IB v Minister of Employment and Social Development

IB v Minister of Employment and Social Development

Applying the Ding factors and statutory provisions the Tribunal found three discrete post‑1990 Canadian residence periods (1 Sept–31 Dec 1990; 1 Jan–30 Apr 1992; 1 Oct 2003–31 May 2004). Accounting for prior residence to 31 Aug 1990 (19 years 2 months 2 days) plus these additional periods yields 20 years 6 months 2 days total; contributions to U.S. social security during all quarters of 1991 meant 1991 is deemed non‑residency under s.21(5.3), and the university provision did not operate to preserve continuous Canadian residence because the claimant did not re‑establish residency immediately after completing studies. Result: entitlement increases from 19/40ths to 20/40ths, effective June...

Citation
2021 SST 429
Parties
Appellant (claimant): I. B.; Respondent (minister): Minister of Employment and Social Development
Court
Social Security Tribunal of Canada
Jurisdiction
Canada
Judgment Date
23 March 2021
Procedural Posture
Old Age Security (oas) Appeal / General Division Decision (income Security Section)
Outcome
Appeal allowed in part: OAS pension increased from 19/40ths to 20/40ths; effective date and actuarial adjustment remain unchanged; pension portable outside Canada without relying on Canada‑U.S. Agreement.
Legal Topics
Residence Requirement, Portability of OAS, Canada–u.s. Social Security Agreement, Actuarial Adjustment, University Provision (s.21(4)(b) Oasr), Ding Factors
Source Language
English
Social Security Old Age Security Income Security Administrative Law Residence Requirement Portability of OAS Canada–u.s. Social Security Agreement Actuarial Adjustment +2 more

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Parties

I. B.

Appellant (claimant)

Minister of Employment and Social Development

Respondent (minister)

Procedural Posture

Old Age Security (oas) Appeal / General Division Decision (income Security Section)

Legal Issues

  1. 1 Did the claimant reside in Canada after August 31, 1990?
  2. 2 What is the impact of any post‑1990 Canadian residence on the OAS pension amount?
  3. 3 Does the OASR s.21(4)(b) university provision apply to deem absence not to interrupt residence?

Ratio Decidendi

Applying the Ding factors and statutory provisions the Tribunal found three discrete post‑1990 Canadian residence periods (1 Sept–31 Dec 1990; 1 Jan–30 Apr 1992; 1 Oct 2003–31 May 2004). Accounting for prior residence to 31 Aug 1990 (19 years 2 months 2 days) plus these additional periods yields 20 years 6 months 2 days total; contributions to U.S. social security during all quarters of 1991 meant 1991 is deemed non‑residency under s.21(5.3), and the university provision did not operate to preserve continuous Canadian residence because the claimant did not re‑establish residency immediately after completing studies. Result: entitlement increases from 19/40ths to 20/40ths, effective June...

Court Disposition

Appeal allowed in part: OAS pension increased from 19/40ths to 20/40ths; effective date and actuarial adjustment remain unchanged; pension portable outside Canada without relying on Canada‑U.S. Agreement.

Orders

  • Increase claimant's OAS entitlement from 19/40ths to 20/40ths effective June 2017.
  • Maintain the actuarial adjustment at 6.6%.