^{Footnote 31}

[52] The Appellant’s creditable periods from Estonia are for a time when Estonia was part of the Soviet Union. She argues that, because of this, the agreement should cover every period when she lived or worked anywhere in the Soviet Union.^{Footnote 32}

[53] I don’t accept this argument. Whether the Appellant gets additional residence depends on the terms of the agreement. The agreement with Estonia only considers creditable periods under its own laws. It doesn’t mention eligibility under the laws of any other former Soviet republic.

[54] Similarly, the Appellant’s connections to Latvia, Serbia, or any other country only matter under the terms of social security agreements with those countries. If there isn’t an agreement, or if she doesn’t have creditable periods under an agreement, her connections to those countries don’t help her for OAS purposes.

The Appellant’s other arguments

[55] The Appellant claimed her rights under the Canadian Charter of Rights and Freedoms (Charter) were violated.^{Footnote 33} However, she did not identify any provisions of the OAS Act, the Department of Employment and Social Development Act, the Canada Pension Plan, or their rules and regulations, that she wanted to challenge. Nor did she provide a coherent legal argument to support a Charter challenge.^{Footnote 34} As a result, I could not consider her Charter claims.

[56] The Appellant is unhappy with many laws and government institutions. However, the Tribunal doesn’t have the authority to investigate these or intervene on her behalf. The Tribunal can only decide if she is eligible for an OAS pension.

The Appellant qualified for a partial OAS pension in August 2019

[57] The Appellant qualified for a partial OAS pension of 11/40 on August 21, 2019.

[58] The Appellant has resided in Canada continuously since September 25, 2007. This means she only needed 10 years of residence to qualify for an OAS pension.

[59] The Appellant turned 65 in June 2015. She was 70 years old when she applied for the pension in August 2020. When an application is received after a person turns 65, the application is approved on the latest of the following dates:^{Footnote 35}

• one year before the day it was received—in this case, August 21, 2019
• the day the Appellant qualified for a pension after turning 65 and meeting the 10-year residence requirement—in this case, September 24, 2017
• the month before the day specified in writing by the Appellant—in this case, the Appellant asked for payments to start as soon as she qualified, which was September 25, 2017. The month before that is August 2017.

[60] The latest of these dates is August 21, 2019. That is when the Appellant qualified for a partial OAS pension. The amount of her pension is based on how many full years she had resided in Canada by that date.^{Footnote 36} As of August 2019, the Appellant had resided in Canada for 11 full years after she turned 18.

When payments start

[61] The Appellant’s pension starts in September 2019.

[62] OAS pension payments start the first month after the pension is approved.^{Footnote 37} The Appellant’s pension was approved as of August 2019.

Conclusion

[63] The Appellant is eligible for a partial OAS pension of 11/40.

[64] This means the appeal is allowed.