Ottawa, Ontario, April 11, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
UTE STIEL
REASONS FOR ORDER AND ORDER
[1] Ms. Ute Stiel, the Respondent in this application, believes that she is entitled to a partial Old Age Security (OAS) pension from Canada. Although she was a resident of Canada for 14 years, from May 7, 1959 to June 1, 1973, she has lived in the United States since 1973.
[2] In the United States, Ms. Stiel never contributed to that country's Federal Old-Age, Survivors' and Disability Insurance Program. However, based on the fact that her husband contributed to the program for 22 years (from 1973 to 1994), Ms. Stiel receives a spouse's benefit under the relevant U.S. laws. As explained below, she bases her claim to a partial OAS pension from Canada on her husband's contributions to the U.S.program.
[3] Upon turning 65 in December 2002, Ms. Stiel applied to Human Resources Development Canada (now known as Social Development Canada and referred to as SDC) for OAS benefits. In a decision dated March 11, 2004, an officer with SDC refused her application. Ms. Stiel's application for a reconsideration of that decision was also denied, in a decision dated July 6, 2004. Ms. Stiel appealed to the Canada Pension Plan - Old Age Security Review Tribunal (the Tribunal). After a hearing and in its decision dated July 13, 2005, the Tribunal allowed the appeal of Ms. Stiel and awarded her a partial 36/40ths Old Age Security (OAS) pension.
[4] The Applicant, the Minister of Social Development (formerly the Minister of Human Resources; Department of Social Development Act, S.C., 2005, c. 35) seeks judicial review of the Tribunal's decision.
Issues
[5] The issue in this application is whether the Tribunal erred in determining that Ms. Stiel was entitled to an OAS pension of 36/40ths of a full OAS pension. Subsidiary to this overarching question are two sub-issues:
- In determining that Ms. Stiel was eligible for an OAS pension, did the Tribunal misinterpret the provisions of the Old Age Security Act, R.S.C. 1985, c. O-9 (the OAS Act) and of the reciprocal agreement between Canada and the United States (the Canada-U.S. Agreement, cited below)? More specifically, did the Tribunal err in concluding that the years during which Ms. Stiel's husband contributed to the U.S. Social Security counted as "quarters of coverage" for purposes of determining Ms. Stiel's eligibility for OAS pension under the Canada-U.S. Agreement?
- If Ms. Stiel was entitled to an OAS pension, did the Tribunal err in calculating that pension as 36/40ths of a full OAS pension?
Analysis
Standard of Review
[6] In Canada (Minister of Human Resources Development) v. Chhabu, [2005] F.C.J. No. 1557 (QL), 2005 FC 1277, Justice Carolyn Layden-Stevenson applied the pragmatic and functional approach to the same Tribunal, in regards to a question of "residency" for the purposes of OAS pension entitlement and concluded that a standard of reasonableness simpliciter applied.
[7] While much of the pragmatic and functional analysis in Chhabu applies to this case, the result does not. The decision under review, in this case, was not factually driven and revolved exclusively around an interpretation of the appropriate statute and treaty. This suggests substantially less deference than in Chhabu, since this Court is in an equal, if not better, position to determine the law. In Canada(Minister of Human Resources Development) v. Ding, [2005] F.C.J. No. 77 (QL), 2005 FC 76, Justice James Russell applied the correctness standard when reviewing the Tribunal on questions of law. Such an approach should be taken in this case as well.
Legislative Scheme
[8] Ms. Stiel's entitlement to an OAS pension and its amount, if any, can be found through the examination of certain provisions of the OAS Act, s. 21 of the Old Age Security Regulations, C.R.C. 1978, c. 1246 (the Regulations) and Articles I, VIII and IX of the Canada-U.S. Agreement, described below and set out in full in Appendix A.
[9] Briefly, the starting point is that full OAS benefits are paid to persons who have been resident in Canadafor 40 years (OAS Act, s. 3(1)). However, in certain instances, an individual is entitled to receive a partial OAS pension. Eligibility to receive and calculation of a partial pension is set out in s. 3(2) of the OAS Act.
[10] For someone, such as Ms. Stiel, who is not resident in Canada when she applies for the OAS pension, s. 3(2)(b) requires that her "aggregate period" of residence in Canada be at least 20 years. Only if she can meet the requirement of 20 years of residence, will she be entitled to receive any OAS benefit. If eligibility is established, the calculation of the pension is carried out pursuant to s. 3(3). Stated simply, the portion of a full pension payable to an individual will be the result of dividing the years of residence by 40. For example, 25 years of residence in Canadawould result in an OAS pension of 25/40ths.
[11] Pursuant to s. 21(1)(a) of the Regulations, "a person resides in Canada if he makes his home and ordinarily lives in any part of Canada[.]"
[12] Applying this scheme to Ms. Stiel would result in no eligibility for OAS benefits. Simply put, she had fewer than 20 years of residence in Canadaand, thus, does not satisfy the requirements of s. 3(2) of the OAS Act. However, Parliament determined that, in certain cases, the entitlement to benefits could be extended through the utilization of bilateral agreements with other countries. Section 40 of the OAS Act permits the entering into of bilateral treaties or agreements that might affect the eligibility for pensions.
[13] Such an agreement is in place between Canadaand the United States. The Canada-U.S. Agreement was signed between our two countries under the auspices of s. 40 of the OAS Act and proclaimed in force on February 9, 1982 (Proclamation Declaring the Agreement on Social Security Between Canada and the United States of America in Force February 9, 1982, 26 May 1982, SI/82-105, C. Gaz. 1982.II. pp. 1932-1945). It has the force of law in Canada (OAS Act, s. 41). Two supplementary agreements were made, modifying the original treaty:
- Proclamation Declaring the Supplementary Agreement Amending the Agreement on Social Security Between Canada and the United States of America in Force May 7, 1984, 8 August 1984, SI/84-146, C. Gaz. 1984.II. 3239-3242.
- Proclamation Declaring the Second Supplementary Agreement Amending the Agreement on Social Security Between Canada and the United States of America in Force October 1, 1997, 1 October 1997, SI/97-111, C. Gaz. 1997.II.Vol 131. 2879-2885.
[14] The relevant provisions of the Canada-U.S. Agreement are contained in Articles I, VIII and IX. Article I (6) defines a "period of coverage". Article VIII addresses the entitlement to payment of benefits to an individual who does not otherwise meet the eligibility requirements of the OAS Act. Finally, Article IX provides for the method of calculation of OAS pension, if entitlement is established under Article VIII.
Approach to the question of OAS pension benefits
[15] As can be seen from the description above of the legislative scheme, any analysis of the question of OAS pension must consist of two discrete stages: (1) eligibility; and (2) calculation.
[16] The first threshold step is to determine whether Ms. Stiel is eligible for any OAS pension. Specifically, does Ms. Steil, with only 14 years of residence in Canada, meet the requirement of s. 3(2)(b) that she have at least 20 years of residence through operation of the "totalization" provisions of Article VIII of the Canada-U.S. Agreement?
[17] The second step, if eligibility is established, is the calculation of the pension amount. This step requires the application of Article IX of the Canada-U.S. Agreement, s. 21 of the Regulations and s. 3(3) of the OAS Act.
Is Ms. Stiel eligible for OAS pension benefits?
[18] The question of eligibility is dependent on whether Ms. Stiel can count, as a period of residence for purposes of s. 3(2)(b) of the OAS Act, the 22 years during which Mr. Stiel paid into the Federal Old-Age, Survivors' and Disability Insurance Program in the United States (U.S. Social Security program). If the answer to this question is "yes", she will be credited with a total of 36 years; more than enough to meet the 20 year threshold of s. 3(2)(b) of the OAS Act. However, if those years of contributions by Mr. Stiel do not count, Ms. Stiel's 14 years of residence in Canada will not be sufficient to qualify her to any OAS pension.
[19] The SDC twice refused Ms. Stiel's application on the basis that she did not meet the 20 years of totalized residence. In a letter of refusal dated July 6, 2004, an adjudicator with SDC stated that
[t]o qualify for the Canadian Old Age Security pension, you must have lived in Canada and made contributions to the Federal Old-Age, Survivors' and Disability Insurance Program in the United States . . . for a minimum of 20 years.
As you did not make contributions of your own to the Federal Old-Age, Survivors' and Disability Insurance Program in the United States, your spouse's contributions cannot be used to qualify you for the Canadian Old Age Security pension.
[20] These paragraphs summarize the position taken by the Applicant before the Tribunal and before me. The Tribunal did not accept this argument; rather, it agreed with the submissions of Ms. Stiel.
The Tribunal cannot accept that the Appellant must have proved that she has worked and contributed personally to the U.S. Social Security Program.
In the opinion of the Tribunal the interpretation by the Minister of the different sections of the [Canada-U.S. Agreement] and its amendments is incorrect: it is not a question of contributions but of coverage.
Article VIII, paragraph 1 and 2(a) of the Amended Agreement are clear to that effect and have to be taken into consideration in determining the eligibility of an application to an OAS pension.
It is admitted by the Minister that the Appellant is covered by the U.S. Social Security Program . . .
It is also in evidence that the Appellant's husband has worked and contributed to the U.S. plan for a period of 22 years.
According to paragraph 2(a) of Article VIII this will permit the Appellant to gain the equivalence of 22 years of residence in Canada to the fourteen already admitted by the parties, thus totalizing 36 years of residence in Canada for the purpose of the OAS Act.
[21] There is no dispute that Article VIII of the Canada-U.S. Agreement allows for periods of coverage under the U.S. Social Security program to be credited to persons seeking an OAS pension if those persons do not meet the residence requirements under the OAS Act. The relevant provisions are Article VIII (1)(a) and (2)(a), described above and set out in Appendix A. The unit of measurement, under Article VIII (2)(a), is "a quarter of coverage credited under United States laws".
[22] Essentially, the total number of years of contribution or coverage under the U.S. Social Security program translates into extra years of residence for the purposes of entitlement to an OAS pension. The difficulty in this case is that Ms. Stiel never contributed to the U.S. program; rather, she receives a "wife's benefit" or spousal benefit under the U.S. program by virtue of her husband's twenty-two years of contribution. The question is whether the term "quarter of coverage" includes U.S. spousal benefits.
[23] Analyzing the question before me involves the following steps:
- How do U.S. laws define "quarter of coverage"?
- What approach do I take to this question of statutory interpretation?
- What are the objectives of the legislative scheme?
- Can periods of residence in the United States, without contributions to the U.S. Social Security program, count towards the 20 year threshold for OAS entitlement?
- For purposes of the OAS Act can "coverage" through a spouse's contributions to the U.S. Social Security program be counted as quarters of coverage under Article VIII of the Canada-U.S. Agreement?
1. How do U.S.laws define a "quarter of coverage"?
[24] The term "quarter of coverage" is defined in the U.S.Social Security Act, 42 U.S.C. (the U.S. Act) and accompanying Social Security Regulations (the U.S. Regulations). Section 413(a)(2)(A) of the U.S. Act stipulates the following:
The term "quarter of coverage" means -
(i) for calendar years before 1978, and subject to the provisions of subparagraph (B), a quarter in which an individual has been paid $50 or more in wages (except wages for agricultural labor paid after 1954) or for which he has been credited (as determined under section 412 of this title) with $100 or more of self-employment income; and
(ii) for calendar years after 1977, and subject to the provisions of subparagraph (B), each portion of the total of the wages paid and the self-employment income credited (pursuant to section 412 of this title) to an individual in a calendar year which equals the amount required for a quarter of coverage in that calendar year (as determined under subsection (d) of this section), with such quarter of coverage being assigned to a specific calendar quarter in such calendar year only if necessary in the case of any individual who has attained age 62 or died or is under a disability and the requirements for insured status in subsection (a) or (b) of section 414 of this title, the requirements for entitlement to a computation or recomputation of his primary insurance amount, or the requirements of paragraph (3) of section 416 (i) of this title would not otherwise be met.
[Emphasis added.]
[25] Section 413(d) sets a minimum amount of earnings required per calendar year "in order to be credited with a quarter of coverage". Section 404.140(a) of the U.S. Regulations states that
[a] quarter of coverage (QC) is the basic unit of social security coverage used in determining a worker's insured status. We credit you with QCs based on your earnings covered under social security.
[26] The term "quarter of coverage" is important for, among other things, determining a person's insured status under the U.S. program. Pursuant to s. 402(a) of the U.S. Act, a person is entitled to old-age insurance benefits if, among other things, they are a "fully insured individual". A fully insured individual, such as Mr. Stiel, is defined in s. 414(a) as a person having a minimum number of quarters of coverage. In contrast, to receive wife's insurance benefits, such as Ms. Stiel does, a person is required under s. 402(b) to be not entitled to old-age disability insurance benefits (that is, not having a minimum number of quarters of coverage) or to be entitled to benefits which are less than one-half of the person's dependent's insurance benefits. In this case, Ms. Stiel has no "quarters of coverage" for purposes of calculating U.S. social security benefits. It follows that, on a plain meaning of the words in Article VIII (2)(a), Ms. Stiel does not benefit from the totalization provisions of the Canada-U.S. Agreement.
2.What approach do I take to this question of statutory interpretation?
[27] However, that does not end the analysis. In Canada, statutory provisions are to be interpreted in their "entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 (QL) at paras. 20-22). Additionally, the Canada-U.S. Agreement must be read so that there is "coherence" with, and in the confines of, the enabling OAS Act (Ontario Hydro v. Canada, [1997] 3 F.C. 565 (C.A.) (QL) at para 11; Stachowski v. Canada (Attorney General), 2005 FC 1435 at para. 34). Regardless of whether Ms. Stiel would be found to have "quarters of coverage" under U.S. law, the pertinent question is whether she has coverage within the meaning of Canadian law. Accordingly, while the U.S. law is helpful in my task of interpretation, it is not determinative; I must consider whether this term, as included in the Canada-U.S. Agreement, should be interpreted in Canada as including wife's insurance benefits under the U.S. Social Security program. In other words, is the confining interpretation found in U.S. law, which appears to be somewhat contrary to Canada's approach to the payment of these types of benefits, supportable when one reads the words in their entire context of the relevant Canadian legislative package?
3. What are the objectives of the legislative scheme?
[28] What is the object of the OAS Act and the Canada-U.S. Agreement? I would describe the OAS regime as altruistic in purpose. Unlike the Canada Pension Plan, OAS benefits are universal and non-contributory, based exclusively on residence in Canada. This type of legislation fulfills a broad-minded social goal, one that might even be described as typical of the Canadian social landscape. It should therefore be construed liberally, and persons should not be lightly disentitled to OAS benefits.
[29] However, it cannot be ignored that the OAS Act provides benefits, first and foremost, to residents of Canada; it has been described as "the building block of the Canadian retirement income system" (House of Commons Debates, 2nd Session, 30th Parliament, Volume III, 1976-1977, February 8, 1977, p. 2834 (Hansard)). That is, the legislative scheme appears focussed on the provision of benefits to persons living their retirements in Canada. It is only through the operation of specific, added provisions that non-residents obtain even a partial OAS pension.
[30] By adding s. 3(2)(b) to the OAS Act in Bill C-35, tabled and subsequently passed by Parliament and assented to on March 29, 1977 (An Act to amend the Old Age Security Act, R.S.C., c. 9 (2nd Suppl.) 1976-1977), Parliament stated quite clearly its intentions to provide some coverage to persons who were no longer resident of Canada, but limited this coverage to persons with over 20 years of Canadian residence. In the result, non-residents with less than twenty years of residence in Canada are excluded from the OAS scheme.
[31] However, certain relief from this 20 year requirement was introduced as part of the same legislative package. Specifically, Parliament added the ability of the Government to enter into reciprocal agreements that are intended to "make benefits portable to and from countries with which Canada may negotiate agreements" (Hansard, p. 2835).
4. Can periods of residence in the United States, without contributions to the U.S.
Social Security program, count towards the 20 year threshold for OAS entitlement?
[32] I turn now to the words of s. 40 of the OAS Act, the provision that was introduced to allow these reciprocal agreements. This section provides the Government with broad authority to enter into these agreements. Of particular relevance to the question before me is s. 40(d), pursuant to which the Government can enter into agreements that provide for "the totalization of periods of residence and periods of contribution in that country and periods of residence in Canada". I note that this permits the Government considerable latitude; the Government can choose to credit periods of residence in another country, in addition to periods of contribution.
[33] An examination of the Canada-U.S. Agreement reveals only one reference to "periods of residence" in the United States. Article I (6) defines "period of coverage" as "a period of contributions or a period of earnings" and specifically states that " a period of residence shall not be recognized as a period of coverage". This notion of contribution rather than just residence is carried over to Article VIII which, as discussed above, refers to "quarters of coverage". In contrast, the Canada-U.S. Agreement contains many references to periods of residence in Canada. From this, I infer that the intent is to treat a period of residence as different from a period of contribution. This supports an interpretation of the Canada-U.S. Agreement that only periods of contribution in the United States - and not periods of residence - are used in calculation of the entitlement to OAS pension in Canada. Had Canada wished to totalize periods of U.S. residence, it could have done so; it did not.
5. Can "coverage" through a spouse's contributions to the U.S.Social Security program
be counted as quarters of coverage under Article VIII of the Canada-U.S.
Agreement?
[34] Thus, it appears that mere residence by Ms. Stiel in the United States cannot contribute to her eligibility for OAS pension. However, Ms. Stiel does not rely only on her residence; rather she argues that she did contribute to the U.S. Social Security scheme through her husband. She maintains that Mr. Stiel's contributions can be counted for her purposes since they were made, in part, to establish a spousal benefit for her.
[35] In support of her argument, Ms. Stiel refers to the definition of "period of coverage" in Article I (6) of the Canada-U.S. Agreement. Article I states that the term "means... a period of payment of contributions or a period of earnings" but goes on to include "any similar period insofar as it is recognized by such laws as equivalent to a period of coverage". Ms. Steil asserts that, during the entire time that her husband was contributing to the U.S. Social Security program, she was "covered" in that her husband's contributions entitled her to future spousal benefits. Thus, she submits, she falls within the meaning of the definition and every period of payment by Mr. Stiel was equivalent to a period of coverage for her.
[36] It is apparent that this argument was accepted by the Tribunal. The Tribunal took the spousal benefit to be coverage for the purposes of Article VIII and credited twenty-two years of extra residence to Ms. Stiel, which qualified her for an OAS partial monthly pension. If I give the word "coverage" its common, every-day meaning, I agree that Ms. Stiel was receiving some kind of "coverage" through the contributions of her husband. However, this does not, in my view, lead to the conclusion that Ms. Stiel should be credited with quarters of coverage, as contemplated by Article VIII (2)(a) of the Canada-U. S. Agreement.
[37] The problem with Ms. Stiel's argument emanates from the fact that the term "period of coverage" is not used for OAS entitlement purposes under Article VIII (2)(a). In Article VIII, the term "period of coverage" is used exclusively in connection with calculations under the Canada Pension Plan and not in association with assessing OAS eligibility. In Article VIII (1)(a), reference is to "periods of coverage under the Canada Pension Plan". The only other mention is in Article VIII (2)(b) that provides that "one quarter of coverage credited under United States laws shall be considered as a year of coverage credited under the Canada Pension Plan." The provision applicable to the question before me is not Article VIII (2)(b), but Article VIII (2)(a) which refers explicitly to "quarters of coverage" and not to "periods of coverage". These are two different terms, each of which must be interpreted in a way that gives meaning to both. To apply the interpretation urged upon me by Ms. Stiel requires that I ignore this difference.
[38] Further, in my view, this interpretation does not give meaning to the words of the legislation, including the Canada-U.S. Agreement. The term "quarter of coverage credited under United States law", in Article VIII, is a very specific term, imported from the U.S. legislation. The use of such a precise term of art that is clearly defined in U.S. law is a strong indicator of Parliament's intent. I can see nothing in the OAS Act or the Canada-U.S. Agreement that would ascribe a different meaning to "quarter of coverage".
6. Summation
[39] Taking into account all of the above, it is my opinion that neither Ms. Stiel's residence in the United States nor her spousal benefit under U.S. law can be considered as quarters of coverage within the meaning of Article VIII (2)(a) of the Canada-U.S. Agreement. Although the OAS Act should be construed in a broad fashion, with a mind to preferring entitlement for individuals, I cannot ignore the deliberate choice of words by the drafters of the agreement. When read in the entire context of the relevant legislative scheme, the reasonable interpretation of the relevant provisions is that OAS benefits are not to be extended to individuals who are non-residents, who do not meet the 20 year minimum residency requirement and who have not contributed personally to the U.S. Social Security program.
[40] Accordingly, I am satisfied that the Tribunal erred by finding that Ms. Stiel was entitled to a partial OAS pension.
Calculation of OAS Partial Pension
[41] Having established that Ms. Stiel did not meet the threshold 20 years for eligibility and is, therefore, not entitled to any portion of the OAS pension, it is unnecessary to engage in the second step of the assessment. However, I would note that, even if Ms. Stiel had satisfied the eligibility requirement of Article VIII of the Canada-U.S. Agreement, her partial pension would have been calculated as 14/40ths of a full pension and not at 36/40ths as determined by the Tribunal.
[42] I cannot determine how the Tribunal concluded that Ms. Stiel's pension should be calculated as 36/40ths of a full monthly pension. In the reasons, there is no explanation of this calculation. However, I assume that the Tribunal simply added 22 years of "coverage" to 14 years of Canadian residence, to come up with a total of 36 years.
[43] In my view, the Tribunal ignored the provisions of Article IX of the Canada-U.S. Agreement which specifies the manner in which the amount of the OAS pension is to be calculated. Section 1 of the Article provides that
the agency of Canada shall calculate the amount of the pension or spouse's allowance payable to that person in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension or a spouse's allowance, exclusively on the basis of the periods of residence in Canada on or after January 1, 1952 which may be considered under that Act or are deemed as such under Article VI of this Agreement. [Article VI has no applicability to this case.]
[44] Reading this provision makes it clear that the term "residence" must be given the meaning used in the OAS Act and Regulations. As noted above, s. 21(1)(a) of the Regulations states that "a person resides in Canada if he makes his home and ordinarily lives in any part of Canada". (Under the Regulations, certain periods of non-residence may be deemed to be "residence"; those provisions are not applicable in this case.)
[45] By exclusion, then, periods of residence obtained by totalization under Article VIII are not to be considered when calculating the amount of pension. This method accords with common sense, since the intention of Parliament was to avoid and eliminate duplicate pension coverage (see Hansard, above at 2385). The scheme and object of the OAS Act is to provide a monthly pension in proportion to the number of years a person over sixty-five was resident in Canada, up to a total number of forty years. By adding Mr. Stiel's years of contribution to the U.S. program to Ms. Stiel's years of physical residence in Canada, she would be granted duplicate coverage from June 1, 1973 onward, when she resided in the United States.
[46] The Tribunal erred by failing to have regard to the relevant statutory provisions and, as a result, wrongly calculating the Respondent's OAS pension amount.
Conclusion
[47] For these reasons, the application will be allowed, without costs. In most cases, I would order that the matter be referred back to a different panel of the Tribunal to determine, in accordance with these reasons, whether Ms. Stiel is eligible for an OAS partial pension and, if so, what the amount of any such pension should be. However, in these circumstances, there is no point, in my view, in postponing the unavoidable outcome of the Tribunal's rehearing of this matter. With no facts in dispute, this is one of those "clearest of circumstances" where the Court may issue directions in the nature of a directed verdict (Rafuse v. Canada (Pension Appeals Board) (2002), 286 N.R. 385, 2002 FCA 31 at para.14). Thus, the matter should be sent back for a new determination to be made on the basis that the appeal of Ms. Stiel should be dismissed.
ORDER
THIS COURT ORDERS that:
- The application for judicial review is allowed, without costs; and
- The matter is remitted to a newly-constituted panel of the Tribunal for a new determination
on the basis that the appeal should be dismissed.
"Judith A. Snider"
____________________________
Judge
Appendix "A"
to the
Reasons for Order and Order dated April 11, 2006
In
MINISTER OF HUMAN RESOURCES DEVELOPMENT
and
UTE STIEL
T-1382-05
| Old Age Security Act, R.S.C. 1985, c. O-9
3. (1) Subject to this Act and the regulations, a full monthly pension may be paid to
(a) every person who was a pensioner on July 1, 1977; (b) every person who (i) on July 1, 1977 was not a pensioner but had attained twenty-five years of age and resided in Canada or, if that person did not reside in Canada, had resided in Canada for any period after attaining eighteen years of age or possessed a valid immigration visa, (ii) has attained sixty-five years of age, and (iii) has resided in Canada for the ten years immediately preceding the day on which that person's application is approved or, if that person has not so resided, has, after attaining eighteen years of age, been present in Canada prior to those ten years for an aggregate period at least equal to three times the aggregate periods of absence from Canada during those ten years, and has resided in Canada for at least one year immediately preceding the day on which that person's application is approved; and (c) every person who (i) was not a pensioner on July 1, 1977, (ii) has attained sixty-five years of age, and (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.
3. (2) Subject to this Act and the regulations, a partial monthly pension may be paid for any month in a payment quarter to every person who is not eligible for a full monthly pension under subsection (1) and (a) has attained sixty-five years of age; and (b) 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 ten years but less than forty years and, where that aggregate period is less than twenty years, was resident in Canada on the day preceding the day on which that person's application is approved. (3) The amount of a partial monthly pension, for any month, shall bear the same relation to the full monthly pension for that month as the aggregate period that the applicant has resided in Canada after attaining eighteen years of age and prior to the day on which the application is approved, determined in accordance with subsection (4), bears to forty years. ... 40. (1) Where, under any law of a country other than Canada, provision is made for the payment of old age or other benefits including survivors' or disability benefits, the Minister may, on behalf of the Government of Canada, on such terms and conditions as may be approved by the Governor in Council, enter into an agreement with the government of that country for the making of reciprocal arrangements relating to the administration or operation of that law and of this Act, including, without restricting the generality of the foregoing, arrangements relating to [...] (b) the administration of benefits payable under this Act to persons resident in that country, the extension of benefits under that law or this Act to persons employed in or resident in that country and the increase or decrease in the amount of the benefits payable under that law or this Act to persons employed in or resident in that country; [...] (d) the totalization of periods of residence and periods of contribution in that country and periods of residence in Canada; and (e) the payment by that country and Canada respectively, where applicable as a result of totalization, of prorated benefits based on periods of residence and periods of contribution in that country and periods of residence in Canada.
Old Age Security Regulations, C.R.C. 1978, c. 1246
21. (1) For the purposes of the Act and these Regulations,
(a) a person resides in Canadaif he makes his home and ordinarily lives in any part of Canada; and
Agreement on Social Security Between Canada and the United States of America
Article I
6. "Period of coverage" means, a period of payment of contributions or a period of earnings from employment or self-employment, as defined or recognized as a period of coverage by the laws under which such period has been completed, or any similar period insofar as it is recognized by such laws as equivalent to a period of coverage; a period of residence shall not be recognized as a period of coverage;
Article VIII
1. (a) If a person is not entitled to the payment of a benefit because he or she has not accumulated sufficient periods of residence under the Old Age Security Act, or periods of coverage under the Canada Pension Plan, the entitlement of that person to the payment of that benefit shall, subject to sub-paragraph (1)(b), be determined by totalizing these periods and those specified in paragraph (2), provided that the periods do not overlap.
2. (a) For purposes of determining entitlement to the payment of a benefit under the Old Age Security Act, a quarter of coverage credited under United States laws on or after January 1, 1952 and after the age at which periods of residence in Canada are credited for purposes of that Act shall be considered as three months of residence in the territory of Canada.
Article IX
1. If a person is entitled to the payment of an Old Age Security pension or a spouse's allowance solely through the application of the totalizing provisions of Article VIII, the agency of Canada shall calculate the amount of the pension or spouse's allowance payable to that person in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension or a spouse's allowance, exclusively on the basis of the periods of residence in Canada on or after January 1, 1952 which may be considered under that Act or are deemed as such under Article VI of this Agreement.
3. Notwithstanding any other provision of this Agreement:
(a) an Old Age Security pension shall be paid to a person who is outside Canada only if that person's periods of residence, totalized as provided in Article VIII, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for entitlement to the payment of a pension outside Canada; and
|
|
Loi sur la sécurité de la vieillesse, L.R., 1985, ch. 0-9
3. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, la pleine pension est payable aux personnes suivantes :
a) celles qui avaient la qualité de pensionné au 1er juillet 1977;
b) celles qui, à la fois :
(i) sans être pensionnées au 1er juillet 1977, avaient alors au moins vingt-cinq ans et résidaient au Canada ou y avaient déjà résidé après l'âge de dix-huit ans, ou encore étaient titulaires d'un visa d'immigrant valide,
(ii) ont au moins soixante-cinq ans,
(iii) ont résidé au Canada pendant les dix ans précédant la date d'agrément de leur demande, ou ont, après l'âge de dix-huit ans, été présentes au Canada, avant ces dix ans, pendant au moins le triple des périodes d'absence du Canada au cours de ces dix ans tout en résidant au Canada pendant au moins l'année qui précède la date d'agrément de leur demande;
c) celles qui, à la fois :
(i) n'avaient pas la qualité de pensionné au 1er juillet 1977,
(ii) ont au moins soixante-cinq ans,
(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.
3. (2) Sous réserve des autres dispositions de la présente loi et de ses règlements, une pension partielle est payable aux personnes qui ne peuvent bénéficier de la pleine pension et qui, à la fois :
a) ont au moins soixante-cinq ans;
b) ont, après l'âge de dix-huit ans, résidé en tout au Canada pendant au moins dix ans mais moins de quarante ans avant la date d'agrément de leur demande et, si la période totale de résidence est inférieure à vingt ans, résidaient au Canada le jour précédant la date d'agrément de leur demande.
(3) Pour un mois donné, le montant de la pension partielle correspond aux n/40 de la pension complète, n étant le nombre total - arrondi conformément au paragraphe (4) - d'années de résidence au Canada depuis le dix-huitième anniversaire de naissance jusqu'à la date d'agrément de la demande.
...
40. (1) Le ministre peut, pour le compte du gouvernement du Canada et aux conditions agréées par le gouverneur en conseil, conclure avec le gouvernement de tout pays étranger dont la législation prévoit le versement de prestations notamment aux vieillards et invalides ou de pensions de réversion, un accord prévoyant la signature d'arrangements réciproques relatifs à l'application de cette législation et de la présente loi notamment en ce qui concerne :
[...]
b) la gestion des prestations payables aux termes de la présente loi à des personnes résidant dans ce pays, l'octroi de prestations payables en vertu de l'une ou l'autre de ces lois à des personnes employées ou résidant dans ce pays ainsi que la modification du montant des prestations;
[...]
d) la totalisation des périodes de résidence et de cotisation dans ce pays et des périodes de résidence au Canada;
e) le partage des prestations à payer en fonction, le cas échéant, de la totalisation des périodes de résidence et de cotisation dans ce pays et des périodes de résidence au Canada.
Règlements sur la sécurité de la vieillesse
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
Accord sur la sécurité sociale entre le Canada et les États-Unis d'Amérique
Article I
6. « Période de couverture » désigne, une période de paiement de cotisations ou une période de gains provenant d'un emploi ou d'un travail autonome, telle que définie ou reconnue par les lois en vertu desquelles la période en question a été accomplie, ou toute autre période analogue dans la mesure où elle est reconnue aux termes de ces lois comme équivalant à une période de couverture; une période de résidence n'est pas reconnue comme période de couverture;
Article VIII 1. (a)Lorsqu'une personne n'a pas droit au versement d'une prestation faute de périodes de résidence suffisantes en vertu de la Loi sur la sécurité de la vieillesse, ou de périodes de couverture en vertu du Régime de pensions du Canada, le droit de ladite personne au versement de ladite prestation, sous réserve de l'alinéa (1)(b), est déterminé par la totalisation de ces périodes et de celles précisées au paragraphe (2), pour autant que les périodes ne se chevauchent pas.
2. (a) Pour établir le droit au versement d'une prestation en vertu de la Loi sur la sécurité de la vieillesse, un trimestre de couverture en vertu des lois des États-Unis crédité le 1er janvier 1952 ou après cette date et après l'âge auquel les périodes de résidence au Canada sont comptabilisées aux fins de cette loi sera compté comme trois mois de résidence au Canada.
Article IX
1. Lorsqu'une personne a droit au versement d'une pension de sécurité de la vieillesse ou d'une allocation au conjoint uniquement en application des dispositions relatives à la totalisation prévues à l'article VIII, l'organisme du Canada calcule le montant de la pension ou de l'allocation au conjoint payable à ladite personne conformément aux dispositions de la Loi sur la sécurité de la vieillesse régissant le versement d'une pension partielle ou d'une allocation au conjoint, uniquement en fonction des périodes de résidence au Canada depuis le 1er janvier 1952 ou après cette date qui peuvent être prises en compte en vertu de cette loi ou sont considérées comme telles aux termes de l'article VI du présent Accord.
3. Nonobstant toute autre disposition du présent Accord : (a) une pension de la Sécurité de la vieillesse est versée à une personne résidant à l'étranger uniquement si ses périodes de résidence, totalisées conformément à l'article VIII, sont au moins égales à la période minimale de résidence au Canada exigée par la Loi sur la sécurité de la vieillesse pour l'ouverture du droit au versement d'une pension hors du Canada; et
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1382-05
STYLE OF CAUSE: MINISTER OF HUMAN RESOURCES DEVELOPMENT
v. UTE STIEL
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 3, 2006
APPEARANCES:
| Ms. Laura Dalloo
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| Mrs. Ute Stiel Mr. Juergen George Stiel |
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SOLICITORS OF RECORD:
| John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE APPLICANT |