Case information

Administrative law — Boards and tribunals — Social Security Tribunal of Canada — Old age security pension — Guaranteed income supplement benefits — Judicial review — Whether Canada has positive obligation to assist incapable Canadian of full age who was subject to trafficking in persons after being kidnapped from Canada despite that person’s physical absence from Canada — Whether this assistance can be in form of continuation of collection of Old Age Security Act, R.S.C. 1985, c. O 9 — Whether that person will continue to be presumed to be in Canada for purposes of that statute’s requirements for physical presence in country.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 2004, Mr. Bigdeli Azari’s application for old age security (“OAS”) pension and guaranteed income supplement (“GIS”) benefits was allowed in part because he did not have the years of residency required in Canada for a full pension. In 2007, Mr. Bigdeli Azari’s son, who is the curator to the property and person of his father and who also represents the applicant, the estate of Mr. Bigdeli Azari (“estate”), informed the Minister of Employment and Social Development that Mr. Bigdeli Azari had left the country, presumably by kidnapping. The Minister therefore suspended Mr. Bigdeli Azari’s GIS and OAS benefits from April 2008, that is, six months after his departure from Canada. In 2016, the curator contacted the Minister to claim payment of all of Mr. Bigdeli Azari’s OAS and GIS benefits, from the date on which they were stopped, on the basis that his father should have been considered a Canadian resident even if he was missing from Canada following his kidnapping. The Minister denied that request.

Finally, the curator informed the Minister that Mr. Bigdeli Azari had returned to Canada on August 11, 2016, and again requested payment of all of the OAS and GIS benefits as well as the retroactive payment of them from the date when they were stopped. However, on August 18, 2016, the Minister received notification that Mr. Bigdeli Azari had died on August 14, 2016. The curator then applied for reconsideration of the Minister’s decision authorizing only the payment of the OAS pension for the month of return to Canada, that is, August 2016.

After the Minister upheld his initial decision, the estate of Mr. Bigdeli Azari appealed to the General Division of the Social Security Tribunal. The General Division dismissed the appeal in March 2021, and that decision was upheld by the Appeal Division of the same Tribunal in October 2021. The estate then filed an application for judicial review of the Appeal Division’s decision, which was unanimously dismissed by the Federal Court of Appeal.