The legal presumption of an absentee person being alive for seven years has retrospective effect and thus, once death proved during this period will have retroactive effect.
In 2007, George Roseme, a retired professor of Carlenton University (the “respondent”) and husband of Mrs. Threlfall (the “Appellant”) went for a walk and never returned. He was then 77 years of age and in early stages of Alzheimer’s disease at the time. In his retirement plan with the respondent, it was clearly laid down that he will be entitled to the pension only till he is alive and the payments will cease on his death.
On his disappearance, Mr. Roseme was declared to be an ‘absentee’ according to art. 85 C.C.Q (Civil Code of Quebec) which meant that the law presumed him to be alive for seven years unless proof of his death is discovered before that. Consequently, the respondent was liable to continue making payments of his pension to the appellant who was appointed as a tutor of her husband.
However, nearly after six years of disappearance of appellant’s husband, his mortal remains were discovered which indicated that his death had occurred around six years ago i.e. a day after his disappearance. Consequently, the respondent initiated proceedings against the appellant 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 respondent contended that the liability to pay pension to Mr. Roseme existed only till the time he was alive and hence all payments made after his death are liable to be returned to them.
Both the lower courts ruled in favour of the respondent whereafter the present appeal was filed in the apex court. The main question before the court was whether the law on absentee and presumption of life as set out in Article 85 of the C.C.Q was to be interpreted retroactively or prospectively?
The bench took note of various facets of the law involved therein. First, It observed that Art 87 of the CCQ is quite ambiguous and unclear about the missing person. It is understandable that the presumption of living cannot be admitted by proving death during the 7 years. Therefore, this legal provision takes care of the rights of the absent person, but by creating a presumption that can be overturned by another means of proof, it does not provide definitive rights.
On the other hand, the Court noted that in CCQ, it is quite simple that the presumption of living comes to help the person in question and to uphold his rights and CCQ, helps in this way, by ensuring a decision of death, not taking into account whether the situation of death of the missing person is clear, when the assumption is neither positive nor negative in the period of 7 years.
Furthermore, the understanding of the non-admission of the presumption of living, with effect for the past, maintains the situation that during the 7 years, the disappeared have access only to their legal rights.
Noting that the pension system provided that the payment of the pension be stopped at the practically ascertained death, not at the moment when it was officially declared the court was of the view that the presumption of death will operate retrospectively as it has been satisfactorily proved leaving no reason for the Court to rule otherwise. Consequently, the majority decided that the money given by the former employer after the date provided as that of the appellant’s death, is undue, so it must be return by the person in charge of deceased person’s estate. The appeal in question was thus not be allowed.