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The Presumption of Life Has its Limits – Supreme Court of Canada Holds that Pension Payments made to Deceased Absentee are to be Returned

INTRODUCTION

In Threlfall v. Carleton University,[1] the Supreme Court of Canada held that an employer may recover pension payments made to a recipient who was presumed alive, but was in fact dead.

FACTS

On September 10, 2007, George Roseme (“Mr. Roseme”), a political science professor who had retired from Carleton University (the “University”), decided to go for a walk near his home in La Pêche Quebec and never returned. He was 77 years old and in the early stages of Alzheimer’s disease at the time. Despite the best efforts of family, friends and first responders, he could not be found.

Prior to his retirement, Mr. Roseme opted to draw a “single life pension” under the Carleton University Retirement Plan (the “retirement plan”). Notably, the retirement plan stated the following: “I am aware that on my death, my pension will cease and no payments of any kind will be due form the plan to my beneficiaries, heirs or estate, even if my death occurs immediately following the date of my first pension payment.”

Mr. Roseme was declared an absentee in the eyes of the Civil Code of Quebec (“C.C.Q.”). Pursuant to Article 85 of the C.C.Q., absentees are presumed to be alive for seven years unless proof of their death is made before then. It was on this basis that the University, as Mr. Roseme’s former employer, was required to pay Mr. Roseme’s pension payments pursuant to the retirement plan.

Upon his disappearance, Lynne Threlfall (“Ms. Threlfall”), Mr. Roseme’s former spouse, brought a motion in the Quebec Superior Court for the institution of tutorship to the absentee.[2] She was subsequently appointed as tutor to Mr. Roseme.

Mr. Roseme’s remains were found approximately six years after his disappearance on his neighbour’s property. It was determined that his date of death was September 11, 2007 – one day after his disappearance. The University commenced proceedings against Ms. Threlfall personally and in her capacity as tutor, seeking reimbursement of $497,332.64, which was the amount paid to Mr. Roseme between September 11, 2007, and the date of the last payment in 2013.

THE COURT’S ANALYSIS

The issue before the court was centered on two interpretations of the Absence Regime and the presumption of life as set out in Article 85 of the C.C.Q.

The fundamental question was whether the rebuttal of the presumption of life retroactively extinguished Mr. Roseme’s entitlement to the pension payments made while he was an absentee (the “retroactive approach”), or whether the rebuttal simply ended the continued application of the presumption on a go-forward basis thus having no effect on the payments made by the University while Mr. Roseme was presumed to be alive (the “prospective approach”)?

In answering this question, the court considered the plain meaning of Article 85 as well as the nature of the presumption of life, its purpose and objectives and the respective consequences of the two interpretations.

The C.C.Q.’s Presumption of Life

Pursuant to Article 85 of the C.C.Q., An absentee is presumed to be alive for seven years. During this time, through his or her tutor (or administrator of property), an absentee remains liable to perform obligations and continues to accrue rights.

The majority, in this case, held that the presumption of life, in essence, is a presumption as to the existence of a right. Accordingly, if there is proof that the right does not exist then the presumption must yield.

“In our view, the presumption of life in the C.C.Q. is nothing more than a simple presumption, and simple presumptions are not permanent sources of right […] 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.  On this basis, Mr. Roseme’s death rebutted and superseded the presumption.

Furthermore, the court discussed the two fundamental purposes served by the presumption of life. On the one hand, it serves to inject stability into an uncertain state of affairs while preserving the absentee’s interest in case he or she returns. Ultimately the court held while a prospective approach would preserve the absentee’s interests, it would also transform the presumption into a source of substantive rights to generate wealth for the absentee’s succession. In this case, it would permit in Ms. Threlfall, as Mr. Roseme’s sole heir, to walk away with an increased inheritance.

Though the University was legally obligated to make the pension payments while Mr. Roseme was absent, the court held that it was entitled to restitution on the basis that the pension payments were never owed to Mr. Roseme in the first place.

[1] Threlfall v. Carleton University¸2019 SCC 50.

[2] The role of the tutor is to exercise the rights and administer the property of the person who has disappeared.

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