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).

United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 (CanLII), [2004] 1 SCR 485

11 It is well established that the legislature is presumed not to alter the law by implication: Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 395. Rather, where it intends to depart from prevailing law, the legislature will do so expressly. Here, there is no indication in the Act that the legislature intended to remove the municipality’s power to limit the number of taxi plate licences. To the contrary, s. 9(b) indicates that the legislature did not intend to curtail the powers exercised by municipalities but rather sought to enhance those powers under the new Act subject to the limitations in ss. 70 to 75, which do not preclude limiting the number of taxi licences. It is inconceivable, in my view, that the legislature would have intended to indirectly limit the ability of municipalities to regulate the taxi industry according to a practice dating 15 years and to adopt the restrictive approach defined in Merritt v. City of Toronto (1895), 22 O.A.R. 205, at pp. 207-8, simply by changing its method of drafting legislation. The new method was in fact specifically designed to avoid the need for listing specific matters and powers. Accordingly, a provision explicitly limiting the number of licences such as s. 13(1)(a) of the Wildlife Act, R.S.A. 2000, c. W-10, and s. 37(1)(d) of the Gaming and Liquor Act, R.S.A. 2000, c. G-1, is unnecessary.