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

Decision

[1] This is a cross appeal in which both appeals are allowed in part. The parties have already agreed that D. T. (the Claimant) had at least 18 years of Canadian residence. I find that she was also a resident of Canada from November 2009 to April 2015.

Overview

[2] The Claimant was born in Macedonia in December 1948. She came to Canada in 1971 as a permanent resident. Since then, she has split her time between Canada and her native country.

[3] In January 2013, the Claimant applied for an OAS pension. She said that she wanted her pension to start as soon as she qualified.^{Footnote 1}

[4] The Minister of Employment and Social Development (Minister) granted the Claimant a partial pension at a rate of 19/40 of the full amount.^{Footnote 2} The Minister found that the Claimant was a resident of Canada from February 1971 to August 1982 and again from June 2001 to January 2009.

[5] The Minister had previously approved the Claimant for the Allowance for the Survivor (Allowance) as of January 2009. After the Claimant began receiving her OAS pension, the Minister also approved her for the Guaranteed Income Supplement (Supplement). Like the OAS pension, both the Allowance and the Supplement depend on the Claimant’s continued residence in Canada.

[6] In March 2017, the Minister received information that the Claimant was no longer a resident. Following an investigation, the Minister determined that the Claimant had not lived in Canada since May 2008. In April 2020, the Minister informed the Claimant that she was not entitled to the OAS pension, the Allowance, or the Supplement.^{Footnote 3} The Minister also demanded repayment of all the benefits that the Claimant had received over the previous 11 years, an amount totalling more than $115,000.^{Footnote 4}

[7] The Claimant appealed the Minister’s decision to the Social Security Tribunal. The Tribunal’s General Division held a hearing by videoconference and allowed the appeal in part. It found that the Claimant resided in Canada from February 1971 to August 1982 and again from June 2001 to September 2008, thereby qualifying her for a partial OAS pension at a rate of 18/40 of the full amount.

[8] Both the Minister and the Claimant have appealed the General Division’s decision to the Appeal Division:

• The Minister now concedes that the Claimant had more than 18 years of Canadian residence. However, the Minister notes that the General Division was silent about the Claimant’s residence after September 2008 and, by extension, whether she was entitled to the Allowance and the Supplement. The Minister asks the Appeal Division to find that the Claimant lived outside Canada from September 2008 to May 2019.
• The Claimant acknowledges that, between September 2008 and May 2019, she spent much of her time in Macedonia. However, she says that Service Canada gave her incorrect information, leading her to believe she was permitted to continue to collect her Canadian benefits provided she returned to Canada at least once every six months.

[9] Last year, the Appeal Division granted both the Minister and the Claimant permission to appeal. The Appeal Division then joined the appeals after concluding that they raised common questions and that considering them together would not cause injustice to either party.

Issue

[10] As mentioned, the Minister has revised the position he took at the General Division. There, he argued that the Claimant resided in Canada for a total of 17 years and nine months. Now, he is arguing that the Claimant has 18 years and nine months in Canada, specifically between:

• February 20, 1971 and August 10, 1982
• June 23, 2001 and September 23, 2008

[11] The parties agree that the Claimant resided in Canada during the above periods. They also agree that the Claimant was not a resident of Canada between August 10, 1982 and June 23, 2001.

[12] The parties further agree that the Claimant resumed living in Canada on May 15, 2019. I see no reason to question any of these agreed-upon dates. That means the only subject of this appeal is where the Claimant resided in the nearly 11-year period between September 23, 2008 and May 15, 2019.

Analysis

[13] I have applied the law to the available evidence and concluded that the Claimant was a resident of Canada between November 6, 2009 and April 14, 2015. I also found that the Claimant ceased to be a resident as of the latter date until May 15, 2019, when she returned to Canada and resumed living with her daughter on a permanent basis.

Residence depends on many factors

[14] To receive a full OAS pension, a claimant must prove that they resided in Canada for at least 40 years after they turned 18.^{Footnote 5} To receive a partial OAS pension, a claimant must prove that they resided in Canada for at least ten years after they turned 18. If the claimant wasn’t residing in Canada when their application was approved, they must prove they had 20 years of residence.^{Footnote 6}

[15] OAS Claimants must prove they resided in Canada on a balance of probabilities. That means that they must show that, more likely than not, they resided in Canada during the relevant periods.^{Footnote 7} Being present in Canada isn’t the same as residing in Canada.

[16] When I am deciding whether the Claimant resided in Canada, I have to look at the overall picture, taking into account factors such as:

• where she had property, like furniture, bank accounts, and business interests;
• where she had social ties, such as friends, relatives, and membership in religious groups, clubs, or professional organizations;
• where she had other ties, such as 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; and
• where she intended to live.^{Footnote 8}

[17] This isn’t a complete list. Other factors may be important to consider. I have to look at all the Claimant’s circumstances.

The Claimant resided in Canada for some, but not all, of the period in question

[18] In addition to the periods agreed upon by the parties, I find that the Claimant was a resident of Canada from November 6, 2009 to April 14, 2015. At the same time, I find that she was not a resident of Canada from September 23, 2008 to November 6, 2009 and from April 14, 2015 to May 15, 2019.

[19] The Claimant has divided her time between Macedonia and Canada for many years. Much of the available evidence suggests that her ties to each country are equally strong:

Family — The Claimant has two adult daughters, one living in Macedonia, the other in Canada. Her husband died in 2006 and, since then, she has moved between her daughter’s residences, living with them and their families for extended periods.

• Property — The Claimant has never owned real estate in Macedonia. After her husband’s death, she purchased a house with her daughter in Oshawa. After a family dispute, she took her name off the title in March 2016.
• Financial — The Claimant has bank accounts in both Canada and Macedonia. She co-signed the mortgage on the Oshawa house, but otherwise did not have any loans, leases, or utility accounts in her name in either country. She receives a Macedonian pension.
• Social — The Claimant has friends in both Macedonia and Canada.
• Taxes — The Claimant files income tax returns in both countries.
• Medical — The Claimant receives most of her medical care while in Canada.

[20] In my view, none of these factors favour one country over the other. For that reason, I think it is appropriate in this case to pay special attention to the length of time in which the Claimant spent in Canada during the relevant period.

[21] Using border security data, the Minister compiled a record of the Claimant’s movements during the 11-year period in question. The record shows that the Claimant spent the following periods in Canada and abroad:

[22] The Claimant agreed that the above information was accurate and reflected her actual periods inside and outside Canada. It clearly shows that, on the whole, the Claimant spent the vast majority of her time in Macedonia over the 11-year period in question.

[23] However, that is not the end of the story. Although there is no minimum requirement for presence in Canada within a calendar year, I find it useful, for the purpose of analysis, to reorganize the above information accordingly:

[24] Breaking it down this way illustrates that, after being in Macedonia for most of 2009, the Claimant resumed spending the majority of her time in Canada as of November 6 of that year. For the next 5 1/2 years, the Claimant stayed in this country more often than not.^{Footnote 9} However, after her departure from Canada on April 14, 2015, her visits became more infrequent and progressively shorter — lasting no more than five weeks at a time. As it happens, her increasing absences from Canada coincide with, and can be explained by, a period of tension between the Claimant and her Oshawa-based daughter. That tension evidently persisted until May 2019, at which point the Claimant resumed spending most of her time in Canada.

[25] All else being equal, I find that the Claimant’s presence in Canada is a prime indicator of her residence in this country. During the nearly 11 years that are the focus of this appeal, the Claimant was not a resident of Canada at the beginning or the end of the period. However, from November 6, 2009 to April 14, 2015, her time spent in Canada, combined with the ties that she already had here, were sufficient to establish a period of residence.

I have no authority to remedy misleading advice offered by the Minister or his officials

[26] The Claimant has repeatedly insisted that she was misled by the Minister and his officials. She points to a document that she received from Service Canada that said: “If you leave Canada for more than six months, you are not eligible to receive the Supplement or the Allowance, and you may not be eligible for the Old Age Security pension.”^{Footnote 10} She says that this “six-month rule” was confirmed by Service Canada managers, who assured her she could leave Canada without jeopardizing her OAS entitlements so long as she made sure her absences lasted less than six months. Based on this information, the Claimant believed that she could continue to receive her benefits wherever she was in the world, provided she was never out of Canada for more than six months in a row.^{Footnote 11}

[27] Unfortunately, the Claimant was operating under a false impression. The Service Canada document is correct as far as it goes — you will in fact lose entitlement if you leave Canada for more than six months — but it doesn’t say that restricting your absences from Canada to less than six months automatically preserves your Canadian residency for the purpose of qualifying for OAS benefits.^{Footnote 12} Leaving Canada for an extended visit abroad doesn’t necessarily imperil OAS entitlement, but ceasing to be a resident of Canada does.

[28] I can’t be sure what the Service Canada managers actually told the Claimant. However, even if they provided misleading information to the Claimant, there is nothing I can do about it. As a member of the Social Security Tribunal, I can’t forgive an overpayment, even if I believe that Service Canada gave the recipient of that overpayment bad advice.

[29] This Tribunal is created by legislation and, as such, has only the powers granted to it by its governing statute. According to the Old Age Security Act, the Minister may take remedial action if he is satisfied that an applicant was denied a benefit because of erroneous advice or administrative error.^{Footnote 13} Use of the words “may” and “satisfied” in this provision suggests that such a decision is purely discretionary — the Minister doesn’t have to fix his mistake if he doesn’t think it is warranted. Case law says that administrative tribunals, such as this one, can’t force the Minister to revisit or reverse a decision that he has taken voluntarily.^{Footnote 14} In this case, since the Minister has never admitted to an error, there is nothing I can do to make him correct it.

Conclusion

[30] I have decided that the Claimant resided in Canada during the following periods:

• February 20, 1971 to August 10, 1982 or 11 years and 171 days
• June 23, 2001 to September 23, 2008 or seven years and 92 days
• November 6, 2009 to December 31, 2013 or four years and 55 days^{Footnote 15}

[31] This gives the Claimant a total of 22 years and 318 days of Canadian residence, which entitles her to a partial OAS pension at 22/40 of the full amount.^{Footnote 16} The Claimant will be entitled to the Supplement and Allowance for those periods of Canadian residence in which she applied for those benefits, less those periods during which she was outside the country for six months or more.

[32] Both the Claimant’s and the Minister’s appeals are allowed in part.