The Estate of SP v Minister of Employment and Social Development

The Estate of SP v Minister of Employment and Social Development Collection Old Age Security (OAS) and Guaranteed Income Supplement (GIS) Decision date 2024-05-16 Neutral citation 2024 SST 913 Reference number GP-23-1827 Member Carol Wilton Division General Division Decision Appeal dismissed Related decisions SST - The Estate of SP v Minister of Employment and Social Development - 2024 SST 1217 - 2024-10-09 - Appeal Division Subjects OAS - Application Decision Content Citation: The Estate of SP v Minister of Employment and Social Development, 2024 SST 913 Social Security Tribunal of Canada General Division Income Security Section Decision Appellant: The Estate of S. P. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated September 22, 2023 (issued by Service Canada) Tribunal member: Carol Wilton Type of hearing: In Writing Decision date: May 16, 2024 File number: GP-23-1827 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 dismissed. [2] The Estate of S. P. (the deceased) isn’t eligible for an Old Age Security (OAS) pension. [3] This decision explains why I am dismissing the appeal. Overview [4] N. P., daughter of the deceased, stated that she represented his Estate. For the sake of convenience, I will refer to her as the Appellant. [5] The Appellant’s mother (the widow) applied for an OAS pension in August 2018. Based on 7 years of residence in Canada (1999 to 2006), plus entitlement under an international Social Security agreement with Serbia, the Tribunal in 2022 awarded the widow an OAS pension of 7/40ths. She was denied leave to appeal. She then brought a new facts application that was denied.Footnote 1 [6] The deceased was born in Serbia in June 1925.Footnote 2 He served for decades in the armed forces of Yugoslavia and Serbia, beginning in November 1944.Footnote 3 He left the Serbian military in 1983.Footnote 4 The Appellant stated that the deceased lived in Ottawa, Canada with the widow from April 1999 to 2006 or 2007.Footnote 5 [7] On July 5, 2018, the Appellant applied for the OAS on the deceased’s behalf.Footnote 6 The deceased received a diagnosis of dementia in 2012. His condition worsened after an appendectomy in October 2014.Footnote 7 He passed away on September 26, 2018.Footnote 8 [8] The Minister of Employment and Social Development (Minister) refused the application for OAS benefits for the deceased’s estate.Footnote 9 The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division. [9] The Minister says that the Estate isn’t entitled to a partial OAS pension. He did not meet all the eligibility requirements of the OAS Act. The deceased didn’t sign the OAS application. In addition, he didn’t have a valid power of attorney, because he didn’t sign one before he died. The power of attorney documentation that the Appellant supplied was invalid. She did not have the authority to sign the application on the deceased’s behalf. [10] The Minister also stated that the amount to which the deceased’s estate might possibly be entitled from September 2017 until the month of his death was $1,148.84.Footnote 10 What the Appellant must prove [11] The Appellant must prove that she has the authority to represent the deceased’s estate in this proceeding. [12] If so, she must prove that it is more likely than not that the Estate is entitled to a partial OAS pension. Matters I have to consider first Form of hearing [13] In her Notice of Appeal, the Appellant asked that the hearing be in writing. Entitlement to the Guaranteed Income Supplement [14] In November 2023, the Appellant stated that in the present proceeding, she wanted the Tribunal to consider the entitlement of both her parents to the Guaranteed Income Supplement (GIS).Footnote 11 [15] My authority to make a decision depends on the existence of a reconsideration decision.Footnote 12 There is no reconsideration decision before me relating to the widow’s entitlement to the GIS. The present application was brought on behalf of the deceased. I cannot consider the merits of his widow’s entitlement to the GIS. [16] In addition, there is no reconsideration decision on the deceased’s entitlement to the GIS. Therefore I can’t consider that question either. Request to expedite [17] In December 2023, the Appellant requested that the Tribunal expedite the writing of the decision on this appeal. I stated that her request didn’t meet Tribunal guidelines to expedite for medical reasons or reasons of financial hardship. In addition, I needed more information from the Appellant.Footnote 13 Reasons for my decision [18] I find that the Appellant has not proven that she has the authority to sign the deceased’s OAS application. I also find that she hasn’t proven that it is more likely than not that the deceased met the OAS residence requirements. [19] The major reason for my findings is that the Appellant refused to submit more information about either of these matters. On February 27, 2024, she stated that the Minister had enough information to make a decision. So did the Tribunal. I explain this in more detail below. The Appellant had no authority to sign the OAS application The Minister’s position [20] The Minister takes the position that the Estate is not entitled to payment of the OAS pension because the Appellant lacked the authority to submit an application on the deceased’s behalf. [21] The Minister accepted that the OAS Act didn’t specifically require that an application form contain the signature of the person applying for the OAS on their own behalf or of their legal representative. However, a representative’s signature would only be accepted if she provided proof that she was the legal representative. Further, when as in this case a person is unable to make their own application, someone else could make it for them. But they would have to prove that they were the legal representative.Footnote 14 [22] The Minister stated that it could not accept the Appellant’s application on the deceased’s behalf because the evidence failed to show she was his legal representative. This was because she didn’t hold a valid power of attorney from the deceased. The documents she submitted don’t authorize the Appellant to act for the deceased [23] The Appellant stated many times that her “powers of attorney” allowed her to act on behalf of the deceased. I disagree. [24] In March 2018, the widow signed an “authorization” allowing the Appellant to act in her name and on her behalf and submit an application to the Zagreb Pension Insurance Fund for her and her husband. The purpose was to exercise their right to a Canadian pension, and with regard to their permanent residence in Canada.Footnote 15 This was a very limited “power of attorney.” It would not cover an application for the OAS for the deceased because it was limited to an application to the Zagreb Pension Insurance Fund. In addition, the deceased did not sign the authorization – he was not competent to do so. [25] In June 2020, the widow granted a power of attorney to the Appellant to act in her name and that of the deceased. The Appellant could represent them in connection with their rights to benefits and their old-age pensions under international agreements.Footnote 16 [26] The Appellant stated that the Tribunal accepted that she could represent the widow in her OAS appeal.Footnote 17 However, the widow was still alive in 2020 when she authorized the Appellant to act on her behalf. As happened in that case, a valid power of attorney is signed during the lifetime of the person granting it. But the deceased never signed powers of attorney for himself. [27] Therefore, if the question is whether the Appellant could exercise powers of attorney for the deceased, the answer is no. She wasn’t authorized to sign the deceased’s OAS application under either the 2018 “Letter of Authorization” or the 2020 power of attorney. The Appellant can’t act for the widow [28] The Appellant stated that she was acting for the widow. She provided the widow’s bank account number as the intended destination for any OAS payments to the deceased’s estate.Footnote 18 But the Appellant didn’t have the authority to act for the widow in applying for the OAS for the deceased in August 2018. Again, the 2018 letter of authorization was too limited to authorize the Appellant to apply for the OAS on the deceased’s behalf. It was concerned only with the Zagreb Pension Insurance Fund. Moreover, the deceased didn’t sign it himself. And the Appellant had already signed the deceased’s application before the widow signed the 2020 power of attorney. Can the Appellant make the application without holding a valid power of attorney? [29] The OAS act does not require a person applying for the OAS to hold a valid power of attorney. Section 5(1) of the OAS Act says that an application must be made “by or on behalf of” an applicant. Section 3(2) of the OAS Regulations says that an application is considered to have been made when the Minister receives an application form completed “by or on behalf of” an applicant. Section 4(1) of the OAS Regulations states that where the Minister considers that a person is unable for a sufficient reason to make an application, it may be made on that person’s behalf by a responsible person or agency. [30] The law does not define what it means to make an application “on behalf of” someone, or what a “responsible person” is. [31] A 2020 decision of the Appeal Division of this tribunalFootnote 19 decided that an applicant did not need a power of attorney to apply for the OAS on behalf of someone who had the power to manage their own affairs. In that case, the Minister refused an application because it was signed by the beneficiary’s son in his father’s own name. The General Division agreed with the Minister. It stated the father had not provided his son with a power of attorney or any other formal authority to sign on his behalf. [32] The Minister argued that there were limited circumstances in which one person can submit an OAS application on another person’s behalf. The Minister relied on its policy entitled “Third Party Administration.”Footnote 20 The policy stated that the Minister must assess the form or validity of a third-party authorization. It followed that these authorizations must be in writing. [33] The Appeal Division conducted a statutory analysis of the relevant provisions. It found that the application was properly submitted. The father gave the son verbal authorization to make the application. That decision doesn’t apply in the present case because the deceased was unable to offer verbal consent. The purpose of the OAS regime is altruistic [34] The Appeal Division’s decision I referred to in the previous section considered the purpose of the OAS regime. The courts, it said, have discussed the OAS regime’s altruistic purpose. They have decided that the Act should be construed liberally, so that people are not lightly denied benefits. In fact, the trend has been towards making it easier for people to apply for their OAS benefits. The OAS program automatically enrolls some people, and others can apply online.Footnote 21 [35] The Minister stated that the OAS carved out exceptions for vulnerable groups who cannot speak for themselves.Footnote 22 A person with dementia, such as the deceased, would fall into this category. Presumably, the Minister’s concern is that the vulnerable person would be subject to financial abuse. [36] In the present case, the beneficiary of the OAS has passed away. The Minister accepts that the Appellant is the deceased’s daughter. The Appellant asked that the proceeds of the pension should go to the widow. Concerns about financial abuse of the deceased do not apply. The Appellant had evidence she didn’t submit [37] Considering the purposes of the OAS Act, it would have ben helpful to the Appellant if she had submitted a decision of a Serbian court relating to the deceased’s estate (the court decision). [38] I asked the Appellant to provide a copy of her father’s will or a document appointing an estate trustee. Such a document would have assisted her in showing she was a “responsible person” under the OAS Regulations. [39] In December 2023, the Appellant stated that there was a court decision in Serbia. She, her mother, and her sister were “part of that court decision.” But she was not going to send it to the Tribunal. The reason was that she didn’t want to violate the May 2018 Privacy Act because she was a Dutch citizen. Footnote 23 [40] The Appellant’s explanation for not submitting the court decision to the Tribunal was unconvincing. She did not explain what the May 2018 Privacy Act said, what jurisdiction it applied to, or how it applied to her case. [41] In circumstances where a party to a proceeding has evidence that she alone could bring before the court (or tribunal) and fails to do so, the decision-maker must presume that such evidence would adversely affect her case.Footnote 24 I am obliged under the circumstances to draw an adverse inference against the Appellant. I do not accept her reason for not providing the court decision. She has failed to submit to the Tribunal evidence that only she can provide. [42] The Serbian court decision, if the Appellant had provided it and it gave her a role in administering her father’s estate, would not have given the Appellant authority to sign the OAS application on her father’s behalf. However, it could have provided some written authority for the Minister to consider the merits of allowing the Appellant to pursue the application, bearing in mind the altruistic purposes of the OAS Act and the fact that the legislation does not define a “responsible person.” The Minister offered an alternative [43] In January 2024, the Minister suggested that the Appellant could submit a post-mortem application. The Department’s Erroneous Advice/Administrative Error review determined that the Minister could proceed in this way. The Minister sent the Appellant an application form. It also requested proof of all the deceased’s entries to and departures from Canada, as well as an accurate residence history. The process could take up to four months.Footnote 25 [44] The Appellant, however, stated that she would not submit any further information to the Tribunal, or presumably to the Minister.Footnote 26 In effect, she turned down the Minister’s offer. Was the Estate entitled to OAS payments on behalf of the deceased? [45] Although I have found that the Appellant lacked the authority to sign the deceased’s OAS application, for the sake of completeness I am going to discuss whether the Estate was entitled to OAS payments on behalf of the deceased. The law [46] The system for determining a person’s period of residence in Canada for OAS pension purposes is complex. [47] The OAS Act provides for the payment of a partial OAS pension when the applicant isn’t eligible for a full pension. To receive a partial pension when living outside of Canada, the applicant must have been a resident of Canada for at least 20 years after the age of 18, but less than 40 years.Footnote 27 [48] A partial pension is based on the number of years (out of 40) that a person resided in Canada after they turned 18. For example, a person with 12 years of residence receives a partial pension of 12/40 of the full amount.Footnote 28 [49] To receive a partial OAS pension, the Appellant has to prove the deceased resided in Canada for at least 10 years after he turned 18. But, if the Appellant didn’t reside in Canada the day before his application might have been approved, he has to prove he already had at least 20 years of residence.Footnote 29 [50] Canada has a social security agreement with Serbia. It says that creditable periods under the laws of that country may be considered as periods of residence in Canada to help an applicant qualify for certain federal benefits.Footnote 30 For example, if an applicant had only 7 years of residence in Canada, but had creditable periods in Serbia that counted towards residence under the OAS, the Serbian figures can be used to increase the applicant’s period of residence to ten years.Footnote 31 [51] The Appellant has to prove the deceased resided in Canada for at least ten years, including any years he spent in Serbia that could count toward ten years of residence in Canada. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that the deceased resided in Canada during the period she claims.Footnote 32 Evidence of the deceased’s residence in Canada [52] The Appellant provided documents supporting the deceased’s period of residence in Canada: Employment and Immigration Canada. Returning Resident Permit issued September 26, 2001. It stated that the date of landing was in September 2000. The permit expired in November 2001.Footnote 33 Ontario health card valid from April 2003 to June 2008.Footnote 34 [53] The Appellant has stated she would not provide any additional information. This would include evidence of her father’s entries to and departures from Canada. [54] I understand that it is difficult to provide evidence from almost 20 years ago to support a claim to residence in Canada. However, I need documentary evidence. I find that the documents the Appellant provided are insufficient to show that the deceased was resident in Canada from April 1999 to April 2006. [55] The Appellant stated that I should accept that the deceased had the same period of residence in Canada as his widow. However, I need evidence of the deceased’s own period of residence in Canada. [56] The Appellant also stated that in fact the deceased should get a larger OAS payment than his wife because he served with the Allied forces in World War II and with the Yugoslav military for many years afterwards.Footnote 35 However, the OAS regime doesn’t provide for this. Conclusion [57] The Appellant lacked the authority to sign the OAS application for her father. She also refused to provide evidence to show she could qualify as a “responsible person.” [58] The Estate isn’t eligible for an OAS pension because of a lack of evidence supporting the deceased’s period of residence in Canada. [59] This means the appeal is dismissed. Footnotes Footnote 1 See 2022 SST 707; AD 22-415; and 2022 SST 1133. Footnote 2 GD02-I-20. He turned 65 in 1990 and therefore met the age requirement for the OAS (though not the residence requirement) by then: see subsection 3(2) of the OAS Act. Footnote 3 GD02-I-39 Footnote 4 GD02-I-33 Footnote 5 GD01-1. In 2021, the Appellant stated that the deceased lived in Canada from April 10, 1999, to April 2, 2006 “with periods of travelling”: GD02-I-18. Footnote 6 GD02-3 ff. Footnote 7 GD01A-22: translated neurology report, January 2015. Footnote 8 GD01A-6 Footnote 9 The Minister of Employment and Social Development (Minister) manages the Old Age Security programs for the Government of Canada. See the reconsideration decision at GD01B-12. Footnote 10 GD14-2. However, the Minister didn’t have proof of the deceased’s entries to and departures from Canada. See also subsection 5(2) OAS Regulations. Footnote 11 Appellant correspondence, November 10, 2023. The GIS is a monthly benefit paid to low-income seniors 65 years of age or older who are eligible to receive the OAS. Footnote 12 See subsection 28(1) of the OAS Act. Footnote 13 GD06 Footnote 14 GD14-1 Footnote 15 GD01-11. Zagreb is in Croatia. The document was entitled “Letter of Authorization.”. Footnote 16 GD01-19 Footnote 17 GD02-I-9 Footnote 18 GD16-2 Footnote 19 See SP v Minister of Employment and Social Development, 2020 SST 449 Footnote 20 This policy was not available to the public and was not before me. In addition, ministerial policies are not binding on the Tribunal: see Sibbald v Canada (Attorney General), 2022 FCA 157. Footnote 21 See SP v Minister of Employment and Social Development, 2020 SST 449. Footnote 22 GD14-2. See Section 4(1) of the OAS Regulations. Footnote 23 GD08-1 Footnote 24 See Levesque v Comeau et al, 1970 CanLII 4 (SCC), and He v Canada (Citizenship and Immigration), 2020 FC 825. Footnote 25 GD14-2 Footnote 26 GD16-1 Footnote 27 See the OAS Act, paragraph 3(2)(b). Footnote 28 See subsection 3(2) of the OAS Act. Footnote 29 See subsection 3(2) of the OAS Act. Footnote 30 Agreement with Serbia, Article 1, paragraph 4. Footnote 31 The applicant would still only be entitled to seven years of residence. The Serbian creditable periods would allow the Minister to consider the applicant had 10 years of residence for the purpose of qualifying for the OAS if he could show a period of residence in Canada. But it would not increase the number of years he was considered to have lived in Canada. Footnote 32 See De Carolis v Canada (Attorney General), 2013 FC 366. Footnote 33 GD02-II-29 Footnote 34 GD01A-24. The deceased also had insured employment in Serbia from May 16,1945 to December 31,1972, and from January 1, 1973, to December 31, 1983. This is a period of more than 37 years: GD02-II-22. Footnote 35 GD08-1