People who disappear without a trace. It’s a staple of thrillers in fiction and on-screen. Now the Supreme Court of Canada is getting in on the, uh, fun. But the thrilling aspect for lawyers is how the high court might parse the difference between a presumption of life and a presumption of death.
We don’t often think about comparative law within our own country – the fact that we have two distinct legal systems, Anglo-Canadian common law and Franco-Canadian civil law. But now comes (or goes) poor George Rosme, formerly a professor at Carleton University in Ottawa.
To fund his retirement on a Quebec farm, Rosme had opted for Carleton’s life-only pension. It provided higher monthly benefits than pensions that continued payments to survivors after the pensioner died. Rosme had a survivor in a loose sense – his former life-partner and the “tutor” of his estate (his guardian or attorney), Lynne Threlfall. She lived in a separate dwelling from Rosme on the farm, and they remained close.
As he aged, Rosme suffered from Alzheimer’s disease, and one day he wandered off. Though he never returned during the next sixteen months, his bank account continued to collect pension payments by automatic deposit. When a newspaper published a story about his disappearance, featuring an interview with Threlfall, Carleton stopped payments and asked Threlfall to return the benefits remitted during Rosme’s absence. Threlfall objected, citing articles 84 and 85 of the Quebec Civil Code:
An absentee is a person who, while he had his domicile in Québec, ceased to appear there, without giving news of himself, and without it[s] being known whether he is still alive.
An absentee is presumed to be alive for seven years following his disappearance, unless proof of his death is made before then.
This “presumption of life” is distinct from the law prevailing in the rest of Canada regarding an “absentee.” In a circumstance like Threlfall c. Carleton University the rest of Canada generally operates under a presumption of death. That is, drawing on British common law, after seven years of absence without reasonable explanation, we assume the absentee has died.
The seven-year rule dates from at least the seventeenth century, although in this country it is often modified by statute. British Columbia’s Presumption of Death Act provides that where “(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named, (b) the applicant has no reason to believe that the person is living, and (c) reasonable grounds exist for supposing that the person is dead, the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.” Again, there is common law precedent for dropping the seven-year requirement, as where someone “was last seen on the deck of a ship just before she sank” (Jowitt’s Dictionary of English Law, Second Ed.).
True enough, even under the presumption of death, we assume that the absentee is alive until there is evidence to the contrary or seven years run. But a presumption of life imposes certain positive obligations. To comply with that presumption in the Civil Code, Carleton reinstated Rosme’s pension payments. Then, just short of six years following his disappearance, a neighbour’s dog found his body in the woods near his home.
The Quebec Registrar set his date of death as the day after he disappeared. Carleton had paid almost $500,000 to him during those years, and it wanted the money back from the estate or Threlfall. She argued that, insofar as the Code obliged Carleton to pay the benefits until there was compelling evidence of Rosme’s death or seven years had passed, the money belonged to the estate.
But the Quebec Court of Appeal affirmed a ruling at trial that the funds had to be repaid. The presumption of life was rebutted (overcome) by the finding of the body, such that the estate (and Threlfall as its beneficiary) would be unjustly enriched if allowed to retain it. In other words, the payments were conditional on Rosme’s having been alive each time they were made within seven years after his disappearance.
A complication is that in certain circumstances the Civil Code specifies that, where benefits are “annulled with retroactive effect,” the funds must be repaid (under the legal doctrine of restitution, which is similar under Canadian common and Quebec civil law). But it does not state this regarding “presumed alive” situations. The appeal court finesses that omission by saying the requirement of restitution “can be inferred from a consideration of the whole of the treatment of absentees in the Code.”
Certainly under Anglo-Canadian common law we would say there is a strong argument that the estate was unjustly enriched and therefore must make restitution: corpses, wherever they might be, are not entitled to life-only pension benefits. Having just granted Threlfall leave to appeal, the Supreme Court must now decide whether the restitution requirement can be inferred from other provisions of the Civil Code, or, more simply, whether by its very nature the presumption of life, like the presumption of death, is rebuttable with retroactive effect.
 See Wasylyk v. Wasylyk, 2012 ONSC 7029 (CanLII), paras. 9-10, citing Doe d. George v. Jessen, 102 Eng. Rep. 1217 (K.B., 1805) and Nepean v. Doe, 150 Eng. Rep. 1021, at 1028 (Exch. 1837). See also R. v. Vader, 2016 ABQB 505 (CanLII).
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