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Pensions - Old Age Security. Paulus v. Canada (Attorney General)
In Paulus v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR from the SST's "Appeal Division’s decision dismissing his appeal", here from an OAS pension refusal for failure to "meet the 10-year residency requirement" under the Old Age Security Act.
This JR application fails mostly on fact-findings, but it illustrates procedures in this little-litigated OAS area:[2] Mr. Paulus first immigrated to Canada in 1993, obtaining Canadian citizenship seven years later. However, between 1993 and 2020, Mr. Paulus spent considerable time abroad, primarily tending to his business interests in Bahrain.
[3] The Appeal Division considered the evidence relating to Mr. Paulus’ claim. Applying the factors set out in Canada (Minister of Human Resources Development) v. Ding, 2005 FC 76 at paras. 57-58, it found that Mr. Paulus had only been present in Canada intermittently in the years between 1993 and 2012. During this period, Mr. Paulus had maintained strong ties to Bahrain due to his considerable business interests there, and that these ties eclipsed his connection to Canada. The Appeal Division did accept that Mr. Paulus had been resident in Canada between March 2012 and March 2013, when his company in Bahrain was facing legal and financial difficulties. However, it went on to find that Mr. Paulus had returned to Bahrain after March of 2013, once again maintaining only an occasional presence in Canada until he settled in Canada more permanently in June of 2020. Based on these factual findings, the Appeal Division concluded that at the time of Mr. Paulus’ application for a pension in July of 2021, he had not been resident in Canada for an aggregate period of at least ten years so as to entitle him a pension under subsection 3(2) of the Act.
[4] Mr. Paulus has raised a number of arguments as to why the Appeal Division’s decision should be set aside. While we have carefully considered all of the issues he has raised, it is only necessary to address some of them in these reasons.
[5] Mr. Paulus contends that the Appeal Division made numerous factual errors and incorrectly weighed the evidence before it. He also submits that the Appeal Division erred in determining that the time he spent abroad after 2013 could not be considered "“work abroad”" under subsections 21(4) and 21(5) of the Old Age Security Regulations, C.R.C., c. 1246.
[6] It is not the role of this Court on an application such as this to re-weigh the evidence that was before the Appeal Division. Our job is, rather, to determine whether the Appeal Division’s decision was reasonable. That is, we must be satisfied that the decision is transparent and intelligible, and it must be justified in relation to the relevant factual and legal constraints that bear on it. We must not engage in a "“line-by-line treasure hunt for error”", but we must instead be satisfied that there are no fatal flaws in the overarching logic of the decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 99, 102.
[7] The Appeal Division provided detailed and coherent reasons explaining its decision not to grant Mr. Paulus’ appeal. Noting that Mr. Paulus had struggled to remember events that had occurred twenty to thirty years ago, it relied instead on the objective evidence before it. Examining that evidence carefully, the Appeal Division appropriately applied the Ding factors to assess whether Mr. Paulus was resident in Canada between 1993 and 2020, and if so, for how long.
[8] To the extent that the Appeal Division’s decision turned on its assessment of whether Mr. Paulus’ presence in and connection to Canada was sufficient to constitute residence for the purposes of the Act, the findings of fact that ground that assessment are entitled to considerable deference. Mr. Paulus has not demonstrated that these findings were unreasonable.
[9] Mr. Paulus’ argument that the Appeal Division erred in finding that he was unable to benefit from the exception under subsections 21(4) and 21(5) of the Regulations must also be dismissed. These provisions deem time spent working abroad for a Canadian company not to interrupt a person’s residence in Canada if that person returned to this country within the six months following the end of their employment, and if they had at all times during the period abroad maintained a "“permanent place of abode to which he intended to return”" or a "“self-contained domestic establishment”" in Canada.
[10] The Appeal Division found that Mr. Paulus had a Canadian company, Paulus Enterprises Ltd., and that he was an employee of that company abroad. However, he did not have a "“permanent place of abode”" or a "“self-contained domestic establishment”" in Canada during the period that he was outside the country.
[11] This Court has previously found that, in the absence of a statutory definition or jurisprudential consideration of a particular term or phrase in the Act, it is reasonable for the SST to have regard to dictionary definitions: Pooran v. Canada (Attorney General), 2021 FCA 190 at para. 13. Applying such definitions in considering whether Mr. Paulus had a "“permanent place of abode”" or a "“self-contained domestic establishment”" in Canada, the Appeal Division reasonably found that Mr. Paulus’ temporary stays with his siblings in Canada did not meet the criteria for the subsection 21(4) exception to apply.
[12] Mr. Paulus urges a different interpretation of the phrase "“permanent place of abode”". That said, he acknowledges that there could be other interpretations of the phrase. However, he has not demonstrated that the Appeal Division’s interpretation of the terms "“permanent place of abode”" and "“self-contained domestic establishment”" was unreasonable. Nor has he convinced this Court that the Appeal Division’s decision was otherwise tainted by a fatal flaw in its overarching logic. For these reasons, the application will be dismissed. The respondent does not seek his costs and none are awarded. . 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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