Date:
20130311
Docket:
T-247-12
Citation:
2013 FC 262
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
March 11, 2013
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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SALOMON DAOUD
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Applicant
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and
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ATTORNEY GENERAL OF
CANADA (MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA)
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
following dates are essential in this matter:
a.
April 5,
1936: Mr. Daoud was born in Lebanon;
b.
October 8,
1960: he arrived in Canada as a student;
c.
December 22,
1964: he obtained a permanent resident visa;
d.
July 12,
1988: he became a Canadian citizen;
e.
From
May 2001, Mr. Daoud began receiving a full Old Age Security pension and
Guaranteed Income Supplement, as he is considered to have been a resident of
Canada for 40 years between the ages of 18 and 65;
f.
Later
the same year, his spouse fell ill during a trip to Lebanon and never returned
to Canada.
[2]
Mr. Daoud
was given the Old Age Security pension based on his 40 years of residence in
Canada. This right, once granted, is not subject to any obligation of residence.
Mr. Daoud may now travel as he wishes. He could leave Canada to never return
and continue to receive his full pension.
[3]
However,
that is not the case for the Guaranteed Income Supplement. The Guaranteed
Income Supplement benefits are suspended after a period of six months of
uninterrupted absence from Canada or after six months of non-residence in
Canada.
[4]
In
June 2007, the Minister of Human Resources and Skills Development Canada opened
an investigation to [Translation] “verify
all entries to and exits from Canada since 03/2005 (with evidence), to determine
whether the client is still a PERMANENT RESIDENT or rather whether he
has a PRESENCE for the purpose of obtaining the GIS”.
[5]
In
April 2009, the Department informed Mr. Daoud of the findings of its
investigation and advised him that he was not eligible to receive Old Age
Security benefits. The payments were then interrupted and he was asked to pay
back an overpayment of $97,893.05, covering the period of May 2001 to March 2009.
In review, the Department upheld the decision of April 8, 2009. The applicant
appealed this decision with the Review Tribunal. In its decision of November 4,
2010, the Review Tribunal upheld the decision to vacate Mr. Daoud’s
entitlement to the pension and required that he pay back the overpayment. This
is the application for judicial review of that decision.
I. THE ACT
[6]
The
distinction between “residence” and “presence” is key. Section 21 of the Old
Age Security Regulations states that
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21. (1) 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.
…
[My
Emphasis.]
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21. (1) 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.
[…]
[Je
souligne.]
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[7]
As
stated above, it is important to make a distinction between the Old Age
Security pension and the Guaranteed Income Supplement. The Old Age Security
pension program is the largest public pension program in Canada. It is offered
to all persons aged 65 or over who meet the criteria of residence and legal
status in Canada. The Guaranteed Income Supplement, however, is an additional monthly
amount allocated to low-income seniors. To be eligible for the Supplement, a
person must receive an Old Age Security pension and meet other eligibility
conditions.
[8]
In
April 2001,
Mr. Daoud was made eligible to a full Old Age Security pension because of
the fact that he attained the age of 65 and that he had resided in Canada after
the age of 18 for at least 40 years before applying for his pension.
[9]
Specifically,
subparagraph 3(1)(c)(iii) of the Act states that
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3. (1) Subject
to this Act and the regulations, a full monthly pension may be paid to
…
(c) every
person who
…
(iii) has
resided in Canada after attaining eighteen years of age and prior to the day
on which that person’s application is approved for an aggregate period of at
least forty years.
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3. (1) Sous
réserve des autres dispositions de la présente loi et de ses règlements, la
pleine pension est payable aux personnes suivantes :
…
c) celles
qui, à la fois :
…
(iii) ont,
après l’âge de dix-huit ans, résidé en tout au Canada pendant au moins
quarante ans avant la date d’agrément de leur demande.
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Thus, the question was whether Mr. Daoud
had “resided” in Canada and not merely been “present”.
[10]
Section 9
of the Act provides that the Old Age Security pension benefits should be suspended
after six months of uninterrupted absence from Canada or after six months of non-residence
in Canada. However, this provision does not apply to persons who can establish
20 years of residence before their application is approved.
[11]
With
respect to the Guaranteed Income Supplement, paragraphs 11(7)(c) and
(d) of the Act provide that benefits will be suspended after six months
of uninterrupted absence from Canada or six months of non-residence in Canada, without
exception.
II. ANALYSIS
[12]
In
this case, the distinction had to be made between two periods:
a. the
first, ending the day of Mr. Daoud’s 65th birthday on April 5, 2001;
b. the
second beginning April 5, 2001.
However, the decision-makers do not
take this distinction into account.
[13]
As
I mentioned previously the original investigation centred on Mr. Daoud’s eligibility
for the Guaranteed Income Supplement. The request for investigation had nothing
to do with his eligibility for the Old Age Security pension.
[14]
Moreover,
the investigating officer far exceeded the original scope of the investigation by
determining, in his report, Mr. Daoud’s eligibility for the Old Age
Security pension. The investigating officer found that Mr. Daoud did not reside
in Canada and that he only came back here to obtain the Guaranteed Income
Supplement. The officer noted: [Translation]
“No connections to Canada, all his connections are in Lebanon. Therefore, he is
present and not resident.” Although this report contains some references to the
period prior to 2001, the substance of the report addresses the period during
which the applicant received his pension and Supplement payments.
[15]
Service
Canada stated the following in its original decision:
[Translation]
According
to the information obtained during the investigation, it was demonstrated that
you have established your principal residence in Lebanon. For this reason, you are
not eligible to receive Old Age Security benefits.
[16]
This
statement is clearly erroneous. The officer did not state at what time Mr. Daoud
established his residence in Lebanon. If the change of residence occurred after
2001, the Department could suspend the Guaranteed Income Supplement benefits, but
Mr. Daoud was still entitled to receive his Old Age Security pension.
[17]
Service
Canada’s reconsideration decision is no better. The officer noted:
[Translation]
The
review showed that, indeed, you were often outside of Canada. You do not
remember the dates of your trips abroad or their duration. You were unable to
provide us (for your frequent comings and goings abroad) with official evidence
to confirm your dates of departure and return for each of your absences from
Canada.
[18]
This
reconsideration decision led to the Review Tribunal’s decision, which is the
subject of this judicial review. At this stage it was apparent that the scope
of the investigation exceeded the original scope. The Tribunal wrote that it
must [Translation] “determine
whether Mr. Daoud was eligible for an Old Age Security pension”. In other words,
the investigation now concerned the period preceding Mr. Daoud’s 65th birthday.
Of course it follows that if it had been determined that Mr. Daoud was not
eligible to receive his Old Age Security benefits, he would also lose his eligibility
to receive the Supplement.
[19]
It
had not been clearly established that Mr. Daoud was informed of the change
in the scope of the investigation. The bulk of the evidence that he submitted
related to his residence or presence in Canada after his 65th birthday, which was
shown to be irrelevant.
[20]
The
Tribunal noted the following before its conclusion:
[Translation]
[96]
Mr. Daoud’s connections are to Lebanon. That is where his spouse,
Joséphine, has lived since 2001, and his two daughters, Rose-Marie and
Caroline. His third daughter, Diana, lives in the United States.
[97] All
of the evidence shows that he stays in Canada only during the summer and spring,
which does not constitute ordinary residence, rather a summer residence.
[98]
The fact that, during his stays in Montréal, he lives with a friend and/or
in an apartment building where, every year, he has different accommodations, shows
a lack of substantial and profound connections that are rooted and established
in Canada.
[21]
Again,
and with respect, although this analysis may have had merit with respect to Mr. Daoud’s
residence since 2001, this has nothing to do with whether Mr. Daoud resided
in Canada for 40 years before his 65th birthday. If this is indeed the case,
Mr. Daoud may very well reside outside Canada and continue to receive his Old
Age Security benefits, but not the Guaranteed Income Supplement.
[22]
There
is no doubt that the Tribunal’s assessment of the period prior to granting Mr. Daoud’s
pension is insufficient. Further, even if it had been found that Mr. Daoud
had not resided in Canada for 40 years, the analysis cannot simply end
there. Besides the criteria of 40 years of residence, the Act provides
other circumstances resulting in eligibility for a full pension that depend on
the number of years of residence and presence in Canada. We know that Mr. Daoud
spent four years at the École Polytechnique de Montréal, that he worked for
Québec Cartier Mining and we know that he became a Canadian citizen in 1988, which
means that he is considered to have resided in Canada for three or four years immediately
before he was granted citizenship. We also know that he worked for Hydro-Québec
in Haiti and that he is considered to have resided in Canada during this period.
[23]
As
stated in paragraph 9 of its decision, the Tribunal’s mandate was to determine
whether Mr. Daoud was eligible for the Old Age Security pension. The panel
found that he was not. It goes without saying that such a finding would also
result in ineligibility for the Supplement.
[24]
The
Tribunal’s failure to limit the scope of the investigation to the period preceding
Mr. Daoud’s 65th birthday is a fatal reviewable error. In Canada (Minister
of Citizenship and Immigration) v Savard, 2006 FC 109, [2006] FCJ No 126
(QL), the Minister disputed the decision of the Immigration Appeal Division determining
that Ms. Savard could sponsor a citizen of Morocco that she had met online
as a conjugal partner. Under the regulation, the assessment should have been related
to the year preceding the sponsorship application. Therefore, I find that the failure
to limit the assessment to the relevant period was a reviewable error. I reach
the same conclusion here.
ORDER
AND
FOR THE REASONS DELIVERED HEREWITH;
THE
COURT ORDERS that
1.
The
application for judicial review be allowed.
2.
The
matter be referred back to the Review Tribunal for redetermination by a
differently constituted panel in a new hearing.
“Sean Harrington”
Certified true
translation
Catherine Jones,
Translator
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