Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme v. as tutor to the absentee George Roseme, 2019 SCC 50

SUPREME COURT OF CANADA Citation: Threlfall v. Carleton University, 2019 SCC 50, [2019] 3 S.C.R. 726 Appeal Heard: February 22, 2019 Judgment Rendered: October 31, 2019 Docket: 37893 Between: Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme and as tutor to the absentee George Roseme Appellant and Carleton University Respondent Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Joint Reasons for Judgment: (paras. 1 to 110) Wagner C.J. and Gascon J. (Abella, Karakatsanis, Rowe and Martin JJ. concurring) Joint Dissenting Reasons: (paras. 111 to 229) Côté and Brown JJ. (Moldaver J. concurring) threlfall v. carleton university Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme and as tutor to the absentee George Roseme Appellant v. Carleton University Respondent Indexed as: Threlfall v. Carleton University 2019 SCC 50 File No.: 37893. 2019: February 22; 2019: October 31.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for quebec Status of persons — Absence — Presumption of life — Absentee presumed to be alive for seven years following disappearance unless proof of death is made before then — Retiree becoming absentee upon disappearance — Retiree’s pension plan providing that pension payments would stop upon his death — Presumption of life requiring former employer to continue making pension payments to retiree despite disappearance — Retiree’s remains discovered six years after disappearance and death recorded as having occurred the day after disappearance — Former employer seeking reimbursement of pension payments made to retiree after recorded date of death — Whether rights and obligations premised on absentee’s continued existence while he or she is presumed alive are retroactively extinguished from true date of death where proof of death is made within seven years of disappearance — Civil Code of Québec, art. 85 .

Reception of a thing not due — Pension payments made to absentee while presumed alive but actually dead — Requirements of error and of absence of debt not present at time payments made but surfacing at later date — Whether remedy of receipt of payment not due allows for restitution to former employer of payments made to absentee presumed to be alive who is later established to have been dead at time of payments — Civil Code of Québec, art. 1491 . On September 10, 2007, R, a retiree, decided to go for a walk near his home. Tragically, he never returned and could not be found.

Upon his disappearance, R became an absentee under art. 84 of the Civil Code of Québec (“ C.C.Q. ”) and T, his former de facto spouse, universal legatee and the liquidator of his succession, was appointed as his tutor. The presumption of life in art. 85 C.C.Q. required R’s former employer to continue making pension payments to him despite his disappearance, as the terms of his pension plan provided for payments until his death. Almost six years after his disappearance, R’s remains were discovered. The act of death recorded his death as having occurred the day after his disappearance.

R’s former employer then sought reimbursement of the amount of pension benefits paid to R between the day after his disappearance and the date of the last payment. The trial judge held that the payments made after the recorded date of death were to be considered not due — as the three conditions that had to be fulfilled in order to make out a claim for receipt of a payment not due were met — and were therefore subject to restitution. The Court of Appeal substantially upheld the trial judge’s decision. Held (Moldaver, Côté and Brown JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Abella, Karakatsanis, Gascon , Rowe and Martin JJ.: The pension plan unambiguously contemplated the termination of benefits upon R’s actual death, not the date his death was officially recognized. On the plain language of the plan, R was not entitled to benefits following the month of his death. The rebuttal of the presumption of life retroactively extinguished R’s entitlement to the pension payments made while he was an absentee.

Because the legal basis for the payments evaporated, R’s former employer’s claim for receipt of a payment not due under art. 1491 C.C.Q. must succeed: assessed retrospectively, the payments were made in error and in the absence of any debt. Under the C.C.Q. , an absentee is a person who, while domiciled in Quebec, ceases to appear there, without giving news of himself or herself, and without it being known whether he or she is still alive. Quebec’s current absence regime is a relatively modern innovation and marked a fundamental shift in the traditional Quebec law on absence.

No longer is an absentee considered to be neither alive nor dead. Instead, art. 85 C.C.Q. provides that an absentee is presumed to be alive for seven years following his or her disappearance, unless proof of death is made before then, and he or she enjoys full juridical personality during this period. Where proof of death is made within seven years of disappearance, in which case the presumption of life is rebutted, rights and obligations premised on the absentee’s continued existence while he or she is presumed alive are retroactively extinguished from the true date of death.

The wording of art. 85 C.C.Q. provides limited guidance on the question of retroactivity by the fact that it states that an absentee is presumed to be alive for seven years unless proof of his death is made before then, and not until proof of his death is made. But this textual clue that the rebuttal of the presumption has retroactive effect is reinforced by wider considerations. First, art. 85 is clear on its face that the presumption of life will be rebutted by proof of death made within the seven-year period.

The presumption of life is therefore a simple presumption — that is, a legal presumption of fact lasting for seven years which may be rebutted by proof to the contrary or confirmed by the absentee’s return.

Article 85 protects an absentee for a limited period — but in establishing a simple presumption, it creates no permanent rights for that absentee. When rebutted, the presumption falls away and is replaced with reality. Nothing in the C.C.Q. dictates that reality should be ignored or juridical personality allowed to continue past death. The C.C.Q. would need to be explicit in order for reality to be ignored in such a manner.

Contrary to the French Civil Code , which contains an express provision indicating that the rebuttal of the presumption of life operates prospectively, there is no similar provision in the C.C.Q . Second, when, in other parts of the absence regime, the C.C.Q. intends that reality be ignored, this is stated expressly. In particular, the declaratory judgment of death mechanism clearly illustrates when a legal fiction will triumph over the true state of affairs to prioritize certainty.

In that situation, the C.C.Q. allows a declaratory judgment of death to be pronounced, regardless of whether the absentee’s death may be held to be certain, when the presumption is neither confirmed nor rebutted within seven years of an absentee’s disappearance. Inversely, the presumption of life is a mechanism that primarily protects an absentee’s interests in the hope that he or she will return, but allows the true state of affairs to prevail when that outcome is no longer possible.

The Quebec legislature, in drafting the absence regime, has chosen seven years as the key point at which a legal fiction is allowed to prevail in most respects over the true state of affairs. Third, retroactivity is consistent with the purposes of the presumption of life — injecting stability into what would otherwise be an unclear and unsettled state of affairs, and protecting the absentee’s interests. If the presumption is rebutted with retroactive effect, both of these purposes are advanced. A prospective approach overshoots these purposes.

The fact that retroactivity leads to some uncertainty over a small subset of transactions or circumstances does not topple or undermine the transactional stability sought by the presumption of life. In contrast to the older absence regime, the two distinct phases of the current absence regime offer simplicity and stability so that transactions can be conducted without contentious debate or a complex web of rules. 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.

Fourth, interpreting the rebuttal of the presumption as occurring with retroactive effect ensures that, within the seven-year period, all concerned individuals receive only what they are entitled to, in accordance with the true state of affairs. Conversely, if the rebuttal of the presumption had only prospective effect, restitution for payments premised on the absentee’s existence, made when the absentee was, in reality, both factually and legally dead, would be impossible. A prospective approach would generate windfalls not intended by the absence regime.

Because most obligations must be performed regardless of whether an absentee is alive or not, most of an absentee’s dealings during the absence period will remain unaffected by the rebuttal. However, a small subset of transactions — namely payments that are either received or made by virtue of the absentee’s presumed existence during the absence period — are affected when the presumption of life is rebutted. The very basis for these kinds of obligations, which are directly linked to and premised upon continued existence, retroactively evaporates.

There is no direct route from rebutting the presumption of life to any provision which deals with the restitution of prestations. Still, the remedy for receipt of a payment not due is available in such a situation, even when some of the requisite elements of that claim are not present at the time of payment but instead surface at a later date.

There are three essential elements to any claim for receipt of a payment not due under art. 1491 C.C.Q. : (1) there must be a payment; (2) the payment must be made in the absence of debt between the parties; and (3) the payment must be made either in error or under protest to avoid injury. When all three requirements are met, restitution will follow under art. 1492 C.C.Q. , in accordance with the rules for the restitution of prestations. The absence of debt

requirement is essential to the analysis. An absence of debt is what makes a payment “not due”. But the mere absence of a debt between the parties is not enough. The payment must also have been made in error or under protest. Where there is, in fact, no obligation, the payer is usually in error. Once an absence of debt is proven by the payer, it falls to the payee to prove that the payment resulted from a liberal intention. If the payee cannot prove that the payer made a payment while being aware that there is no obligation to do so, the payment is deemed to be made in error and not due.

Error prevents art. 1491 from being wielded as a tool to unilaterally conscript others into paying for services under the pretence of seeking restitution. Under the circumstances, art. 1491 C.C.Q. calls for a retrospective approach. The requirements for receipt of a payment not due must be assessed retrospectively from the time of the claim and with the knowledge of the true state of affairs. Where a debt existed at a certain time but the basis for it has subsequently fallen away, the existence of the debt must be determined retrospectively.

To meet the goals of the restitution regime, a court should focus on whether the basis for this debt remained intact at the time of the claim. A retrospective approach to art. 1491 fits seamlessly into the broader framework and objectives of similar restitutionary tools throughout the C.C.Q . The thread that runs through all of these tools is that a payment is made under an entirely valid and genuine obligation that later falls away due to some subsequent event. Restitution becomes available as a result of an unanticipated or abnormal event.

There is no indication that art. 1491 works differently from these other similar restitutionary mechanisms. Assessing absence of debt contemporaneously with payment in such a case would frustrate the aims of art. 1491 and make it an anomaly within the wider family of restitutionary mechanisms in the C.C.Q. Without retrospectivity, once valid payments would be forever immunized and parties would be unable to recover payments that were not due, allowing undue payments and windfalls to find refuge just beyond the provision’s reach. Per Moldaver, Côté and Brown JJ. (dissenting): The appeal should be allowed.

There is no basis in the C.C.Q. to order the tutor to return the monies received from the former employer; the rebuttal of the presumption of life signified the extinction of the former employer’s obligation only with respect to continuing (that is, future) pension payments. Articles 1491 and 1492 C.C.Q. cannot be adjusted to allow the courts to go back in time to find that the former employer’s payments to the absentee were made in error, with the effect of unwinding rights and obligations that were validly due at the time they were performed.

The former employer’s claim of restitution under the receipt of a payment not due provisions of the C.C.Q. must therefore fail. The rebuttal of the presumption of life in art. 85 C.C.Q. cannot be with retroactive effects on the substantive rights and obligations of the absentee. If proof of the absentee’s death is made before the expiry of the seven-year period of absence, the presumption of life is rebutted only prospectively, such that no right or obligations premised upon the absentee’s existence can be claimed or executed for the future, that is, for the remainder of the seven-year period.

A prospective approach is consistent with the modifications made to the absence regime between the Civil Code of Lower Canada (where uncertainty persisted throughout a 30-year period of absence and made it impossible for anyone to claim a right accruing to an absentee during this time) and the C.C.Q. (where the presumption of life injects certainty during a 7-year period of absence and ensures rights and obligations of the absentee are valid until the time the presumption is rebutted).

The Civil Code of Lower Canada ’s absence regime was unduly complex, inflexible and — most importantly — riddled with persistent uncertainty. Difficulties with the regime led to revisions. Under the C.C.Q. , the absentee is automatically presumed to be alive for seven years following his or her disappearance. The presumption of life contained in art. 85 C.C.Q. represented a substantial change to the law on absence in Quebec. It is this presumption which fosters certainty by ensuring that absentees are capable of acquiring rights and being bound by obligations.

No longer does the right to claim pension benefits during an absence depend on the claimant proving that the absentee was, in fact, alive at the time the right accrued. It is sufficient, for the acquisition of a right by an absentee during his or her absence, to show that such absentee was presumed at law to be alive at the time the right accrued to him or her.

Whether through forced performance via court order, or through voluntary performance by a person bound to comply with the law, the rights and obligations of an absentee benefit from an absolute presumption of validity while the presumption of life operates. The presumption of life ceases to apply after seven years of absence, as it is displaced by a presumption that the absentee is dead.

To obtain a declaratory judgment of death seven years after the absentee’s disappearance, it is not necessary to bring proof positive of the absentee’s death, precisely because the absentee is by then presumed to be dead; it is sufficient to prove the absence of the person and the fact that the absence has lasted seven years from the disappearance. This change to the law of absence brought the law of Quebec closer to that of Germany and of France.

Another particularly important revision was that the presumption of death would take effect from the time of the declaratory judgment of death, and not from the time the absentee disappeared. The date fixed as the date of death is the date upon expiry of seven years from the disappearance. The operation of the presumption of death and of the declaratory judgment of death does not displace the presumption of life which was in force during the seven-year period of absence.

Although the date of departure of the absentee was perhaps less arbitrary for determining the date of death, that of the declaratory judgment of death was more certain. The retroactive nature of the presumption of death was rejected because it would have the effect of validating all irregular acts performed since the departure of the absentee. This general rule of non-retroactivity of the presumption of death is subject only to explicit exceptions. A prospective approach also accords with the longstanding presumption against retroactivity in statutory

interpretation. Given the limited guidance to be found in the text of art. 85 C.C.Q. , and given that the text of art. 85 and the context of the C.C.Q. do not expressly provide for or support retroactivity, the starting point should be the longstanding presumption against retroactivity. Retroactivity must be grounded in clear legislative intent. To the contrary, there is no need for an express provision to conclude that the presumption of life operates prospectively.

The retroactive effects of the rebuttal of the presumption of death and of the annulment of the declaratory judgment of death on substantive rights and obligations are expressly provided for by the C.C.Q. This stands in stark contrast to the absolute silence of the C.C.Q. on the issue of whether the presumption of life can be rebutted with retroactive effects on the substantive rights and obligations of the absentee. One simply cannot infer from an exception a general rule of retroactivity for all purposes whenever the true date of death is known.

The absence of express statutory text directing retroactive application of the rebuttal of the presumption of life does not support retroactivity, but rather militates against it. The rule of law requires, as a general principle, that rights and obligations as they exist at a certain point of time should not be affected by subsequent changes in circumstances. A prospective approach moreover accords with the related absence regimes of France and of Germany. Both the Quebec and French regimes are inspired by the German model, and each manifestly reaches similar results on similar issues.

Given their common Germanic inspiration, the C.C.Q. is expected to reach a result similar to the French Civil Code , which expressly provides that rights acquired without fraud on the basis of the presumption of absence may not be called in question when the death of the absentee is established or judicially declared, whatever the date fixed for the death may be. A clear provision expressly providing for a presumption of life renders unnecessary and, indeed, superfluous, the existence in the C.C.Q. of a provision equivalent to the one in the French Civil Code .

In the absence of an express provision supporting a retroactive approach, there is no reason to isolate Quebec from the rest of the civil law world and from the European trend which inspired the C.C.Q. at the time of its adoption. Finally, a prospective approach is consistent with, and indeed compelled by, the three purposes of the absence regime and the role of the tutor, and related third parties, in furthering those purposes. The presumption of life seeks, while it is in force, to inject certainty and stability into what would otherwise be an unclear and unsettled state of affairs.

A precarious state of affairs, introduced into the absence regime if the presumption of life is rebuttable with retroactive effects, is simply incompatible with the certain state of affairs that the absence regime in general and the presumption of life in particular were intended to achieve. In interpreting the C.C.Q. in a way that reflects the true state of affairs, certainty — a significant purpose of the absence regime — is sacrificed on the altar of accuracy.

Not knowing whether the income might have to be returned at some point within seven years, the tutor cannot confidently honour the absentee’s obligations, particularly those obligations which could not be the object of an order for restitution in favour of the absentee if the presumption of life is rebuttable with retroactive effects. This undermines the second purpose of the absence regime in general and of the presumption of life in particular, being to protect the interests of the absentee by preserving them for his or her possible return.

Imposing retroactive effects on the rights of the absentee paralyzes the tutor, who can no longer safely use the absentee’s incoming revenue streams to discharge his or her obligations as they come due, thereby defeating the purposes of the regime. It represents the antithesis of the certainty which the absence regime was intended to achieve, and it undermines the role a tutor is expected to fulfill in managing an absentee’s affairs.

Under a retroactive approach, third parties can no longer safely use the incoming monies, because if the absentee is discovered within seven years to have in fact been dead, the monies must be returned. Such an approach constitutes not only a judicial repeal of the presumption of life as far as rights of an absentee are concerned, but also constitutes such an impermissible repeal as far as

obligations of an absentee are concerned. If avoiding windfalls for the absentee’s succession was a concern underlying the absence regime, the legislatorwould have enacted — upon expiry of the seven-year delay and absent any return of the absentee — a presumption of death retroactive to the day ofdisappearance, and the law would require the date of death to be fixed not at the date upon expiry of seven years from the disappearance but at the date of thedisappearance. Therefore, avoiding windfalls for the absentee’s succession is simply not a concern underlying the absence regime.

Occasional windfalls arean inevitable effect of the certainty objective which informs the whole of the absence regime. Moreover, the use of the term “windfall” fails to recognize thesource of the entitlement — a right acquired without fraud.

Adjusting the traditional requirements of art. 1491 C.C.Q. is rendered necessary under the retroactive approach in order to solve the problemwhich arises from the conclusion that the presumption of life may be rebutted with retroactive effects on the substantive rights and obligations of theabsentee, as art. 85 C.C.Q. does not expressly create an obligation to make restitution. It is a departure from existing law and jurisprudence. The threeconditions that must be met before a person who received a payment must restore it to the person who made it should normally be interpreted cautiously, ifnot restrictively.

Absent any remedy, the device which should be used to compensate an impoverished person at whose expense another has been enriched isan action in unjust enrichment — and not an adjustment to the requirements of art. 1491 C.C.Q. In the instant case, the absence of debt requirement was not met insofar as the payments made were legally due when they were paid by reasonof the presumption in art. 85 C.C.Q. The error requirement was also not met. There was no mistaken belief that the payment was due when it was made.

Thetutor’s enrichment is justified: the pension benefits were paid in accordance with the presumption of life. The former employer did not meet its burden toprove that the tutor had the obligation to return the pension payments received. Cases Cited By Wagner C.J. and Gascon J. Distinguished: Willmor Discount Corp. v. Vaudreuil (City), (SCC), [1994] 2 S.C.R. 210; Abel Skiver Farm Corp. v. Town ofSainte-Foy, (SCC), [1983] 1 S.C.R. 403; referred to: Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, (SCC),[1994] 3 S.C.R. 1022; Pettkus v. Becker, (SCC), [1980] 2 S.C.R. 834; Ostiguy v.

Allie, 2017 SCC 22, [2017] 1 S.C.R. 402; GustavsonDrilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977] 1 S.C.R. 271; 85363 Canada Ltée v. Maxpac Refuse Collector ServicesLtd., ; Caron et Directeur de l’état civil, 2014 QCCS 4894; Thériault et Directeur de l’état civil, 2014 QCCS 4896; Michaud et Directeurde l’état civil, 2014 QCCS 4895; Gariépy v. Directeur de l’état civil, [1997] R.D.F. 50; Amex Bank of Canada v. Adams, 2014 SCC 56, [2014] 2 S.C.R. 787;C.J. v. Parizeau Popovici, 2011 QCCS 2005; Pearl v. Investissements Contempra Ltée, [1995] R.J.Q. 2697; Roux v. Cordeau, [1981] R.P. 29; Garage W.Martin Ltée v. Labrie, [1957] C.S. 175; The Queen v.

Premier Mouton Products Inc., (SCC), [1961] S.C.R. 361; Résidences Melior inc. v.Québec (Ville de), 2009 QCCS 3843; Développements Iberville Ltée v. Québec (Ville), ; 6001149 Canada inc. v. Hydro-Québec, 2007QCCQ 12042; Marleau v. Hydro-Québec, . By Côté and Brown JJ. (dissenting) Sandaldjian v. Directeur de l’état civil, ; Assurance-vie Desjardins v. Duguay, [1985] C.A. 334; Gariépy v. Directeur del’état civil, [1997] R.D.F. 50; Minville, Re, ; Ashodian (Succession de) v. Directeur de l’état civil, 2015 QCCS 6141; Auclair (Re), 2016QCCS 2065; Salman et Gagnon, [1996] R.D.F. 324; Savard v.

Metropolitan Life Insurance, [1971] C.S. 631; Montréal (Ville) v. Lonardi, 2018 SCC 29,[2018] 2 S.C.R. 103; Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184; Civ. 2e, June 21, 2012, Bull. civ. VI, No. 114; Civ. 1re, May17, 2017, Bull. civ. V, No. 112; Willmor Discount Corp. v. Vaudreuil (City), (SCC), [1994] 2 S.C.R. 210; Abel Skiver Farm Corp. v. Town ofSainte-Foy, (SCC), [1983] 1 S.C.R. 403; J.E. Fortin inc. v. Commission de la santé et de la sécurité du travail, 2007 QCCA 1099, [2007]R.J.Q. 1937; Canadian Imperial Bank of Commerce v. Perrault et Perrault Ltée, [1969] B.R. 958; Aussant v.

Axa Assurances inc., 2013 QCCQ 398, [2013]R.J.Q. 533; Société nationale de fiducie v. Robitaille, [1983] C.A. 521; Roux v. Cordeau, [1981] R.P. 29; Commission des écoles catholiques de Verdun v.Giroux, [1986] R.J.Q. 2970; Amex Bank of Canada v. Adams, 2014 SCC 56, [2014] 2 S.C.R. 787; Cie Immobilière Viger Ltée v. Lauréat Giguère Inc., (SCC), [1977] 2 S.C.R. 67; Mac Rae v. Hammond, 2014 QCCA 1359; Bourbonnais v. Andjorin, 2016 QCCA 1721; L. (L.) v. B. (M.) (2003), (QC CA), 231 D.L.R. (4th) 665.

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Toronto: Irwin Law, 2016. Quebec. Civil Code Revision Office. Report on the Qu é bec Civil Code , vol. I, Draft Civil Code . Québec: Éditeur officiel, 1978. Quebec. Civil Code Revision Office. Report on the Québec Civil Code , vol. II, t. 1, Commentaries . Québec: Éditeur officiel, 1978. Quebec. Ministère de la Justice. Commentaires du ministre de la Justice , t. I, Le Code civil du Québec — Un mouvement de société . Québec: Publications du Québec, 1993. Roch, Hervé. L’absence . Montréal, 1951. Smith, Lionel. “Demystifying Juristic Reasons” (2007), 45 Can. Bus. L.J. 281. Tancelin, Maurice.

Des obligations en droit mixte du Québec , 7 e éd. Montréal: Wilson & Lafleur, 2009. Terré, François, et Dominique Fenouillet. Droit civil: Les personnes — Personnalité, incapacité, protection , 8 e éd. Paris: Dalloz, 2012. Teyssié, Bernard. Droit des personnes , 20 e éd. Paris: LexisNexis, 2018. Trudel, Gérard. Traité de droit civil du Québec , t. 1, Le droit international privé, l’état civil, l’absence, le domicile, le mariage et la séparation de corps . Montréal: Wilson & Lafleur, 1942. Waters’ Law of Trusts in Canada , 4th ed. by Donovan W. M. Waters, Mark R. Gillen and Lionel D. Smith.

Toronto: Carswell, 2012. APPEAL from a judgment of the Quebec Court of Appeal (Kasirer and Émond JJ.A. and La Rosa J. ( ad hoc )), 2017 QCCA 1632 , 36 C.C.P.B. (2nd) 5, 417 D.L.R. (4th) 623, [2017] AZ-51435317, [2017] Q.J. No. 14553 (QL), 2017 CarswellQue 9114 (WL Can.) , affirming a decision of Bédard J., 2016 QCCS 406 , 26 C.C.P.B. (2nd) 150, [2016] AZ-51251116, [2016] Q.J. No. 652 (QL), 2016 CarswellQue 592 (WL Can.) . Appeal dismissed, Moldaver, Côté and Brown JJ. dissenting. Benoit M. Duchesne , for the appellant. Antoine Aylwin , for the respondent.

The judgment of Wagner C.J. and Abella, Karakatsanis, Gascon, Rowe and Martin JJ. was delivered by The Chief Justice and Gascon J. — I. Overview [ 1 ] On September 10, 2007, George Roseme, a political science professor who had retired from the respondent, Carleton University (“Carleton”), decided to go for a walk near his home. Tragically, he never returned. Despite the best efforts of rescuers, family and friends, he could not be found. [ 2 ] Upon his disappearance, Mr. Roseme became an “absentee” in the eyes of the Civil Code of Québec (“ C.C.Q. ”) .

Pursuant to art. 85 C.C.Q. , absentees are presumed to be alive for seven years unless proof of their death is made before then. Notwithstanding Mr. Roseme’s uncertain status, this presumption of life thus required Carleton, his former employer, to continue making pension payments to him under his “life only” retirement plan. This plan provided that these payments would stop upon the death of the beneficiary. About six years following his disappearance, Mr. Roseme’s remains were discovered, and the presumption of life was then rebutted.

His date of death was established as September 11, 2007 — one day after his disappearance. [ 3 ] The overarching question raised by this appeal is whether Mr. Roseme’s succession is entitled to retain the pension payments of close to half a million dollars made to him while he was presumed to be alive even though this presumption was subsequently rebutted. [ 4 ] In answering this question, the Court is called upon for the first time to consider the C.C.Q. regime governing the phenomenon of “absence”.

The current regime was introduced nearly 30 years ago and represented a fundamental shift with respect to the legal effects of an individual’s absence. Under this regime, an absentee is presumed to be alive for seven years following his or her disappearance (art. 85 C.C.Q. ). If this presumption of life is not rebutted by proof of death within the seven-year period, a declaratory judgment of death may be pronounced; such a judgment establishes the absentee’s date of death as “the date upon expiry of seven years from the disappearance” (art. 94 para. 1 C.C.Q. ; see also art. 92 para. 1 C.C.Q. ).

This regime reflects the balancing of two competing principles: accuracy (by seeking to ensure that relationships best reflect the absentee’s true status) and certainty (by giving an absentee’s heirs and counterparties a stable and predictable state of affairs). [ 5 ] In our view, the structure of the absence regime clearly demonstrates that during the first seven years of absence, accuracy is intended to prevail over certainty.

It is only after seven years of absence, and the pronouncement of a declaratory judgment of death, that certainty is intended to govern — with some narrow exceptions — even if this is at odds with the absentee’s true date of death.

In other words, the accuracy objective is advanced by creating a simple presumption of life, while the certainty objective is achieved by having a hard cut-off point at which a legal fiction triumphs over reality. [ 6 ] This appeal also requires consideration of the interplay between this absence regime and the rules for restitution following the “receipt of a payment not due” under art. 1491 C.C.Q .

We are of the view that the remedy for receipt of a payment not due is available even when, in unique circumstances such as those of the instant case, some of the requisite elements of that claim — specifically, absence of debt and error — are not present at the time of payment but instead surface at a later date. [ 7 ] The lower courts ruled in favour of Carleton and ordered restitution of the pension payments. We agree, and we would dismiss the appeal. Once Mr.

Roseme’s death was confirmed within the seven-year period, his legal entitlement to the pension payments made while he was absent and presumed to be alive evaporated. The true state of affairs — Mr. Roseme’s death — rebutted and superseded the presumption in art. 85 C.C.Q. that an absentee is alive. Although Carleton was legally obligated to make the pension payments while Mr. Roseme was absent, it is entitled to restitutionary relief because the payments were, viewed retrospectively, not due. II. Background A. Facts [ 8 ] Mr. Roseme was a political science professor at Carleton.

On May 13, 1996, he signed a memorandum of election by which he opted to draw a “single life pension” under the Carleton University Retirement Plan (“Plan”). Of note, the memorandum stated the following: “I am aware that on my death, my pension will cease and no payments of any kind will be due from the Plan to my beneficiaries, heirs or estate, even if my death occurs immediately following the date of my first pension payment” (A.R., vol. II, at p. 170). [ 9 ] Mr. Roseme retired on July 1, 1996, and began to receive his pension from the Plan. On September 10, 2007, Mr.

Roseme — who was 77 years old and in the early stages of Alzheimer’s disease — left his home in La Pêche, Quebec, for a walk and disappeared. Despite six days of extensive searching, he was not located. Several months after the disappearance, the appellant, Lynne Threlfall — Mr. Roseme’s former de facto spouse, his universal legatee and the liquidator of his succession —, brought a motion in the Quebec Superior Court for the institution of tutorship to the absentee. This was granted on February 4, 2008, and Ms. Threlfall was appointed tutor to Mr. Roseme. [ 10 ] Carleton was not notified of Mr.

Roseme’s disappearance and thus continued to make payments to him from the Plan. It first learned of the disappearance through media reports in January 2009. Carleton suspected from Mr. Roseme’s prolonged disappearance that he had passed away and that its contractual obligation had therefore come to an end. On March 18, 2009, Carleton informed Ms. Threlfall that it intended to stop paying Mr. Roseme’s monthly pension benefits and demanded repayment of the sum it had paid to Mr. Roseme since January 2008. In reply, Ms. Threlfall referred to art. 85 C.C.Q. , noting that as an absentee Mr.

Roseme was presumed to be alive and was thus entitled to continued pension payments. Following receipt of a formal demand letter from Ms. Threlfall in October 2009, Carleton agreed to reinstate Mr. Roseme’s pension payments and pay the pension arrears, “without admission of any kind”, on condition that Ms. Threlfall provide a written statement setting out any facts she might know that could help determine if Mr. Roseme was still alive. Ms. Threlfall provided an affidavit stating that she had no information concerning whether Mr. Roseme was alive or dead. [ 11 ] On July 22, 2013, almost six years after Mr.

Roseme’s disappearance, human remains were discovered on his neighbour’s property. These were determined to be Mr. Roseme’s remains. Carleton, which had continued to make pension payments to Mr. Roseme since resuming them, was informed of the discovery, and stopped paying on August 16, 2013. The act of death for Mr. Roseme was signed on February 17, 2014, and was certified by the Registrar of Civil Status on April 3, 2014. This act recorded his death as having occurred on September 11, 2007, the day after his disappearance.

This date of death was established by the Registrar of Civil Status in accordance with art. 127 C.C.Q . The coroner’s report issued on April 21, 2014 concluded that the death was likely natural or accidental; it indicated “2007” as the date of death. [ 12 ] It is important to note immediately that the recital of the facts in the act of death certified by the Registrar of Civil Status makes proof against all persons (arts. 107 and 2818 C.C.Q. ). As the Court of Appeal explained, Ms.

Threlfall chose not to attack the validity of this act as an authentic deed or to ask for its correction, as she might have done under the applicable rules in the Code of Civil Procedure , CQLR, c. C-25.01 . She also chose not to challenge the Registrar’s exercise of discretion under art. 127 C.C.Q. in establishing Mr. Roseme’s date of death to have been September 11, 2007. [ 13 ] In June 2014, Ms. Threlfall prepared a final accounting of her tutorship and, in her capacity as liquidator of Mr. Roseme’s succession, accepted that accounting.

A few weeks later, she withdrew $106,000 from the succession’s bank account and used it to pay her personal debts. Seeking to recover the pension benefits paid to Mr. Roseme during the period when he was an absentee, Carleton commenced proceedings on November 21, 2014, against Ms. Threlfall personally, in her capacity as liquidator of the succession, and in her capacity as tutor to Mr. Roseme. Carleton sought reimbursement of $497,332.64, which was the amount of benefits paid to Mr. Roseme between September 11, 2007, and the date of the last payment in 2013. Although Ms.

Threlfall initially argued against the possibility of personal liability, the trial judge found otherwise, and the question of her personal liability is not

disputed in this Court. Accordingly, if we find a basis on which to order restitution to Carleton, the order will be against Ms. Threlfall both personally and inher capacity as liquidator of the succession and as tutor. B. Decisions Below

(1) Quebec Superior Court, 2016 QCCS 406, 26 C.C.P.B. (2nd) 150 (Bédard J.) [14] The trial judge noted that Carleton had not made voluntary payments to Mr. Roseme following his disappearance. It paid only because itwas legally obligated to do so pursuant to art. 85 C.C.Q. Its obligation to make payments would have come to an end either following a declaratory judgmentof death after seven years of absence, or at an earlier date if proof of death was established. In this case, Mr. Roseme’s remains were discovered before theexpiration of the seven-year presumption of life.

Carleton was not wrong to continue payments during the absence period when Mr. Roseme was presumed tobe alive, but those payments became an error once the presumption was rebutted and the death established. The presumption of life did not change the Plan —the benefits ended when the beneficiary died. [15] The trial judge further held that the three conditions that had to be fulfilled in order for Carleton to make out a “receipt of a payment notdue” claim under art. 1491 C.C.Q. were met:

(1) Carleton made payments to the absentee; (2) the debt was not due, as the payments were to cease at the timeof death; and (3) the payments were made in error on the basis that they were made in accordance with the absentee being presumed to be alive. Accordingly,the payments made after the date of death were to be considered not due and were subject to restitution under art. 1492 C.C.Q.

(2) Quebec Court of Appeal, 2017 QCCA 1632, 417 D.L.R. (4th) 623 (Kasirer and Émond JJ.A. and La Rosa J. (ad hoc)) [16] Although it allowed the appeal in part to correct some calculations made by the trial judge, the Court of Appeal substantially upheld theSuperior Court’s decision. [17] The Court of Appeal did not accept Ms. Threlfall’s argument that Carleton was obligated under the Plan to pay pension benefits to Mr.Roseme until proof of death was made. The contract unambiguously terminated Mr.

Roseme’s entitlement to the benefits on his date of death — not whenproof of death was made. [18] The Court of Appeal then rejected Ms. Threlfall’s argument that the presumption of life in art. 85 C.C.Q. was rebutted with prospective,as opposed to retroactive, effect.

While art. 85 C.C.Q. does not expressly indicate whether the rebuttal of the presumption has retroactive effect, the courtpointed to art. 96 C.C.Q. as evidence that “the legislature prefers, with noted exceptions, to give effect to the true date of death when it is known” (para. 75).Because the purpose of the presumption is to reduce uncertainty, once that uncertainty is eliminated by the absentee’s return or death, the presumption nolonger has any reason to apply. [19] Finally, the Court of Appeal considered Ms.

Threlfall’s contention that the trial judge had erred in applying the rules on receipt of apayment not due in art. 1491 C.C.Q. The court acknowledged that, strictly speaking, the prerequisites for a claim for receipt of a payment not due were notmet in this case. Because Mr. Roseme was presumed alive, the payments were due at the time they were made. As the payments were due as a matter of law,there could not be any error. Nor could Carleton claim that it paid under protest: it acknowledged that it was under an obligation to continue to make thepension payments.

Simply put, “there was a valid debt owed by the University and the University was not mistaken in making the payment” (para. 109). [20] But after finding that Carleton could not satisfy the traditional requirements of art. 1491 C.C.Q., the Court of Appeal went on to considerwhether there was another basis to order restitution.

Drawing upon the principles underlying arts. 1491, 1554 and 1699 C.C.Q. as well as the preliminaryprovision of the C.C.Q., the Court of Appeal “adjusted” the requirements of art. 1491 C.C.Q. “to recognize this remedy as the source of the obligation tomake restitution” in this case notwithstanding the presence of a debt and the absence of an error at the time of payment by Carleton (para. 123). As a result,the Court of Appeal, reasoning differently, upheld the trial judge’s decision to order restitution in the amount of $497,332.64. III. Analysis [21] This appeal raises three issues. The first is the proper

interpretation of the Plan and whether Mr. Roseme’s contractual entitlement tobenefits ended on his “true date of death” or on the date his death was recognized by the State. The second is the presumption of life created by art. 85C.C.Q. and whether rebuttal of the presumption has retroactive effect. The third is whether the “receipt of a payment not due” remedy in art. 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 thetime of the payments. A.

The Plan Contemplated the Termination of Pension Benefits Upon Mr. Roseme’s Death [22] Ms. Threlfall first raises an argument rooted in the contractual

interpretation of the Plan (reproduced in A.R., vol. II, at pp. 93 et seq.). Inher view, the Plan contemplated that Carleton would continue to make pension payments to Mr. Roseme until the date when the State formally recognized hisdeath. On this reading of the Plan, Mr. Roseme was entitled to pension payments until the date his act of death was certified or at least until the date hisremains were discovered. Carleton disputes Ms. Threlfall’s

interpretation and argues that the Plan envisioned payments only until Mr. Roseme’s date of death— not the date when his death was formally recognized by the State. Like both courts below, we agree with Carleton: the Plan unambiguously terminatedCarleton’s obligations on the date of Mr. Roseme’s actual death, not the date his death was officially recognized. [23] In accordance with an option to elect to receive an increased monthly benefit set out in s. 8.02(b)(

i) of the Plan, Mr. Roseme signed amemorandum of election by which he chose to draw a “single life pension” payable monthly for his “remaining lifetime only”, with all payments to stop uponhis “death”. Interpreting this language, the trial judge found that “[t]he pension benefits end when the beneficiary dies”, specifically “once the date of deathis established, either at the end of the seven year period or before it [if] the death can be proven” (para. 40). We concur with this reading of the “single lifepension” option of the Plan. [24] In our view, Ms. Threlfall has not demonstrated any palpable and overriding or other reviewable error in the trial judge’s

interpretation ofthe “single life pension” option of the Plan. Ms. Threlfall relies heavily on the fact that the Plan does not define the terms “life”, “remaining lifetime” and“death”. She contends that, given this definitional void, “[t]here is quite simply no indication in the Retirement Plan that [Mr.] Roseme’s ‘remaining lifetime’or ‘life’ would end at a ‘true date of death’, as opposed to the date when his death was proven and . . . formally recognized by the State by the certificationand issue of

an Act of Death” (A.F., at para. 95). [25] Despite the lack of

definitions for these terms, we reject the argument advanced by Ms. Threlfall. There is no ambiguity in the words“remaining lifetime”, “life” and “death”. These are far from obscure terms. We agree with Carleton that “[t]hese are terms which need not be defined beyondtheir plain and ordinary meaning” (R.F., at para. 23).

These terms clearly refer to an individual’s actual life and actual death, not the date on which death isrecognized by the State. [26] We note that while the Plan also provides that it is to be “governed and construed in accordance with the laws of the Province of Ontario”(s. 14.09(3)), given the absence of any ambiguity, there is no need to consult these laws for the meaning of these terms. In any event, it is well establishedthat in the absence of any evidence being led on the law of the foreign jurisdiction (Ontario), the trial judge was required to apply the law in force in Quebecon the

interpretation of these terms (art. 2809 C.C.Q.; Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, (SCC), [1994] 3 S.C.R.1022; Pettkus v. Becker, (SCC), [1980] 2 S.C.R. 834, at pp. 853-54; S. G. A. Pitel and N. S. Rafferty, Conflict of Laws (2nd ed. 2016), at pp.

249-50). [ 27 ] The

interpretation of the Plan urged upon this Court by Ms. Threlfall is inconsistent with its plain language, which stipulates that payments will cease when “the Member’s death occurs ”, not when the Member’s death is certified (s. 8.02(b)(i)). The common intention of the parties (art. 1425 C.C.Q. ) was clearly for benefits to cease on the true date of death. Furthermore, the

interpretation of the Plan proposed by Ms. Threlfall would require Carleton to have continued making pension payments to Mr. Roseme until his act of death was certified in April 2014, despite the discovery of his remains in July 2013. This cannot have been what the parties contemplated. [ 28 ] The act of death establishes Mr. Roseme’s death as having occurred the day after his disappearance. On the plain language of the Plan, Mr. Roseme was not entitled to benefits following the month of his death. We reject Ms. Threlfall’s argument that Mr.

Roseme was contractually entitled to pension benefits under the Plan following his true date of death. However, she further contends that Mr. Roseme’s succession is entitled to retain the payments he received from Carleton during the time he was an absentee by virtue of the presumption of life in art. 85 C.C.Q . We accordingly turn now to the C.C.Q. ’s absence regime and art. 85 C.C.Q. B.

The C.C.Q.’s Absence Regime and the Presumption of Life in Article 85 (1) The C.C.Q .’s Absence Regime [ 29 ] Under the C.C.Q. , an absentee is a person who, while domiciled in Quebec, ceases to appear there, without giving news of himself or herself and without it being known whether he or she is still alive ( art. 84 C.C.Q. ; É. Deleury and D. Goubau, Le droit des personnes physiques (5th ed. 2014), at para. 38). An absentee is presumed to be alive for seven years following his or her disappearance, unless proof of death is made before then (art. 85 C.C.Q. ; Deleury and Goubau, at para. 40; É. Gascon and J.

Gelfusa, “Absence et décès”, in JurisClasseur Québec — Collection droit civil — Personnes et famille (loose-leaf), by P.-C. Lafond, ed., fasc. 8, at No. 4). While presumed alive, an absentee, through his or her tutor (or administrator of property), remains liable to perform obligations (e.g., art. 88 C.C.Q. ) and continues to accrue rights (art. 86 C.C.Q. ) — such as “life only” pension benefits — as if he or she had never disappeared (M.

Ouellette, “Livre premier: Des personnes”, in La réforme du Code civil , t. 1, Personnes, successions, biens (1993), 11, at paras. 168- 69; Deleury and Goubau, at paras. 46-49; Gascon and Gelfusa, at Nos. 5-8). [ 30 ] Quebec’s current absence regime is a relatively modern innovation. It was introduced in 1991 as part of the new C.C.Q . It is modelled after German law, which for centuries has included a scheme whereby an absentee (1) is presumed to be alive until declared dead and (2) retains full juridical rights while presumed alive (É.

Cloutier, “Origines et évolution du droit québécois de l’absence: de l’existence incertaine aux présomptions de vie et de mort” (2017), 63 McGill L.J. 247, at p. 278). It is noteworthy that the French absence regime — which has similar Germanic roots — contains an express provision indicating that the rebuttal of the presumption of life operates prospectively (art. 119 of the French Civil Code ). This type of specific provision is notably missing from the C.C.Q . [ 31 ] In order to understand the objectives of the current absence regime, it is important to reflect upon its origins and its predecessor.

The idea of an absence regime in the civil law is a longstanding one. An official title on the subject was adopted in France in 1803 as part of the Code Napoléon and was entitled “ Des Absens ” (Absentees). In Quebec, the Civil Code of Lower Canada contained a regime governing absence commencing in 1866. It was largely modelled on the Code Napoléon (Cloutier, at pp. 255 and 262; Commissioners appointed to codify the Laws of Lower Canada in Civil Matters, Civil Code of Lower Canada: First, Second and Third Reports (1865), at pp. 167 and 169).

Under that regime, an absentee’s continued existence was considered to be uncertain. An absentee was considered by the law to be neither living nor dead and could not inherit. After five years of absence, the absentee’s presumptive heirs were allowed to take provisional possession of the absentee’s property. That provisional possession had some inherent limits, given its uncertain character. Only after 30 years of absence were the presumptive heirs given absolute possession of the absentee’s property, thus allowing them to alienate or hypothecate it (G.

Brière, Traité de droit civil: Les successions (2nd ed. 1994), at para. 45; Deleury and Goubau, at para. 71; H. Roch, L’absence (1951), at pp. 27-34; F. Langelier, Cours de droit civil de la province de Québec , t. 1 (1905), at pp. 200 et seq.; G. Trudel, Traité de droit civil du Québec , vol. 1 (1942), at pp. 310 et seq.; Cloutier, at pp. 257-66). [ 32 ] The absence regime in the C.C.Q. marked a fundamental shift in the traditional Quebec law on absence. No longer is an absentee considered to be neither alive nor dead (Ministère de la Justice, Commentaires du ministre de la Justice , vol.

I, Le Code civil du Québec — Un mouvement de société (1993), at pp. 65-66). Nor is an absentee ignored if a succession opens (art. 617 para. 1 C.C.Q. ; Deleury and Goubau, at para. 41; Ouellette, at para. 168; Cloutier, at pp. 276-77).

Instead, an absentee is presumed to be alive for seven years and enjoys full juridical personality during this period. [ 33 ] The C.C.Q. ’s absence regime contemplates three possible scenarios at that stage: (1) return within the seven-year period; (2) proof of death being made within seven years following the disappearance, in which case the presumption of life is rebutted; or (3) proof of death not being made within seven years following the disappearance (but without the absentee having returned).

It is not disputed that in this case, the presumption of life was rebutted within the seven-year period set out in art. 85 C.C.Q . Mr. Roseme’s remains were discovered 5 years, 10 months and 12 days after his disappearance. The certification of his act of death likewise occurred comfortably within seven years of his disappearance. [ 34 ] After seven years of absence, the absentee is no longer presumed to be alive. Where the presumption of life in art. 85 C.C.Q. is not rebutted within the seven-year period, a declaratory judgment of death may be pronounced (art. 92 para. 1 C.C.Q. ).

Such a declaratory judgment establishes the absentee’s date of death as “the date upon expiry of seven years from the disappearance” (art. 94 para. 1 C.C.Q. ). “A declaratory judgment of death produces the same effects as death” (art. 95 C.C.Q. ), and the Registrar of Civil Status is notified of the judgment and draws up the absentee’s act of death in accordance with its particulars (art. 133 C.C.Q. ; Deleury and Goubau, at paras. 55-58; Gascon and Gelfusa, at Nos. 12-13 and 18-19).

Where a declaratory judgment of death is pronounced, the C.C.Q. contemplates that a divergence may ultimately be discovered between the absentee’s true date of death and the date of death fixed by the declaratory judgment of death only in certain narrow exceptions (art. 96 C.C.Q. ; Deleury and Goubau, at paras. 59-68; Gascon and Gelfusa, at Nos. 20-34). [ 35 ] This is not, however, the case with Mr. Roseme. Mr. Roseme became an absentee following his disappearance on September 10, 2007. As the presumption of life was rebutted within the seven-year period, no declaratory judgment of death was pronounced for him.

Rather,

an act of death was issued, in the same manner as for any non-absentee who dies in Quebec. Given this, there are only two important dates that must be kept in mind here: Mr. Roseme’s true date of death (September 11, 2007), and the date the presumption of life was rebutted (which, as we have explained, was certainly within seven years of his disappearance). [ 36 ] We note that the Court of Appeal left open the question of whether the date the presumption of life in art. 85 C.C.Q. is rebutted is the date of the discovery of an absentee’s remains or the date of the certification of the absentee’s act of death.

In some circumstances, the distinction between these two dates could be meaningful. However, given that the discovery of Mr. Roseme’s remains and the certification of his act of death both occurred within seven years of his disappearance, and given our conclusion on the retroactive effect of the rebuttal of the presumption, we agree with the Court of Appeal that there is no need in this case to reach a final determination as to the proper date on which the presumption of life is rebutted.

On either possibility the outcome of this appeal is the same. [ 37 ] The issue relating to the absence regime that is directly raised by this appeal is accordingly a relatively discrete one. What is disputed by the parties is whether the rebuttal of the presumption of life in art. 85 C.C.Q. occurs with retroactive effect. We are concerned only with a situation where proof of death is made within seven years of disappearance.

The question we must answer is whether, under such circumstances, rights and obligations premised on the absentee’s continued existence while he or she is presumed alive are retroactively extinguished from the true date of death. Put in more concrete terms, did the rebuttal of the presumption of life retroactively extinguish Mr. Roseme’s entitlement to the pension payments made while he was an

absentee, or did the rebuttal simply end the continued application of the presumption on a go-forward basis and therefore have no effect on the paymentsmade by Carleton while Mr. Roseme was presumed to be alive?

(2) The Presumption of Life in

Article 85 C.C.Q. [38] The relevant provisions of the C.C.Q. and the academic literature on this subject do not provide an immediate answer as to whether thepresumption of life in art. 85 is rebutted with retroactive effect. Other than the reasons given at trial and on appeal in the instant case, there is very little usefulauthority on this question, be it judicial or academic. Answering this question therefore requires us to look at not just the wording of art. 85, but also widerconsiderations, including the nature of the presumption of life, the structure of the absence regime as a whole, its purpose and objectives, and the respectiveconsequences of the two proposed

interpretations. For the following reasons, we are of the view that when the presumption of life in art. 85 C.C.Q. wasrebutted, it retroactively extinguished Carleton’s obligation to pay Mr. Roseme beyond his true date of death. We accordingly are in agreement with theoutcome reached by the Court of Appeal on this issue. (

a) Wording of

Article 85 C.C.Q. [39] We begin with the wording of art. 85 C.C.Q. Some limited guidance on the question of retroactivity is provided by the fact that art. 85C.C.Q. states that an absentee is presumed to be alive for seven years “unless proof of his death is made before then”, not until proof of his death is made.While our colleagues rely on the use of the word “for” in art. 85 C.C.Q. as being indicative of the period of time during which the presumption operates (para.165), this

interpretation is not supported by the full wording of the provision. Indeed, if the absentee was presumed alive until proof of his or her death wasmade, then he or she would not be presumed alive “for seven years” as worded in the C.C.Q., but rather “for a period up to seven years”. Ultimately, thewording of art. 85 C.C.Q. is just one clue that the rebuttal of the presumption of life established by this

article has retroactive effect. The wording is certainlynot determinative on its own, but this textual clue is, in our view, reinforced by the wider considerations noted above. (

b) Simple Presumptions Are Not Permanent Sources of Rights [40]

Article 85 C.C.Q. is clear on its face that the presumption of life will be rebutted by proof of death made within the seven-year period.The presumption of life is therefore, in the terminology of art. 2847 C.C.Q., a “simple” presumption. It is a legal presumption of fact (the fact that theabsentee is alive) lasting for seven years, which may be rebutted by proof to the contrary (i.e., proof of death) or confirmed by the absentee’s return (Deleuryand Goubau, at para. 40).

As this Court recently noted in another context, a simple presumption as to the existence of a right “must yield where . . . there isproof that the right does not exist” (Ostiguy v. Allie, 2017 SCC 22, [2017] 1 S.C.R. 402, at para. 50). [41] In contrast, our colleagues characterize the rights stemming from the presumption in art. 85 C.C.Q. as benefitting rather from an “absolutepresumption of validity” (paras. 182, 184 and 188).

This conclusion is not sourced in the C.C.Q., which says that only the authority of res judicata is an“absolute presumption” (art. 2848 C.C.Q.). [42] To support this point, our colleagues rely on the supposedly “absolute presumption of validity” in the French Civil Code (para. 184).

YetFrench academic commentary stands for the opposite conclusion: [translation] Once the absentee’s death is established or judicially declared — where it appears that the absentee in fact disappeared in circumstances likely toimperil his or her life — the presumption of absence period ends, retroactively to the date fixed for the death (which marks the opening of the succession).All acts performed since that date by the administrator of the absentee’s property, such as sale or lease, are, in principle, null. [Emphasis added.] (B.

Teyssié, Droit des personnes (20th ed. 2018), at p. 233) As we understand it, the rebuttal of the French presumption of life operates prospectively only in the cases contemplated by art. 119 of the French Civil Code,which states that [translation] “[r]ights acquired without fraud on the basis of the presumption of absence, may not be called in question when the death of theabsentee is established or judicially declared, whatever the date fixed for the death may be”.

As indicated earlier, there is no similar provision in the C.C.Q. [43] Still, our colleagues posit that the French art. 119 has the same effect as art. 85 C.C.Q., although these separate so-called “absolutepresumptions of validity” stem from two different sources: in Quebec, from the presence of a presumption of life; in France, from an express provision thatallows some rights acquired in good faith during an absence to stand upon a declaration of death.

Our colleagues therefore argue that Quebec’s laws shouldbe interpreted so as to align with France’s, not because we should follow the same interpretative pathway from our common roots, but rather so that we canfollow the “European trend” (paras. 187-88). [44] For our part, given that the C.C.Q. does not contain a provision equivalent to art. 119 of the French Civil Code, we would decline toassume that the French and Quebec presumptions of life are intended to operate identically.

In the same manner, we would decline to rely on the Frenchjurisprudence that has applied or interpreted a provision not found in the C.C.Q. [45] In our view, the presumption of life in the C.C.Q. is nothing more than a simple presumption, and simple presumptions are not permanentsources of rights (Deleury and Goubau, at para. 40). The presumption of life is just a legal presumption of a fact; it is not equivalent to the fact itself (arts.2846 and 2847 C.C.Q.).

When the presumption is rebutted, it falls away and is replaced with reality — the reality being that the absentee has been dead sincehis or her true date of death. [46] In this respect, while we have described the presumption of life as being rebutted with retroactive effect, we stress that the presumption isnot retroactive in and of itself. This is not a case about whether newly enacted or amended legislation should apply to past actions, as discussed, for instance,in Gustavson Drilling

(1964) Ltd. v. Minister of National Revenue, (SCC), [1977] 1 S.C.R. 271. The absence regime is not reaching back intime to modify or extinguish pre-existing substantive rights. Instead, because the substantive rights are generated by a mere presumption of life, they arequalified from their inception. The presumption simply falls away upon its rebuttal and, in the absence of another legal instrument, gives way to reality —which, in this case, happens to create a retroactive effect. [47] That reality cannot be easily ignored. Death is an event with important legal significance in the civil law: it marks the end of juridicalpersonality (Deleury and Goubau, at paras. 22-24).

Article 1 C.C.Q. provides that “[e]very human being possesses juridical personality and has the fullenjoyment of civil rights.” It is through the vehicle of juridical personality that a person acquires rights. Death, whether [translation] “attested orpronounced”, has been described as the “end point of the enjoyment of a person’s civil rights” (S. Bourassa et al., “Les personnes physiques”, in Collectionde droit de l’École du Barreau du Québec 2018-2019, vol. 3, Personnes et successions (2018), 15, at p. 21).

Unlike death, absence does not mark the end ofjuridical personality, given that an absentee is presumed to be alive for seven years. But once the presumption of life is rebutted and falls away, nothing in theC.C.Q. dictates that reality should be ignored or juridical personality allowed to continue past death. The C.C.Q. would need to be explicit in order for realityto be ignored in such a manner. [48] All obligations and corresponding rights need a source (art. 1372 C.C.Q.; J. Pineau, D. Burman and S. Gaudet, Théorie des obligations(4th ed. 2001), by J. Pineau and S. Gaudet, at No. 20; J.-L. Baudouin and P.-G.

Jobin, Les obligations (7th ed. 2013), by P.-G. Jobin and N. Vézina, eds., atNo. 49). Mr. Roseme’s right to pension payments is no exception. Without such a source, the right disappears. While he was an absentee, Mr. Roseme wasundisputedly entitled to payments from the Plan. This entitlement was dependent upon the fact that he was presumed to be alive — but this was not a

permanent source of entitlement.

Article 85 C.C.Q. protects an absentee for a limited period — but in establishing a simple presumption, it creates nopermanent rights for that absentee. Indeed, even if Ms. Threlfall, as tutor, had obtained a court decision setting out Mr. Roseme’s entitlement to receive thepension payments during the absence period, the court would most likely have made an order without prejudice to the parties’ rights should the presumptionultimately be rebutted, given the unique circumstances of Mr. Roseme’s “life only” pension benefits. Such a without prejudice order would not have attractedres judicata (85363 Canada Ltée v.

Maxpac Refuse Collector Services Ltd., (Que. C.A.)). Eventually, in the instant case, either thepresumption would have been rebutted or Mr. Roseme’s entitlement would have been confirmed, whether by his return or by a declaratory judgment of death.Through the rebuttal of the presumption, Mr. Roseme’s entitlement disappeared, leaving him with no rights in the past or present. (

c) Declaratory Judgments of Death Illustrate When the C.C.Q. Allows Reality to Be Ignored [49] When, in other parts of the absence regime, the C.C.Q. intends that reality be ignored, this is stated expressly. In particular, thedeclaratory judgment of death mechanism clearly illustrates when a legal fiction will triumph over the true state of affairs. Indeed, the presumption of life andthe declaratory judgment of death are inverse legal tools that complement each other in Quebec’s absence regime.

The former is a mechanism that primarilyprotects an absentee’s interests in the hope that he or she will return, but allows the true state of affairs to prevail when that outcome is no longer possible.The latter represents the point at which the legislature has chosen to prioritize certainty over the hope of the absentee’s return and over the post-mortemprotection of his or her interests should the true date of death be discovered. [50] When the presumption of life is neither confirmed nor rebutted within seven years of an absentee’s disappearance, the C.C.Q. allows adeclaratory judgment of death to be pronounced (art. 92 para. 1).

A declaratory judgment of death may be pronounced at that time regardless of whether theabsentee’s death “may be held to be certain” — all the C.C.Q. requires is the absentee’s uninterrupted and continued seven-year absence (Deleury andGoubau, at para. 55). [51] Although a declaratory judgment of death may be issued for an absentee prior to seven years of absence, this is possible only where theabsentee’s death “may be held to be certain” (art. 92 para. 2 C.C.Q.; Deleury and Goubau, at para. 54; Gascon and Gelfusa, at Nos. 3 and 14; Ouellette, atpara. 165).

It is not disputed that to hold an absentee’s death to be certain without the discovery of remains would require a disappearance in a situation ofsignificant peril and would definitely require far more than a mere unexplained disappearance of an elderly man.

For example, declaratory judgments of deathhave been pronounced prior to the passage of seven years following a devastating fire in a seniors’ residence (Caron et Directeur de l’état civil, 2014 QCCS4894; Thériault et Directeur de l’état civil, 2014 QCCS 4896; Michaud et Directeur de l’état civil, 2014 QCCS 4895; Cloutier, at p. 275) or in cases ofapparent suicide (Gariépy v. Directeur de l’état civil, [1997] R.D.F. 50 (Que. Sup. Ct.)).

These reasons deal solely with the usual variety of declaratoryjudgments of death — those pronounced after seven years of absence. [52] The pronouncement of the declaratory judgment of death establishes the absentee’s death as having occurred, legally, on the date uponexpiry of seven years from the disappearance. As noted, this date is then incorporated into the absentee’s act of death by the Registrar of Civil Status (art.133 C.C.Q.).

The fact that a declaratory judgment of death may be pronounced after seven years of absence — despite the lack of certainty that the absenteeis factually dead — shows that the Quebec legislature has selected seven years as the dividing line for prioritizing certainty, through the vehicle of a legalfiction, over the true state of affairs (with some narrow exceptions noted below). [53] After seven years of absence, the C.C.Q. no longer allows for rebuttal of the fact that the absentee was legally alive during the absenceperiod.

The only way the declaratory judgment of death can be annulled, or the register of civil status altered, is if the absentee returns — but this confirms,not negates, the absentee’s legal existence during the absence period (Deleury and Goubau, at paras. 59-65; Gascon and Gelfusa, at Nos. 20-34). [54] The declaratory judgment of death pronounced following seven years of absence thus serves as an essential cut-off point and provides ameasure of certainty to all interested parties.

Even when knowledge as to the true state of affairs changes subsequent to the pronouncement of the declaratoryjudgment of death, the C.C.Q. contemplates only two exceptions under which this true state of affairs will supersede and prevail over the legal date of deathestablished by the judgment: (1) when the absentee returns (arts. 97 to 101 C.C.Q.); and (2) when the discovery of the true date of death affects the timing of“the dissolution of the matrimonial or civil union regime” and of the opening of the absentee’s succession (art. 96 C.C.Q.; Deleury and Goubau, at paras. 59-65; Gascon and Gelfusa, at Nos. 20-34). [55] In the case of return, the C.C.Q. specifically contemplates that the returnee (or an interested party) shall apply to a court for annulment ofthe declaratory judgment of death and rectification of the Register of Civil Status (art. 98 C.C.Q.; Gascon and Gelfusa, at Nos. 24-25; Deleury and Goubau, atpara. 63; Ouellette, at para. 185).

Conversely, although discovery of the true date of death has an effect on the timing of the dissolution of the absentee’smatrimonial or civil union regime and of the opening of the absentee’s succession, the C.C.Q. does not require or permit the annulment of the declaratoryjudgment of death or the rectification of the Register of Civil Status in such a case (Gascon and Gelfusa, at Nos. 20-23; Deleury and Goubau, at paras. 60-61;Ouellette, at paras. 179-80). [56] As can be seen, the Quebec legislature, in drafting the absence regime, has chosen seven years as the key point at which a legal fiction isallowed to prevail in most respects over the true state of affairs (Commentaires du ministre, at p. 68; Civil Code Revision Office, Report on the Québec CivilCode, vol.

II, t. 1, Commentaries (1978), at pp. 73-74). Prior to seven years of absence, the situation is fluid and prone to change: there is a mere presumptionof life, which can be confirmed by the absentee’s return or rebutted by proof of the absentee’s death. After seven years of absence, a much more certain andconcrete picture emerges: the declaratory judgment of death ends the absentee’s legal existence and, in turn, confirms that the absentee was, legally speaking,alive during the previous seven years.

The presumption of life does not have the same powers as the declaratory judgment of death — it is crafted in afundamentally different way. The former can be rebutted by new facts (proof of death), while the latter requires judicial annulment (art. 98 C.C.Q.) or anexpress override in the C.C.Q. for particular scenarios (art. 96 C.C.Q.). [57] Incidentally, we note that the Quebec legislature did not pluck the seven-year period out of thin air.

The commentary of the Minister ofJustice indicates that given modern technology, such as enhanced search techniques and modern communications, the circumstantial evidence of seven yearsof absence permits the legislature to comfortably conclude that an absentee is most likely deceased after such a period (Commentaires du ministre, at p. 68;Cloutier, at p. 276). Furthermore, as noted by the Civil Code Revision Office: The seven-year period is inevitably an arbitrary one, although it has been deemed sufficient for payment of life insurance after the disappearance of theinsured [art. 2529 C.C.Q.].

It is also sufficiently long to permit a person whose consort is absent to remarry without being found guilty of bigamy [CriminalCode, s. 290(2)]. [p. 74] [58] In this case, the presumption of life was rebutted within the seven-year period. As a result, no declaratory judgment of death waspronounced for Mr. Roseme. Mr. Roseme’s act of death is unusual only because the date of the certification of the act of death (April 3, 2014) was separatedin time by some six and a half years from the date of death indicated on it (September 11, 2007).

However, this unusual gap in time between the true date ofdeath and the certification of the act of death does not change the nature or operation of the act of death. There is no legal instrument that displaces the realityof Mr. Roseme’s true date of death. (

d) Retroactivity Is Consistent With the Purposes of the Presumption of Life [59] The presumption of life in art. 85 C.C.Q. serves two key purposes: it injects stability into what would otherwise be an unclear andunsettled state of affairs, and it protects the absentee’s interests. By injecting stability into the situation, the presumption facilitates the absentee’s transactions

and protects third parties’ interests. By protecting the absentee’s interests, the presumption of life ensures that the absentee can resume his or her life with minimal difficulties if he or she returns within seven years. Both of these purposes are advanced if the presumption is rebutted with retroactive effect. Conversely, a prospective approach — which is at odds with and und

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