Bigdeli-Azari (Succession) v. Canada (Attorney General)

Bigdeli-Azari (Succession) v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2024-03-20 Neutral citation 2024 FCA 54 File numbers A-343-21 Decision Content Date: 20240320 Docket: A-343-21 Citation: 2024 FCA 54 [ENGLISH TRANSLATION] CORAM: DE MONTIGNY C.J. BOIVIN J.A. ROUSSEL J.A. BETWEEN: THE ESTATE OF MANOUTCHEHR BIGDELI-AZARI Applicant and ATTORNEY GENERAL OF CANADA Respondent Heard at Montréal, Quebec, on March 20, 2024. Judgment delivered from the bench at Montréal, Quebec, on March 20, 2024. REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY C.J. Date: 20240320 Docket: A-343-21 Citation: 2024 FCA 54 CORAM: DE MONTIGNY C.J. BOIVIN J.A. ROUSSEL J.A. BETWEEN: THE ESTATE OF MANOUTCHEHR BIGDELI-AZARI Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal, Quebec, on March 20, 2024.) DE MONTIGNY C.J. [1] The facts that underlie this matter are unusual, to say the least. On August 11, 2004, Manoutchehr Bigdeli-Azari applied for an Old Age Security (OAS) pension and for Guaranteed Income Supplement (GIS) benefits. That application was partially allowed because Mr. Bigdeli-Azari had not resided in Canada for the number of years required for a full pension. He consequently received a partial pension of 10/40ths, and the OAS pension and GIS benefits became payable as of July 2005. [2] On August 20, 2007, Mr. Bigdeli-Azari’s son, who is also representing Mr. Bigdeli‑Azari’s estate before this Court, was appointed curator to the property and person of Mr. Bigdeli-Azari by the Superior Court of Québec. One month later, on September 25, 2007, the curator notified the Minister that Mr. Bigdeli-Azari had left the country, supposedly following an abduction. The Minister therefore suspended Mr. Bigdeli-Azari’s OAS pension and GIS benefits as of April 2008, six months after he had left Canada. [3] In April 2016, the curator contacted the Minister to request the payment of all Mr. Bigdeli-Azari’s OAS pension and GIS benefits from the date they had ceased, on the grounds that his father should have been considered a resident of Canada even though he had no longer been in the country following his abduction. The Minister refused, explaining that Mr. Bigdeli-Azari was entitled to receive the OAS pension outside Canada only for the six months following his departure from Canada because he had not lived in Canada for at least 20 years after attaining the age of 18. [4] Lastly, the curator informed the Minister of Mr. Bigdeli-Azari’s return to Canada on August 11, 2016, and once again requested payment of all OAS pension and GIS benefits as well as their retroactive payment from the date they had ceased. However, on August 18, 2016, the Minister received Mr. Bigdeli-Azari’s death notice dated August 14, 2016. [5] The curator subsequently requested a reconsideration of the Minister’s decision to grant payment of only the OAS pension for the month Mr. Bigdeli-Azari returned to Canada, namely, August 2016. The Minister having upheld the original decision, the estate of Mr. Bigdeli-Azari appealed to the Social Security Tribunal’s General Division. The General Division dismissed the appeal on March 31, 2021, and the Appeal Division of the same Tribunal upheld that decision on October 20, 2021. The estate has filed an application for judicial review of the Appeal Division’s decision. [6] Since this Court’s decision in Hurtubise v. Canada (Attorney General), 2016 FCA 147 (at paras. 5–6), it has been settled law that the standard of review applicable to the Appeal Division’s decisions is reasonableness. This Court must therefore determine whether it was reasonable for the Appeal Division to confirm the General Division’s decision in light of subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34. That provision authorizes the Appeal Division to intervene only insofar as the General Division failed to observe a principle of natural justice, erred in law, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [7] Under the Old Age Security Act, R.S.C. 1985, c. O-9 (the Act), only a person who has resided in Canada for at least 20 years (after attaining the age of 18) at the time they left Canada may receive an OAS pension while outside Canada (subsection 9(2)). Subsection 9(1) indicates that “[w]here a pensioner […] has remained outside Canada after becoming a pensioner for six consecutive months […] payment of the pension for any period the pensioner continues to be absent from Canada after those six months shall be suspended, but payment may be resumed with the month in which the pensioner returns to Canada”. Furthermore, paragraph 21(1)(b) of the Old Age Security Regulations, C.R.C., c. 1246, provides that a person is present in Canada “when he is physically present in any part of Canada.” [8] The evidence shows that Mr. Bigdeli-Azari was absent from Canada for almost nine years, from 2008 to 2016, after he had been granted the 10/40ths partial pension in July 2005. The applicant does not dispute that Mr. Bigdeli-Azari had not resided in Canada for 20 years prior to his departure, nor does it dispute the fact that he was absent from Canada from 2008 to 2016. Instead, the applicant’s argument is that an abduction does not constitute a departure and that a person cannot be considered absent unless they leave Canada voluntarily. Given that the Act and the Old Age Security Regulations do not provide for any exceptions to the rule that a person’s pension will be suspended if he or she is absent for more than six months, even for humanitarian reasons, and that the applicant has not submitted any case law supporting its argument, it was reasonable for the Appeal Division to conclude that the Act does not grant it any discretion. [9] We also consider that it was reasonable for the Appeal Division to conclude that the General Division had not failed to observe a principle of natural justice or procedural fairness. To arrive at that conclusion, the Appeal Division listened to the recording of the hearing before the General Division; it noted that the applicant had raised no procedural objections and that it had been given the opportunity to present its case and make oral and written submissions. Those findings were not challenged before this Court. [10] Lastly, we are all of the opinion that the applicant’s arguments based on the Canadian Charter of Rights and Freedoms cannot be considered by this Court. In an interlocutory decision dated October 3, 2019 (Applicant’s Record at 53), the General Division refused to hear the applicant’s arguments in this regard, relying on paragraph 20(1)(a) of the Social Security Tribunal Regulations, S.O.R./2013-60 as it existed at the time. That provision set out that a party wishing to challenge the validity of a provision had to file a notice with the Tribunal setting out the provision at issue and containing any submissions in support of the issue raised. In its decision, the General Division considered that the applicant had not explained how the impugned provision or provisions violated its constitutional rights. The Appeal Division subsequently found that the General Division had not erred in its interpretation of paragraph 20(1)(a) of the Social Security Tribunal Regulations and that the applicant’s submissions in support of its constitutional challenge were not specific enough for it to make out the broad outline of a Charter argument. The applicant has not satisfied us that that decision was unreasonable. [11] For all of these reasons, the application for judicial review will be dismissed, with costs. “Yves de Montigny” C.J. Certified true translation Melissa Paquette, Senior Jurilinguist FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-343-21 STYLE OF CAUSE: THE ESTATE OF MANOUTCHEHR BIGDELI-AZARI v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: March 20, 2024 REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY C.J. BOIVIN J.A. ROUSSEL J.A. DELIVERED FROM THE BENCH BY: DE MONTIGNY C.J. APPEARANCES: Farzad Bigdeli-Azari FOR THE APPLICANT Yanick Bélanger FOR THE RESPONDENT SOLICITORS OF RECORD: Farzad Bigdeli-Azari Montréal, Quebec FOR THE APPLICANT Shalene Curtis-Micallef Deputy Attorney General of Canada FOR THE RESPONDENT