Executive Summary: Key Legal and Evidentiary Issues

• Applicants sought judicial review of the Social Security Tribunal's Appeal Division decision denying them full Old Age Security pensions

• Dispute centered on whether 14 years spent abroad working for Canadian companies could count toward Canadian residency

• Appeal Division found Mr. Cardenas did not maintain a "permanent place of abode" or "self-contained domestic establishment" in Canada during his time abroad

• Subsections 21(4) and 21(5) of the Old Age Security Regulations deem time working abroad for Canadian companies not to interrupt residence if the person returned within six months and maintained a permanent place of abode or self-contained domestic establishment in Canada

• Court applied the reasonableness standard from Vavilov, declining to re-weigh evidence before the Appeal Division

• Application dismissed with no costs awarded as the respondent did not seek them

Background and residency history

Mr. Antonio J. Cardenas and his wife, Mrs. Gloria C. Cardenas, were each denied a full pension under the Old Age Security Act. The Minister of Employment and Social Development awarded them a partial pension based on the number of years during which they resided in Canada. Mr. Cardenas resided in Canada from 1974 until September 1996. However, from September 1996 until October 2010—a period of 14 years—Mr. Cardenas lived abroad and worked for Canadian companies. During that period, he spent only about two and a half months in Canada. Mrs. Cardenas was added as a party and her situation was almost the same as her husband's.

The appeal division's findings on residency

The Social Security Tribunal of Canada's Appeal Division agreed with the Minister. The Appeal Division determined that Mr. Cardenas did not reside in Canada during this period within the meaning of paragraph 21(1)(a) of the Old Age Security Regulations because he did not make his home and did not ordinarily live in any part of Canada during these years. The Appeal Division further determined that Mr. Cardenas' absence from Canada could not count as a period of residence under subsections 21(4) and 21(5) of the Regulations. These provisions deem time spent working abroad for Canadian companies 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 they intended to return" or a "self-contained domestic establishment" in Canada.

The applicants' arguments on appeal

Mr. and Mrs. Cardenas disagreed with the Appeal Division's findings and sought judicial review. They insisted that they maintained a self-contained domestic establishment in Canada, and that the Appeal Division failed to consider that they came back to Canada for a few days in February 2009, within six months after Mr. Cardenas' work assignment in Brazil. Mr. Cardenas appeared on his own behalf for the applicants.

The standard of review and court's analysis

The Federal Court of Appeal stated that in a judicial review application, it is not the court's role to re-weigh the evidence before the Appeal Division. The court's role is to determine whether the Appeal Division's decision was reasonable. Following Canada (Minister of Citizenship and Immigration) v. Vavilov, the court must be satisfied that the decision is transparent, intelligible and justified in relation to the relevant factual and legal constraints bearing upon it. The court found that the Appeal Division concluded Mr. Cardenas did not maintain a "permanent place of abode" or "self-contained domestic establishment" after carefully reviewing the evidence and considering its previous decision on the meaning of these terms. Regarding Mr. Cardenas' return to Canada in February 2009, the Appeal Division did consider it. However, because this return happened after Mr. Cardenas had ceased to reside in Canada, and because he did not have a "permanent place of abode" or maintain a "self-contained domestic establishment" during the relevant period, he could not benefit from subsections 21(4) and 21(5) of the Regulations.

Ruling and outcome

The Federal Court of Appeal dismissed the application for judicial review. Mr. and Mrs. Cardenas did not point to any element that convinced the court that the Appeal Division's conclusions were unreasonable. The respondent did not seek costs, and none were awarded. No specific monetary amount was indicated in the decision.