MT v Minister of Employment and Social Development

MT v Minister of Employment and Social Development Collection Old Age Security (OAS) and Guaranteed Income Supplement (GIS) Decision date 2024-07-05 Neutral citation 2024 SST 841 Reference number GP-23-2042 Member James Beaton Division General Division Decision Appeal allowed in part Subjects Guaranteed Income Supplement - Eligibility Guaranteed Income Supplement - Suspension of payment Decision Content Citation: MT v Minister of Employment and Social Development, 2024 SST 841 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: M. T. Representative: P. T. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated August 31, 2023 (issued by Service Canada) Tribunal member: James Beaton Type of hearing: Teleconference Hearing date: July 4, 2024 Hearing participants: Appellant Appellant’s representative Respondent’s representative Interpreter Decision date: July 5, 2024 File number: GP-23-2042 On this page Decision Overview What the Appellant must prove Matters I have to consider first Reasons for my decision Conclusion Decision [1] The appeal is allowed in part. [2] The Appellant, M. T., is eligible to keep getting a partial Old Age Security (OAS) pension of 13/40. She is not eligible for the Guaranteed Income Supplement (GIS) from March 2014 to June 2023. She is eligible for the GIS beginning in July 2023. [3] This decision explains why I am allowing the appeal in part. Overview [4] The Appellant was born in India on February 12, 1940. She first came to Canada on September 9, 1991.Footnote 1 She is a permanent resident of Canada. She still has an Indian passport. [5] The Appellant applied for an OAS pension and the GIS in 2005. The Minister of Employment and Social Development granted her a partial pension of 13/40 because she had resided in Canada for 13 years. A partial pension is based on the number of years (out of 40) that a person resides in Canada after they turn 18.Footnote 2 The Minister granted her the GIS, too. [6] Later, the Minister stopped the Appellant’s pension and GIS as of March 2014. The Appellant appealed to the Social Security Tribunal’s General Division. Why the Minister stopped the Appellant’s benefits [7] The law says payment of a person’s OAS pension stops six months after they leave Canada or stop residing in Canada unless they have 20 years of Canadian residence.Footnote 3 Payment of a person’s GIS stops six months after they leave Canada or stop residing in Canada even if they have 20 years of Canadian residence. If payment of an OAS pension stops, so does payment of the GIS.Footnote 4 [8] The Minister stopped the Appellant’s benefits as of March 2014 because it found that she stopped residing in Canada on August 27, 2013. Six months later was February 2014. According to the Minister, that was the last month she could get an OAS pension or the GIS. [9] On appeal, the Minister changed its position. The Minister still argues that the Appellant stopped residing in Canada in August 2013. However, the Minister now agrees that the Appellant had 20 years of Canadian residence by August 2013. So the Minister should not have stopped paying her an OAS pension. [10] I agree that the Minister should not have stopped paying the Appellant an OAS pension of 13/40 because the Appellant had 20 years of Canadian residence by August 2013. The only issue left for me to decide is whether the Appellant is eligible for the GIS after February 2014. What the Appellant must prove [11] To be eligible for the GIS after February 2014, the Appellant must prove that she never left Canada or stopped residing in Canada for more than six months at a time from August 27, 2013, to the hearing date. Matters I have to consider first I didn’t use the Appellant’s preferred hearing format [12] The Tribunal holds hearings in person, by phone, by video, and in writing. The Appellant asked for a hearing in writing. She asked me to decide the appeal on the record (that is, without asking her questions).Footnote 5 [13] Section 2 of the Social Security Tribunal Regulations, 2022 says I must hold a hearing in the Appellant’s chosen format unless I determine that the requested format would not allow for a full and fair hearing. [14] I decided that a hearing in writing would not be full and fair. Only an oral hearing would be full and fair. [15] The Appellant’s written communications to the Tribunal suffered from a language barrier. It was clear to me that the Appellant didn’t understand everything the Tribunal had written to her. The Appellant wanted me to make a decision without an oral hearing because she believed that the Minister now agreed with her position.Footnote 6 But as I explained earlier, that was only partly true. I also wrote to the Appellant to ask her to confirm when she was present in Canada. Her response didn’t address my question.Footnote 7 [16] Holding an oral hearing with an interpreter allowed me to ask the Appellant for the information I needed in order to make an informed decision. Reasons for my decision [17] The Appellant stopped residing in Canada in August 2013 and resumed residing in Canada in July 2023. So she isn’t eligible for the GIS from February 2014 to June 2023, but she is eligible beginning in July 2023. The test for residence [18] The law says being present in Canada isn’t the same as residing in Canada. “Residence” and “presence” each have their own definition. I must use these definitions in making my decision. [19] A person resides in Canada if they make their home and ordinarily live in any part of Canada.Footnote 8 [20] A person is present in Canada when they are physically present in any part of Canada.Footnote 9 [21] When I am deciding whether the Appellant resided in Canada, I must look at the overall picture and factors such as: 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 wereFootnote 10 [22] This isn’t a complete list. Other factors may be important to consider. I must look at all of the Appellant’s circumstances.Footnote 11 The Appellant’s ties to Canada and India are equally strong [23] The Appellant’s ties to Canada and India are equally strong. Put another way, her ties to Canada aren’t any stronger than her ties to India. [24] The Appellant has spent time in both countries since August 27, 2013. To evaluate her ties to each country between August 27, 2013, and the hearing date, I asked her questions. I also allowed P. T. (her son and representative) to testify when the Appellant could not remember something. [25] When the Appellant is in Canada, she lives in her son’s house with her son and his children. They live in Surrey, British Columbia. She has another son and daughter who live in British Columbia, too. [26] When the Appellant is in India, she lives in her daughter’s house with her daughter and her daughter’s children. She doesn’t own or rent a house or an apartment in either country. She doesn’t have many possessions in either country.Footnote 12 [27] The Appellant wrote that she spends some of her time in Canada volunteering and participating in community events.Footnote 13 When I asked her for more information, she said she could not remember anything else. P. T. testified that she used to go to community events, like Canada Day celebrations, but she can’t anymore due to her health. She used to go to the local Sikh temple and volunteer there, but that was at least a decade ago. Now she goes infrequently.Footnote 14 [28] The Appellant filed taxes in Canada in 2015 and 2016. She had some income in those years, which she says was from taking care of her grandchildren.Footnote 15 [29] In India, the Appellant spends her time visiting with her daughter and other family members who visit her at her daughter’s house.Footnote 16 She wrote that she visits India “to stay away from winter and visit family and friends.”Footnote 17 [30] P. T. emphasized that the Appellant is now quite old and has many health concerns. She has a doctor in Canada. She accesses Canadian health care frequently. She also accesses health care, including specialists, in India. She has been hospitalized in both countries.Footnote 18 [31] The Appellant doesn’t drive. She doesn’t have a driver’s licence and she doesn’t own a vehicle. She doesn’t have her own phone. She has a bank account in Canada. She could not remember if she had one in India. P. T. testified that he and his sister help pay for the Appellant’s expenses.Footnote 19 [32] The Appellant filed a copy of her permanent resident card, which shows an expiry date of August 29, 2023.Footnote 20 I understand from her testimony that she applied to have it renewed. [33] The Appellant wasn’t sure if she was still a citizen of India. P. T. didn’t know either, but he said that she does retain an Indian passport. She doesn’t receive any benefits, like social security, from the Indian government.Footnote 21 [34] In summary, the Appellant’s ties to Canada and India are equally strong. She doesn’t own or rent a house or a vehicle in either country. She has few possessions and no phone number. She has family in both countries. Her lifestyle in both countries revolves around spending time with family. She hasn’t been very involved in her local community in Canada for over a decade. She accesses health care in both countries. She has a bank account in Canada but depends on her family to pay for her expenses in both countries. She filed taxes in Canada in 2015 and 2016, but her only income was from babysitting her grandchildren. The Appellant spent more time in India until recently [35] Because the Appellant’s ties to Canada and India are equally strong, the most important factor for me to consider is where she spent most of her time. The table below shows the dates that she arrived in each country and departed from each country between August 27, 2013, and the hearing date.Footnote 22 Arrived Departed Days Country August 27, 2013 March 5, 2014 191 India March 6, 2014 August 31, 2014 179 Canada September 1, 2014 April 7, 2015 219 India April 8, 2015 September 3, 2015 149 Canada September 4, 2015 March 3, 2016 182 India March 4, 2016 June 13, 2016Footnote 23 102 Canada June 14, 2016 January 29, 2017 230 India January 30, 2017 April 3, 2017 64 Canada April 4, 2017 February 19, 2018 322 India February 20, 2018Footnote 24 May 9, 2018 79 Canada May 10, 2018Footnote 25 July 27, 2023Footnote 26 1,905 India July 28, 2023 July 4, 2024 343 Canada [36] From August 27, 2013, until July 27, 2023, the Appellant spent 3,049 days in India compared to just 573 days in Canada. The Appellant says she was unable to return to Canada between May 2018 and July 2023, due to the Covid-2019 pandemic and her medical conditions.Footnote 27 But even before May 10, 2018, she was spending most of her time in India: 1,144 days compared to just 573 days in Canada. Every visit to India was followed by a shorter visit to Canada. [37] As a result, I find that the Appellant stopped residing in Canada in August 2013. [38] However, the Appellant has been in Canada since July 28, 2023—almost a full year now. Her health conditions keep her from returning to India.Footnote 28 I accept that this period of extended presence in Canada, together with her other ties to Canada, has re‑established her residence here. She has resided in Canada since July 2023. Conclusion [39] The Appellant is eligible to keep getting a partial OAS pension of 13/40. She is not eligible for the GIS from March 2014 to June 2023. She is eligible for the GIS beginning in July 2023. [40] My decision results in a significant overpayment—a debt owed by the Appellant to the Minister that she must repay. The Minister has the power to forgive all or part of the debt if repayment would cause the Appellant undue hardship.Footnote 29 If the Appellant wants the Minister to consider forgiving the debt, she must ask Service Canada. The Tribunal doesn’t have the authority to forgive a debt. [41] This means the appeal is allowed in part. Footnotes Footnote 1 See GD2-5. Footnote 2 See section 3(2) of the Old Age Security Act (OAS Act). Footnote 3 See section 9 of the OAS Act. Footnote 4 See section 11(7) of the OAS Act. Footnote 5 See GD11. Footnote 6 See GD11-2. Footnote 7 See GD10, GD11, GD12, and GD13. Footnote 8 See section 21(1)(a) of the Old Age Security Regulations (OAS Regulations). Footnote 9 See section 21(1)(b) of the OAS Regulations. Footnote 10 See Canada (Minister of Human Resources Development) v Ding, 2005 FC 76. See also Valdivia De Bustamante v Canada (Attorney General), 2008 FC 1111; Duncan v Canada (Attorney General), 2013 FC 319; and De Carolis v Canada (Attorney General), 2013 FC 366. Footnote 11 See Canada (Minister of Human Resources Development) v Chhabu, 2005 FC 1277. Footnote 12 See the hearing recording. Footnote 13 See GD1-4. Footnote 14 See the hearing recording. Footnote 15 See GD2-35 to 39 and 162 to 165. Footnote 16 The Appellant separated from her husband in 1992 when he decided to return to India permanently. It is unclear to me where he lives now or how often he and the Appellant see each other. See GD2-25 to 39 and the hearing recording. Footnote 17 See GD2-133 and the hearing recording. Footnote 18 See GD2-186 and 187, GD11, and the hearing recording. Footnote 19 See the hearing recording. Footnote 20 See GD11-4. Footnote 21 See the hearing recording. Footnote 22 The Appellant and the Minister agree on these dates except where I have indicated otherwise. See GD13 and GD14. Footnote 23 The Appellant arrived in India on June 14, 2016. See GD2-106. Footnote 24 The Appellant left India on February 19, 2018 (GD2-189). I find that she arrived in Canada the next day. Footnote 25 The Appellant left India on May 9, 2018 (GD2-187). I find that she arrived in Canada the next day. Footnote 26 The Appellant and the Minister agree that the Appellant was in Canada on July 28, 2023. I find that she left India the previous day. Footnote 27 See GD2-186 and 187. Footnote 28 See the hearing recording. Footnote 29 See section 37(4)(c) of the OAS Act.