Riddle v. ivari, 2023 QCCA 1111, 2026 SCC 9 (40986)
“I, who was originally from Iran, resided in Brossard, Quebec, with his spouse R. In 2006, he purchased a life insurance policy from an insurer. On February 17, 2008, he told the members of his family that he had to go to Toronto for business. He left his home but did not return. A police investigation revealed that he had never gone to Toronto. He was never seen by his family again.
In 2016, R went to court to obtain a judgment declaring I’s death pursuant to art. 92 para. 1 of the Civil Code of Québec. The insurer opposed the pronouncement of a declaratory judgment of death, arguing that the circumstances surrounding I’s disappearance suggested rather that he had fled. I’s death was nonetheless declared, because the circumstances surrounding his disappearance could not prevent a declaratory judgment of death from being pronounced once the person who disappeared had been absent for seven years without giving news of himself. The insurer applied, however, to the Superior Court for annulment of the judgment declaring I’s death, pursuant to art. 98 C.C.Q., but it failed to serve the proceeding on him. The insurer presented new evidence indicating that I had gone to Iran, where he had resided ever since leaving Quebec. In light of that evidence, the trial judge annulled the declaratory judgment of death and found that the insurer had established, on a balance of probabilities, the “return” of the person declared dead. The trial judge also rejected R’s argument that the application could not be heard in the absence of service on I. The trial judge’s decision was substantially upheld by the Court of Appeal.”
The SCC (9:0) dismissed the appeal.
The Chief Justice wrote as follows (at para. 10):
“…With respect to the failure to serve the proceeding on Mr. Imanpoorsaid, I consider it to be a breach of the guiding principles of our law that should not be trivialized. However, in the present case, this failure did not compromise the integrity of the judicial process, did not prejudice any party and should not warrant the dismissal of the proceeding and the nullity of the subsequent decisions. As regards the determination of the applicable legal framework for proving the return of a person declared dead, the trial judge, like the Court of Appeal, made no error in finding that this could be proved through any contemporaneous manifestation that makes it more probable than not that the person who disappeared is currently alive. The evidence must be clear and convincing so as to rebut the presumption of death, but no specific threshold of certainty is required. While the physical presence of the person declared dead will always be the best proof that they are currently alive, a judge may be satisfied with evidence establishing that the person is still living, particularly where the circumstances suggest that their disappearance or reclusion is voluntary. Proof of return therefore does not require a different standard of proof. In Quebec civil law, unless the legislature specifies otherwise, the standard of proof remains the balance of probabilities.”