Singh (Gurnam) v. Canada (Attorney General), (2013) 431 F.T.R. 289 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: January 10, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 431 F.T.R. 289 (FC);2013 FC 437

Singh v. Can. (A.G.) (2013), 431 F.T.R. 289 (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: [2013] F.T.R. TBEd. AP.041

Gurnam Singh (applicant) v. The Attorney General of Canada (respondent)

(T-5-12; 2013 FC 437; 2013 CF 437)

Indexed As: Singh (Gurnam) v. Canada (Attorney General)

Federal Court

de Montigny, J.

April 26, 2013.

Summary:

Singh, a citizen of India, immigrated to Canada in 1997. He applied for an Old Age Security Pension in September 2007. The Review Tribunal found that Singh was not entitled to a pension because he had not resided in Canada for the requisite 10 years. Singh applied for judicial review.

The Federal Court dismissed the application.

Government Programs - Topic 1624

Old age pensions - Application - Eligibility - Residence requirements - Singh, a citizen of India, immigrated to Canada in 1997 - Over the years, Singh made frequent and extended visits to India - Since April 2007, he had only returned to India once for a five month period - In September 2007, Singh applied for an Old Age Security Pension - The Review Tribunal found that Singh was not entitled to a pension because he had not resided in Canada for the requisite 10 years - The Tribunal concluded that Singh had only been residing in Canada since April 2007, considering that he had spent the majority of his time in Canada since then, and he had developed some ties in Canada (e.g., had earned more income than in previous years) - Singh applied for judicial review, arguing that the Tribunal erred by treating the frequency of his trips to India as the single determinative factor - The Federal Court dismissed the application - The jurisprudence did not suggest that frequency of trips could not be determinative - Actual presence in Canada and the frequency of one's absences would be a crucial factor in most cases - In any event, the frequency of Singh's trips to India was not the only factor that led the Tribunal to find that Singh's residency began in 2007 - See paragraphs 32 to 34.

Government Programs - Topic 1624

Old age pensions - Application - Eligibility - Residence requirements - Singh, a citizen of India, immigrated to Canada in 1997 - Singh claimed that prior to coming to Canada, he gifted his portion of the ancestral home to his brother - Singh's current passport, which was granted in 2005 by the Republic of India, continued to list the ancestral home as his address - Singh applied for an Old Age Security Pension in September 2007 - The Review Tribunal found that Singh was not entitled to a pension because he had not resided in Canada for the requisite 10 years - The Tribunal found, inter alia, that Singh had maintained significant ties to India, and had offered no evidence to support his claim respecting the ancestral home - Singh applied for judicial review, arguing that the Tribunal erred in questioning the validity of the property transfer, given that the Minister had not previously disputed the transfer or contested Singh's credibility - The Federal Court dismissed the application - While Singh's credibility was not questioned, the fact remained that he had the burden of establishing residency in Canada - Singh did not establish that the question of title was a determinative factor in the Tribunal's decision - Even if the Tribunal had erred in questioning the validity of the transfer, it would not be sufficient on its own to render the decision unreasonable - See paragraphs 35 and 36.

Government Programs - Topic 1624

Old age pensions - Application - Eligibility - Residence requirements - Singh, a citizen of India, immigrated to Canada in 1997 - He applied for an Old Age Security Pension in September 2007 - Singh claimed that in 1991, he sold all of his assets and borrowed money so that he could send his son to Canada for education and employment purposes - Singh currently lived in his son's home and stated that he treated the investment in his son as his retirement plan - Since arriving in Canada, Singh worked at various times as a cleaner and for a security company - He provided his income tax returns since 1997 - The Review Tribunal found that Singh was not entitled to a pension because he had not resided in Canada for the requisite 10 years - The Tribunal found, inter alia, that Singh had not developed significant ties to Canada in the form of personal or real property (e.g., he had a small bank balance and his son took care of all expenses) - Singh applied for judicial review, arguing that it was unreasonable for the Tribunal to require him to demonstrate ties to Canada in the form of personal or real property, or to draw negative inferences from his small bank balances and dependence on his son in light of the testimony and evidence regarding his financial profile - The Federal Court dismissed the application - Given the consistency of Singh's statements that he had depleted his finances in order to support his son, it would have been unreasonable for the Tribunal to expect or imply that Singh should have had the financial means to obtain property in Canada - However, this is not what the Tribunal did - A careful reading of the Tribunal's reasons showed that it was merely working through a possible list of factors that could demonstrate ties to Canada - Even if the Tribunal had erred in this respect, the fact that Singh did not own property was not a critical factor in the Tribunal's decision and would not be sufficient to render the decision unreasonable - See paragraphs 37 and 38.

Government Programs - Topic 1624

Old age pensions - Application - Eligibility - Residence requirements - Singh, a citizen of India, immigrated to Canada in 1997 - Over the years, he made frequent and extended visits to India - From October 2003 to June 2005, Singh claimed that he returned to India to serve the community, help the poor and needy, visit religious places, perform volunteer work, and assist a religious society of which he was a member - Singh applied for an Old Age Security Pension in September 2007 - The Review Tribunal found that Singh was not entitled to a pension because he had not resided in Canada for the requisite 10 years - The Tribunal rejected Singh's claim that his visit to India in October 2003 should be deemed not to interrupt residence because he was there as a missionary (Old Age Security Act, ss. 21(4)(c) and 21(5)(b)(vi)) - The Tribunal did not accept that Singh's work in India qualified as "missionary" because he had not proven this claim with any documentation - Singh applied for judicial review - The Federal Court dismissed the application - In order for an absence to not interrupt residence, residence had to established in the first place - The facts did not support such a finding in Singh's case - Had he filed more evidence tending to show that he was on missionary assignments while in India, the decision could have been different - See paragraphs 39 and 40.

Cases Noticed:

Canada (Minister of Human Resources Development) v. Chhabu (2005), 280 F.T.R. 296; 2005 FC 1277, refd to. [para. 28].

Kombargi v. Canada (Minister of Social Development) (2006), 306 F.T.R. 202; 2006 FC 1511, refd to. [para. 28].

Singer v. Canada (Attorney General) (2010), 370 F.T.R. 121; 2010 FC 607, refd to. [para. 28].

De Bustamante v. Canada (Attorney General), [2008] F.T.R. Uned. 784; 2008 FC 1111, refd to. [para. 28].

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. 28].

Canada (Minister of Human Resources Development) v. Ding (2005), 268 F.T.R. 111; 2005 FC 76, refd to. [para. 29].

Counsel:

Mandeep Badyal, for the applicant;

Vanessa Luna, for the respondent.

Solicitors of Record:

Badyal Legal Solutions, Calgary, Alberta, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Calgary, Alberta, for the respondent.

This application for judicial review was heard at Calgary, Alberta, on January 10, 2013, before de Montigny, J., of the Federal Court, who delivered the following judgment and reasons for judgment on April 26, 2013.