Ottawa, Ontario, October 26, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MR. LEONHARD STACHOWSKI
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Stachowski, a resident of Canada since July, 1991, applied for an Old Age Security ("OAS") pension under the Old Age Security Act, R.S.C. 1985, c. O-8 (the "OAS Act"). The Minister of Human Resources Development Canada (now the Minister of Social Development) determined that Mr. Stachowski was entitled to an OAS pension of 5/40ths of a full OAS pension, limiting his entitlement to his residency in Canada between 1991 and 1996. Believing that he is entitled to a full OAS pension, based on "deemed residency" for the period between 1968 and 1991, Mr. Stachowski appealed that decision to the Canada Pension Plan - Old Age Security Review Tribunal (the "Review Tribunal"). The Review Tribunal, in a decision dated October 4, 2004, dismissed his appeal. Mr. Stachowski seeks judicial review of the decision of the Review Tribunal.
Issues
[2] The overarching issue in this application is whether the Review Tribunal erred in concluding that the period between 1968 and 1991 did not count towards the calculation of Mr. Stachowski's OAS pension. The response to this question requires that I address the following:
1. In order to obtain qualifying deemed residence for purposes of calculating OAS pension benefits, do the OAS Act and the Old Age Security Regulations, C.R.C. 1978, c. 1246, as amended (the "Regulations") require that the spouse of a person abroad on missionary service have an initial period of actual residence in Canada? Stated in other words directly applicable to Mr. Stachowski, is the period of time from 1968, when Mr. Stachowski married a person deemed to be resident in Canada, to 1991, when he became a landed immigrant in Canada, "residence" for purposes of calculating Mr. Stachowski's OAS pension, notwithstanding that he had no period of initial residence in Canada before 1968?
- Is Mr. Stachowski deemed not to be resident in Canada for the period from 1968 to 1988 because of his contributions to the German mandatory pension scheme?
Facts
[3] The material facts are not disputed. In summary form, they are as follows:
- Mr. Stachowski is a German citizen who was born in Poland on October 6, 1931.
- On July 25, 1968, he was married, in Germany, to Erika Martha Sommerfeld.
- Ms. Stachowski lived in Canada, as a legal resident, from January, 1953 to 1961. The Review Tribunal accepted (and this was not disputed by the Respondent in this application) that Ms. Stachowski's period of interruption in residence from 1961 until 1989, during which time she was engaged in studies followed by missionary work, is deemed as residency for OAS calculation purposes, pursuant to s. 21(5)(b)(vi) of the OAS Regulations. (Because of her long absence from Canada, however, Ms. Stachowski was required to reapply for residence in Canada; this issue is not material to this application.)
- Mr. Stachowski and his wife worked in missionary service, in a number of countries, until 1988 (Mr. Stachowski) and 1989 (Ms. Stachowksi).
- Mr. Stachowski contributed to the German Social Security System from 1948 to 1961 and from 1967 to 1988 and began receiving a German Pension on June 23, 1995.
- Mr. Stachowski was admitted to Canada as a landed immigrant in July, 1991.
- Mr. Stachowski applied for OAS pension on June 21, 2001.
Mr. Stachowski's Calculation
[4] Mr. Stachowski has argued to the Minister, the Review Tribunal and this Court that he is entitled to a full monthly OAS pension commencing November, 1996. In his revised Notice of Appeal to the Review Tribunal, he described his entitlement as follows:
(a) attained sixty-five years of age prior to that date,
(b) submitted my application for German benefits on June 23, 1995,
(c) On the 1st day of January, 1977, I was considered to be resident and present in Canada
by virtue of subsection 21(3) of the Regulations,
(d) I resided in Canada for 8 years, 11 months and 9 days prior to the day my application
for a pension was approved and I was considered to be present in Canada by virtue of
subsection 21(3) of the Regulations for more that three years and sixty-six days prior to
ten years immediately preceding the day on which my application was approved, and
(e) I resided in Canada for more than one year immediately preceding the day on which my
application for a pension was approved.
[5] But for two questions, Mr. Stachowski's interpretation of his entitlement would be correct. First, under (c), was he "considered to be a resident in Canada by virtue of subsection 21(3) of the Regulations"? Secondly, does his payment into the German Social Security System between 1948 and 1988 impact on the calculation? These, of course, are the issues that were before the Review Tribunal and which are before me in this application.
Analysis
Standard of Review
[6] The questions raised by this application require the interpretation of relevant provisions of the OAS Act and Regulations. To the extent that these are questions of pure law and do not require an application of the facts to that law, the parties agree that the applicable standard of review is correctness.
Principles of Statutory Interpretation
[7] Since issues of statutory interpretation are at the heart of this dispute, it is useful to begin with an overview of the principles related to such matters. On a number of occasions, the Supreme Court of Canada has given guidance on how to approach a problem of statutory interpretation. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21, Mr. Justice Iacobucci, speaking for the unanimous Court, endorsed the statement of Elmer Driedger in Driedger on the Construction of Statutes, 2nd ed. (Toronto: Butterworths Canada Ltd., 1983) that:
Today there is only one principle or approach, namely, the words of an Act are to be read 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.
[8] Accordingly, the task of the Court in interpreting legislation cannot be restricted to analysing the plain meaning of the provision in question. Further, while the statutory words must be given a "fair, large and liberal construction and interpretation as best ensures the attainment of its objectives" (Interpretation Act, R.S.C. 1985, c. I-21, s. 12), attention must be directed to the scheme and objective of the Act, the intention of the legislature, and the context of the words in issue (Rizzo, supra, at para. 23). The Court in Rizzo, supra, at para. 31, approved of the use of legislative history as a tool for determining the intention of the legislature. And, regardless of how clear and unambiguous the words of a provision may be, the further analysis must be carried out. Indeed, a failure to determine the intention of the legislature in enacting a particular provision has been found to be an error (Rizzo,supra, at paras. 23, 31). It follows that, where there are conflicting but not unreasonable interpretations available, the contextual framework of the legislation becomes even more important.
Issue #1: Was Mr. Stachowski deemed resident of Canadafrom the date of his marriage in 1968?
Review Tribunal Decision
[9] Mr. Stachowski's submissions to the Review Tribunal were, as before me, based on two arguments. The first of these is that s. 21(3) of the OAS Regulations applies to his situation on the basis that he returned to Canada with his wife within six months of terminating his missionary service abroad. In Mr. Stachowski's submission, he became deemed to be resident in Canada for OAS purposes upon his marriage. He argues that, if s. 21(3) requires a non-resident to have been resident in Canada prior to completing missionary service, the provision would be "virtually inoperative".
[10] The Review Tribunal did not accept Mr. Stachowski's submissions. Its reasons were as follows:
The overriding entitlement of the Old Age Security regime is residence in Canada. The provisions of Section 21(4) of the Regulations deems certain intervals or absence from Canada to be continued residence even though the person is not actually physically in Canada. Accordingly section 21(4) of the Regulations continues to import a requirement that the person initially be in Canada and then excludes "any interval of absence from Canada", not to have "interrupted that person's residence or presence in Canada". Accordingly the Appellant's submission that the provision would be rendered nugatory, is not accepted by the panel, as there would clearly be situations where a couple leaves Canada to serve outside Canada but only one acts as a missionary. The non-missionary spouse would but for the provision of section 21(5)(c) of the Regulations lose qualifying residency for the purposes of entitlement to benefits under the Act. A spouse of the missionary would continue to earn eligibility for Old Age Security by virtue of the deemed residence provided in Section 21(5)(c) of the Regulations. In order to obtain qualifying deemed residence the spouse of the missionary must have an initial period of actual residence in Canada as required by the Act and Regulations in order to trigger the benefit of section 21(5)(c). [emphasis added]
Statutory Scheme
[11] Section 3 of the OAS Act provides for the payment of a full or partial monthly pension to persons 65 years or older. The full text of this and other statutory provisions relevant to this application are attached as Appendix A to these reasons.
[12] Residency in Canada is the key to the OAS pension. Entitlement to and the amount of the pension depends on the number of years a claimant has resided in Canada after reaching the age of 18. Normally, a full pension is paid after 40 years of residence in Canada (or deemed residence, as discussed later in these reasons). However, under the special circumstances described in s. 3(1)(b) of the OAS Act, a claimant may still be eligible for a full pension with fewer than 40 years of residence. This provision is referred to as the "3-for-1 Rule".
[13] The OAS Act also authorizes the payment of a partial monthly pension for certain persons who do not qualify for a full monthly pension. Such partial payments are set out in s. 3(2) and (3) of the OAS Act. The amount of a partial pension is determined by dividing the number of years of Canadian residence by 40, with the aggregate number of years rounded down to a whole number of years.
[14] The terms "resided" and "residence in Canada" are not defined in the Act but are described in section 21 of the OAS Regulations. Certain time abroad may be deemed to be residence in Canada for purposes of the calculation of eligibility for OAS pension. Of particular relevance to this application, a person whose presence in Canada is interrupted to serve as a missionary is deemed resident in Canada during the period of the interruption (s. 21(5)(b)(vi)).
[15] The OAS Regulations also address the situation of spouses or partners of persons whose interruptions satisfy the deeming provisions. Subsection 21(3) of OAS Regulation appears to apply in situations where the marriage takes place after the person in missionary service is already abroad and operates to deem the spouse or partner resident from the date of the marriage. Subsection 21(5) appears to apply when the partner accompanies the person in missionary service throughout his or her service and operates to deem residence for the partner from the date of departure from Canada.
Review Tribunal's reference to s. 21(5) of the OAS Regulations
[16] Various provisions of the OAS Regulations apply to permit persons outside of Canada to be deemed resident for purposes of OAS pension calculations. It was not disputed that s. 21(4) and 21(5)(b)(vi) apply to Ms. Stachowski to deem her time served abroad in missionary service as residence for OAS calculation purposes.
[17] Both s. 21(3) and s. 21(5) of the OAS Regulations apply to situations where a person is out of Canada with a partner who would be deemed resident by virtue of the OAS Regulations. The obvious intent of these provisions is to allow couples to live abroad together without negative impact on OAS eligibility for the partner who does not qualify under one of the interruption provisions in s. 21(4). The difference between s. 21(3) and (5) appears to be one of timing. If the persons were partners who left Canada together, s. 21(5)(c) applies to deem the time abroad for the accompanying partner as residence. However, if the two persons became partners while the missionary or soldier, for example, was already abroad, s. 21(3) applies.
[18] The Review Tribunal decision refers only to s. 21(5), a provision that may not be applicable since Mr. Stachowski did not accompany his wife when she left Canada. No reference whatsoever was made to s. 21(3) in the decision, in spite of the fact that Mr. Stachowski's appeal to the tribunal was very clear that he was relying on s. 21(3). Even the submissions of the Minister to the Review Tribunal referred only to s. 21(3).
[19] It appears that only s. 21(3) could possibly be applicable to Mr. Stachowski. This is because, at the time of his marriage, Mr. Stachowski was not a Canadian resident and was outside Canada. The Respondent acknowledges that the Review Tribunal referred to the wrong provision in its decision but submits that the error is immaterial given that the Review Tribunal clearly put its mind to the correct test for deemed residency. Specifically, the Review Tribunal asked itself whether the OAS Regulations required Mr. Stachowski to have a prior attachment to Canada before the deeming provisions of the Regulations applied to him.
[20] Is it possible that the Review Tribunal's error in identifying s. 21(5) rather than 21(3) was merely an administrative oversight? As noted by the Supreme Court of Canada in British Columbia(Milk Board)v. Grisnich, [1995] 2 S.C.R. 895 at paragraph 20, "Courts are primarily concerned with whether a statutory power exists, not with whether the delegate knew how to locate it". However, this is not simply a case where the tribunal's analysis could apply if one were to replace s. 21(5) with s. 21(3) where it appears in the decision. The decision of the Review Tribunal turns on the interpretation of the words of the relevant provisions of the Regulations. In its reasons, the Review Tribunal finds support for its decision in the language of s. 21(4) which includes the words "any interval of absence" and that of s. 21(5) which refers to "The absences from Canada referred to in paragraph (4)(c) of a person residing in Canada". In contrast, s. 21(3) of the Regulations sits outside the framework of s. 21(4) and (5). This provision does not refer to any "interval of absence"; it is fundamentally different from s. 21(5). The conclusion that I must draw is that the Review Tribunal misapprehended the evidence and directed its mind to the wrong question. Thus, I do not agree with the Respondent's submission that the Review Tribunal put its mind to the correct test. This is not a case contemplated by the Supreme Court of Canada in Grisnich.
[21] The Review Tribunal was obliged to consider and interpret the correct provision of its home legislation. It failed to do so. On this basis and regardless of the applicable standard of review, the application should succeed and the matter be referred back to the Review Tribunal for reconsideration of this question. This is not to say that the Review Tribunal could not conclude that s. 21(3) requires an initial period of actual residence in Canada. It may be open to the Review Tribunal, after considering the proper interpretation of s. 21(3) on sound principles of statutory interpretation, to reach the same conclusion.
Issue #2: Was Mr. Stachowski precluded from being deemed resident in Canadabecause of his participation in the German mandatory pension scheme?
[22] Mr. Stachoski's second ground of appeal to the Review Tribunal was his position that s. 21(5.3) of the Regulations was not applicable to him. That is, Mr. Stachowski does not agree that the periods of time that he participated in the German Social Benefit Plan should be excluded from the operation of s. 21(5).
Review Tribunal Decision
[23] On this issue, the Review concluded that the Minister "correctly applied the provisions of Section 21(5.3) of the Regulations in that the periods of time the Appellant participated in the German Social Benefit Plan are excluded from the operation of Section 21(5)." The reasons for this result are as follows:
Again, the overall concept of the legislation requires residency and Section 21(4) exempts certain periods of absence to continue the person's qualifying residency. The Appellant submitted that Section 21(5.3) is ambiguous and that it does not clearly override or set a priority with respect to the applications of Section 21(4) and (5). We disagree in that the Sections have to be read in their entirety and notice taken of the curative aspects of Section 21(5.3) following the decision in Barnes. Accordingly Section 21(5.3) which is specific is to be read as overriding the general provisions which come before it, in that it specifically excludes a certain class of persons from the operations of Sections 21(4) and (5). Any other reading would render the operation of the Section nugatory and this is not in keeping with the purpose of the legislation. It is clear that the purpose of the legislation is to ensure that persons are not disadvantaged by the fact that they have only partial periods of residence in two countries and conversely to ensure that persons are not entitled to double benefits as a result of having residences in two countries. The Appellant stated that the German plan is a contributory plan and therefore only akin to the Canada Pension Plan legislation and should not be considered in conjunction with the Old Age Security legislation. With the greatest of respect, we disagree that it clearly is the policy of both Canada Pension Plan and Old Age Security Act to integrate the plans under both pieces of Canadian legislation with the single regimes of contributory legislation and other jurisdictions including particularly Germany in this case.
[24] Unlike the situation with the first issue in this application, the Review Tribunal appears to have understood and addressed the correct questions. I must determine whether the tribunal erred in concluding that the periods of time Mr. Stachowski contributed to the German pension plan are excluded from the calculation of eligibility for OAS benefits.
Statutory Scheme
[25] For purposes of this issue, there are four directly relevant legislative provisions. The full text of the relevant legislation is set out in Appendix A.
- The starting point is s. 40 of the OAS Act. This provision applies where, under the law of a country other than Canada, provision is made for the payment of old age, or other benefits. In these circumstances, the Minister may enter into an agreement with the another country for the making of reciprocal arrangements relating to the administration or operation of the foreign law and the OAS Act. Section 40 also specifically sets out that any such agreement may provide for the increase or decrease in the amount of benefits payable under the foreign law or the OAS Act.
- Section 41 provides that, from the day it comes into force, any such agreement "has the force of law in Canada" so long as the agreement remains in force.
- By Agreement dated November 14, 1985 (in force April 1, 1988), Canada entered into an agreement entitled "SOCIAL SECURITY, Agreement between CANADA and the FEDERAL REPUBLIC OF GERMANY" (the "Canada/Germany Agreement"). Of particular relevance to the question in this application, Article 11(b) provides that, for the purposes of the OAS Act, if a person is subject to the German legislation regarding mandatory pension coverage during any period of residence in Canada, that period shall not be considered as a period of residence in Canada.
- The OAS Regulations also address this issue providing in s. 21(5.3) that, where, "by virtue of an agreement entered into under subsection 40(1)", a person is subject to the legislation of a foreign country, the person will "be deemed not to be resident in Canada".
[26] The full text of the relevant provisions is set out in Appendix A.
Mr. Stachowski's Situation
[27] In spite of able representations by counsel for Mr. Stachowski, I can see no other possible interpretation of these provisions than that adopted by the Review Tribunal.
[28] For purposes of this question, I have assumed, without deciding, that the first issue is resolved in favour of Mr. Stachowski. That is, the period of time he was abroad, from 1968, when he married, to 1991, when he was landed in Canada, was "residence and presence in Canada" as contemplated by the OAS Act and the OAS Regulations.
[29] Between 1968 and 1988, Mr. Stachowski contributed to the German Social Benefit Plan. I accept (and there is no evidence to the contrary) that this plan is mandatory.
[30] Mr. Stachowski argues that he was subject to the German legislation by virtue of his German citizenship and residence in Germany, and not by virtue of the Canada/Germany Agreement and that s. 21(5.3) of the Regulations only applies where a person qualifies for benefits in a country which they would not otherwise have qualified for but for the Canada/Germany Agreement. Mr. Stachowski submits that the provision cannot operate where a person is entitled to benefits independent of the Canada/Germany Agreement. In this case, he argues that he is eligible for benefits pursuant to s. 21(3) of the Regulations.
[31] In essence, Mr. Stachowski argues that, since he has been deemed resident pursuant to s. 21(3) of the Regulations, he cannot be "undeemed" by another provision of the Regulations. I do not agree with this interpretation.
[32] The principal difficulty with the interpretation urged on me by Mr. Stachowski is that it ignores all other legislative provisions where this issue is addressed. As noted above, the words of a statute are to be read in their entire context. Here, that context involves not only the words of s. 21(5.3) of the Regulations, but the words of the enabling statute and, in this case, the Canada/Germany Agreement.
[33] Guidance on how to undertake this task was provided by the Federal Court of Appeal in Ontario Hydro v. Canada (C.A.), [1997] 3 F.C. 565. In that case, the Court was considering the interpretation of certain provisions of the National Energy Board Cost Recovery Regulations, SOR/91-7. As noted by Justice Décary, at paragraph 11:
Normally, in cases such as this one, the Court will examine the provisions of the enabling statute first in order to ascertain precisely what it is that Parliament has allowed to be regulated. It will then turn to the regulation. There being a presumption that the regulation has been passed in accordance with the provisions of the enabling statute and that there is coherence between the terms used in the statute and those used in the regulation, the Court will endeavour to interpret the regulation in such a way as to keep it within the confines permitted by the enabling statute. Should that prove impossible, the regulation or part of it will be declared ultra vires. Reconciliation is therefore the rule, and it will be achieved in most cases. [emphasis added]
[34] In the situation before me, I begin with the provisions of the OAS Act. The authority of the Minister to enter into the Canada/Germany Agreement arises from the operation of s. 40. Section 41 gives the Governor in Council the ability, by order, to declare the Agreement in force. This was done (Proclamation Declaring the Agreement on Social Security Between Canada and the Federal Republic of Germany in Force April 1, 1988, SI/88-127, C. Gaz. 1988.II). With the Proclamation, the Canada/Germany Agreement, including Article 11(b), has the force of law in Canada (OAS Act, s. 41(1)). The power of the Governor in Council to make regulations for the purpose of giving effect to the Agreement is set out in s. 40(2). This was done as evidenced by s. 21(5.3) of the Regulations. As taught by OntarioHydro, s. 21(5.3) must be interpreted such that there is "coherence" between this provision and Article 11(b) of the Canada/Germany Agreement.
[35] Article 11(b) is, in my view, plainly applicable to Mr. Stachowski. Until 1988, Mr. Stachowski was subject to German legislation regarding mandatory pension coverage, as contemplated by Article 11(b) of the Canada/Germany Agreement. Accordingly, the period from 1968 to 1988 "shall not be considered as a period of residence in Canada".
[36] The interpretation promoted by Mr. Stachowski causes an incongruous collision between Article 11(b) of the Agreement and s. 21(5.3) of the Regulations. If I apply the logic of Mr. Stachowski's submissions, I am obliged to "read down" Article 11(b) such that it does not apply if the person's residency is "deemed residency" and not actual residency. Those words are not in Article 11(b); they should not be read into s. 21(5.3) of the Regulations. It does not matter whether Mr. Stachowski's residence is established by physical presence (s. 21(1)) or by the operation of other provisions in s. 21 of the OAS Regulations. In either case, Article 11(b) applies such that the period from 1968 to 1988 cannot be considered to be residence.
[37] Section 21 of the Regulations contains a number of different deeming provisions. To the extent there appears to be a conflict between any two of them, the principles of statutory interpretation teach us that we should look to the whole legislative scheme for help. In this case, assuming that s. 21(3) deems Mr. Stachowski to be resident, s. 21(5.3), in the submission of Mr. Stachowski, appears to say the opposite. If so, the result would be a conflict between two provisions of the Regulations. However, I am of the opinion that these provisions can be read harmoniously, in a way that achieves the objectives of the Act and the Agreement, which as I discuss below is partly to avoid the conferment of double benefits.
[38] As noted by Mr. Stachowski, he was subject to the German legislation by virtue of his German citizenship and residence in Germany, and not by virtue of the Canada/Germany Agreement. The words "by virtue of an agreement" in s. 21(5.3) appear to be misplaced. It is nonsensical to describe a person as being subject to the legislation of a country by virtue of a bi-lateral agreement. Obviously, Mr. Stachowski is subject to the German legislation by virtue of his citizenship and residency over the years pursuant to the applicable legislation of that country. But this odd drafting of the Regulation does not, in my view, mean that Mr. Stachowski's interpretation should be adopted; rather, it makes it even more important that the context of the entire legislative scheme be examined.
[39] I turn to the purpose of these statutory provisions. The arrangements made by Canada and Germany are, in part, designed to avoid the situation where a senior citizen claims benefits under both Canadian and German laws. If I interpret the Regulations in the manner suggested by Mr. Stachowski, he will receive pension benefits from both countries related to the period of 1968 to 1988. This cannot be the intended result of the legislative scheme. I have reviewed the House of Commons debates concerning amendments to the Act which brought in s. 40 and the reciprocal OAS agreement scheme. During one such debate, it was expressed by the Hon. Marc Lalonde, Minister of National Health and Welfare that:
[t]he central purpose of reciprocal international agreements is to protect migrants who spend portions of their working lives in more than one country. Such people cannot always meet the minimum eligibility requirements of the mandatory social security programs to which they have contributed.
[...]
International agreement also provide for the removal of duplicate coverage [House of Commons Debates, (February 9, 1977) at 2835 (Hon. Marc Lalonde)].
The Hon. Mr. Lincoln Alexander also stated that
Another point is that by simple agreement we will remove duplicate social security coverage.
[...]
Let me emphasize that in the absence of reciprocal agreement immigrants will continue to be deprived of benefits earned in their former countries of residence [Ibid. at 2842 (Hon. Lincoln M. Alexander)].
Upon my reading of the debates, and particularly in light of the portions excerpted above, it is my understanding that the reciprocal OAS agreement scheme was implemented to ensure that foreign nationals who immigrate to Canada, often late in their lives, receive some form of adequate old age security, rather than be deprived of security related to a period of time during which they may have paid into a foreign OAS system. I also comprehend that this system was intended to prevent "duplicate social security coverage."
[40] Sections 21(3) and 21(5.3) of the Regulations, in conjunction with Article (11)(b) of the Agreement, work together to achieve both purposes outlined in the House of Commons debates. If Article 11(b) and s. 21(5.3) are read to apply to all residents, including "deemed residents" such as Mr. Stachowski, then duplicate coverage is avoided. On the other hand, in the absence of an OAS agreement between Canada and the former country of residence of the claimant, s. 21(5.3) would not activate and that claimant would be entitled to Canadian OAS benefits calculated from over a longer period. In both situations, a senior citizen receives benefits, relating to a given period of residence, from at least one country and only one country.
[41] It could be said that s. 21(5.3) of the Regulations and Article 11(b) of the Agreement appear redundant, and in light of the maxim of statutory interpretation that Parliament is presumed not to be redundant, the interpretation proffered above runs afoul of that rule. To that argument, I say that s. 21(5.3) is only redundant in the specific context of the Canada/Germany Agreement. There may very well be OAS agreements which do not include a provision like Article 11(b), which would then be "caught" by s. 21(5.3) to block duplicate benefits. The drafter of s. 21(5.3) could not have anticipated the content of every international agreement that Canada would later enter into with foreign countries, and s. 21(5.3) acts as a safety net in that regard.
[42] In conclusion, the interpretation that best fits the context as a whole is that the period during which Mr. Stachowski paid into the mandatory German Social Benefit Plan cannot be considered residency for purposes of calculating his OAS benefits entitlement. This is so whether Mr. Stachowski is deemed resident pursuant to s. 21(3) or is physically present in Canada.
[43] In summary, Mr. Stachowski was subject to the German legislation regarding mandatory pension coverage during the period of time between 1968 and 1988 when he alleges that he was resident in Canada pursuant to the provisions of the Regulations. Accordingly, pursuant to Article 11 of the Canada/Germany Agreement and s. 21(5.3) of the Regulations, this period of time cannot be considered to be a period of residency for OAS purposes. The Review Tribunal was correct in its interpretation of the legislative scheme and its conclusion on this issue.
Conclusion
[44] In conclusion, the Review Tribunal erred due to its failure to consider the applicability of s. 21(3) of the Regulations to Mr. Stachowski's situation. However, the Review Tribunal correctly determined that Mr. Stachowski is deemed not to be resident in Canada for the period from 1968 to 1988 because of his contributions to the German mandatory pension scheme.
[45] Accordingly, the matter should be remitted to a differently constituted panel of the Review Tribunal. Because Mr. Stachowski was not successful on the second issue, the Review Tribunal need only address the question of the correct interpretation of s. 21(3) of the Regulations and its applicability to the calculation of Mr. Stachowski's OAS pension benefits. In effect, the only period of time that needs to be considered by the Review Tribunal is the period from when Mr. Stachowski's contributions to the German pension scheme ceased in 1988 to the date when he landed in Canada in 1991.
[46] As Mr. Stachowski's success was only partial, in my discretion, there will be no award of costs.
ORDER
This court orders that:
1. The Decision of the Review Tribunal that "in order to obtain qualifying deemed residence the spouse of the missionary must have an initial period of actual residence in Canada as required by the Act and Regulations in order to trigger the benefit of section 21(5)(c)" is quashed and this matter remitted to a different panel of the Review Tribunal for reconsideration.
2. The application for judicial review is dismissed with respect to the others matters before the Review Tribunal.
3. There is no order as to costs.
"Judith A. Snider"
Judge
APPENDIX "A"
to the
Reasons for Order and Order dated October 26, 2005
In
MR. LEONHARD STACHOWSKI
and
THE ATTORNEY GENERAL OF CANADA
T-1944-04
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1944-04
STYLE OF CAUSE: MR. LEONHARD STACHOWSKI v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 7, 2005
AND ORDER: Snider J.
APPEARANCES:
Ms. Teresa A. Douma FOR THE APPLICANT
Ms. Laura Dalloo FOR THE RESPONDENT
SOLICITORS OF RECORD:
Canadian Council of Christian Charities FOR THE APPLICANT
Elmira, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada