Date:
20121220
Docket:
T-1897-10
Citation:
2012 FC 1532
Ottawa, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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HANNA SARAFFIAN
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Applicant
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and
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THE MINISTER OF
HUMAN RESOURCES AND SKILLS DEVELOPMENT
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, Hanna Saraffian, applied for an Old Age Security pension in 2007.
Her application was approved but only for a partial amount. She appealed that
decision to the Office of the Commissioner of Review Tribunals for the Canada
Pension Plan and Old Age Security. A hearing was conducted by a Review
Tribunal.
[2]
The
issue on the appeal was whether Ms. Saraffian satisfied the residence
requirements necessary to qualify for a full pension; specifically whether she
was residing in Canada prior to July 1, 1977. On October 12, 2010 the Tribunal
determined that Ms. Saraffian had failed to discharge her burden of proof. In
this application, Ms. Saraffian seeks judicial review of that decision. The
matter has been unduly delayed as Ms. Saraffian represented herself and
requested several extensions of time to complete the preliminary steps.
[3]
For
the reasons that follow, the application is dismissed.
BACKGROUND:
[4]
Ms.
Saraffian was born in the former Czechoslovakia and raised in Argentina where she received her education. She moved to the United States in 1963 and was employed
there when she met her husband to be, a Montréal resident, on a visit to Quebec City. They married in Montréal in February 1978, separated in 1981 and divorced in
1982. Ms. Saraffian had obtained employment in Montréal and thus chose to
remain in Canada living to the present in the former matrimonial home which she
had purchased with savings transferred from the United States. She has no
pension benefits from her employment in the United States or in Canada.
[5]
Ms.
Saraffian turned 65 in May 2007 and applied for a Canadian pension. She says
that when she was completing the application she telephoned for assistance and
was advised by an official to put down the date she had been granted a
permanent resident visa, which was April 10, 1978, as the date on which she had
established residence in Canada.
[6]
Following
review of her application, Ms. Saraffian was granted a pension under the Old
Age Security Act, RSC 1985, c O-9 [OAS] of $358.79 per month, which was at
that time 27/40ths of the full pension, as well as a Guaranteed Income
Supplement of $583.22 per month. On questioning the pension reduction, which
then amounted to approximately $160 per month, Ms. Saraffian was told that she
would have to prove that she was living in Canada by July 1, 1977 to receive
the full pension.
[7]
At
the hearing of the appeal and in her affidavits before the Tribunal and the
Court, Ms. Saraffian explained that she had met her future husband in 1975. They
exchanged visits thereafter in New York and Montréal and after a year he asked
her to leave her job in the U.S. to join him in Canada. She said she resigned
from her position in New York in April 1976 and moved into his apartment in
Montréal as a trial arrangement while considering marriage. She went to New York on a monthly basis to see her mother. In some months her mother would come to see
her in Montréal. She left her furniture in a commercial warehouse in New York and opened a bank account in Montréal. In early 1977, she says, she deposited a
large sum of money in a bank near her future husband's apartment.
[8]
Following
their marriage in February 1978, her husband was able to sponsor her. She then
regularized her immigration status and brought her belongings to Montréal. Her U.S. passport from that time indicates that she entered Canada on May 11, 1978 as a landed
immigrant. At that time, Ms. Saraffian and her husband had loaded her furniture
into a “U-Haul” and drove it north to Canada. Ms. Saraffian contends, however,
that she had been resident in Canada for at least a year prior to that date.
DECISION UNDER
REVIEW:
[9]
After
reviewing the background facts and the applicable legislation, being s 3 of the
OAS and s 21(1) of the Old Age Security Regulations, CRC, c 1246 [OASR],
the Tribunal cited three decisions of this court as providing assistance and
guidance: Ata v Canada, [1985] FCJ No 800 (CA) (QL) [Ata]; Canada (Minister of Human Resources
Development) v Ding, 2005 FC 76 [Ding]; and Perera
v Canada (Minister of Health and Welfare), [1994] FCJ No 351 (QL) [Perera].
[10]
The
Tribunal first pointed out that the onus is on an applicant to prove that the
pension decision was incorrect. It then noted that the applicant had no
Canadian lease papers from 1976 to 1978 to demonstrate residence in Canada. It inferred from the record that her furniture had been kept at her mother’s house
in New York during that period, and that her bank account had not been
transferred to Canada until the end of 1977. As well, the Tribunal noted, Ms
Saraffian had stated that, prior to marrying in 1978, she did not have a
definite intention of settling in Canada. Her ties to the country were
therefore not strong enough to establish residency prior to 1978 in the
Tribunal’s view.
[11]
In
the absence of substantial evidence demonstrating an earlier date of residence,
the 1978 dates of arrival and reception as a landed immigrant were prima
facie evidence of the date of her arrival in the country. In addition, the
Tribunal noted, the applicant’s immigration procedures had been initiated from New York and not from Montréal although she claimed to have been residing in Montréal by
that time.
[12]
The
Tribunal stated that the legal test to be met in order to establish residency
in Canada for a certain period of time was greater than simple intention to be
considered as a resident. According to Ata, above, permanent residence
is a status to be obtained by compliance with particular provisions of Canadian
law, not merely by personal intention and lawful presence, of whatever
duration, in Canada.
ISSUES:
The issues which arise in this
matter are as follows:
- Did the Tribunal
base its decision on erroneous findings of fact made in a perverse or
capricious manner and without regard to the evidence before it?
- Did the Tribunal
correctly apply the legal test for determining residence?
ANALYSIS:
Standard of
Review:
[13]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]
at para 57, the Supreme Court of Canada established that “existing
jurisprudence may be helpful in identifying some of the questions that
generally fall to be determined according to the correctness standard”.
[14]
Justice
Gauthier, then a member of this Court, addressed the standard of review in Singer
v Canada (Attorney General), 2010 FC 607, aff’d 2011 FCA 178, [Singer],
a pension case raising similar questions to those in this matter. She found, at
paragraph 18, that the appropriate standard to apply to the sufficiency of the
reasons and the application of the legal test to the facts of the case was
reasonableness. I agree with that conclusion.
[15]
As
the Supreme Court stated at paragraph 47 of Dunsmuir, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. It is also concerned with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law. Thus the fact that the
Court may have reached a different conclusion on the evidence does not justify
interference with the Tribunal’s decision if it meets the reasonableness
standard.
Did the Tribunal base its
decision on erroneous findings of fact made in a perverse or capricious manner
and without regard to the evidence before it?
[16]
The
applicant submits that the Tribunal failed to consider all of the evidence. She
points to stamps in her U.S. passport showing her exiting Canada on July 4,
1977 (and re-entering on July 15, 1977) as demonstrating that by that date she
was already resident in Montréal, and was heading south for a vacation with her
mother in New York. She states that at that time only trips longer than a week
were marked by a stamp at the border. This indicates, she submits, that she was
not leaving Canada for prolonged periods to live in the U.S. in 1977. She argues that the Tribunal recorded that it had observed those stamps but did not
analyze their significance, and therefore it failed to have regard to the
evidence.
[17]
The
applicant further submits that the Tribunal was aware that she had brought
money to Canada in 1976 and early 1977, and yet it concluded that she did not
transfer her bank account to Canada until the end of 1977, making an erroneous
finding of fact.
[18]
The
applicant also argues that she was living in Montréal by February 24, 1978,
when the Sourp Hagop Armenian Apostolic Church solemnized her marriage there,
although this was before her status as an immigrant was regularized. The
Tribunal should have had regard to this evidence.
[19]
There
are questionable aspects to the Tribunal’s fact-finding. It interpreted the
applicant’s travel back-and-forth between New York and Montréal as residence in
New York and visits to Montréal rather than the reverse. It could have found
the contrary from the evidence of the passport stamps in July 1977. Nor does it
necessarily follow that the applicant’s then boyfriend would have added her
name to his apartment lease had they been living together for a year prior to
marriage. And it seems plausible that the applicant could have remained
uncertain about the marriage in July 1977, eight months prior to its
celebration in Montréal in February 1978. Moreover, it is not unlikely that the
applicant would have submitted her immigration application from New York rather than Montréal as she was an American citizen at that date.
[20]
The
difficulty for the applicant, who bore the burden of proof before the Tribunal,
is that she did not bring any documentary evidence, other than the passport stamps,
to establish her case. She had no witnesses to her life in Montréal before 1978
and failed to complete the consent forms provided to her which would have
allowed verification of her history with the U.S. authorities such as the
Social Security Administration.
[21]
There
was no evidence of banking records, driver’s license records, medical records
or tax records from the U.S. or Canada. There was no evidence from witnesses to
describe her lifestyle or establishment in Canada. In contrast, there was the
clear documentary evidence of her date of entry to Canada as a landed immigrant
in 1978 and the declaration in her OAS application that she had lived in Canada since April 1978. The Tribunal did not disregard the evidence of the passport stamps
but did not give it the weight which the applicant believes it deserves. That
is not a basis upon which this Court may intervene.
Did the Tribunal correctly apply
the legal test for determining residence?
[22]
The
applicant submits that none of the cases relied upon by the Tribunal are pertinent
to the facts of her case. In Ata, the applicant’s residence in Canada did not count towards pensionable time because he was a diplomat from another
country. In Ding, the applicant was in Canada on a tourist visa and had
not lived for a full ten years in the country. In Perera, the applicant
voided his permanent residency by returning to his native Sri Lanka for three years.
[23]
The
Tribunal’s purpose in citing these authorities was not to rely upon them for
the similarity of their facts but for the legal principles which they state and
apply. I can see no legal error in the Tribunal’s application of those
principles.
[24]
The
test for determining residence in Canada for the purpose of evaluating pension
entitlements is set out at paragraphs 30-37 of Singer, above:
30 The
concept of "residence" is the subject of a full chapter of the Regulations
starting at section 20. Of particular interest here is the definition found at
paragraphs 21(1)(a)11 and (b):
21. For the purposes of the Act
and these Regulations,
(a) a person resides in Canada if he makes his home and ordinarily lives in any part of Canada; and
(b) a person is present in Canada when he is physically present in any part of Canada.
[Emphasis added]
* *
21. Aux fins de la Loi et du
présent règlement,
a) une personne
réside au Canada si elle établit sa demeure et vit ordinairement dans
une région du Canada; et
b) une
personne est présente au Canada lorsqu'elle se trouve physiquement dans une
région du Canada.
[mon souligné]
31 This
definition has been applied to a variety of circumstances. As noted by Justice
James Russell in Canada (Minister of Human Resources
Development) v. Ding, 2005 FC 76, 268 F.T.R. 111 (Ding), one can refer to many factors to determine if a
person has made her home and ordinarily lives in Canada as of the date set out
in the Act.
32 Also,
as noted by Justice Carolyn Layden-Stevenson in Chhabu,
the list of factors enumerated in Ding is not
exhaustive. There may well be other factors which become relevant according to
the particular circumstances of a case.
33 It
is important to emphasize however that the use of precedent is dangerous in
that weight might be given to a factor in a particular set of circumstance that
is inappropriate in a different context. Mrs. Singer appears to have fallen in
this "trap" for she referred the Court to various summaries of
decisions of the RT to support her position. These really have little
precedential value in the present context. For example, she noted that in W-76940 v. Minister of Human Resources Development (December
19, 2003), the RT determined that the appellant's Canadian residence began on
the day she formalized her intention by applying for permanent residence.
34 However,
she fails to mention that in that case, the appellant had lived in Canada under
a tourist visa which had been extended several times and the RT was really
looking for indicia as to whether she had made Canada her home12 despite having
been absent from the country when her son was working in England.
35 In
S-59142 v. Minister of Human Resources Development
(November 2, 2000), the RT found that the appellant had decided to make her
home in Canada when she first extended her visitor's visa in 1990. Again, the
appellant had already lived in Canada for a year and she extended her visa four
times before applying for landed immigrant status because during that period
her son was not in a position to sponsor her.
36 Although
each case cited was carefully reviewed by the Court, there is no need to
comment further on them for, as mentioned, they do little more than confirm
that the test is a fluid one. Sometime the fact that a person has obtained or
applied for a permanent status will be relevant while in others it will not.
This is true for most factors.
37
However, presence in Canada at some point in time appears to be of particular importance if not crucial in all
cases. There is no doubt that continuous presence is not required. The
Regulations as a whole make that very clear as does the case law. But it is
difficult to imagine how one can be said to "ordinarily live" in
Canada if this person has never actually been in Canada.13 In fact,
looking at the overall scheme, including particularly the fact that Parliament
thought it appropriate to also provide for a third category of persons in
subparagraph 3(1)(b)(i) of the Act that does not rely at all on the concept of
residence (those who possess a valid immigrant visa) as well as exceptions in
the Regulations for persons as spouses who married a Canadian or permanent
resident while they worked outside of the country (paragraph 22(c) in the
Regulations), there is little doubt in my mind that presence is, at some point
in time, an essential element of this definition.
[25] In the present case, the
Tribunal reviewed several factors: the absence of proof of a lease or home
ownership in Canada, the failure to authorize the retrieval of government
records, the absence of banking records, the ties to the applicant’s mother in
the U.S. and the corresponding lack of proof of ties to anyone in Montréal
before 1978, the absence of proof of the whereabouts of the applicant’s
furniture prior to spring 1978, the absence of proof of having severed ties
with the employer in the U.S., the frequency and length of absences from Canada
to visit the U.S., and the absence of proof of lifestyle or establishment in
Montréal.
[26] In the absence of any
proof of favourable factors, the prima facie evidence of the official
entry dates and the initial statements on the pension application paperwork
convinced the Tribunal that the applicant had not established ordinary
residence in Canada prior to July 1, 1977. This was a justified, intelligible
and transparent conclusion within the range of possible outcomes acceptable on
the facts and the law.
[27] In closing, I wish to
note that at several times during the hearing of this application Ms. Saraffian
stated that she has the necessary documentary evidence in her possession to
prove her claim. If that is the case, and she is still able to produce it, I
would suggest that the respondent consider whether there is any basis upon
which the application might be reopened on compassionate grounds considering
Ms. Saraffian’s age and limited income.
[28] I also note that the
record discloses that Ms. Saraffian addressed the public servants who were involved
in reviewing her application and appeal in a belligerent and offensive manner.
I am satisfied that there is no foundation for her complaints about the
services she was provided in her preferred official language.
[29] In the circumstances, I
will exercise my discretion not to award costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed. The
parties shall bear their own costs.
“Richard G. Mosley”
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