Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme and as tutor to the absentee George Roseme v. Carleton University
(Quebec) (Civil) (By Leave)
Status of persons - Pensions - Reception of a thing not due – Pensions – Presumption of life of an absentee – Whether the presumption of life of an absentee can be rebutted with retroactive effect – Whether pension payments validly made while the presumption of life is in effect may be retrospectively considered to have been disbursed in error upon proof of death – Whether restitution of the pension benefits may be ordered under the principles related to the reception of a thing not due – Civil Code of Québec, Preliminary Provision, arts. 84-85, 1491-1492, 1554, 1699.
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The case concerns Carleton University’s (“Carleton”) legal entitlement to recover amounts it paid to an absentee under a “life only” pension during a period in which the absentee was presumed alive but in fact dead. In Quebec, absentees are presumed alive for a period of seven years, following which any interested person can apply for a declaratory judgment of death. The presumption of life is however temporary and subject to rebuttal. In this case, death was determined some five years following the disappearance of the absentee, which served to set aside the presumption of life. The Act of Death recorded the absentee’s true date of death as the day following his disappearance, and not the date upon which proof of death was established. Claiming restitution under the “reception of a thing not due” provisions of the Civil Code of Québec (the “Code”), Carleton sought to recover the amounts it considered to have been paid in error to the absentee. It moved to institute proceedings against the appellant, Ms. Threlfall, who acted as tutor to the absentee and subsequently as liquidator of his estate. The Superior Court of Quebec found that restitution was possible under the “reception of a thing not due” provisions of the Code, because the pension payments, though initially not made by mistake, became an error once the presumption of life had been rebutted. The conditions for ordering restitution were thus met. The Court of Appeal confirmed the Superior Court’s judgment in most respects.
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