IR v Minister of Employment and Social Development

IR v Minister of Employment and Social Development Collection Old Age Security (OAS) and Guaranteed Income Supplement (GIS) Decision date 2023-06-08 Neutral citation 2023 SST 741 Reference number AD-23-449 Member Kate Sellar Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - IR v Minister of Employment and Social Development - 2023 SST 742 - 2023-01-04 - General Division Subjects Appeal Division - Leave to appeal - No grounds of appeal Guaranteed Income Supplement - Eligibility Late appeals - Extension of time Decision Content Citation: IR v Canada Employment Insurance Commission, 2022 SST 741 Social Security Tribunal of Canada Appeal Division Extension of Time and Leave to Appeal Decision Applicant: I. R. Respondent: Minister of Employment and Social Development Decision under appeal: General Division decision dated January 4, 2023 (GP-22-531) Tribunal member: Kate Sellar Decision date: June 8, 2023 File number: AD-23-449 On this page Decision Overview Issues Analysis I’m extending the time for filing the application Conclusion Decision [1] An extension of time to apply to the Appeal Division is granted. Leave (permission) to appeal is refused. The appeal will not proceed. Overview [2] I. R. (Claimant) is a Canadian citizen. He’s originally form Romania and now lives in Isreal. He hasn’t been to Canada since 2017. [3] The Claimant says that he should receive the Guaranteed Income Supplement (GIS) pension for humanitarian reasons because he worked in Canada for 21 years and is now facing financial and health problems. [4] The Minister of Employment and Social Development (Minister) decided that the Claimant isn’t eligible for the GIS because he doesn’t reside in Canada. He hasn’t resided in Canada for many years now. [5] The Claimant appealed to this Tribunal. The General Division dismissed the Claimant’s appeal, finding that the Claimant resides in Isreal and therefore he doesn’t qualify for the GIS. Issues [6] The issues in this appeal are: a) Was the Claimant’s application to the Appeal Division late? b) If so, should I extend the time for filing the application? c) If so, is there an arguable case that the General Division made an error of jurisdiction that would justify granting the Claimant permission to appeal? d) Does the Claimant’s application set out evidence that wasn’t presented to the General Division that would justify granting leave to appeal? Analysis The application was late [7] The General Division decision is dated January 4, 2023. The Tribunal sent a copy of the decision by mail to Isreal, rather than by email. The cover letter was dated January 5, 2023. [8] Next, the Tribunal received a letter from the Claimant and stamped it “received” on February 6, 2023. The letter contains an argument about why he should receive the GIS. I cannot be certain whether the Claimant had received the decision or not by then as he doesn’t reference the General Division’s decision, but it makes sense that he was writing again because he knew he was unsuccessful and was signalling an intention to appeal. The General Division responded by letter dated February 15, 2023, stating that the General Division made its decision and explaining how to appeal to the Appeal Division. [9] In the Claimant’s application to the Appeal Division, he states that he doesn’t remember when he received the General Division decision.Footnote 1 [10] I find that the Claimant received the General Division decision sometime after January 5, 2023 (the date on the cover letter with mailed with the decision), and before February 5, 2023 (the day before the General Division received his response). [11] The Appeal Division received the Claimant’s application on May 15, 2023. [12] Claimants have 90 days from the day they receive the General Division decision to apply to the Appeal Division to appeal.Footnote 2 Even if the Claimant received the General Division decision as late as February 5, 2023, he was still late. I’m extending the time for filing the application [13] When deciding whether to grant an extension of time, I must consider whether the Claimant has a reasonable explanation for why the application is late.Footnote 3 [14] I find that the Claimant was late because he communicates with the Tribunal from another country by mail. This inevitably slows the process down and it’s reasonable to conclude that this was why the Claimant was late. I’m not giving the Claimant permission to appeal [15] I can give the Claimant permission to appeal if their application raises an arguable case that the General Division: didn’t follow a fair process; acted beyond its powers or refused to exercise those powers; made an error of law; made an error of fact; or made a mixed error of law and fact.Footnote 4 [16] I can also give the Claimant permission to appeal if their application sets out evidence that wasn’t presented to the General Division.Footnote 5 [17] Since the Claimant hasn’t raised an arguable case and hasn’t set out new evidence, I must refuse permission to appeal. Claimant hasn’t raised an arguable case about an error of jurisdiction [18] The Claimant argues that the General Division made an error of jurisdiction because it would not make an exception to the law based on humanitarian rights. The Claimant says his employer cheated him and did not put money aside for his pension. As a result, he’s without a pension from Canada despite working many years in Canada and paying taxes here. He receives only a pension from Isreal and must rely on family and friends for financial help. [19] The Claimant hasn’t provided an arguable case for an error of jurisdiction by the General Division. The General Division had to decide whether the Claimant was eligible for the GIS, and that is the only question that the General Division decided. [20] The Claimant hasn’t been a resident of Canada for many years. The Old Age Security Act (OAS Act) doesn’t allow him to receive the GIS as a result.Footnote 6 The General Division had no special jurisdiction that it failed to exercise that would allow it to consider reasons why the Claimant should receive the GIS from Israel. The rules about the GIS in the OAS Act apply to the Claimant. The General Division couldn’t make an exception. [21] The Claimant hasn’t raised an arguable case for an error of jurisdiction by the General Division. No new evidence that justifies granting permission to appeal [22] The Claimant hasn’t provided any new evidence, so I cannot give him permission to appeal on that basis either. [23] I’m satisfied there are no other grounds on which I can grant permission to appeal in this matter, given the Claimant’s country of residence and the law that applies. Conclusion [24] An extension of time is granted. Permission to appeal is refused. This means that the appeal will not proceed. Footnotes Footnote 1 See AD1-1. Footnote 2 See section 57(1)(b) of the Department of Employment and Social Development Act (Act). Footnote 3 It says this in section 27(2) of the Social Security Tribunal Rules of Procedure. Footnote 4 See section 58.1(a) and (b) of the Act. Footnote 5 See section 58.1(c) of the Act. Footnote 6 See section 11(7)(d) of the Old Age Security Act.