Just released by the Supreme Court of Canada is Threlfall v. Carleton University, 2019 SCC 50 http://canlii.ca/t/j33l7 , an appeal from a decision of the Quebec Court of Appeal that was mentioned on the RDG when it was released about two years ago. From that posting:

“Many list members will be interested in a judgment released this week (in English) by the Quebec Court of Appeal, perhaps especially since it involves a retired university professor.

In an unusual set of facts, the professor held a life annuity payable by the university. He went missing, and Quebec law (like many civilian systems) has a regime for missing persons under which they are presumed to be alive, with someone appointed to manage their property, until the facts are learned or until seven years have passed, at which point a judgment declaratory of death can be issued by the court.

When Prof. Roseme went missing in 2007 the university wished to stop payment, but was told by a lawyer that the regime for absentees required that it continue to pay the annuity of $6,000 per month. Eventually his remains were discovered in 2013, and the authorities certified that he had died in 2007. The university now claimed some $500,000 from his estate, and/or his sole heir, who was also the liquidator of the estate and the person who had been managing his property during the absence.”

The appeal is dismissed by a majority of 6-3. The majority holds that when the facts were revealed, they prevailed over the regime for absentees, retroactively revealing that the payments were not legally due. Those who think that the civil law of restitution functions on the basis of absence of justification will be interested in the confirmation that in Quebec law, as in a great many civilian systems, restitution of a mistaken payment depends on the proof of a mistake (or, since 1994, payment under protest). The majority says:

[84] While this means that absence of debt and error will often walk in lockstep, this is not always the case. And in those cases where absence of debt and error do not overlap, error plays an independent and vital role in determining whether restitution is owed under art. 1491 C.C.Q. For example, without error, an individual could wake up one morning, mow every lawn in the neighbourhood and meet the requirements for restitution under art. 1491 C.C.Q. because there is (1) a payment and (2) an absence of debt. In this sense, error prevents art. 1491 C.C.Q. from being wielded as a tool to, in effect, unilaterally conscript others into paying for services, like lawn mowing, under the pretence of seeking restitution. While it may sometimes be easy or convenient to lump together the error and absence of debt requirements, it is incorrect to do so. Error cannot be lost in the shadows of the absence of debt requirement.

This raises the difficult question whether the university paid in error, because it knew Prof. Roseme had disappeared and only paid because it was told it was legally obliged to pay (which it was, at the time). Like the CA, the majority held that protest was not made out (although I am not sure I agree: the university paid “without admission of any kind”). If the university thought that the professor was dead and they should not have to pay, they were correct, not mistaken, as things turned out. It was this difficulty, among others, that led Kasirer JA in the QCA to say that the recovery must be founded on an extracodal principle. In a passage that I find puzzling, the majority says:

[108] But Carleton did pay in error: there was no intention to make the payments in the absence of a debt. Ms. Threlfall cannot establish that Carleton paid with a liberal intention. Upon discovering that Mr. Roseme had disappeared, Carleton initially sought to terminate the pension payments, but in the end reluctantly continued to make the payments once informed of the effect of art. 85 C.C.Q. It was only the temporary pull of art. 85 C.C.Q. that caused Carleton to make the payments. There was no liberal intention to continue the pension benefits in the absence of a debt.

This crucial passage seems to be addressing something like failure of basis more than mistake.

The dissenters thought that the regime for absents meant that the payments were legally owing when made, and could not be recovered. The main disagreement is about whether the discovery of the fact of death should have retroactive effects, and one could say this is a disagreement about the best interpretation of the Civil Code. I did see one very puzzling passage at the end of the dissenting judgment:

[228] We add this. The remedy created by the Court of Appeal in this case is functionally equivalent to the imposition of a constructive trust: because it concluded that the presumption of life was retroactively rebutted, it found in substance that the pension payments made between 2007 and 2013 were held by Ms. Threlfall in trust — not on behalf of Mr. Roseme, who was actually dead the whole time — but on behalf of Carleton. But under Quebec civil law, as expressed in art. 1262 C.C.Q., a trust may be established by judgment only “[w]here authorized by law” [which in the Code means, by statute law].

How a finding that there was an obligation to make restitution was “functionally equivalent to the imposition of a constructive trust” is not at all clear.

LDS