Citation: 2012 TCC 229
Date: 20120626
Docket: 2011-2921(OAS)
BETWEEN:
FRANCISCA JAMES,
Appellant,
and
THE MINISTER OF HUMAN RESOURCES
AND SKILLS DEVELOPMENT,
Respondent.
REASONS FOR JUDGMENT
Bocock J.
Reference
Before the Court
[1]
This is a reference
directed to the Court from the Office of the Commissioner of Review Tribunals (“Reference”)
pursuant to subsection 28(2) of the Old Age Security Act (the “Act”).
Summary of
Regime for Guaranteed Income Supplement
[2]
The relevant procedural
subsection of the Act, namely, subsection 28(2) provides:
28(2) Where, on an appeal to a Review
Tribunal, it is a ground of the appeal that the decision made by the Minister
as to the income or income from a particular source or sources of an applicant
or beneficiary or of the spouse or common-law partner of the applicant or
beneficiary was incorrectly made, the appeal on that ground shall, in
accordance with the regulations, be referred for decision to the Tax Court of
Canada, whose decision, subject only to variation by that Court in accordance
with any decision on an appeal under the Tax Court of Canada Act
relevant to the appeal to the Review Tribunal, is final and binding for all
purposes of the appeal to the Review Tribunal except in accordance with the Federal
Courts Act.
[3]
Pursuant to the
Authority of sections 38 to 47 of the OAS Regulations, the Court has
conducted a hearing pursuant to the Reference for the purposes of determining
the income or income from a particular source of income of the applicant, namely,
Francisca James.
[4]
Section 12 of the Act
provides for payment to a pensioner of a supplement (guaranteed income
supplement or “GIS”). The GIS is fixed under the Act and has, in turn,
been increased and indexed to the Consumer Price Index over the years.
[5]
The Act fixed,
by virtue of subsection 12(1), the monthly supplement to be paid at $562.93 per
month subject to the increases mentioned above.
[6]
More specifically,
there is a limitation of the amount to be paid pursuant to a formula as follows
[with emphasis added]:
[…]
12(5) Despite subsection (2), the
amount of the supplement that may be paid to a pensioner for any month after
December 1997 is the amount determined by the formula
[(A-B) x C] – D/2
where
[…]
“D” is the pensioner’s monthly base income
rounded, where it is not a multiple of two dollars, to the next lower multiple
of two dollars.
[…]
12(6) In this section, “monthly
base income” means, […]
(b) in the case of an applicant who, on the day
immediately before the current payment period, was the spouse or common-law
partner of a person to whom no pension may be paid for any month in the
current payment period, the amount determined by the formula
A/24 – B/2
where
A is the aggregate of the incomes of the
applicant and the spouse or common-law partner for the base calendar year,
and
[…]
[7]
Generally, under the
legislation, if the combined worldwide income of an applicant and spouse exceed
the average of their combined pensions otherwise payable under the Act,
then no GIS benefit is payable in the twelve month period from April 1st
to March 31st (the “Base Year”) commencing in any calendar year next
following the Base Year. In the Reference before the Court, the Base Years in
question are 2005, 2006, 2007 and 2008.
[8]
Therefore, should the
Court determine that, in any of those Base Years, the applicant and her spouse
had a combined income from all worldwide sources greater than their pensions
then no guaranteed income supplement or GIS is payable under the Act.
Minister’s
Assumptions
[9]
The assumptions of the
Minister in determining the Appellant’s monthly base income under the Act and
the corresponding decision to deny the GIS were as follows:
a)
the Appellant has also
been known as Francisca C.B. Low, Low Cha Boh and Cha Boh Low;
b)
the Appellant emigrated
to Canada from Malaysia in August 1988;
c)
the Appellant has been
resident in Canada since 1988;
d)
the Appellant is a
Canadian citizen;
e)
the Appellant married
Stephen James (the “Spouse”) on January 29, 1986;
f)
the Appellant began
receiving OAS and GIS benefits in October 2006, the month following her 65th
birthday;
g)
the Appellant was
approved for the GIS benefit based on her statements in her applications that
she and the Spouse had nil or nominal income;
h)
the Spouse resides in Malaysia;
i)
the Appellant and the
Spouse have a joint TD Canada Trust bank account in Canada;
j)
the Spouse made
numerous withdrawals in Malaysia from the joint TD Canada Trust bank
account nearly every month between September 2002 and September 2008;
k)
the Spouse has a separate
bank account in Malaysia;
l)
the Spouse works as an
accountant in Malaysia;
m)
the Spouse earns
$10,000.00 per month as an accountant;
n)
between September 2002
and September 2008 the Spouse transferred $186,918.00 from his Malaysian bank
account to the joint TD Canada Trust bank account in Canada;
o)
the Appellant’s monthly
mortgage payment was $1,232.19 from September 2002 to August 2006;
p)
the Appellant and the
Spouse submitted a mortgage renewal application in September 2006;
q)
the monthly mortgage
payment was increased to $2,422.36 in September 2006;
r)
at that time, the Appellant
received only $1,180.43 per month of OAS, GIS and CPP benefits; and
s)
the Appellant and the
Spouse’s combined worldwide income was greater that the maximum income
threshold at which the GIS was payable for the payment periods encompassing the
calendar years 2006, 2007, 2008, 2009 and 2010.
The Appellant’s
Submissions
[10]
The Appellant,
Francisca James, testified that her Spouse is penniless. He derives his
apparent affluence, as demonstrated by bank deposits, wire transfers and other
assets admitted into evidence, from money borrowed from friends and relatives. As
an explanation, on a bank application for a loan, the Appellant submitted that
her Spouse’s declaration of income at $10,000.00 per month was a future
estimate, but not a then current factually accurate statement. The Appellant also
stated that this inaccuracy was not clarified for the Bank, since the Bank
failed to ask that specific question. The Appellant testified she is destitute
and entirely dependant upon her daughter and relatives in Canada.
[11]
Ms. James’ was unable
to offer any documentary or direct viva voce evidence of the loans from her
friends and relatives to her and her Spouse on the basis of her view that she
had not see the need to provide such evidence nor call such witnesses. It is
noted, however, that she did submit Pawnbroker claim tickets as prima facie
evidence of her present impoverished state.
[12]
She explained to the
Court that her husband’s withdrawal of some $160,000.00 from their joint bank
account during the Base Years in question left her with only $24,000.00 for her
purposes and again testified such sums were loan proceeds and not income.
[13]
The Appellant also
suggested that the Inland Revenue Board of Malaysia could resolve all of theses
misunderstandings about her husband’s income, but noted for the Court that the
Canada Revenue Agency had failed, notwithstanding her urgings, to contact the
Malaysian tax authority. She offered no explanation as to why she or her Spouse,
who bore the onus of dislodging the Minister’s assumptions, had failed to so
provide such information.
[14]
While it may possibly
be true that the Appellant is presently in financial straits and a fiscal bind,
the following conclusions and previous assumption of fact made by the Minister
in coming to her decision regarding the Appellant’s base monthly income were
confirmed by the testimony of a former business Expertise Consultant with
Service Canada. She confirmed the following facts which remained unassailed and
uncontroverted by the Appellant:
1.
the Appellant did not
respond to queries from Service Canada regarding details of the alleged loans
and money transfers over the course of the investigation nor was evidence of
same placed before the Court;
2.
there is documented evidence
of assets in the form of bank account statements in disclosing substantive cash
balances in Canadian bank accounts in the name of the Appellant;
3.
the Appellant’s Spouse
withdrew large amounts from Canadian based bank accounts by direct withdrawals initiated
in Malaysia; and,
4.
there was disinterested
third party evidence provided to the Service Canada Consultant by the
Appellant’s Chiropractor indicating that the Appellant’s husband lived in Canada for certain parts of the years in question.
[15]
In conclusion, the
Appellant may not comprehend that, legally for the purposes of determining GIS
entitlement, her income from all sources and that of her Spouse must be pooled
on a worldwide basis.
[16]
As to an explanation of
her income or of the Minister’s findings and assumptions of the Appellant’s
income and that her husband, the Appellant has offered no evidence
whatsoever in the form of:
a)
documentary evidence of
the alleged loans from relatives and friends in Malaysia;
b)
testimony from her
dentist (whom she suggested would have more knowledge than others), Spouse or
any other party substantiating her claims of her or her Spouse’s diminished or
non-existent income and that of her Spouse;
c)
any information from
the Inland Revenue Board of Malaysia Revenue Authority regarding her Spouse’s
reported income; and
d)
any consistent evidence
or testimony regarding the resources used for the acquisition of Canadian real
property by the Appellant, both past and present, throughout the years;
[17]
While it is not
possible to precisely determine the income of the Appellant and her Spouse on a
joint worldwide basis for the years in question, the Court finds, as a matter
of clear fact on the balance of probabilities that the Appellant’s defined
income for Base Years 2005 through 2008, inclusive, was well in excess of her
total monthly pension receipts from all sources namely, $1,180.43.
[18]
On that basis, the Reference
may be answered by the finding of this Court that the determination by the
Minister of the Appellant’s monthly base income has been correctly made and this
Reference has further determined that the Appellant’s monthly based income as
determined under the Act exceeded the maximum allowable under the Act
in relation to the payment of a Guaranteed Income Supplement.
Signed at Toronto,
Ontario, this 26th day of June 2012.
“R.S. Bocock”
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