A recent Supreme Court of Canada (the “SCC”) decision has greatly impacted the rights of an absentee and their presumption of life in Quebec. In a 6:3 majority, the SCC held that the rights under article 85 of the Civil Code of Quebec (the “CCQ”), giving an absentee full juridical personality for a period of 7 years or until the presumption of life was rebutted within those years, were retroactively extinguished from the true date of death. This means that debts paid during the presumption of life period can be subject to repayment upon proof of death, from the date of actual death. While this carries great significance for future tutors, who are responsible for administering the property of the absentee, in Quebec, it would appear that the same will not be said for administrators of an absentee’s estate in Ontario.
Threlfall v. Carleton University, 2019 SCC 50.
Mr. Roseme, a former professor at Carleton University (“Carleton”) , had a pension plan, paying monthly payments until his death. On September 10, 2007 Mr. Roseme, who was in the early stages of Alzheimer’s, disappeared on a walk. Ms. Threlfall, his defacto spouse, brought a motion and was appointed as a tutor. In this role, she continued to collect pension payments under article 85 of the CCQ. Mr. Roseme’s remains were found almost 6 years later and his death was certified by the Registrar of Civil Status as of September 11, 2007, 1 day after his disappearance. Carleton sued for reimbursement of $497,332.64, the amount paid during Mr. Roseme’s disappearance.
The main issues in the appeal were whether there is a retroactive effect once date of death was determined to have occurred during the presumption of life period provided for by art. 85 of the CCQ and as a corollary to that, whether the “receipt of payment not due” remedy allows for the restitution of payments made to an absentee who is later found to have died within that period.
The SCC decided that where the presumption of life has been rebutted within the seven year period there was a retroactive effect on monies paid during the presumption of life period.
The SCC examined the plain language of the article finding that it created a simple presumption but was not a permanent source of rights. The presumption creates a legal fiction and upon proof of death, reality can no longer be ignored and replaces the legal fiction that the absentee is and was alive.
The Court also examined the purpose of the section and whether retroactivity was consistent with this purpose, finding that the purpose of the section is to create stability, certainty and to protect the absentee’s rights so that, if they were to return, they could continue their life with minimal issue. The Court found that a prospective approach overshoots this purpose because it would transform the presumption into a source of substantive rights to generate wealth for the absentee’s succession.
The SCC then examined articles 1491 and 1492 of the CCQ and determined that Carleton was entitled to restitution. The majority acknowledged that the debt existed at a certain point, but that the basis for the debt had fallen away once it was determined that Mr. Roseme was deceased. The majority emphasized that the debt is not a nullity as it was valid at one point but the fact that the debt existed “at the time of payment” by Carleton was not fatal to its claim for payment concluding that the payments had been made in error.
Cote and Brown JJ. with Moldaver J. concurring dissented, believing that Carleton was not entitled to restitution and the relevant articles should be applied with a prospective approach. They could find no reason for restitution of payments that were validly due at the time they were performed. Further, the minority found that the majority opinion had the negative effect of paralyzing future tutors who can no longer safely use incoming revenue for fear that it may, in the future, be recalled.
It appears that the outcome in Ontario would have been different. In Ontario, the Absentees Act and the Declaration of Death Act, govern situations similar to Mr. Roseme’s. As in Quebec, an application can be made for a declaration that person is an absentee if sufficient inquiry has been made. An administrator then takes custody and management of the property of the absentee. This is similar to the intention found in Quebec to protect the rights and obligations of the absentee.
However, the Ontario legislation, at section 3 specifically provides that revocation of an absentee designation will not be applied retroactively. A revocation will supersede, vacate and set aside an absentee order for “all purposes except as to acts or things done in respect of the estate of the absentee while such order was in force.” [emphasis added]
This certainly seems to suggest that if Mr. Roseme had been in Ontario, the payments made while the absentee designation was in effect would not have had to have been repaid.
The author would like to thank Alexander MacMillan, Student-at-Law, for his assistance with this article.