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The Living Dead

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Recently, an Ohio man who had been (incorrectly) declared legally dead when he disappeared 8 years ago, appeared in court to have the declaration reversed.  Strangely, his application was refused (apparently because he waited too long to bring his application).  Could this bureaucracy over reality situation happen in Ontario?  While I'd like to say absolutely not, as I discuss below, the law could be a little clearer on this point.

When a person disappears without leaving a body, that person's survivors potentially face a lot of problems, beyond having lost a loved one.  The problems they may run into range from having trouble getting death benefits under pensions or insurance policies, to simply not being able to deal with that person's assets (e.g. if they own a house, there is often no way to sell the house, unless they left a power of attorney).

This problem led to a number of ways to deal with people who are disappeared, and thought to be dead.  Ontario currently deals with the situation under the Declarations of Death Act.  Under this Act, there are two ways a person can be legally declared dead by the court when they are no longer able to be found: (1) if they disappeared in "circumstances of peril", or (2) if no one has heard from the person in at least 7 years.

What are "circumstances of peril"?  There is no single answer, but a number of examples have been given, most recently by Justice Lederer in Puffer v. The Public Guardian and Trustee, 2012 ONSC 3579:

Generally, a person is at peril as a result of events or circumstances that are external to the individual. Natural occurrences like hurricanes, earthquakes and forest fires put people at peril. Man-made events, like war or falling buildings, may place a person in serious and immediate danger. There are circumstances where an individual may place himself, or herself, at peril; for example, by driving a car in a winter storm. It may be possible for someone intent on suicide to be at peril. Suppose that, while proceeding across a bridge, a driver sees someone standing on a ledge, outside the protective barrier, looking at the river below. In the short time it takes to stop the car and run back, the person disappears. It does seem the missing individual could reasonably be said to have been at peril.

Essentially, the courts are hesitant to declare that a person is dead, unless it is fairly clear that they are dead.  Even where a person has been gone for more than 7 years, the courts will expect any applicant who wants to declare them dead to have done their due diligence in searching for them.  For example, in Wasylyk v. Wasylyk, 2012 ONSC 7029, the court refused to make a declaration that a person was dead, despite them having gone missing 16 years ago, until the applicants had taken steps such as advertisements in various newspapers, calling people in the phone book with similar names and undertaking real estate searches.

But what happens if a declaration is made, and it turns out to be wrong and the presumed dead person wants the order revoked?  I don't believe there are any cases under the Declarations of Death Act which help us on this point.  And unfortunately, the Act itself is potentially confusing on this point.

The Act has provisions about what to do with the assets of someone who turns out not to be dead.  It also has provisions about revoking or amending a previous order declaring someone dead.  As with an application to declare someone dead, an application to revoke that declaration must be brought by an "interested person" - which is a defined term, that includes anyone "who would be affected by an order declaring that an individual is dead".  It specifically notes that an interested person includes such people as spouses and next of kin, but makes no specific mention of the person who is presumed dead.

So the question is whether the person declared dead is considered an "interested person" that is permitted to bring an application under the Act - while it would seem logical that they are someone who is "affected by an order" declaring themselves dead, I can (playing devil's advocate) see a situation where the court finds that the Declarations of Death Act does not permit them to bring their own application to declare themselves not dead1.  The argument being something like:

1) In the context of an application to declare someone dead, which must be brought by an "interested person" and brought with notice to every other "interested person", interpreting "interested person" to include the dead person him or herself is illogical (since a dead person wouldn't be around to apply, or be given notice of the proceeding);

2) The use of a defined term, such as "interested person", should be consistent throughout the Act, so using it to include the not-really-deceased person in one context (i.e. an application to have a previously declaration of death revoked) but not another (i.e. an application to have them declared dead) is internally inconsistent; and

3) If the legislature who passed the Act really wanted the potentially deceased person to be able to bring an application to revoke an order declaring them dead, then they could have easily said that explicitly in the Act.

So theoretically, I could at least see a situation where an individual is declared dead, and the court refuses to allow him to bring an application to reverse the declaration.  Presumably, this would be an unlikely situation, but stranger things have happened (particularly given the Ohio case that is linked above). 

 


1 Meaning that procedurally, at least, someone else would have to bring the application in order to declare them not dead.  As long as there is someone else around who wants to bring that application.

 

 

 

 

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