Focus On

ABSENTEES - Absence and disappearance

Thursday, October 31, 2019 @ 6:06 PM  


Lexis Advance® Quicklaw®
Appeal by the liquidator of Roseme’s estate from a decision of the Quebec Court of Appeal, affirming the trial decision which ordered restitution of pension payments made by Roseme’s former employer, Carleton University (Carleton). Roseme disappeared in 2007. Because his death could not be confirmed, he became an “absentee” under the law. Carleton continued to pay Roseme’s pension benefits as required pursuant to art. 85 of the Civil Code of Québec (“C.C.Q.”), which provides that absentees are presumed to be alive for seven years unless proof of their death is made before then. Roseme’s remains were found in 2013. The act of death reported his death as having occurred the day after he disappeared. Carleton ceased making pension payments and sought reimbursement for payments made from the date of death in 2007 up to the date the remains were discovered in 2013. The trial judge held that the conditions required to establish a claim for reception of a payment not due had been made out by Carleton, and ordered restitution by the estate of pension payments received after Roseme’s death. The Court of Appeal substantially affirmed the trial decision.

HELD: Appeal dismissed. The first issue raised by the appeal is the proper interpretation of the pension plan and whether Roseme’s contractual entitlement to benefits ended on his “true date of death” or on the date his death was recognized by the State. Roseme signed a memorandum of election by which he chose to draw a “single life pension” payable monthly for his “remaining lifetime only”, with all payments to stop upon his death. Although the plan provides no definitions for the terms “remaining lifetime”, “life” and “death”, there is no reason not to give them their plain and ordinary meaning. These terms clearly refer to an individual’s actual life and actual death, not the date on which death is recognized by the State. The second issue raised by the appeal deals with the presumption of life created by art. 85 C.C.Q. and whether rebuttal of the presumption has retroactive effect. An absentee is presumed to be alive for seven years following his or her disappearance, unless proof of death is made before then. Roseme’s remains were discovered five years and 10 months after his disappearance. Since the presumption of life was rebutted within the seven-year period, no declaratory judgment of death was pronounced for him. The presumption of life is a “simple” presumption, a legal presumption of fact which may be rebutted by proof to the contrary (i.e., proof of death) or confirmed by the absentee’s return. When the presumption is rebutted, it falls away and is replaced with reality, the reality being that the absentee has been dead since his or her true date of death. The rebuttal of the presumption of life by proof of death is retroactive to the true date of death. With the discovery of Roseme’s true date of death, his entitlement to receive pension benefits after that date disappeared, and Carleton’s obligations were retroactively expunged. The third issue raised by the appeal addresses the “receipt of a payment not due” remedy. Article 1491 C.C.Q. allows for the restitution of payments made to an absentee presumed to be alive who is later established to have been both legally and factually dead at the time of the payments. Carleton’s ongoing obligation to pay Roseme’s pension benefits was directly linked to and premised upon his continued existence. When the true state of affairs overcame the presumption of life in art. 85 C.C.Q., it eliminated the source of Carleton’s obligations and Roseme’s entitlement to the payments received during his disappearance. Carleton’s claim hinges on how art. 1491 C.C.Q. applies in a case where a debt that once existed has subsequently fallen away. One possibility would be to require that the absence of debt always be contemporaneous with payment. Another approach would be to look retrospectively from the time a claim for restitution is commenced to determine whether the foundation of the debt remains intact. In the unique circumstances of this case, the requirements for receipt of a payment not due must be assessed retrospectively from the time of the claim and with knowledge of the true state of affairs. A retrospective approach to art. 1491 C.C.Q. aligns with the broader framework and objectives of similar restitutionary tools throughout the C.C.Q. Adopting the appellant’s reading of art. 1491 C.C.Q. would frustrate the aims of that article and make it an anomaly within the wider family of restitutionary mechanisms in the C.C.Q. The appellant cannot establish that Carleton made the pension benefits with a liberal intention, and the legal foundation for the debt no longer exists. Carleton’s claim for receipt of a payment not due under art. 1491 C.C.Q. must succeed.

Threlfall v. Carleton University, [2019] S.C.J. No. 50, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., October 31, 2019. Digest No. TLD-October282019016-SCC