Canada (Minister of Human Resources Development) v. Ding, 2005 FC 76

Date: 20050119

Docket: T-145-04

Citation: 2005 FC 76

Ottawa, Ontario, this 19^th day of January, 2005

Present:           The Honourable Justice James Russell

BETWEEN:

                            MINISTER OF HUMAN RESOURCES DEVELOPMENT

                                                                                                                                            Applicant

                                                                           and

                                                              YING QING DING

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review under ss. 18 and 18.1 of the Federal Courts Act R.S.C 1985, c. F-7, of the decision of the Review Tribunal ("Board"), dated December 19, 2003 ("Decision"), wherein the Board allowed the Respondent's appeal, pursuant to s. 28 of the Old Age Security Act R.S.C. 1985, c. O-9 ("OAS Act"), for Old Age Security benefits commencing March 3, 1991.

BACKGROUND

[2]                The Respondent, Mrs. Ying Qing Ding, is a 72-year-old landed immigrant.

[3]                She first arrived in Canada on March 3, 1991. Prior to her arrival, she attended at the Canadian Embassy in her home area in China. She told the Embassy Representative that she wanted to emigrate and live in Canada. Her daughter in Canada was about to have a baby. The Embassy Representative told her that it could take up to 3 or 4 years to obtain landed immigrant status.

[4]                The Embassy Representative also told the Respondent that, if she wanted to go to Canada immediately, she should obtain a Tourist Visa. This would allow her to be present at the birth of her grandchild.

[5]                The Respondent applied for, and obtained, a Tourist Visa and came to Canada. She brought all her clothes and other portable assets with her. She anticipated that she would remain here permanently. She lived with her daughter and son-in-law and her new baby granddaughter.

[6]                She obtained several extensions to her Tourist Visa but eventually, in 1992, she went to an immigration office in British Columbia and was told that the only way she could obtain landed immigrant status was to return to her country of origin and apply for status there.

[7]                Because she was the principal caregiver for her granddaughter, she returned to China with the young child at the end of February, 1992.

[8]                The Respondent applied for landed immigrant status from China, which was granted in October, 1994. She and her husband sold their assets and property and moved to Canada.

[9]                On November 15, 2002, the Respondent submitted an application for an Old Age Security ("OAS") pension. On the application, she indicated that she had lived in Canada from March 3, 1991 to February 29, 1992, and then from October 24, 1994 to the present.

[10]            On December 18, 2002, the Respondent was informed that her application for an OAS pension was denied because, based on the date she landed in Canada (October 24, 1994), she did not meet the minimum ten-year residence requirement.

[11]            The Respondent replied, on December 29, 2002, saying that she wished to have the decision reconsidered. Her letter claimed that her time in Canada, from March 3, 1991, to February 29, 1992, should count toward her ten-year residency requirement for three reasons:

(I)         she had planned to stay in Canada;

(ii)         she had planned to apply for immigration in Canada; and

(iii)        she had not planned on returning to China.

[12]            On January 23, 2003, the Respondent was informed that her application had been reconsidered but was still denied.

[13]            On February 2, 2003, the Respondent informed the Office of the Commissioner for Review Tribunals that she wished to appeal the decision of the Minister. On March 17, 2003, she was informed that her letter was accepted as an appeal to the Board under the OAS Act.

[14]            The Board was convened on September 3, 2003, in Burnaby, BC. The Decision, dated December 19, 2003, allowed the Respondent's appeal on the grounds that she had intended to remain in Canada. The Board held that the Respondent's Canadian residence was deemed to have begun on March 3, 1991, and that such residence was not interrupted by her subsequent return to China, or her absence from Canada.

DECISION UNDER REVIEW

[15]            The Board found that the Respondent's residence was deemed to have commenced on March 3, 1991, and that her OAS pension should be calculated from that date.

[16]            The issue that the Board had to determine was whether or not the Respondent had been a resident of Canada for the requisite period of time to qualify for benefits under s. 3(2) of the OAS Act. The minimum required residence is ten years.

[17]            The Respondent, in her Notice of Appeal, made the following arguments as to why the time she had spent in Canada between 1991 and 1992 should be included:

(a)         the residence requirement did not say that residence in Canada during a visit does not count;

(b)         according to the Income Tax Act, if someone stays in Canada for more than 183 days, he/she will be a resident of Canada. She first entered Canada on March 3, 1991 and departed February 29, 1992. This period should be considered as residence; and

(c)         also according to the Income Security Program General Inquiry Line

1-800- 277- 9914, she was told that her first year should be included if she had the intention of staying in Canada. It was obvious that she had such intention, because she did apply for immigration in Canada, and she brought all her belongings to Canada, as stated in her December 29, 2002 letter.

[18]            The Board found that, even though she was initially in Canada on a Visitor or Tourist Visa, it was clear that she was not merely visiting, or present, in Canada because she had come with the intention of remaining here permanently. The Board noted that she had come here on a Visa because she had been instructed to do so by a Canadian Embassy Representative in Beijing. Her intention was to come permanently and she had expected to apply and receive landed immigrant status here in Canada.

[19]            The Board went on to find that the Respondent's return to China, from 1992 to 1994, was merely a presence, and not a residence. The Board found that the only reason the Respondent went back to China was to apply for landed immigrant status in Canada. The Board noted that, if the Respondent's mind set and intentions were considered, she regarded Canada as her permanent home, and had done so since March 3, 1991.

[20]            The Board also found that, "because of her obvious intentions, her time here should count as residency and her receipt and quantification of her Old Age Security benefits should reflect this." The Board deemed the Respondent's residence to have begun on March 3, 1991.

ISSUES

[21]            The Applicant raises four issues:

(i)          whether the Board applied the appropriate legal test in deciding that the Respondent was a Canadian resident;

(ii)         whether the Board made erroneous findings of fact or erred in law in determining that the Respondent was a resident of Canada between March 3, 1991, and February 29, 1992;

(iii)        whether the Board made erroneous findings of fact or erred in law in determining that the Respondent was a resident of Canada between February 29, 1992, and October 24, 1994; and

(iv)        whether the Board acted without jurisdiction, or beyond its jurisdiction, in concluding that the Respondent was a resident of Canada between February 29, 1992, and October 24, 1994.

ARGUMENT

Standard of Review

[22]            The Applicant submits that, for issues (i) and (iv), the standard of review should be correctness (see Villani v. Canada (Attorney General), [2002] 1 F.C. 130 (F.C.A.)). The Applicant submits that issues (ii) and (iii) require an application of the facts to the law, and so should be examined on a reasonableness standard to see if there is a rational basis for the Decision.

OAS Requirements

[23]            The Applicant notes that the OAS Program is a social security program created by statute and administered by the Federal Government. The OAS Program grants benefits to persons over the age of 65 who meet the residence requirements.

[24]            For a residence-based program, a foreign national may qualify if he or she has lived in Canada for a minimum of ten years after age 18. Applicants must be either Canadian citizens or legal residents on the day preceding the day of the application's approval.

[25]            The amount of the OAS pension is determined by how long a person has been resident in Canada. Partial benefits start at ten years of residency, and full benefits are granted after forty years of residency.

[26]            The Applicant submits that the rationale behind the residency requirement is that an OAS pension is paid in recognition of an individual's lifetime contribution to Canadian society and the Canadian economy.

[27]            The Applicant notes that the onus is on the person claiming an OAS pension to establish residency. Under s. 21(1)(a) of the OAS Regulations, "residence" is defined as follows:

[28]            The notion of "presence" is found in s. 21(1)(b) of the Regulations:

[29]            In the Regulations, s. 21(4) governs when an absence from Canada is deemed not to have interrupted a person's residence or presence. An absence of a temporary nature that does not exceed one year does not effect an interruption.

[30]            The Applicant says that the question of whether a person makes his or her home in Canada is a question of fact to be determined in the particular circumstances (see Perera v. Canada (Minister of Health and Welfare), [1994] F.C.J. No. 351 (F.C.T.D.))

[31]            The Applicant also says that a number of factors must be considered in making a determination of residency (see R-40690 v. Canada (Minister of Human Resources and Development) (March 22, 2000); and D-55074 v. Canada (Minister of Human Resources and Development) (November 20, 2000)):

(a)         ties in the form of personal property;

(b)         social ties in Canada;

(c)         other ties in Canada (medical coverage, driver's licence, rental lease, tax records, etc);

(d)         ties in another country;

(e)         regularity and length of stay in Canada, and the frequency and length of absences from Canada; and

(f)          the person's mode of living, or whether the person living in Canada is sufficiently deep rooted and settled.

[32]            The Applicant argues that, as stated in Ata v. Canada, [1985] F.C.J. No 800 (F.C.A.), permanent residence is a status to be obtained by compliance with particular provisions of Canada's immigration laws (and not merely by personal intention) and lawful presence, of whatever duration, in Canada.

Issue #1 - Appropriate Legal Test

[33]            The Applicant takes the position that, although the Board refers to s. 21 of the OAS Regulations in the Decision, and the definition of "residence", the Board failed to apply the appropriate legal test when reviewing the evidence. The Applicant argues that the Board did not give any effect to the wording of the OAS Regulations.

[34]            The Applicant argues that the Board based the Decision solely on the intention of the Respondent to establish herself in Canada. The Applicant further submits that the Board made the Decision without assessing or weighing the evidence for the purpose of determining if the Respondent has made her home, and ordinarily lives, in Canada. The Applicant says that the Respondent's mode of living was not considered or evaluated by the Board.

Issue #2 - Residence from March 3, 1991 to February 29, 1992

[35]            The Applicant's position on this issue is that the Board disregarded the evidence before it and rendered a patently unreasonable judgment. The Board made several assumptions that went beyond its expertise and personal knowledge in finding that the Respondent was a resident:

(a)         the Board assumed that the Respondent had not engaged in any activities that would be usual for someone holding a Tourist Visa; and

(b)         it is not unusual in the Chinese culture for a grandmother to be the principal caregiver to a first granddaughter.

[36]            The Applicant says that the evidence does not support the Respondent's claim that, when she came to Canada in March of 1991, she thought she had come permanently or that she became a resident as of that date. The Applicant notes that the onus is on the Respondent to establish that she was a resident for the relevant time period.

[37]            The Applicant submits that, for the period from 1991 to 1992, the Respondent provided no utility bills, no income tax records, no membership cards for associations or organizations, no rental lease, or any other document to suggest material or social ties to Canada. On the contrary, she did not sell her residence in China until she returned in 1992.

[38]            The Applicant points out that the Respondent entered Canada on a Visitor's Visa in 1991. A Visitor is defined, under the old Immigration Act R.S.C. 1985, c. I-2 as an individual who is in Canada temporarily:

[39]            The Immigration and Refugee Protection Act S.C 2001, c. 27 ("IRPA") deals with the rights and obligations of temporary residents:

Issues #3 and 4 - Period from February 29, 1992 to October 24, 1994 and Jurisdiction

[40]            On these issues, the Applicant submits that the Board erred in law in deciding that the Respondent was resident in Canada from February 29, 1992 to October 24, 1994, while she was in China.

[41]            By letter dated December 29, 2002, the Respondent requested a reconsideration of the decision against her on one issue: whether she was a resident for the period from March 3, 1991 to February 29, 1992. The Respondent did not disagree with the position taken by the Applicant that she was not a resident from February 29, 1992 to October 24, 1994.

[42]            The Applicant argues that, since the period from February 29, 1992 to October 24, 1994 was never appealed by the Respondent, the Board acted without jurisdiction, or beyond its jurisdiction, in considering this period of time.

ANALYSIS

[43]            To begin with, I think it is important to clarify what is at stake in this application. The Minister is not saying that Mrs. Ding is not entitled to a partial OAS pension. The issue is whether, as the Board found, her benefits should be calculated on the basis that her Canadian residency began on March 3, 1991 and has continued uninterrupted since that time.

[44]            By the Minister's calculation she should be entitled to receive benefits in November, 2004, based upon a 10-year residency beginning in October, 1994.

[45]            Because of her age and the state of her health, and because Mrs. Ding did not file any materials responding to this application, did not appear at the hearing on November 9, 2004 in Vancouver, and no one appeared on her behalf, I have some concern that she may not understand the import of this application and what it means for her present entitlement. To assuage these concerns, Minister's counsel, Mr. Michel Mathieu, generously undertook to inform Mrs. Ding in writing concerning the implications of this application for her overall entitlement, and I would like to commend and thank him and the Minister for setting my mind at rest on that score.

[46]            As regards the Decision itself, I see it as a noble attempt by the Board to give Mrs. Ding the benefit of all kinds of doubts, but I do not think that, in legal terms, it can stand.

The 1992-1994 Return to China

[47]            The Board took the position that it had been asked to consider Mrs. Ding's return to China and it came to the following conclusions on this issue:

...

(2)            When she returned to China with her daughter's baby one year later, for the period in excess of 2 years, she was in China only on the basis of "presence" and not as a "resident." Her only reason for being there was to apply for landed immigrant status and to sell her property and to say good bye to relatives and lifelong friends. Her residence, if her intentions and mind set are to be recognized, was that she considered Canada her permanent home and had done so for the previous 3 years.

The Minister has taken the position that, because the Appellant had left Canada for over 2 years, this was an indication that her absence negated any kind of previous residency. As stated above, the only reason for the absence was to fulfill or perfect her Canadian residency as required by the instructions she had received from Canadian Immigration personnel.

...

[48]            The difficulty with this is that the characterization of Mrs. Ding's return to China was not raised by Mrs. Ding in her appeal.

[49]            In her letter of December 29, 2002 in response to the Minister's decision, Mrs. Ding made it very clear that "The one area I did not agree with your decision is my first year in Canada from March 3, 1991 to February 29, 1992":

So I think the first year I was in Canada should be included in my total residence, because I had planned to stay in Canada and applied for immigration in Canada as well as I brought all my belongings with me. I think my first year should be included.

[50]            Also, in her Notice of Appeal of February 2, 2003, quoted by the Board in its Decision, Mrs. Ding once again makes it clear that her only concern with the Minister's decision was its treatment of her first year in Canada from 1991 to 1992.

[51]            There is no indication in the Decision as to how the issue of the 2-year return to China ever came before the Board other than the fact that the Minister referred to it as an indicator that no previous residence had arisen in the 1991-1992 year.

[52]            In my view, then, on this issue, the Board assumed a jurisdiction to decide an issue that was not before it. This was an error of law or jurisdiction which I believe is reviewable on a standard of correctness. See, for example, Canada (Minister of Human Resources Development) v. Heaman, 2004 FC 1155 (QL) at para. 5.

The Test for Residency

[53]            The core of the Decision is found in the following paragraph:

On the evidence which is available, the Review Tribunal found that Mrs. Ding's time in Canada during the time she held a visitor's visa did not fall into the category of a "presence" or a "visit" but rather, because of her obvious intentions, her time here should count as residency and her receipt and quantification of her Old Age Security benefits should reflect this.

[54]            Mrs. Ding's entitlement to a partial pension is derived from s. 3(2) of the Old Age Security Act R.S., c. 0-6, s.1 which reads as follows:

[55]            The key concept of "residency" referred to in this provision is defined in s. 21(1) of the OAS Regulation 22:

[56]            Section 3(2) of the Act only requires that the issue of "residence" be addressed.

[57]            It seems clear from the Decision that the Board regarded Mrs. Ding's "intentions" during the time she spent in Canada under a Visitor's Visa as the defining factor for deciding whether she had "resided in Canada" under s. 3(2) of the Act. The Board cites no authority for this approach and it appears to be at odds with the approach taken by the courts when dealing with the concept of "residence" in the context of the Income Tax Act where considerable care has been taken to distinguish between a change of "domicile" (which depends upon the will of the individual) and a change of "residence" which depends upon factual issues that are external to the individuals intentions. I find the following words of Noël J. from the decision of the Exchequer Court of Canada in Schujahn v. Canada (Minister of National Revenue), [1962] Ex. C.R. 328 (QL) at para. 8 to be helpful in this regard:

It is quite a well settled principle in dealing with the question of residence that it is a question of fact and consequently that the facts in each case must be examined closely to see whether they are covered by the very diverse and varying elements of the terms and words "ordinarily resident" or "resident". It is not as in the law of domicile, the place of a person's origin or the place to which he intends to return. The change of domicile depends upon the will of the individual. A change of residence depends on facts external to his will or desires. The length of stay or the time present within the jurisdiction, although an element, is not always conclusive. Personal presence at sometime during the year, either by the husband or by the wife and family, may be essential to establish residence within it. A residence [page 332] elsewhere may be of no importance as a man may have several residences from a taxation point of view and the mode of life, the length of stay and the reason for being in the jurisdiction might counteract his residence outside the jurisdiction. Even permanency of abode is not essential since a person may be a resident though travelling continuously and in such a case the status may be acquired by a consideration of the connection by reason of birth, marriage or previous long association with one place. Even enforced coerced residence might create residential status.

[58]            In other words, residency is a factual issue that requires an examination of the whole context of the individual under scrutiny. In the case of Mrs. Ding there were many factors that needed to be addressed and taken into account and "her obvious intentions" should not have been the basis of the test that the Board applied.

[59]            In my view, the Board applied the wrong legal test for determining residency in this case. As a question of law, my view is that the jurisprudence of this Court requires that this matter be reviewed on a standard of correctness. See, for example, Canada (Minister of Human Resources and Development) v. Néron 2004 FC 101 (QL); and Canada (Minister of Human Resources and Development) v. Reisinger Estate 2004 FC 893 (QL). My conclusion is that the Board committed a reviewable error in basing its decision on whether Mrs. Ding had been a resident of Canada at the material time upon "her obvious intentions" to the exclusion of other factors in the case that could have led to a contrary conclusion.

[60]            In addition to errors of law, I am also of the view that there are several factual errors in the Decision that are highly material and that render it patently unreasonable. For example, the Board appears to have been of the view that Mrs. Ding "could apply for landed immigrant status when she arrived in Canada," and that she came to Canada to apply for landed immigrant status because she had been instructed to do so by Canadian authorities. But she clearly says in her letter of December 29, 2002 that "I thought it would be faster for me to apply for immigration in Canada while I was in Vancouver. When I applied for immigration in Vancouver, I was told that I have to apply in China and I had to leave." No real evidentiary basis is offered by the Board that Mrs. Ding was told by a Canadian Embassy employee in Beijing that she could come to Canada and apply for landed immigrant status here.

[61]            Another important factor surrounding the issue of residency was that Mrs. Ding had left her husband and property behind in China. As regards the fact that Mrs. Ding's husband had not accompanied her, the Board made the following unsupported and unsupportable assumption:

The reason why he had not travelled with her to Canada was that Canadian immigration law prohibits a Chinese couple from entering Canada simultaneously.

[62]            Similarly, the Board asserts as a basis for its Decision that Mrs. Ding "did not do any activities which would be usual for someone holding a tourist visa." What lies behind this assertion appears to be the fact that, during the 1991-1992 period, when she was in Canada on a Tourist Visa, she "lived in the home with her daughter, son-in-law and the new baby and seldom left the house." The assumption seems to be that a tourist does not usually stay with relatives. This is untenable. At the same time, the Board does not explain what the usual activities would be for someone holding a Tourist Visa. This is a significant issue in the Decision and it is just not explained.

[63]            The Board also appears to have assumed that Mrs. Ding waited for the whole 1991-1992 period to expire before she attended at an Immigration office "and was told that the only way she could obtain landed immigrant status was to return to her country of origin and apply for status there." But the record also suggests that Mrs. Ding applied for and obtained two extensions to her Tourist Visa before she was asked to leave (September 1991 and January 1992). There was no reason to assume that Mrs. Ding waited the whole year and was then surprised to find that she had to return to China.

[64]            Taken as a whole, these assumptions do not appear to be supported by any evidence and are at odds with what evidence does appear on the record. They are patently unreasonable.

                                               ORDER

THIS COURT ORDERS that:

1.          The application is allowed, the Decision of the Board is set aside and the matter is referred back to a different panel of the Board for reconsideration.

2.          No order is made as to costs.

"James Russell"            

          JFC

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-145-04

STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES

DEVELOPMENT v. YING QING DING

PLACE OF HEARING:                                 Vancouver, British Columbia

DATE OF HEARING:                                   November 9, 2004

REASONS FOR Order :                               Russell, J.

DATED:                     January 19, 2005

APPEARANCES:

Mr. Michel Mathieu                                           FOR APPLICANT

SOLICITORS OF RECORD:

Mr. John H. Sims                                              FOR APPLICANT

Deputy Attorney General of Canada