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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Civil and Administrative
Litigation Opinions
for Self-Reppers


Pensions - Old Age Security

. Smith v. Canada (Attorney General)

In Smith v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered an appeal from a JR against Service Canada (who here was administering the OAS system), raising the 'repair' (my term) provisions of s.32 of the Old Age Security Act:
[2] Dissatisfied with the loss of GIS and ALW benefits for the period from April 2016 (when the OAS Pension began) to September 2016, and believing that the loss was the result of erroneous advice and/or an administrative error in the administration of the Act, the appellants then each sought the application of section 32 of the Act to remedy the situation. This provision reads as follows:
"32 Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied a benefit, or a portion of a benefit, to which that person would have been entitled under this Act, the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made."

[15] I am not convinced that it was unreasonable for Service Canada to conclude that the Material was not erroneous. I should note that, in reaching this conclusion, it is not necessary to comment on the Federal Court’s analysis in this regard or the respondent’s arguments thereon before the Federal Court.

[16] Based on the conclusions above, the appellants’ argument that there was an earlier administrative error (to which section 32 of the Act would apply) in the creation of the application process that resulted in the appellants losing benefits must also fail. Service Canada reasonably found that the loss of benefits resulted from the appellants’ interpretation of the Material (and apparently from their failure to seek advice particular to their situation), and not from any flaw in the application process.
. Canada (Attorney General) v. Burke

In Canada (Attorney General) v. Burke (Fed CA, 2022) the Federal Court of Appeal considered a situation in judicial review where lower tribunals varied sharply in statutory interpretation in the Old Age Security system (an issue which Vavilov requires to be assessed on a 'reasonableness' SOR at the present court). The issue was whether the Minister of Employment and Social Development could (or could not) retroactively re-assess OAS eligibility when the recipient was not resident in Canada during eligibility periods, that being required by OAS legislation. The court considered the issue extensively [para 55-110], and then concluded that the lower tribunal was unreasonable in their conclusion:
[113] I agree with the Minister that an interpretation of the powers in section 37 of the Act and section 23 of the Regulations that allows people to keep benefits despite their not meeting the specific residency requirements of the Act is one that is inconsistent with a scheme that provides benefits only to people who meet the eligibility requirement of residency. It is thus unreasonable.
. Mudie v. Canada (Attorney General)

In Mudie v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered a judicial review application against a Minister of Employment and Social Development’s (Minister) residency determination for OAS purposes. The case was dismissed on mootness but it is revealing to see how byzantine the OAS eligibility and quantum entitlement process is, both legally and - in this case - practically.

. Pooran v. Canada (Attorney General)

In Pooran v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal heard a judicial review of an OAS decision of the Appeal Division of the Social Security Tribunal:
[2] Eligibility for OAS pension benefits is based upon residency. To qualify for an OAS pension, an applicant must establish that they had resided in Canada for 20 years if they are no longer resident in Canada at the time of their application: Old Age Security Act, R.S.C. 1985, c. O-9, subsection 3(2).

[3] The Old Age Security Regulations, C.R.C., c. 1246, identify certain types of absences that will not interrupt a person’s resident status in Canada. Employment with the Commonwealth Secretariat will not be considered to interrupt a person’s residence status in Canada as long as the applicant returns to Canada within six months of the end of their employment. They must also maintain a permanent place of abode in Canada to which they intend to return, or maintain a self-contained domestic establishment in Canada: subsection 21(5).


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Last modified: 20-01-23
By: admin