Ever have a conversation with someone that just sticks with you forever? When I was in law school at McGill, I returned home for a weekend and joined my parents for a meticulously planned holiday party. Among the guests present that night was my IMK partner’s grandfather, the (now late) Justice William Mitchell. What a gem of a man! In typical cocktail party fashion, the then long-since retired Superior Court Justice motioned me over to his side and asked what I had been up to. I bashfully mentioned that I was studying law at McGill. His eyes lit up and he took hold of my forearm proclaiming: “Oh, good for you!” He then went on to tell me how fortunate we are to have a Civil Code in Quebec, a document he described as wonderfully coherent and surprisingly complete. “All the answers are there”, he said with a broad, purposeful smile. It was a thirty second conversation I’ve replayed in my mind literally thousands of times, pretty much every occasion I reach for the CCQ and start searching for answers.
I was reminded recently of Justice Mitchell’s pearls of wisdom when I happened across a decision with the following introduction:
[1] Four years ago, Mr. Imanpoorsaid was declared to be dead by a judge of this Court.
[2] Should he now be declared to have returned from this legal state? This is the question at the heart of this case.
I’m a sucker for intros like that, and just had to read on. Far from turning out to be the next Zombie thriller, the judgment did open my eyes to an entire section of Book One on Persons in our Civil Code of Quebec that governs the legal and civil status of “absence and death”. Judge Mitchell was right! The Civil Code does have all the answers – even how to raise the dead!
You see, poor Mr. Imanpoorsaid had apparently left home one day back in February 2008, ostensibly to go on a business trip, and was never seen again. He disappeared. His spouse eventually filed an application pursuant to Article 92 CCQ, seeking a declaration to the effect that her husband was dead. Art. 92, paragraph 1, CCQ provides:
A declaratory judgment of death may be pronounced on the application of any interested person, including the Public Curator or the Minister of Revenue as provisional administrator of property, seven years after the disappearance.
In December 2017, Justice Poirier had rendered a judgment declaring Mr. Imanpoorsaid dead based on the record before him at the time. His judgment declared that Mr. Imanpoorsaid died on February 20, 2015, seven years after the last known indication that he was alive. But as explained in Re Imanpoorsaid:
[15] A judicial declaration of death is a legal fiction meant to palliate the problems caused by the absence of a person when a traditional declaration of death is not possible. Those who are left behind in such situations must be allowed to move on with their lives and they need a declaratory judgment of death to do so.
Fast forward to 2021, and Justice Geeta Narang was asked to annul her colleague’s earlier declaratory judgment of death. Intrepid lawyers for Mr. Imanpoorsaid’s life insurer, Ivari, had gathered evidence in Iran demonstrating that their insured was in fact still alive, and sought a declaration that he had “returned” from his legal death, thereby freeing their client of its obligation to pay half a million dollars in life insurance.
In her thorough and methodical reasons, Justice Narang carefully explained the process by which declarations of death can be reviewed and annulled.
[27] Declaratory judgments of death are in the category of judgments with a specific review mechanism.
[28] Right after the “Declaratory Judgment of Death” section of the Civil Code of Québec, there is a section called “Return”, which provides that “a person who has returned shall apply to the court for annulment of the declaratory judgment of death” and that any “interested person may make the application to the court” for an annulment.
[29] Declaratory judgments of death create a presumption that a person is dead, but it is not an irrefutable presumption.
[30] As legal fictions, declaratory judgments of death are not characterized by the immutability that is the hallmark of traditional judgements of this Court. They may be annulled when circumstances warrant.
Ivari’s lawyers had obtained multiple signs of life from public officials in Iran, including passports, national identity cards and welfare records, proving that Mr. Imanpoorsaid was still alive (although perhaps not necessarily well, and certainly not anxious to be found in Iran). There was some debate as to the evidentiary value of some of the documents, but most of them were found to be semi-authentic acts and therefore made proof of their contents.
Justice Narang concluded that the evidence established reliable signs that Mr. Imanpoorsaid was still alive, which in her analysis was sufficient to annul the previous declaratory judgment of death. Game over – or perhaps more aptly, game (back) on!
The case was in my view a fine example of the lesson Justice Mitchell wanted to share with me that cheerful night back in Lennoxville. It serves as a great example of how the Civil Code provides complete answers for problems, from beginning to end, dead or alive. Aren’t we fortunate to have such a comprehensive playbook on our bookshelves?
Now if only there was a Book on COVID…
Keywords
Share
