The Quebec Court of Appeal has upheld a ruling ordering a woman to repay about $500,000 in pension benefits paid to a university professor found dead years after he disappeared.
The case dealt with pension payments to Lynne Threlfall, the former de facto spouse of the retired Carleton University professor, 77-year-old George Rosme, after he disappeared in 2007 while suffering from early-stage Alzheimer’s disease. It wasn’t until 2013 that a dog discovered Rosme’s remains in some woods. ”When viewed retrospectively from the date of proof of death in 2014, with the information that Mr. Rosme died in 2007, the obligation to pay him benefits under the retirement plan had fallen away,” wrote appeal court Justice Nicholas Kasirer on behalf of a three-judge panel in a ruling issued on Monday.
“The payments were made without cause because he was dead when they were made.”
At the time of his disappearance, Rosme, who lived on a farm near Gatineau, Que., was receiving pension benefits from Carleton of about $6,000 per month. He had chosen to receive a life-only pension when he retired in 1996, meaning he’d receive higher payments but would waive any rights to survivor benefits.
Following the publication of a newspaper article about Rosme’s disappearance in 2009, the university contacted Threlfall stating its view that there were grounds to believe the man had died in 2007 and that, as a result, pension payments would stop in 60 days. It also asked for the return of the amounts paid after his presumed death. It estimated the amount at about $70,000.
A notary acting for Threlfall, however, responded to the university that Rosme was presumed to be alive and asked it to reinstate the pension payments. It eventually agreed to do so. It went to court seeking to recover the pension benefits following a coroner’s report that concluded Rosme had died of natural causes in 2007.
Part of the case centred on a provision in Quebec law that provides for a presumption that, for seven years after a disappearance or until proof of death emerges, an absentee is alive. As a result of the presumption, a Quebec Superior Court judge ruled last year that the University had to continue paying benefits during Rosme’s absence. The judge also found, however, that based on the provisions of the retirement plan, the payments should have ended when Rosme died in 2007, rather than in 2013. The presumption that he was alive up until 2013, the judge concluded, didn’t change that.
Among her grounds for appeal, Threlfall argued that university had to pay benefits up until proof of Rosme’s death emerged in 2014 or, at the earliest, in 2013 when a dog discovered his remains. “Ms. Threlfall has not convinced me that the expression ‘payable for the remaining lifetime of the retired member’ in paragraph 8.02(b)(i) of the retirement plan refers to the date on which death was proven rather than the true date of death,” Kasirer wrote in the appeal ruling this week.
“The reference to benefits ‘ceasing with the payment for the month in which the member’s death occurs’ is a plain indication that entitlement ends at the true date of death, as the judge decided.”
In her appeal, Threlfall also took issue with the retroactive reversal of the presumption that Rosme was alive up until 2013. But as Kasirer found, the presumption under Quebec law, which serves a protective purpose of preserving people’s interests amid the uncertainty about whether they’re dead or alive, is rebuttable. “In our case, as long as the presumption operated, and Mr. Rosme was presumed to be alive, the university had the obligation to pay his pension. This was protective of his entitlement under the ‘life only’ option in the retirement plan, but did not create a right that he did otherwise not have. Accordingly, when the payments were made between September 2007 and July 2013, they were presumptively valid, but subject to review if proof of death operated to rebut the presumption,” wrote Kasirer.
“The presumption was rebutted when proof of death was made at which time the uncertainty as to Mr. Rosme’s existence ended.”