[2013] 4 F.C.R. D-10
Pensions
Judicial review of Office of the Commissioner of Review Tribunals (OCRT) decision finding applicant ineligible for full or partial Old Age Security (OAS) pension—Applicant immigrating to Canada in 1966, becoming Canadian citizen in 1972—Returning to England from 1984 to 2002—Starting own law practice in 2003 (splitting his time between England, British Columbia), ultimately retiring in 2007—Since 2007, applicant splitting his time between four part-time homes in Canada, England, France, Spain—Applicant applying for OAS pension in 2007, informed that based on information provided in application, to qualify for OAS pension, would have to change principal country of residence to Canada—That decision maintained following request for reconsideration on basis residence requirements of Old Age Security Act, R.S.C., 1985, c. O-9 (OASA) not fully met—Applicant appealing Minister’s decision to OCRT—Review Tribunal adjourned to allow applicant additional time to submit further documentation—In letter marked “without prejudice”, Human Resources and Social Development Canada (Minister) informing applicant that he did meet residence requirements under OASA, entitled to partial pension—Applicant refusing settlement of partial OAS pension on basis entitled to full pension—Second Review Tribunal dismissing applicant’s appeal—Finding “without prejudice” settlement letter from Minister, applicant’s reply thereto not relevant to establishment of applicant’s Canadian residency, concluding that applicant not intending to reside, not residing in Canada as required under the OASA, Old Age Security Regulations, C.R.C., c. 1246 during relevant time periods—Principal issues herein whether (1) exclusion of settlement letter, reply thereto breach of procedural fairness, (2) Review Tribunal’s decision reasonable—With respect to first issue, privilege attaching to settlement negotiations well established—Inclusion of settlement documents in hearing file by Review Tribunal cannot be interpreted as waiver of privilege by Minister—Applicant not prevented from making full submissions, clearly on notice that admissibility of privileged letters was in question—Review Tribunal thus not erring in excluding settlement documents—As to reasonableness of Review Tribunal’s decision, granting of full or partial OAS pension to applicant depending on determination of his residency in Canada between 2002–2008—In OAS application, applicant claiming not to be resident between 2002–2007, but later explaining these assertions made to protect non-resident income tax status—Applicant alleging one may be considered non-resident for tax purposes while still qualifying as resident for OAS purposes, Review Tribunal should have accepted corrected statements, evidence demonstrating residence in Canada between 2002–2007—Respondent countering that concept of residence under Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1 (ITA) same as residence under OASA—No exhaustive definition of residence provided in ITA—Meaning of residence left to be defined by common law— Common law definition of residence relevant to consideration of term under both OASA, ITA—Respondent thus correct to assert material factors to be considered in determining “residence” may be the same under both acts—However, meaning of the term may vary not only in contexts of different matters, but also in different aspects of same matter—Residence must be contrasted with notion of domicile, which is focused on the intention of an individual—Wording of OAS Regulations, s. 21(1)(a) making factual component of definition of residence under OASA even clearer—In tying notion of residence to person’s home, using words “ordinarily lives”, no doubt that person having to establish Canada is or was, for amount of time required by Act, place where he or she is factually anchored—In present instance, while Review Tribunal aware of relevant case law, appropriate test, relying entirely on applicant’s statements not intending to become resident—Review Tribunal’s reasons insufficient to understand why it made its decision or to determine whether its conclusion is within range of acceptable outcomes—While the applicant’s intention legitimate factor to consider, it should not be relied on at the expense of all other factors—Application allowed.
Duncan v. Canada (Attorney General) (T-453-12, 2013 FC 319, de Montigny J., reasons for judgment dated March 27, 2013, 29 pp.)