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

Decision

[1] I dismiss the appeal of the Applicant, E. D. He has not demonstrated that he resided in Canada from December 6, 2012, to March 1, 2015. As a result, he must repay a portion of the Guaranteed Income Supplement paid to him by the Minister of Employment and Social Development.

Overview

[2] Starting in June 2009, the Minister paid the Applicant a full Old Age Security pension and the Guaranteed Income Supplement. However, the Minister then investigated the Applicant’s eligibility for these benefits.

[3] The Minister ultimately found that the Applicant had not resided in Canada between December 6, 2012, and March 1, 2015. The Minister therefore concluded that the Applicant wasn’t eligible for the Guaranteed Income Supplement between July 2013 and February 2015 and therefore claimed an overpayment.^{Footnote 1}

[4] The Applicant appealed the Minister’s decision to the General Division of the Social Security Tribunal, but it dismissed his appeal.

[5] The Applicant then appealed the General Division’s decision to the Appeal Division, and I gave him permission to appeal. Therefore, I determined the appeal as a new proceeding.^{Footnote 2}

[6] While I am sympathetic to the Applicant’s situation, I dismiss his appeal.

Preliminary matters

The Applicant was accommodated throughout the appeal process

[7] At various times during the appeal, the Applicant requested accommodations for his numerous health problems.^{Footnote 3} I granted many of these requests, even though there was no medical evidence to support these problems.

[8] For example, I granted the Applicant extended time to present his evidence and arguments to the Tribunal. Moreover, before dismissing his Notice of Constitutional Question, I pointed out several shortcomings and gave him time to fix them.^{Footnote 4}

[9] Other accommodations were also granted during the hearing, including the following:

• A support person and a friend attended the hearing with the Applicant.^{Footnote 5}
• Numerous breaks were taken during the hearing, and I proposed several additional breaks, even though the Applicant refused them.
• The hearing was moved to the city where the Applicant lives and extended well beyond the scheduled time.
• Because the Applicant complained about the excessive number of documents in the appeal file, I asked the Applicant if he wanted to be given an abridged book of the key documents the Minister relied on in its written arguments, but he refused.
• The Minister’s representative addressed the issues separately, and I often rephrased the arguments in plain language so that the Applicant could respond to one at a time.
• Because the Applicant seemed increasingly irritated by the arguments the Minister’s representative presented, I asked if the representative would present her final arguments in writing.

[10] The Minister’s representative should be thanked for remaining courteous and professional throughout the hearing, even if the Applicant did not always behave in the same way toward her.

I added documents to the appeal file after the hearing

[11] Before the hearing, the Applicant complained that documents were missing from the appeal file.^{Footnote 6} I addressed his concerns and, if there were any additional documents missing, I invited him to give them to the Tribunal well in advance of the hearing.^{Footnote 7} I also offered assistance from Tribunal staff should further clarification be needed.

[12] During the hearing, however, the Applicant noted that there were still documents missing from the appeal file. However, the Applicant provided few details, and the examples he highlighted at the hearing were already in the appeal file.^{Footnote 8}

[13] In addition, the Applicant confirmed that he was not requesting permission to add any further documents to the appeal file.

[14] After the hearing, however, I searched the Applicant’s files with the Tribunal (of which there are many) and found a document that had not been properly added to the General Division’s file when it made its last decision in this case.^{Footnote 9}

[15] In short, the General Division first dismissed the Applicant’s appeal in a decision made on September 20, 2018.^{Footnote 10} On November 21, 2018, the Applicant asked the General Division to rescind or amend its decision based on new evidence.^{Footnote 11} The General Division dismissed this application on January 30, 2019.

[16] The Applicant appealed both decisions of the General Division to the Appeal Division.^{Footnote 12} I dealt with both cases in a single decision made on September 27, 2019.

[17] Since I was granting the appeal on the first decision of the General Division and sending the file back to the General Division for a hearing, I concluded that the second appeal had become moot. In short, the Applicant’s new evidence would be examined at the new hearing.

[18] Unfortunately, it appears that the evidence the Applicant filed as part of the application to rescind or amend was not added to the new General Division file, GP‑19‑602.

[19] I rectified this oversight by adding these elements to the present file. Before doing so, I asked the parties for their written arguments about these elements.^{Footnote 13} I took into account all the arguments received after the hearing. I did not deem it necessary to reopen the hearing in view of these arguments.

Issues

[20] The majority of the hearing was devoted to the following issues raised by the Applicant, which he described as preliminary and legal in nature:

1. a) Does the Appeal Division have jurisdiction in this case, since the Applicant filed an [translation] “application to cancel or [reopen] the investigation” rather than an application to the Appeal Division?
2. b) Am I in such a conflict of interest that I should recuse myself from deciding the appeal?
3. c) Are interlocutory decisions of the Tribunal void if they do not mention the name of the member who made them?
4. d) Should I grant the Applicant’s no‑evidence motion?

[21] Depending on the answers to these questions, I will then decide the substantive issue: did the Applicant reside in Canada within the meaning of the Old Age Security Act from December 6, 2012, to March 1, 2015?^{Footnote 14}

[22] During the hearing, I explained to the Applicant that there would be only one hearing. So, in addition to his arguments on the preliminary matters he had raised, I also wanted to hear his testimony on the substantive issue. He refused. Even when his arguments sounded like testimony, he denied that this was what he was providing.

[23] Before continuing, it should be pointed out that I also considered other, less central arguments the Applicant put forward, but dismissed them all. For example, the Applicant pointed out small errors that had crept into certain Tribunal documents, such as the date of the reconsideration decision appearing on the first page of the General Division decision dated October 3, 2023. While these errors are regrettable, they do not make the Applicant eligible for Guaranteed Income Supplement benefits.

Analysis

The Appeal Division has jurisdiction in this case

[24] The Applicant argued that the Appeal Division had no jurisdiction in this case because he filed an [translation] “application to cancel or [reopen] the investigation” rather than an application to the Appeal Division. I dismiss the Applicant’s argument.

[25] The Applicant argued that the Tribunal had erred in opening a file at the Appeal Division, and that the General Division was entitled to consider his application under the federal charter, the provincial charter, and the Canada Evidence Act.

[26] The Applicant’s arguments on this issue were disordered and somewhat incoherent, especially when he stated that he had not appealed the General Division’s decision and that the member of the General Division had appealed her own decision.

[27] As I acknowledged at the hearing, the General Division previously had the power to rescind or amend one of its own decisions on the basis of new facts. The Applicant has already submitted such an application, as described above. However, Parliament withdrew this power from the Tribunal in December 2022.^{Footnote 15} Moreover, the Applicant’s complaints relate more to the General Division’s procedure than to new facts.

[28] Instead, I tried to reassure the Applicant that I had the power to decide all the key issues that he raised as part of an appeal heard and determined as a new proceeding.^{Footnote 16}

[29] Importantly, the Applicant did not want to withdraw his appeal and did not want me to close the Appeal Division file by stating that the Tribunal had opened it in error. I suggested that he send all the documents to the General Division to review his [translation] “application to cancel or [reopen] the investigation.” However, he insisted that I decide the issues raised in his appeal.

[30] In the end, I came to the following conclusions:

• The Applicant is dissatisfied with the General Division’s decision dated October 3, 2023, and wants to challenge it.
• The Tribunal has only the powers that the law confers upon it. Though the Applicant states that the law authorizes him to submit his application to the General Division, he has not cited a specific statutory provision for doing so, nor am I aware of any such provision.
• After receiving the Applicant’s [translation] “application to cancel or [reopen] the investigation,” the Tribunal acknowledged receipt of an application to the Appeals Division.^{Footnote 17}
• I then granted the Applicant permission to appeal, and his application for permission therefore became a notice of appeal.^{Footnote 18}
• The Applicant then completed the “Application to the Appeal Division” form, in which he asked the Appeal Division for a remedy.^{Footnote 19}

[31] In view of these circumstances, I feel that the Appeal Division was right to open a file and that it has jurisdiction in this case.

I refused to recuse myself from the hearing

[32] At the hearing, the Applicant accused me of having a conflict of interest and asked me to recuse myself so that another member could decide his appeal. I refused. Here are the reasons for my decision.

[33] Before making my decision, I asked the Applicant to explain why he was accusing me of a conflict of interest. In response, he listed several requests he had made that I had refused, such as the following:

• I refused to give him legal aid (court-appointed lawyer).^{Footnote 20}
• I refused to put the proceeding on hold for an indefinite period.^{Footnote 21}
• I concluded that the notice of appeal involving the Charter did not meet the requirements of section 1(1) of the Social Security Tribunal Regulations, 2022.^{Footnote 22}

[34] Allegations of bias are serious, as they call into question the integrity of the Tribunal and its members. They should not be made lightly. Also, it is presumed that the Tribunal’s members are impartial.^{Footnote 23}

[35] The legal test for proving a reasonable apprehension of bias is therefore high. It was stated in this way by the Supreme Court of Canada:^{Footnote 24}

[W]hat would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?

[36] I feel that the Applicant has not met the threshold necessary to prove that I should recuse myself from the hearing. In particular, he ignored the numerous rulings I made in his favour. For example, I granted a previous appeal and agreed to move the hearing to the city where he lives.^{Footnote 25} In addition, I gave him many opportunities to submit a Notice of Constitutional Question that met all the requirements of the law.

[37] Members make interlocutory decisions in all proceedings. The resulting decisions should be viewed with an open mind, without inappropriate or unjustified assumptions. Tribunals could not function if decision-makers had to recuse themselves after every interlocutory decision that displeased a party.

[38] It’s obvious that the Applicant disagrees with some of the decisions I have made in the appeal. This in itself is neither proof of bias nor grounds for exclusion.^{Footnote 26}

[39] The Applicant has not proved that my previous interlocutory decisions would lead a reasonable person apprised of all the relevant circumstances to conclude that I failed to come to grips with the issues and decide them impartially and independently.^{Footnote 27}

The Tribunal’s interlocutory decisions are valid

[40] The Applicant claims that some of the Tribunal’s interlocutory decisions are invalid because they do not specify the name of the person who made the decision. For example, some of the Tribunal’s letters begin as follows: [Translation] “The Tribunal member assigned to this appeal made the following decision.”^{Footnote 28}

[41] I dismiss the Applicant’s argument.

[42] First, the Tribunal acknowledged receipt of an application to the Appeal Division on November 15, 2023. The Applicant has known since my first decision, dated December 6, 2023, that I am the member assigned to his file.

[43] The Applicant has not given any reason to believe that decisions in his file were made by a person who is not a Tribunal member. On the contrary, I confirmed that I had made all the decisions in his file.^{Footnote 29}

The applicant’s no‑evidence motion is dismissed

[44] The Applicant has asked me to allow his appeal summarily because the Minister has not presented admissible evidence showing that he was not residing in Canada during the disputed period.

[45] I dismiss the Applicant’s motion for three main reasons.

[46] First, the Applicant has not cited any statutory provision giving me the authority to allow an appeal summarily.

[47] In addition, the Applicant’s argument is based on the assumption that the Minister has the burden of proving that the Applicant didn’t reside in Canada (and not that the Applicant has the burden of proving that he did).

[48] However, the Federal Court has already decided this issue and concluded that the burden of proof is on the Applicant.^{Footnote 30} I have no choice but to follow these Federal Court decisions.

[49] Finally, the law imposed a requirement on the Applicant to provide certain notices to the Minister, such as when he got married and when he left Canada for extended periods.^{Footnote 31} However, the Applicant waited two years before informing the Minister that he had gotten married and never appears to have notified the Minister that he was absent from the country for an extended period.^{Footnote 32}

[50] I find it difficult to accept the Applicant’s argument that I should impose the burden of proof on the Minister when the Applicant did not provide the notices that the law required him to provide.

[51] No‑evidence motions can be important procedural tools in other contexts and before other tribunals. However, they don’t form part of the proceedings of this Tribunal and cannot be transposed into this context as the Applicant hoped.

[52] I am therefore of the opinion that I must dismiss the Applicant’s no‑evidence motion.

The Applicant has not demonstrated that he resided in Canada between December 6, 2012, and March 1, 2015

[53] The substantive issue in this case concerns the Applicant’s eligibility for the Guaranteed Income Supplement.

[54] On several occasions, the Applicant stated that the Minister had not proved that he had been absent from Canada for more than six consecutive months.^{Footnote 33} Although this is one of the criteria allowing the Minister to suspend payment of the Guaranteed Income Supplement, it is not the criterion on which the Minister is relying in this case.^{Footnote 34}

[55] Instead, the Minister argues that the Applicant is not eligible for the Guaranteed Income Supplement because he did not reside in Canada during the disputed period.^{Footnote 35}

[56] The answer to this question therefore depends on the ability of the Applicant to demonstrate, on a balance of probabilities, that he resided in Canada during the disputed period.

Many factors are considered when assessing a person’s residence

[57] A person resides in Canada if they make their home and ordinarily live in any part of the country.^{Footnote 36}

[58] A person’s residence is a largely factual issue that requires an examination of their whole context.^{Footnote 37} As part of this analysis, the following factors are assessed, established by the Federal Court in Ding:^{Footnote 38}

• real estate and personal property (for example, a house, furniture, car, business, bank account, credit card)
• social ties in Canada (for example, family members, participation in social clubs, religious organizations, and professional associations)
• other ties in Canada (for example, medical services, insurance policies, driver’s licence, rental contracts, lease, loan agreement or mortgage, contracts, utility bills, participation in public services and programs, pension plans, and tax payments)
• ties in another country
• the time spent in Canada compared to other countries
• lifestyle (for example, language and culture)

[59] The weight given to each factor may differ from case to case.^{Footnote 39}

Certain factors support the Applicant’s residence in Canada

[60] I agree that the Applicant has demonstrated that he had certain ties in Canada during the disputed period.

[61] The evidence presented by the Applicant in support of his case can be summarized as follows:

• On May 1, 2015, the Applicant stated that he had not left Canada for more than six months since 2008.^{Footnote 40}
• The Applicant states that his wife purchased a building in X in 2012, but that the building registration was delayed until 2015 due to problems caused by a land reform in Quebec.^{Footnote 41}
• The Applicant says that he paid for the insurance and telephone, and that he bought a refrigerator for this building, all during the disputed period.^{Footnote 42}
• The Applicant claims to have used this building’s address on official documents and to have visited certain government offices during the disputed period.^{Footnote 43}

[62] In addition, the Applicant has submitted several photos and emails to show that he has participated in religious, community and cultural life in Quebec, as well as in political life at the provincial, federal and international levels.^{Footnote 44} I note that most of these emails do not refer to the disputed period, and that the photos don’t indicate when they were taken.

[63] Although I have highlighted certain statements the Applicant made above, it should be noted that he often evaded questions and that the factors he presented were sometimes incoherent. As a result, I approached his statements with a degree of caution.

[64] For example, the Applicant made different statements about the date and place of his marriage. First, he gave the Minister a certified copy of a marriage certificate attesting that he was married on March 22, 2013, in the Philippines.^{Footnote 45} However, at the hearing, he stated that this certificate was false and that he was married on March 8, 2013, in Macao instead.

[65] Overall, I agree that the Applicant had ties in Canada during the disputed period, including certain assets, social ties and contracts. However, the Applicant presented little convincing evidence for me to assess the strength of these ties. For how long, for example, was the Applicant at his house in Canada? Was his family near or far?

Other factors cast doubt on the Applicant’s residence in Canada

[66] In his arguments, the Minister relies heavily on bank statements to demonstrate that, during the disputed period, there are few transactions in Canada, and a very large number of transactions abroad, either in Thailand, Mexico, or Macao.^{Footnote 46}

[67] The Applicant argued that his bank account transactions don’t say anything about his movements, as his wife used his bank card to support herself.^{Footnote 47} Then, at the hearing, the Applicant argued that I could not rely on the account statements because the Minister had obtained them illegally and without his consent.

[68] As an aside, I note that this argument can be applied to other evidence as well. For example, how can I conclude that the Applicant was in Canada when phone calls were made from his home when I don’t know for sure who made those calls?^{Footnote 48}

[69] In terms of whether the Minister had obtained the account statements legally, the Minister acknowledged that the Applicant had not authorized the bank to disclose these documents. Instead, the Minister relied on the broad investigative powers that the law confers upon it.^{Footnote 49}

[70] Even if I disregard the account statements the Minister obtained, other factors cast doubt on the Applicant’s residence in Canada during the disputed period. I’ll summarize some of them here:

• The Applicant did not file any tax returns with the Canada Revenue Agency from 1980 to 2016.^{Footnote 50}
• The Applicant got married in March 2013, but his wife did not enter Canada permanently until May 2015. While waiting for a Canadian visa, the Applicant’s wife lived in Mexico, where the couple spent long periods of time, where both were victims of assault, and where the Applicant received medical treatment for various problems.^{Footnote 51}
• From September 2008 to May 2014, the Applicant used a Canada Post address instead of a residential address to receive mail from Service Canada.^{Footnote 52}
• According to a Quebec Superior Court ruling, the Applicant failed to appear in court on April 5, 2013, because he had been absent from Canada during the winter, and his stay was extended due to consular challenges.^{Footnote 53} In addition, a Mexican licence was part of the Applicant’s defence against this accusation.^{Footnote 54}

I place significant weight on the factor related to time spent in Canada compared to time spent in other countries

[71] It is clear from the above that the Applicant had ties in Canada and other countries. For example, he had assets and social ties in Canada, but his wife lived abroad.

[72] In this situation—and given the lack of probative evidence relating to the factors in Ding—I place significant weight on the factor related to time spent in Canada compared to time spent in other countries. The courts have also acknowledged the significance of this factor in other cases.^{Footnote 55}

[73] First, it should be noted that a person can leave Canada from time to time without it affecting their residency in Canada and without losing eligibility for the Guaranteed Income Supplement.^{Footnote 56}

[74] However, the fact that a person is on Canadian soil from time to time is not sufficient to establish Canadian residency. When a person has ties in several countries and regularly spends more time outside the country than inside, it’s all the more difficult to show that their absences are temporary or that they “ordinarily live” in Canada.

[75] I acknowledge that the Applicant was in Canada at certain times during the disputed period. For example, he appeared before the Quebec Superior Court in June 2013 and made a payment to Citizenship and Immigration Canada in April 2014.^{Footnote 57} However, his refusal to co‑operate with the investigator and to testify at the hearing means that the Applicant has submitted almost no reliable information about his movements during the disputed period.

[76] The Applicant had numerous opportunities to provide additional evidence to support his case. He insisted on an in-person hearing in the city where he lives so that he could add to the evidence already on file. But when the time came, he refused to testify or call witnesses.

[77] In short, it is impossible to link a few isolated pieces of evidence into a coherent story establishing where the Applicant ordinarily lived during the disputed period.

[78] Consequently, the Applicant has not discharged his burden: He has not demonstrated, on a balance of probabilities, that he resided in Canada from December 6, 2012, to March 1, 2015.

The Tribunal cannot rewrite or circumvent the law

[79] During the proceedings, the Applicant pleaded for compassion. He spoke of the many difficult situations he has faced over the years.

[80] I sympathize with the Applicant. I understand that the amount he’s being asked to pay will be difficult to repay and could even be detrimental to his health.

[81] However, in arriving at my decision, I cannot take into account factors such as sympathy, suffering and financial need. Instead, I am required to interpret and apply the provisions as set out in the Old Age Security Act. I cannot invoke principles of fairness or consider extenuating circumstances to rewrite or circumvent the law or to grant Guaranteed Income Supplement benefits.

[82] In this difficult situation, the Applicant could ask the Minister to remit (write off) the debt, in whole or in part, or to establish a reasonable repayment plan.^{Footnote 58}

Conclusion

[83] I dismiss the Applicant’s appeal.

[84] It’s the Minister’s responsibility to calculate the amount the applicant must repay.^{Footnote 59} The applicant complained that the Minister has already deducted amounts from his Old Age Security pension illegally and without authorization. Unfortunately, I have no jurisdiction over this matter or over his complaints about the services Service Canada provided.^{Footnote 60}