When an unsuccessful litigant seeks leave to appeal to the Supreme Court of Canada, the odds are stacked against them. Over the last four and a half months, the Supreme Court has considered 219 applications for leave to appeal, and has only granted leave in 15 of those cases. Wills and estates cases are rarely heard by the country’s top court.

However, it appears that we can expect the Supreme Court to provide guidance as to the circumstances under which a declaration of death may be annulled in the near future – earlier this month, the Court granted leave to appeal from the Quebec Court of Appeal’s decision in Re Imanpoorsaid, 2023 QCCA 1111.

Mr. Imanpoorsaid, the subject of the Court’s decision, was last seen in Canada 16 years ago and at the time of his disappearance, owed significant sums of money to creditors. A day after he left, Mr. Imanpoorsaid sent a cryptic email to his children, saying: “I’m sorry for creating so much stress for you guys. Things got out of hand and to fix it, drastic measures are necessary to be taken. That’s why I decided to do what I did.” 

In 2017, Mr. Imanpoorsaid’s wife obtained a declaratory judgment of death from the Quebec Superior Court: see Re H.I., 2017 QCCS 6433. As a result, she receivedpayment of $500,000 from a life insurance policy she maintained on Mr. Imanpoorsaid.  

Ivari, the insurance company that paid out the policy, appealed the court’s decision and also sought to have it annulled. Ivari’s position was that Mr. Imanpoorsaid was still alive and had simply run away from his creditors. In seeking annulment, Ivari also put new evidence before the court to establish that Mr. Imanpoorsaid was still alive,consisting of a variety of Iranian government documents. The wife contested the request to annul the 2017 decision, but in light of the new evidence, the annulment was granted: see Re Imanpoorsaid, 2021 QCCS 4977. To learn more about this decision, see Suzana’s blog postfrom 2022: Dead or Alive? The Courts Decide.

Mr. Imanpoorsaid’s wife appealed, arguing that an absentee would have to physically return in order to reverse a presumption of death under the Civil Code du Québec, CQLR c CCQ-1991. Article 97 of the Code states: “Where a person declared dead by a declaratory judgment of death returns, the effects of the judgment cease.” 

The wife’s arguments were dismissed on appeal in light of the evidence establishing that Mr. Imanpoorsaid was almost certainly alive – the Court of Appeal held that the notion of “return” could extend to proof establishing that a person is still alive, even if the person is not physically back in the province. In order to accomplish the purpose of the legislation, the Court held that it could give the applicable legislative provision a broader scope than the literal meaning of the words used by the legislature, as maintaining a declaration of death for a person who is still alive would be contrary to the spirit of the Code.

The Quebec Court of Appeal also justified its decision by noting a presumption that legislators do not intend to enact laws that would lead to absurd consequences, contrary to reason or to justice, such as permitting a declaration of death to stand despite conclusive evidence establishing that the person is, in fact, alive. 

Finally, the Appeal Court observed that an adverse inference could be drawn against the wife, as neither she nor her children gave evidence in response to photos of Mr. Imanpoorsaid that were presented at the hearing to establish that he was still alive. 

In Ontario, declarations of death are governed by the Declarations of Death Act, 2002, SO 2002, c 14, Sch. Under subsection 2(5), the Superior Court may declare an individual dead following an absence of at least 7 years, as long as certain criteria are met. However, a declaration may be revoked under subsection 4(2) “if new evidence or a change in circumstances justify reconsidering the matter.” Accordingly, if a case like Mr. Imanpoorsaid’swere to arise in Ontario, the court would have the power to revoke a declaration of death if there was new evidence establishing that the individual was alive. 

It will be interesting to see what the Supreme Court has to say about this case after the appeal is heard. The Supreme Court’s leave decision is reported at Riddle c. Ivari, 2024 CanLII 43100.

Thank you for reading, and have a great day!

Ian.