Presumptions (In Law)

Threlfall v. Carleton University, 2019 SCC 50 (CanLII)

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Held (Moldaver, Côté and Brown JJ. dissenting): The appeal should be dismissed.

The judgment of Wagner C.J. and Abella, Karakatsanis, Gascon, Rowe and Martin JJ. was delivered by The Chief Justice and Gascon J. —

[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 the absentee 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 (Deleury and 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 is proof that the right does not exist” (Ostiguy v. Allie, 2017 SCC 22, (2017) 1 S.C.R. 402, at para. 50).