Gumboc v. Canada (Attorney General), (2014) 448 F.T.R. 304 (FC)

• Judge: Roy, J.
• Court: Federal Court (Canada)
• Case Date: September 12, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 448 F.T.R. 304 (FC);2014 FC 185

Gumboc v. Can. (A.G.) (2014), 448 F.T.R. 304 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. MR.020

Celso V. Gumboc (applicant) v. The Attorney General of Canada (respondent)

(T-558-13; 2014 FC 185; 2014 CF 185)

Indexed As: Gumboc v. Canada (Attorney General)

Federal Court

Roy, J.

February 26, 2014.

Summary:

Gumboc immigrated to Canada in 1968. He worked in Canada exclusively from 1968 to 1972. In 1972, he moved to the United States so as to be gainfully employed. He became an American citizen in 1978. He returned to Canada in 1995 at age 65 and became a Canadian citizen in 1998. He was in receipt of a U.S. pension. He applied for an Old Age Security pension. The Minister of Human Resources and Skills Development determined that he was entitled to 4/40ths of a full pension. The Review Tribunal dismissed his appeal. Gumboc applied for judicial review.

The Federal Court dismissed the application.

Government Programs - Topic 1624

Old age pensions - Application - Eligibility - Residence requirements - Gumboc immigrated to Canada in 1968 - He worked in Canada exclusively from 1968 to 1972 - In 1972, he moved to the United States so as to be gainfully employed - He obtained U.S. citizenship in 1978 - He returned to Canada in 1995 at age 65 and obtained Canadian citizenship in 1998 - He applied for an Old Age Security (OAS) pension - The Minister of Human Resources and Skills Development determined that Gumboc did not meet the residency requirements for a full pension, but was entitled to 4/40ths of a full pension pursuant to the Canada/U.S. agreement respecting social security (the Agreement) - The Review Tribunal, in dismissing Gumboc's appeal, recognized the period from 1968 to 1972 as the basis for the calculation of the partial pension - Article V(1) of the Agreement stated that a person employed in the U.S. was subject to the U.S. laws - Section 21(5.3) of the OAS Regulations deemed a person who was subject to the legislation of a foreign country to not be a resident of Canada for the purposes of the OAS Act and Regulations - For the period from 1983 to 1994, when Gumboc contributed to both the Canada Pension Plan and the U.S. Social Security program, the Tribunal applied article VI(6) of the Agreement which provided that such a period was not to be treated as a period of residence for the purposes of the OAS Act - The Tribunal concluded that those provisions operated to exclude Gumboc from Canadian residency for OAS purposes from 1972 to 1994 - Gumboc applied for judicial review, asserting that he was entitled to a full pension in Canada pursuant to articles VIII and IX(2) of the Agreement - The Federal Court dismissed the application - Article VIII addressed eligibility for a partial pension - Once eligibility was determined, the amount of the pension was determined pursuant to article IX(1) - Article IX(2) did not apply as Gumboc was in Canada, and, in any event, it made article IX(1) applicable "to a person outside Canada" - The Tribunal committed no reviewable error - See paragraphs 55 to 72.

Government Programs - Topic 1624

Old age pensions - Application - Eligibility - Residence requirements - Gumboc immigrated to Canada in 1968 - He worked in Canada exclusively from 1968 to 1972 - In 1972, he moved to the United States so as to be gainfully employed - He returned to Canada in 1995 at age 65 - He applied for an Old Age Security pension - The Minister of Human Resources and Skills Development held that Gumboc did not meet the residency requirements for a full pension, but determined that he was entitled to 4/40ths of a full pension - The Review Tribunal affirmed the decision - With respect to Gumboc's residency, the Tribunal concluded that he had not ordinarily lived and made his home in Canada between 1992 and 1994 based on the following evidence of his establishment in the United States: (1) contribution to the U.S. Social Security program; (2) lack of a Canadian passport; (3) purchase of a home in the U.S.; (3) purchase of U.S. health coverage; (4) obtention of U.S. citizenship in 1978; (5) failure to obtain Canadian citizenship until 1998 - Gumboc asserted that he met the residency requirements because he came back to Canada regularly where his family kept a house - However, he had not commuted between the U.S. and Canada, but rather had returned to visit - When he visited Canada, he used his U.S. Alien Card or, starting in 1978, his U.S. Citizenship Card - He earned his living mostly in the U.S. during the whole period - The Federal Court held that the Review Tribunal's conclusion of fact was reasonable on the basis of the available evidence - See paragraphs 43 to 48.

Government Programs - Topic 1625

Old age pensions - Application - "Resides" defined - [See both Government Programs - Topic 1624 ].

Government Programs - Topic 1627

Old age pensions - Application - Persons who are or were absent from Canada - [See both Government Programs - Topic 1624 ].

Government programs - Topic 1642

Old age pensions - Entitlement - Full pension - [See first Government Programs - Topic 1624 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 34].

Singer v. Canada (Attorney General) (2010), 370 F.T.R. 121; 2010 FC 607, refd to. [para. 34].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 34].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [para. 34].

Perera v. Canada (Minister of Health and Welfare) (1994), 75 F.T.R. 310 (T.D.), refd to. [para. 46].

Canada (Minister of Human Resources Development) v. Ding (2005), 268 F.T.R. 111; 2005 FC 76, refd to. [para. 64].

De Bustamante v. Canada (Attorney General), [2008] F.T.R. Uned. 784; 2008 FC 1111, refd to. [para. 64].

Counsel:

Celso V. Gumboc, on his own behalf;

Michael Stevenson, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Vancouver, British Columbia, on September 12, 2013, by Roy, J., of the Federal Court, who delivered the following reasons for judgment on February 26, 2014.