please click here - Fasken Martineau

Transcription

Agence du revenu du Québec c. Small
2016 QCCA 632
2016 QCCA 632 (CanLII)
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF MONTREAL
No:
DATE:
500-09-025326-158
(500-17-080420-139)
APRIL 13, 2016
CORAM: THE HONOURABLE
FRANCE THIBAULT, J.A.
NICHOLAS KASIRER, J.A.
MARIE-JOSÉE HOGUE, J.A.
AGENCE DU REVENU DU QUÉBEC
APPELLANT – defendant
v.
LESLIE SMALL
DERRICK JOSEPH GREATOREX
JOSEPHINE MARGARET FRASER
FREDERICK BRIAN GREATOREX
PATRICIA AGNES HARDMAN
STELLA GERTRUDE HUGUES
JACQUELINE ERIC GREATOREX
RESPONDENTS – plaintiffs
JUDGMENT
[1]
The Agence du revenu du Québec appeals a judgment of the Superior Court,
District of Montreal (the Honourable Mr. Justice Thomas M. Davis), rendered on May 5,
2015, granting in part a petition of inheritance brought by the respondents.
[2]
For the reasons of Kasirer, J.A. with which Thibault and Hogue, JJ.A. agree, THE
COURT:
[3]
DISMISSES the appeal, with legal costs;
500-09-025326-158
PAGE: 2
FRANCE THIBAULT, J.A.
MARIE-JOSÉE HOGUE, J.A.
Mtre Philippe Veillette
REVENU QUÉBEC – LARIVIÈRE , MEUNIER
For the appellant
Mtre Antoine Aylwin
FASKEN MARTINEAU DUMOULIN
For the respondents
Date of hearing:
March 10, 2016
[4]
CONFIRMS the judgment of the Superior Court, with the exception of the order
made as to costs, and ORDERS that costs at trial be awarded against the appellant.
500-09-025326-158
PAGE: 1
[5]
A man died intestate. At the time of his death, it was thought he had no family
whatsoever. The public curator liquidated his estate and remitted the residue to the
province as unclaimed property.
[6]
Many years later, distant cousins on his father’s side of the family were found in
England by a business specializing in the recovery of unclaimed estates. The cousins
instituted proceedings against the provincial authorities in order to have the balance of
the estate turned over to them as the sole heirs of the deceased.
[7]
The province recognized the cousins in the paternal line as heirs but was
concerned that relatives in the same degree in the maternal line might later come
forward with a legitimate claim to a share of the estate. Accordingly, the authorities
agreed to remit one-half of the residue to the paternal heirs and sought to withhold the
balance, on the basis of their understanding of the rules of succession, until the
prescription period for the unknown maternal heirs claim expired or until it could be
established that no maternal heirs existed.
[8]
Can the province withhold the property from the relatives in the paternal line –
the only known heirs of the deceased – and, if so, under what authority?
I
Facts and Proceedings
[9]
The Agence du revenu du Québec has appealed a judgment of the Superior
Court granting a petition of inheritance brought by the respondents, cousins of the late
Philip Ronald Hughes, and declaring them to be the deceased’s sole intestate heirs.
The judge ordered that the whole of the residue of his estate be remitted to them
immediately, in equal shares.
[10]
The facts are not in dispute.
[11] In 1990, Mr Hughes died in Montreal at the age of 65. He left no will. Because his
succession opened prior to the coming into force of the Civil Code of Québec, the rules
relating to the devolution of intestate successions in the Civil Code of Lower Canada
apply to Mr Hughes’ estate.1
[12] At death, Mr Hughes was unmarried and had no children or other issue. His
parents, who were born in England, had predeceased him. He had no brothers or
sisters. In the months following his death, no relatives filed a claim on the estate.
1
Section 37, An Act respecting the implementation of the reform of the Civil Code, SQ 1992, c. 57.
REASONS OF KASIRER, J.A.
PAGE: 2
[13] Mr Hughes had been subject to a curatorship at the time of his death. The public
curator continued to administer his estate thereafter pursuant to provisions of the Public
Curator Act then in force.2 When no heirs came forward after Mr Hughes’ death, the
public curator liquidated the estate in accordance with its statutory responsibilities and,
some time in the 1990s, remitted the residue to the Ministry of Finance. When the
Minister of Revenue took over administrative responsibilities for unclaimed property in
the province in 2006, the estate was thus already in the hands of the Minister of Finance
who held it as property of the State.3
[14] In December 2013 – more than 23 years after Mr Hughes’ death – the
respondents commenced proceedings to claim the whole of the estate by way of a
“petition of inheritance” (in French a “petition d’hérédité”). They said they were relatives
of the late Mr Hughes in the paternal line and, as such, his sole intestate heirs. They
had been previously located in England by Mondex Corporation, a Canadian company
in the business of seeking out heirs and assisting them in the recovery of unclaimed
estates. A family tree prepared in support of the petition was filed in evidence by the
respondents and is reproduced as Schedule I to these reasons.
[15] Great nephews and great nieces of Mr Hughes’ father, the respondents are
second cousins of the deceased. They are his ordinary collateral relations, in the
paternal line, in the same degree.4 The bonds of filiation between the respondents and
the deceased are not contested.
[16] The respondents’ parents had failed to assert their rights as heirs of the estate
before the prescription period applicable to their claims expired on December 31, 2003.
Prescription began to run against the respondents on January 1, 2004. The parties
agree that their petition of inheritance, subject to a ten-year limit, is thus not prescribed.5
[17] No other persons have come forward to claim a share of the estate to date. In
addition, no other successors are known to exist apart from the respondents.
2
3
4
5
LRQ, c C-81.
Sections 24, 40, 41 and 42 of the Public Curator Act, ibid., now amended, were broadly similar to the
regime for remittance of unclaimed successoral property to the province under the Unclaimed
Property Act, CQLR, c B-5.1, although now the Minister of Revenue has replaced the public curator at
various stages of the process. The Agence du revenue du Québec was named defendant in the
present proceedings pursuant to the Unclaimed Property Act in its quality of liquidator of the estate of
the late Mr. Hughes.
The respondents are “ordinary collaterals / collatéraux ordinaires” in the order of intestate succession
established in the Civil Code of Lower Canada. Respondents Derrick Joseph Greatorex and
Frederick Brian Greatorex died in 2012 and 2013 respectively, after the death of Mr Hughes and after
the expiry of the prescription period that applied to their parents’ claim. Their estates are parties to the
proceedings and that standing is not contested.
The prescription period is fixed according to the rule set out in subsection 39(2) of An Act respecting
the implementation of the reform of the Civil Code, SQ 1992, c. 57.
500-09-025326-158
PAGE: 3
[18] In their amended petition of inheritance filed in the Superior Court, the
respondents sought a declaration that they are the sole heirs of the deceased. They
claimed that, given the absence of heirs in the maternal line, the whole of the residue of
Mr Hughes’ estate should devolve to them, in equal shares, with interest, pursuant to
the rules in the Civil Code of Lower Canada on intestate successions. They also asked
for a detailed accounting of the liquidation of the estate.
[19] In its defence, the appellant submitted that when no heirs came forward after
liquidation, the balance of the estate fell to the province as unclaimed property. It
acknowledged that persons having a proper claim to the estate could secure the
remittance of the property thereafter from the Minister of Finance, but only if they
established their status as heirs in respect of the entitlement claimed. The appellant
took the position at trial, reiterated on appeal, that the respondents had failed to
establish their entitlement to the whole of the succession.
[20] The appellant conceded that the respondents have a right to a share of the
succession as ordinary collateral heirs under the Civil Code of Lower Canada. The
appellant argued, however, that under the applicable law of intestate succession, article
634 C.C.L.C. provides that where the only heirs are ordinary collateral relations, the
entire estate is subject to division (in French a “fente successorale”), into two equal
parts, one of which devolves to the nearest relation in the paternal line and the other to
the nearest relation in the maternal line. The appellant argued that the nearest heir in
the maternal line, should he or she come forward before the prescription period expires,
would have a right to one-half of the estate alongside the respondents, heirs in the
paternal line. The appellant submitted that the respondents had provided no evidence
establishing that the deceased left no relatives in the maternal line. Without proof that
there were no maternal heirs, the respondents’ share should, at least for the present, be
limited to 50% of the residue of the estate.
[21] As a result, the appellant stated that it could not remit the whole of the estate to
the respondents. In its view, the State should, for the present time, hold one-half of the
remainder in accordance with provisions of the Unclaimed Property Act.
II
Judgment of the Superior Court
[22] The trial judge granted the petition of inheritance and declared the respondents
to be “the only currently identified heirs of the deceased, Philip Ronald Hughes”. As
such, he concluded, they were entitled to receive the entire residue of the estate, to be
divided among them in equal parts, “under reserve of the rights of any currently
unidentified heirs” (paras [44] and [45] of the judgment in appeal).
[23] The judge recognized that the State had, prior to the respondents’ claim,
acquired the residue of the estate as unclaimed property. Once the respondents had
come forward as legitimate heirs in the paternal line, however, article 636 C.C.L.C.
precluded the State from continuing to claim ownership of all of or even one-half of the
500-09-025326-158
PAGE: 4
assets it holds (para. [37]). He declined to divide the estate into two family lines based
on article 634 C.C.L.C. because the division only operates in the event that there are
“identified” collateral heirs on both the paternal and maternal sides. Moreover, he was of
the view that one-half of the estate did not become the property of the State when no
maternal heirs were identified, but that the whole devolved to the respondents by
reason of the principle of the “unity of succession”.
[24] The judge also addressed the question as to whether the balance of the estate
could be remitted to the respondents in advance of the date at which the claims by heirs
in the maternal line would be prescribed. Citing article 627 C.C.Q., he decided that the
heirs in the maternal line, if they ever came forward with a valid claim for their one-half
share, could ask for restitution from the respondents. The judge acknowledged that the
protection of the maternal heirs’ interest might not be as strong as it would be if the
State were still administering their portion of the estate. In his view, however, this factor
alone did not justify withholding the property from the respondents.
[25] After rejecting the appellant’s arguments based on the Unclaimed Property Act,
the judge wrote:
[40] While the Court is by no means imputing an intention to the ARQ to
confiscate the property of the Claimants, the effect of its decision to retain onehalf of the succession has the same practical effect. The Claimants are deprived
of one-half of the value of the succession and must rely on the ARQ to remit it in
the event no heirs on the maternal side come forward within the prescription
period. This result is not one which is supported by the relevant legislation.
[26] The judge ordered the appellant to remit to the respondents, in equal parts, the
whole of the residue of the estate, with interest.
III
Grounds of Appeal
[27] In its inscription in appeal, the appellant asks that the judgment of the Superior
Court be set aside, the amount remitted to the respondents be limited to 50% of the
residue of the estate and that the claim to the one-half share devolved to the relatives in
the maternal line be dismissed.
[28] The appellant submits that the judge made several errors when he ordered that
the whole of the estate be made over immediately to the respondents. Its position can
be usefully considered under two grounds of appeal.
[29] Firstly, the trial judge is said to have misapplied the rules applicable to intestate
successions and, in particular, of unclaimed successoral property. He failed to
appreciate that, following liquidation, the State had title to the property under the
Unclaimed Property Act and article 701 C.C.Q. and could only remit it to persons who
established their quality or status as true heirs. He further erred in law in imposing too
500-09-025326-158
PAGE: 5
light a burden on the respondents for establishing their right to the whole of the estate at
a time when the rights of possible heirs in the maternal line were not prescribed. The
judge should have divided the estate into two equal shares pursuant to article 634
C.C.L.C., allotting one share to each of the paternal and maternal lines respectively.
Given that heirs on the maternal side may still come forward, the judge should have
allowed the province to retain 50% of the estate until the expiry of the prescription
period.
[30] Secondly, and in the alternative, the appellant says the trial judge was mistaken
in stating that article 627 C.C.Q. would allow heirs in the maternal line to obtain
restitution of their share of the residue if it were remitted to the respondents. If it turned
over property to the respondents without further proof of their entitlement, the appellant
fears it would be exposed to civil liability should ordinary collateral relations in the
maternal line later come forward and fail to obtain restitution from the apparent heirs.
[31] Each of the appellant’s two grounds of appeal will be considered in turn. For
convenience sake, the principal provisions of the Civil Code of Lower Canada, the Civil
Code of Québec and the Unclaimed Property Act are set out in Schedule II to these
reasons for judgment.
IV
Discussion
IV.1
Did the judge err in deciding that the appellant had no right to retain
50% of the property in the circumstances? Did he err in concluding that
the respondents had established their right to the whole of the estate?
[32] In order to address the appellant’s arguments on this first ground, it is useful, as
a preliminary matter, to clarify both (1) the basis of the differing claims each party
asserts to the property and (2) the burden of proof incumbent on the respondents for
their petition of inheritance, before proceeding to consider (3) the application of that
burden by the judge to the facts of the case.
IV.1.1 The basis of the parties’ respective claims to the estate
[33] As noted, the respondents are ordinary collaterals of Mr Hughes. In default of
ordinary collaterals in the maternal line, they stake their claim to the whole of the estate
on their quality as his sole heirs pursuant to the rule in article 635 C.C.L.C.
[34]
What is the basis of the appellant’s claim to retain the property?
[35] The circumstances in which the provincial authorities came into possession of
the property of the estate bear recalling. When no family members came forward to
claim the estate following Mr Hughes death in 1990, the public curator liquidated the
500-09-025326-158
500-09-025326-158
PAGE: 6
[36] At the time of the institution of the proceedings in 2013, section 30 of the
Unclaimed Property Act, enacted in 2006, confirmed that the sums remitted to the
Minister of Finance from Mr Hughes’ estate had “become property of the State / sont
acquises à l’État”, subject to a possible claim by the heirs. The Civil Code of Québec
similarly provides that where a deceased leaves no known relatives within the degrees
of succession and liquidation is completed – as was the case following Mr Hughes
death – the amounts constituting the residue of the estate “then become the property of
the State / sont alors acquises à l’État”, but are also subject to a claim by heirs.7
[37] The appellant is therefore right to say that it had title to the money constituting
the residue of the estate as unclaimed property at the time of the trial. Contrary to what
the respondents argue, the State is no longer an administrator of the property of
another. Prior to liquidation, the State’s powers and duties were circumscribed,
including a requirement, now expressed in section 19 of the Unclaimed Property Act,
that the property could not be commingled with that of the State. Once the liquidation is
over, that requirement no longer applies. Following liquidation, the State’s title gives it
prerogatives over the property that are broader than the powers enjoyed by the
liquidator of an estate and, in principle, its formal obligation as liquidator to seek out the
heirs has come to an end, subject to the important caveat in section 1 of the Unclaimed
Property Act and notice requirements imposed on the State, as discussed below.
[38] But even if that money is property of the State following liquidation, the rightful
heirs could claim it until such time as the prescription period expired.
[39] Section 30, para. 2 of the Unclaimed Property Act provides that, in like
circumstances, the sum of money delivered to the Minister may be recovered, with
interest, by a “right-holder / ayant droit” who establishes his or her “quality / qualité” as
heir, subject to the rules on petition of inheritance, including prescription. The title over
the sums acquired by the State as recognized in article 701 C.C.Q. is similarly subject
to a claim by late-coming heirs: the Code expressly provides that the amounts may be
recovered, again with interest, by heirs “who establish their quality / qui établit leur
qualité” within ten years from the opening of the succession or, as is the case here for
the respondents, from the date their right arose on January 1, 2004.
6
7
Section 42, para. 1 of Public Curator Act, supra, note 2, provided that where no heir or liquidator
appears, the succession of a person whose property was administered by t he Public Curator
“devolves on the State / est recueillie par l’État” six months from the date of the opening of the
succession. One might well ask whether the term “devolves”, which suggests that the property is
acquired by the State by succession, is the appropriate term to describe that transfer of property,
especially in light of the generic “recueillie” employed in the French text .
Articles 696, 700 and 701 C.C.Q., as amended, which apply, as a matter of transitional law, to the
respondents’ claim filed after January 1, 1994: art. 626 C.C.Q. and s. 39, An Act respecting the
implementation of the reform of the Civil Code, SQ 1992, c. 57.
succession. The sums of money representing the residue were remitted to the Minister
of Finance and thereupon acquired by the State as unclaimed property. 6
500-09-025326-158
PAGE: 7
[41]
I disagree.
[42] The judge did occasionally use language to suggest that the provincial authorities
continued to administer the property. When read as a whole, however, his reasons do
not indicate that he considered the State to be the administrator of property of another
but, as he stated, an “owner” (or title-holder) of the sums of money constituting the
residue of the estate. The judge characterized the State’s interest in the residue of the
succession at paragraphs [14] and [15] of his reasons as follows: “although the state is
owner of the money in a succession, the state is bound to return it if an heir is identified”
and “the state’s ownership is conditional on there being no heirs”. I understand the
judge to have used the term “ownership” in its generic and not technical sense as a
means of describing the State’s title to the property in question, which is a sum of
money, not typically thought of as the subject-matter of the right of ownership. Following
liquidation, however, the title to the sums that fall to the State is, in the judge’s words,
“conditional”, until prescription runs out to exclude possible claims by legitimate heirs.
While the title itself is unencumbered, the State will only be free of possible claims by
heirs after the relevant prescription periods expire.
[43] The judge was not wrong to use the image of conditional ownership, even
though, technically speaking, the State has outright title to the sums of money from the
time of acquisition and a distinct debt, to the heirs, of an equivalent amount, with
interest, if and when a proper claim is made within the prescription period. While the title
itself to the sums in question is held outright, the State will only be free of possible
claims by heirs after the relevant prescription periods expire. At that time, even a
successor “who has been unaware of his heirship / qui a ignore sa qualité” is deemed to
have renounced the succession (article 650 C.C.Q.). The judge made no mistake in law
in his characterization of the State’s title.
[44] The recoverable character of the money associated with the State’s title is made
plain by section 1 of the Unclaimed Property Act, a provision that the appellant failed to
mention in argument:
1. La présente loi a pour objet de
favoriser la récupération par leurs
ayants droit des biens non réclamés
et d'assurer la remise à l'État des
biens sans maître ou dont les ayants
droit
demeurent inconnus
ou
introuvables. Elle prévoit les règles
régissant l'administration provisoire
de ces biens.
1. The purpose of this Act is to
facilitate the recovery of unclaimed
property by right-holders and to
ensure that property without an owner
or property in respect of which the
right-holders remain unknown or
untraceable is delivered to the State.
The Act also sets out the rules
governing provisional administration
of that property.
[40] The appellant contends the judge misunderstood that, after liquidation, it has title
to the funds in question and is no longer a mere administrator of this property.
PAGE: 8
[45] In our case, the disputed one-half share of Mr Hughes liquidated estate will
necessarily be recovered, pursuant to the policy announced in section 1, by one or
another of his heirs and will never become the outright property of the State.
[46] Unlike scenarios in which all right-holders remain “unknown or untraceable /
inconnus ou introuvables” at the expiry of the prescription period, there are known,
legitimate heirs to the Hughes estate: the respondents. What is more, under the law of
intestate succession, the province has no ultimate claim to this estate in its own right.
The recognition by the appellant that the respondents are legitimate heirs of the estate
means that the State’s title must necessarily give way at some time. In other words, in
response to the action by the respondents the State has no claim to the contested
property pursuant to article 606 C.C.L.C. because there are known heirs – the
respondents – of the late Mr Hughes. This is not an instance in which the Crown comes
forward as an “irregular successor / successeur irrégulier” under article 636 C.C.L.C.8 It
is not a case of a succession that is “vacant / vacante” pursuant to articles 684 or 685
C.C.L.C.9 Despite what may have been some uncertainty on this point at trial, the
appellant – defendant in the petition of inheritance – has no claim and makes no claim
to the residue of the estate in its own right under the law of succession.
[47] Stated simply, the residue of the succession after liquidation was unclaimed for a
time but that is no longer the case. Again, the judge made no mistake on this point
when he wrote: “Now that the Claimants [i.e. the respondents] have come forward, the
state can no longer claim ownership of the entire succession; but can it claim ownership
of half of it, or at least an obligation to hold half of the assets?” (para. [15]).
[48] What remains to be determined is the answer to the judge’s question:
notwithstanding the respondents’ claim, can the appellant nevertheless retain the onehalf share of the residue for the duration of the prescription period which share, i t says,
should devolve to the relatives – presently unknown – in the maternal line?
IV.1.2 The burden of proof for the respondents’ petition of inheritance
[49] The appellant submits that in deciding whether it could retain the disputed
property, the judge erred in law in his interpretation of sections 30 and 31 of the
Unclaimed Property Act and article 701, para. 2 C.C.Q., specifically in that he
8
9
Where a deceased left no relations within the heritable degree, the succession was irregular insofar
as the Crown obtained the property by a judgment in delivery of possession (in French “envoi en
possession”) pursuant to art. 639 C.C.L.C. The fact that the respondents are heirs within the heritable
degree and claim the property is a bar to the Crown claiming as an irregular successor.
A succession was “deemed vacant / réputée vacante” pursuant to art. 684 C.C.L.C. where there were
no known heirs or if the known heirs renounced the succession. The respondents are known heirs
and claim the whole estate in the absence of heirs in the maternal line.
500-09-025326-158
500-09-025326-158
PAGE: 9
[50] The appellant argues that as ordinary collaterals in the paternal line, the
respondents only have a right to one-half of the estate pursuant to the rules on the fente
successorale, “à moins de pouvoir établir qu’il n’existe aucun successible dont les droits
ne seraient pas prescrits dans l’autre ligne tel que stipulé à l’article 635 C.c.B.C .”. The
appellant says the respondents failed to meet that burden, imposed by section 31 of the
Act and article 701 C.C.Q., because they did not prove their quality as Mr Hughes sole
intestate heirs.
[51] The respondents disagree: they argue that they only have to show that they are
ordinary collaterals of the deceased and, in the absence of any other claim by a known
heir, the State must remit the property to them.
[52] On the content of the burden of proof, the judge wrote that the appellant was too
harsh in what it required of the respondents:
[30] The Court is also of the view that the ARQ gives article 31 of the Unclaimed
Property Act an interpretation that is too broad in scope, particularly when one
considers the goals of that act and the other stipulations of the Civil Code of
Lower Canada.
[31] Article 31 requires a claimant to establish his/her right to the claimed
property. It does not require the claimant to prove that there is no one else with a
potential claim on the property.
[53] It is true that the judge said little about the precise content of the burden facing
the respondents beyond the observation – quite right in my view – that section 31 does
not require absolute proof of the non-existence of other potential claimants to the
property. But they did have to show, on the balance of probabilities, that there were no
ordinary collaterals in the maternal line in order to demonstrate, under the terms of
article 635 C.C.L.C., their entitlement to inherit the whole of the residue.
[54] This required the judge to evaluate the evidence adduced by the respondents to
establish their right to the property. While the judge could have been more explicit in
respect of what needed to be proved, for the reasons that follow I am not convinced that
he erred on this point.
[55]
What, in law, was the burden the respondents faced at trial?
[56] In order to justify their claim to the disputed sums of money as “right-holders”
against the State, the respondents had to show, on the balance of probabilities, that
they are intestate heirs entitled to the entire residue of Mr Hughes' estate. Section 31 of
the Unclaimed Property Act provides:
misapprehended the content of the burden of proof incumbent on the respondents who
claim the whole of the residue of the estate pursuant to articles 634 and 635 C.C.L.C.
31. Il appartient à celui qui réclame
un bien ou qui veut récupérer une
somme auprès du ministre d'établir
sa qualité.
PAGE: 10
31. It is incumbent upon persons who
claim property or want to recover a sum
of money from the Minister to establish
their quality.
[57] The burden of establishing their “quality / qualité” under section 31 is, in
substance, the same as the quality of heirship spoken to in article 701, para. 2, C.C.Q.
Both the Act and the Code specify that this must be done within the applicable
prescription period.
[58] It is the same burden as that required to succeed in a “petition of inheritance”,
such as the one brought by the respondents. This action is a judicial proceeding
whereby a plaintiff seeks to assert his or her vocation to inherit property under the rules
of succession and oblige the defendant, who holds the property on the basis of an
allegedly lesser title, to respect that vocation.10 As a general rule, the petition of
inheritance is brought by would-be heirs against the holder of disputed property who
claims, as well, to be an heir or legatee under the law of succession.11 This Court has
nevertheless held that it is not inappropriate that a petition of inheritance be directed, as
in this case, by a would-be heir against the Minister of Revenue, even after an
unclaimed estate has been liquidated and the residue remitted to the Minister of
Finance, in the name of the Crown in right of the province.12
[59] In its defence before the trial judge, the appellant characterized the petition of
inheritance as incomplete, stating “[l]es demandeurs doivent en effet démonter
l’absence de parents successibles au moment de l’ouverture de la succession jusqu’au
huitième degré”. On appeal, the appellant retreated somewhat from this position,
acknowledging that it would be unfair to hold the respondents to an impossible burden
of proof. But the appellant reiterated its argument that the respondents had made “no
effort” to show an absence of heirs in the maternal line at trial, noting that they had filed
no affidavit evidence as to whether they were aware of the existence of maternal heirs.
Moreover, no evidence was brought that Mondex Corporation – the company that
located the cousins on Mr Hughes father’s side – had made efforts to find heirs on the
mother’s side.
10
11
12
The action is expressly governed in the Civil Code of Québec by articles 626 et seq. C.C.Q., including
the rule in article 627 according to which apparent heirs may be called to restore property wrong
taken by them or attributed to them to true heirs, discussed below.
Jacques Beaulne, Les successions (d’après l’œuvre de Germain Brière), 4th ed. (Montreal: Wilson &
Lafleur, 2010), n° 124.
See the reasons of Chamberland, J.A. on this point in Deshaies v. Quebec (Sous-ministre du
Revenu, 2010 QCCA 905, para. [23] and [24]. As my colleague notes, the mention of the petition of
inheritance in section 30, para 2 of the Unclaimed Property Act indicates that the legislature expressly
contemplates a petition of inheritance in these circumstances, even if the State does not claim the
estate in its own right. See also Colizza v. Agence du revenu du Québec, 2015 QCCA 1285, para.
[30]. I note that Professor Beaulne observes that circumstances may exist where a petition of
inheritance against the State is not, practically speaking, necessary: ibid., n° 121.
500-09-025326-158
PAGE: 11
[60] As a result, says the appellant, the respondents have no right to the one-half
portion of the estate reserved for relatives in the maternal line according to the division
of the estate required by article 634 C.C.L.C. Until such time as the maternal heirs come
forward, or at least that the applicable prescription period expires, the State should
retain that one-half share of the estate pursuant to sections 30 and 31 of the Unclaimed
Property Act and article 701 C.C.Q.
[61] In answer, the respondents resist the argument that a division between ordinary
collateral heirs in the maternal and paternal lines should be undertaken here. They
recognize that, pursuant to article 634 C.C.L.C., the division would apply had relatives in
both lines sought a share of the estate, but insist that when no such heirs in the
maternal line came forward, they were entitled to the whole once they established their
quality as ordinary collaterals. Moreover, the State cannot, on the basis of the
Unclaimed Property Act or otherwise, oppose its title to the estate to the respondents
who, by the appellant’s own account, are the sole legitimate heirs to have come forward
to date. They argue that the judge was correct, therefore, in recognizing that the whole
of the property should be remitted to them now.
[62] The respondents went further in their argument before the Court: they described
the decision of the appellant to withhold the property as arbitrary, unfounded in law, and
undertaken in violation of the right to property recognized in section 6 of the Quebec
Charter of Human Rights and Freedoms.
[63] With respect, I am of the view that both parties have mischaracterized the burden
of the respondents in respect of a petition of inheritance made against the State which
holds an estate as unclaimed property.
[64] In his treatise on the law of intestate succession, Albert Mayrand explained the
nature of the petition of inheritance as follows:
La vocation héréditaire est sanctionnée par l’action en pétition d’hérédité. C’est
l’action par laquelle un demandeur, invoquant sa qualité d’héritier ou de
successeur irrégulier, réclame la totalité ou une partie de l’hérédité contre le
possesseur […]. Cette action a un double but : établir la vocation héréditaire du
demandeur et contraindre le défendeur à respecter les droits de l’héritier. 13
[65] Satisfying this burden in connection with this proceeding imposes two
requirements on the respondents, as French scholar Pierre Raynaud observed: “Le
demandeur à la pétition d’hérédité doit prouver sa qualité d’hériter, c’est-à-dire qu’il est
parent du défunt au degré successible, et qu’il vient au rang utile”.14
13
14
Albert Mayrand, Les successions ab intestat (Montreal: P.U.M., 1971), n° 234.
Pierre Raynaud, Marty et Raynaud : Droit civil – Les successions et les libéralités (Paris: Sirey,
1983), n° 192.
500-09-025326-158
PAGE: 12
[66] It is insufficient for the respondents to demonstrate the existence of the bond of
filiation that connects them with the late Mr Hughes alone; they have to show, on the
balance of probabilities, their legitimate bond of heirship. The quality or status of
heirship is a relational concept that binds a person to the deceased for the purposes of
succession.15
[67] To establish their “quality” as heirs within the meaning of section 31 of the
Unclaimed Property Act and article 701, para. 2 C.C.Q., respondents had to
demonstrate that they have the proper rank in the order of succession – “le rang utile”,
to use the expression of Professor Raynaud – that would entitle them to the whole of
the estate. The respondents had to show, on the balance of probabilities, that the
division set out in article 634 C.C.L.C. did not apply and that, as ordinary collaterals of
Mr Hughes, they had the quality of heirship, including the proper rank, to take the whole
of the remainder under article 635 C.C.L.C.
[68] To exclude application of the fente, the respondents had to demonstrate, on the
balance of probabilities, that there were no ordinary collaterals in the maternal line. An
intestate succession is only divided into two lines pursuant to article 634 C.C.L.C. if
ordinary collaterals exist in both lines.16 Article 635 C.C.L.C. directs that in default of
relatives within one line, those in the other line inherit the whole.
[69] While there is no dispute that the respondents are ordinary collaterals, in the
same degree, in the paternal line, they also had to bring some evidence upon which the
judge could rely indicating that there were no other heirs to compete with them their
claim. When they came forward and demanded that the State remit unclaimed
successoral property, the respondents had to do more than establish that they were
successors in a heritable degree to meet the burden in section 30 and article 701. They
had to bring evidence that they were of the proper rank, i.e. that they were sole ordinary
collaterals.
[70] That said, the position asserted by the appellants at trial, that the respondents
had to disprove absolutely the existence of maternal heirs, is impractical and unfair.
Beyond the filing of acts of death of persons known to have existed, it is generally
impossible, or nearly so, to prove the non-existence of heirs.17 Setting up an unduly high
hurdle for a person seeking the return of unclaimed property strikes me as contrary to
15
16
17
In Colizza, supra, note 12, my colleague Claude Gagnon, J.A. wrote for the Court that “les héritiers
devaient tout de même satisfaire à l’exigence administrative d’établir les liens d’hérédité qui les
unissaient à la défunte” (para. [45], emphasis added).
See Henri Turgeon, Le système successoral de la province de Québec: Le mort saisit le vif
([Montreal]: Chambre des notaires, 1949) 19; Mayrand, supra, note 13, nº 178.
In La liquidation des successions (Montreal: Wilson & Lafleur, 2002) n° 31, Professor Jacques
Beaulne explained the notion that no person is bound to show the impossible by way of an example:
comment Michel pourrait-il prouver qu’il est le seul frère du défunt? Les actes de l’état civil peuvent
établir l’existence d’une personne, mais pas son inexistence; comment, donc, Michel peut -il
prouver qu’il n’a aucun autre frère ni sœur?
500-09-025326-158
500-09-025326-158
PAGE: 13
[71] By the same token, however, the respondents have understated their burden.
Where the competent authorities have completed the liquidation of an unclaimed estate,
the appellant is entitled to insist on evidence, beyond kinship, that the person claiming
the estate comes at the “proper rank” in relation to others who could make a claim on
the estate. It is appropriate for the State to consider its duty, pursuant to the very same
section 1 of the Act invoked by the respondents, to facilitate the recovery of unclaimed
property by other “right-holders” who have not yet formulated a claim.
[72] Thus, in Deshaies,18 this Court confirmed a trial judge’s refusal to order that
property be remitted by the State to a collateral heir in the seventh degree because the
burden of proving heirship was not met on the balance of probabilities. My colleague
Chamberland, J.A. wrote that the claimant, while undoubtedly a successor, had failed to
meet her burden of proving her quality of heirship:
[8] Le lien de parenté avec la défunte ne fait pas de doute; l'appelante est donc
une successible de celle-ci, ce qui n'est pas contesté par l'intimé.
[9] Il existe toutefois d'autres successibles potentiels, par exemple les père et
mère de la défunte, le père de l'appelante, Jean-Luc Deshaies, qui, selon la
preuve, vit toujours. Il se pourrait également qu'il y en ait d'autres, par exemple
des frères et sœurs de Mme Groulx, des neveux et nièces, etc.
[…]
[47] La preuve de l'appelante se limitant à établir son lien de parenté avec la
défunte, mais ne permettant pas de déterminer quand son droit à la succession
s'est ouvert et si elle est la seule successible dont le droit n'est pas prescrit, le
juge de première instance était bien fondé de conclure au rejet de sa demande.
À cet égard, je note qu'à l'audience l'intimé reconnaissait le droit de l'appelante
de présenter une nouvelle demande comportant la preuve que les autres
successibles des degrés antérieurs au sien sont décédés ou ont renoncé,
volontairement ou par l'effet de la loi, à la succession.
[Emphasis added.]
[73] It is thus possible for a claimant to be denied immediate title to an estate pending
the anticipated claims of other successors or heirs. But it should be noted that the facts
in Deshaies were quite different from those in the case at bar. As Chamberland, J.A.
noted at paragraph [9] of his reasons, other successors to the deceased existed and,
according to the evidence, were still living at the time of the petition of inheritance. It
18
Supra, note 12.
the duty incumbent on provincial authorities, spoken to in section 1 of the Unclaimed
Property Act, of facilitating the recovery of unclaimed property by right-holders.
500-09-025326-158
PAGE: 14
[74] With this burden in mind, I turn now to a consideration of the appellant’s
argument that the judge erred in remitting the whole of the estate to the respondents.
IV.1.3 Burden of proof as applied to the facts of the case
[75] The appellant submits that the judge erred in deciding there was sufficient
evidence to substantiate the respondents’ claim to the whole of the estate. It alleges
that there was “no evidence” of the non-existence of maternal heirs, such that article
635 C.C.L.C. could not apply to exclude the fente. In the circumstances, the judge
should have divided the residue according to article 634 C.C.L.C. and left 50% in the
hands of the State until the prescription expires.
[76] The appellant thus alleges an error of fact in the evaluation of the evidence
relating to the respondents’ quality of heirship. It must show a palpable and overriding
error committed by the judge in order to justify intervention on appeal.
[77] In deciding that the respondents were immediately entitled to the whole of the
estate, the judge did not comment extensively on the evidence they adduced, except to
observe, quite correctly, that there was no dispute that the respondents were ordinary
collaterals of the deceased, there was no dispute that they were the only known heirs,
and that there was no evidence that other heirs or successors existed. The judge’s
conclusion to remit the whole of the residue to the respondents suggests, however, that
he considered that the evidence presented in support of the petition of inheritance was
sufficient to show, on the balance of probabilities, that no ordinary collaterals in the
maternal line existed.
[78] For the reasons that follow, I am of the view that no reviewable error has been
shown impugning that conclusion.
[79] What evidence was in fact brought forward by the respondents to meet their
burden? Surprisingly, the parties devote scant attention to this point in argument.
[80] In support of their claim to the whole of the estate, the respondents provided
what in Quebec are called acts of civil status – their birth records and certain death
records of their ascendant relations prepared in England and elsewhere. By producing
these records, the respondents sought to demonstrate their bond of filiation with the late
Mr Hughes. But the death certificates went further: they helped eliminate the possibility
of claims by certain prior ranking successors and, thus, constituted partial evidence in
service of their quality of heirship in the proper rank under articles 634 and 635 C.C.L.C.
The respondents also provided a diagram illustrating the deceased’s family tree and
indicating relatives in the paternal line and, except for his mother, no relatives in the
was unlikely that the collateral heir in the seventh degree had the “quality” of heirship
entitling her to the whole of her claim. In our case, there are no known successors or
heirs other than the respondents, in the maternal line or otherwise.
500-09-025326-158
PAGE: 15
[81] Their claim was supported by an affidavit, prepared by Halina Kijowska, who
declared that she acted as coordinator of the genealogical research in the file for the
company that located the respondents in England. Ms Kijowska stated that the
deceased had no siblings but said no more as to the existence of other relatives. The
affiant made no explicit declaration in respect to the existence or non-existence of
maternal heirs or whether they were sought out. Moreover, in their petition of
inheritance, the respondents content themselves with a declaration that no maternal
heirs have come forward. They make no comment as to whether they know of any
maternal heirs. The respondents themselves filed no affidavit evidence.
[82] At trial, the respondents called no witnesses. The appellant chose not to examine
the affiant on her affidavit and only called an employee of the Agence du revenu du
Québec who testified as to standard procedures in the department regarding unclaimed
estate property.
[83]
Did the respondents show, on the balance of probabilities, their quality as heirs?
[84] It is true that the respondents filed no direct evidence as to whether or not they
know of the existence of heirs in the maternal line. While it would have been virtually
impossible for them to bring indisputable proof that there are no ordinary collaterals in
the maternal line, the lack of a sworn declaration that they themselves knew of no such
relatives is regrettable. In many families, even distant relatives are well enough
informed to know whether or not other family members exist for the purpose of ranking
in the succession. In my view it would be appropriate, as a general practice, for persons
presenting themselves in like circumstances to declare, in an affidavit or through oral
testimony susceptible of scrutiny, that they believe themselves to be the sole heirs and
thus entitled to the whole of the estate. This seems to me to be consonant with the
burden of proving, on the balance of probabilities, their quality of heirship pursuant to
section 31 of the Unclaimed Property Act, article 701 C.C.Q., and in keeping with the
scholarly opinion that a person filing a petition of inheritance must show that he or she
has the quality of heirship in the proper rank. In some circumstances, given the virtual
impossibility of proving the non-existence of relatives through direct evidence, a sworn
declaration to this effect may well suffice to complete proof of heirship. I note that, in
Colizza, for example, affidavit evidence of this sort was filed in service of a claim made
against the Agence du revenu du Québec.19
19
See Colizza, supra, note 12, para. [46]:
Le Curateur public avait également requis des clients de Me Decobellis que chacun d’entre eux
produisent une déclaration détaillée sous serment spécifiant leurs liens d’hérédité avec la de cujus
et leurs droits de réclamer sa succession.
maternal line. This diagram was produced in evidence and was not challenged by the
appellant.
PAGE: 16
[85] It is of course theoretically possible, based on the record in our case, that one or
another of the respondents knew of the existence of ordinary collaterals in the maternal
line, living in England or elsewhere, and simply were not asked or decided not to share
that information.
[86] Is the absence of a sworn declaration a bar to the respondents claim? While the
judge did not discuss the specifics of the evidence in detail, he plainly thought the
record was sufficient to support the respondents’ claim against provincial authorities. I
agree with his conclusion for the following reasons.
[87] Firstly, more than twenty-three years had passed since Mr Hughes death and no
relatives on the mother’s side have come forward. The judge noted this fact which is
clearly evidence relevant to his conclusion. This does not prove these people do not
exist, especially in light of the fact that Mr Hughes mother was born in England and died
in the United States.20 But the judge was entitled to rely on the long passage of time –
substantially more, for example, than in Deshaies – to justify his inference that these
potential successors are non-existent or untraceable.
[88] Secondly, and connected to the previous point, no relatives in the maternal line
came forward notwithstanding notices published by provincial authorities as required by
law. As a general rule, when provincial authorities act as administrators or liquidators of
an unclaimed estate they are required to give notice in the Gazette officielle and publish
a notice to that effect in a local newspaper.21 An inventory of the property must be
prepared by the liquidator and published in the register of personal and movable real
rights, as well as in the local press. A final account of administration must also be
published. Importantly, article 700 C.C.Q. – as noted above, a provision in the section of
the Civil Code bearing on the rights of the State to otherwise unclaimed successions –
requires the public authorities responsible to publish a notice marking the end of
liquidation indicating the extent of the residue of the estate and the “time granted to
successors to assert their rights of heirship / le délai pendant lequel tout successible
peut faire valoir ses droits d’héritier”. The purpose of these formalities is plain: the
authorities are bound to give notice as a means, however imperfect, of alerting
interested persons, including successors, as to the existence of the estate and of any
successoral property susceptible of being claimed. To my mind, these notice
requirements amount to a clear direction by the legislature, consonant with section 1 of
the Unclaimed Property Act and the similar policy in articles 696 et seq. C.C.Q., that the
province should only take the property as a last resort, after having sought out, in this
way, family members having what the law considers to be a better claim to the estate.
20
21
One learns from her death certificate filed as an exhibit that she died in Las Vegas, prior to the death
of Mr Hughes, after having remarried. That document makes no mention of offspring or other
relatives.
See art. 688 C.C.L.C. which imposed this duty on the public curator, as well as section 16 of the
Unclaimed Property Act, supra, note 3, and article 699 C.C.Q., as amended, which now imposes the
duty on the Minister of Revenue.
500-09-025326-158
PAGE: 17
[89] In our case, the public curator, and not the appellant, acted as liquidator of the
succession of Mr Hughes, but nothing in the record indicates that the proper notices
were not given. While the lack of response to notices is of course not conclusive,
especially when relatives live out of Quebec, the absence of a claim by relatives in the
maternal line, notwithstanding the notices, is further evidence that supports the
inference that the respondents met their burden of proof on the balance of probabilities.
[90] Thirdly, the record as constituted provides no evidence of other known
successors. In this sense, the evidence is, as noted, unlike that in Deshaies in which
evidence in the record showed the existence of successors with a potentially better title
to the property than the successor who had come forward. In our case, this fact,
however inconclusive in absolute terms, is further evidence that encourages the
inference that the respondents are not just the only known heirs, but that they are the
only heirs and thus entitled to take the whole of the residue under article 635 C.C.L.C.
[91] Fourthly, there is some evidence in the record that potential heirs of a higher rank
do not exist. Mr Hughes death certificate attests to the fact that he was single. There is
proof of death of certain ascendant and privileged collateral relations. It is nevertheless
true that there are no death certificates for ordinary collaterals in the maternal line, but if
these people never existed, they of course would have no birth or death records. 22
[92] Fifthly, the family tree filed in evidence makes no mention of ordinary collaterals
on the mother’s side. The document was apparently prepared by the company working
in service of the respondents’ claim and has, of course, no official character. There is no
denying that its probative value is not robust. But it was not challenged, nor did the
appellant examine the genealogical expert from the company, who produced an
affidavit. The purpose of the family tree may only have been to illustrate heirs in the
paternal line, as it was described in the amended petition of inheritance, but the
appellant was free to question the representative of Mondex and did not do so.
[93] The evidence is not overwhelming as to the non-existence of relatives in the
maternal line. Frankly, the respondents did not prove, either, that they are the only
ordinary collateral heirs in the paternal line, but the appellant makes no mention of this,
apparently content to rely on the veracity of the family tree filed in evidence.
[94] That said, the difficulty of proving the non-existence of competing heirs and
successors is a necessary feature of the burden of proof in a petition of inheritance. Did
Mr Hughes himself have unaccounted for children? Did his mother or father have
siblings that are not spoken to in the record? Establishing the order of succession in any
22
The appellant’s argument on this point in its defence at trial is particularly difficult to understand. It
had submitted that, in order to establish their quality as heirs, the respondents had to produce “les
actes de naissance et de décès des autres successibles de la ligne maternelle délivrés par le
Directeur de l’État civil ou tout autre document officiel délivré par des autorités habilitées permettant
d’établir la filiation”.
500-09-025326-158
500-09-025326-158
PAGE: 18
[95] I would add that when a petition of inheritance is directed against the State in
respect of unclaimed property, the “quality” of heirship should be interpreted with a view
to honouring the State’s commitment, spoken to in section 1 of the Unclaimed Property
Act, to facilitate the recovery of property by rightful holders thereof. In the exercise of
interpreting sections 30 and 31 of the Unclaimed Property Act and article 701, para. 2
C.C.Q, my colleague Claude C. Gagnon, J.A. usefully observed in Colizza: “ces
dispositions, que l’on peut qualifier de réparatrices, ont justement pour objet de facili ter
la récupération par l’ayant droit de son bien et doivent, à mon sens, recevoir une
interprétation plus large pour pouvoir atteindre de façon cohérente cette finalité”.23
[96] The aspects of the record set out above, in particular the long passage of time
since Mr Hughes death, while not absolutely dispositive of the question, satisfy me that
the appellant is wrong when it says there is “no evidence” of the non-existence of
collateral heirs in the maternal line. While the judge did not weigh the evidence expli citly
in his reasons, I am satisfied that, on the balance of probabilities, the respondents
adduced sufficient evidence at trial to establish their “quality” as heirs in the proper rank
under article 635 C.C.L.C. to inherit the whole of the residue, to the exclusion of
ordinary collaterals in the maternal line. I would not disturb the conclusion of the
Superior Court on this point.
[97] Accordingly, the judge was not mistaken in declining to divide the estate between
ordinary collaterals of the paternal and maternal lines by reason of the fente
successorale. Article 634 C.C.L.C. does not apply here because the respondents have
brought sufficient proof to show, on the balance of probabilities, that they are the sole
ordinary collaterals of the late Mr Hughes.
[98] Once it was ascertained, as a matter of evidence, that no ordinary collateral heirs
in the maternal line existed, it was not necessary, strictly speaking, to consider the
application of the fente. While the judge was not wrong in what he wrote on the principle
of the unity of succession, the justification for excluding the division of the estate under
article 634 C.C.L.C. here is evidentiary.
[99] But for the sake of clarity, I would add that the proposition that a division of the
succession between the two family lines, pursuant to article 634 C.C.L.C., should apply
in the absence of a maternal heir, but based on the hypothesis that one exists and will
come forward within the prescription period, is untenable in law. Not only does it run
counter to the evidence, but this argument amounts to saying that one-half of the
succession should not devolve to the sole ordinary collateral heirs. As the judge noted,
this understanding of the division in article 634 C.C.L.C. falls afoul of the principle that a
23
Supra, note 12, para. [51].
intestacy may well involve, be it for a liquidator or a judge seized of a petition of
inheritance, the occasional leap of faith when it depends on the proof of non-existence
of family members.
PAGE: 19
succession forms a single legal universality.24 This is elegantly expressed in the last
portion of article 614 C.C.Q.: all the property of a succession “constitutes a single
patrimony / ne forment qu’un seul patrimoine”. This same principle is expressed
differently, but no less clearly, in article 599 C.C.L.C., which provides that the whole of
the property of a succession forms “but one inheritance” (in French “une seule et unique
hérédité”) which is transmitted and divided according to uniform rules. If the estate were
to be divided between the two lines, even provisionally, in the absence of heirs in the
maternal line, only one-half of the estate would be transmitted. Article 635 C.C.L.C.
precludes this, thereby carrying forward the principle of the unity of succession.
[100] Once it has been decided that the fente did not apply, does the appellant have
any further justification for withholding part of the estate?
[101] To my mind, the appellant has failed to establish any basis for retaining the
residue of the estate. In light of the evidence adduced at trial, the respondents have
established their quality, as “right holders” under the Unclaimed Property Act and as
“heirs” under article 701, para. 2 C.C.Q., to inherit the sums remitted to the State after
liquidation. Subject to a later claim in restitution, noted below, the property devolves to
them alone, in equal shares, pursuant to article 635 C.C.L.C. as the sole ordinary
collaterals of the late Mr Hughes.
IV.2
Did the judge err in holding that article 627 C.C.Q. would provide heirs in
the maternal line an adequate remedy against the respondents?
[102] The appellant submits an alternative argument in the event that this Court
confirms the judge’s decision to remit the whole of the residue to the respondents
immediately. In the appellant’s view, the judge erred in holding that an action in
restitution would be an adequate remedy for potential claimants in the maternal line
because, unlike the State, the respondents might be insolvent and unable to return the
money to the rightful heirs.
[103] The judge held that a restitutionary claim directed against the respondents would
be adequate. Citing the Civil Code of Québec, he wrote:
[19] One answer to this dilemma can be found at article 627 C.C.Q., which
provides that the apparent heir who receives something not due to him/her from
the succession is bound to restore it. Therefore, in the event that heirs on the
maternal side do come forward, they have a certain protection, albeit perhaps not
24
A universality of law (“universalité de droit”) may be defined as follows: “Ensemble de biens et de
dettes formant un tout […] dont les éléments actifs et passifs sont inséparablement liés” – Gérard
Cornu, Vocabulaire juridique, 8th ed. (Paris: Quadrige/P.U.F., 2007) 945. Professor Cornu gives the
example of the patrimony. The limited liability for debts for heirs does not materially change the reality
that the Civil Code of Québec considers that, in principle, a succession is a universality of law as
stated in art. 614 C.C.Q.
500-09-025326-158
500-09-025326-158
PAGE: 20
[104] In essence, the appellant argues that the remedy in restitution in article 627
C.C.Q., while technically available, fails to offer a reliable protection for the heirs who
may later come forward. In the event that the respondents become insolvent, article 627
C.C.Q. would provide no guarantee that future claimants would be able to recover the
share of the estate that is rightly theirs. The appellant fears it would be exposed in like
circumstances to an action in civil liability for having imprudently remitted the whole of
the estate prematurely to the respondents. For this additional and subsidiary reason,
and recalling the State’s duty to remit unclaimed property to its rightful owners, the
appellant argues that it should be authorized to withhold 50% of the estate until the end
of the prescription period for claims by heirs in the maternal line.
[105] Before commenting further on this argument, it should be noted that the parties
agree that, as a matter of transitional law, article 627 C.C.Q. would apply to an action in
restitution brought by late-coming heirs in the maternal line against the respondents, as
apparent heirs.25 Moreover, the appellant does not dispute that article 627 would be an
available remedy; it simply argues that it would be an inadequate one.
[106] Is the appellant right to say that the risk of insolvency, or of a potential action in
damages by would-be maternal heirs against the State, justifies withholding the property
from the respondents?
[107] In my view, there is no basis in law for the position taken by the appellant. This
argument should be rejected.
[108] The appellant’s grounds for retaining the property are speculative at best: first, it
is speculative that a legitimate heir exists and will come forward within the prescription
period; and, second, it is speculative that, if this did happen, the respondents would be
financially unable to answer an action in restitution brought under article 627 C.C.Q.
The alternative solution proposed by the appellant would be unfair to these legi timate
heirs who have established, to the satisfaction of the trial judge and of this Court, that
they are the only heirs of Mr Hughes and, as such, are presently entitled to the whole of
the residue of the estate.
[109] The appellant is not wrong to say that, if it commits a fault in the administration or
transfer of unclaimed property that causes harm to a would-be heir successor, it
exposes itself to an action in civil liability. But where a legitimate heir comes forward and
satisfies the burden of showing that he or she has the quality to inherit, as required by
25
The parties rely, correctly in my view, on section 97 of the Act respecting the implementation of the
reform of the Civil Code, SQ 1992, c. 57 which provides that articles 1699 to 1707 C.C.Q. are
applicable to restitutions based on former causes of restitution made after the coming into force of the
new Code. Article 627 C.C.Q., which is an application of the general rules of restitution in the
successoral context, would apply by extension of this principle.
as strong as if the state was still administering the maternal half of the
succession.
500-09-025326-158
PAGE: 21
***
[110] Finally, the respondents ask for costs in both courts.
[111] The judge exercised his discretion not to award costs in favour of the
respondents and against the losing party at trial given what he characterized as the
“unique nature of the question” before the Superior Court.
[112] Most respectfully stated, I disagree with this decision. While I recognize that trial
judges have meaningful discretion on matters of costs, I am of the view that principle
dictates that the Agence du revenu du Québec, as the losing party, pay costs at trial
and legal costs on appeal. Legitimate heirs who successfully defend their right of
inheritance need not have to underwrite the hesitations of the Agence du revenu du
Québec in the exercise of its powers under the Unclaimed Property Act and the Civil
Code, especially in light of the State’s duty to facilitate the recovery of property by
rightful owners.
[113] In fairness to the judge, it is not clear to me that he was aware that the appellant
was treating this matter as something of a test case. In its inscription in appeal, the
appellant wrote “[l]e jugement de la Cour supérieure a un impact sur plusieurs dossiers
présentement traités par la Direction des biens non réclamés de la défenderesse”. The
judge was right to characterize some aspects of this file as “unique”, but in my
respectful opinion it would be unfair to have the respondents finance the provincial
authorities choice to test the question in the Superior Court, especially given the
outcome of the test.
[114] With the exception of ordering costs against the appellant at trial, I propose that
the judgment of the Superior Court be confirmed and that the appeal be dismissed, with
legal costs.
sections 30 and 31 of the Unclaimed Property Act and article 701 C.C.Q., the appellant
must remit the property claimed. When the burden has been met, there is no fault in
acting on that duty.
500-09-025326-158
PAGE: 1
SCHEDULE I
PAGE: 1
SCHEDULE II
Principal codal and legislative provisions relied upon by the parties:
[1]
Civil Code of Lower Canada
606. Les successions ab intestat
sont déférées aux héritiers légitimes
dans l’ordre réglé par la loi; à défaut
de tels héritiers, elles sont dévolues
au souverain.
606. Abintestate successions pass to
the lawful heirs in the order
established by law; in default of such
heirs they fall to the crown.
634. [Si le défunt, mort sans époux
successible ni postérité, sans père ni
mère, sans frères ni sœurs, ni
neveux ni nièces au premier degré,
laisse des ascendants dans une des
lignes seulement, le plus proche de
ces ascendants prend la moitié de la
succession dont l’autre moitié est
dévolue au plus proche parent
collatéral de l’autre ligne.
634. [If the deceased, having left no
consort capable of inheriting nor issue
surviving, nor father, nor mother, nor
brothers, nor sisters, nor nephews nor
nieces in the first degree, leave
ascendants in one line only, the
nearest of such ascendants takes one
half of the succession, the other half
of which devolves to the nearest
collateral relation of the other line.
Si, dans le même cas, il ne reste
aucun ascendant, la succession
entière se divise en deux parts
égales dont l’une est dévolue au
plus proche parent collatéral de la
ligne paternelle, et l’autre au plus
proche
parent
de
la
ligne
maternelle.]
If, in the same case, there be no
ascendants, the whole succession is
divided into two equal portions, one of
which devolves to the nearest
collateral relation of the paternal line,
and the other to the nearest of the
maternal line.]
Entre collatéraux, sauf le cas de la
représentation, le plus proche exclut
tous les autres; ceux qui sont au
même degré partagent par tête.
Among collaterals, saving the case of
representation, the nearest excludes
all the others; those who are in the
same degree partake by heads.
635. Les
parents
au-delà
du
douzième degré ne succèdent pas.
635. Relations beyond the twelfth
degree do not inherit.
À défaut de parents au degré
successible dans une ligne, les
In default of relations within the
heritable degree in one line, the
500-09-025326-158
[2]
PAGE: 2
parents de l’autre ligne succèdent
pour le tout.
relations of the other line inherit the
whole.
636. Lorsque le défunt ne laisse ni
conjoint successible ni parent au
degré successible, les biens de sa
succession
appartiennent
au
souverain.
636. When the deceased leaves no
consort capable of inheriting nor
relations within the heritable degree,
his succession falls to the crown.
684. Après l’expiration des délais
pour faire inventaire et pour
délibérer, s’il ne se présente
personne qui réclame la succession,
s’il n’y a pas d’héritiers connus, ou
s’ils ont renoncé, cette succession
est réputée vacante.
684. After the expiration of the delays
for making the inventory and for
deliberating, if no one come forward
to claim a succession, if there be no
known heirs, or if the known heirs
have renounced, such succession is
deemed vacant.
685. La déclaration de vacance
d’une succession est demandée et
obtenue de la manière prescrite au
Code de procédure civile.
685. A declaration that a succession
is vacant is requested and obtained in
the manner prescribed in the Code of
Civil Procedure.
688. Les dispositions de la section
troisième du présent chapitre sur la
forme de l’inventaire, sur les avis à
donner et sur les comptes à rendre
de la part de l’héritier bénéficiaire,
sont applicables, mutatis mutandis,
au curateur public agissant comme
curateur d’office aux successions
vacantes.
688. The provisions of the third
section of this chapter as to the form
of the inventory, the notices to be
given and the accounts to be
rendered by beneficiary heirs, apply,
mutatis mutandis, to the public curator
acting as curator ex officio to vacant
successions.
Civil Code of Québec
626. Le successible peut toujours
faire reconnaître sa qualité d'héritier,
dans les 10 ans qui suivent soit
l'ouverture de la succession à
laquelle il prétend avoir droit, soit le
jour où son droit s'est ouvert.
626. A successor is entitled to have
his heirship recognized at any time
within 10 years from the opening of
the succession to which he claims to
be entitled or from the day his right
arises.
627. La reconnaissance de la qualité
d'héritier au successible oblige
l'héritier apparent à la restitution de
ce qu'il a reçu sans droit de la
succession, suivant les règles du
livre Des obligations relatives à la
restitution des prestations.
627. An apparent heir is obliged, by
the recognition of the heirship of the
successor, to restore everything he
has received from the succession
without right, in accordance with the
rules in the Book on Obligations
relating to restitution of prestations.
500-09-025326-158
PAGE: 3
696. Lorsque le défunt ne laisse ni
conjoint ni parents au degré
successible, ou que tous les
successibles ont renoncé à la
succession ou qu'aucun successible
n'est connu ou ne la réclame, l'État
recueille, de plein droit, les biens de
la succession qui sont situés au
Québec.
696. Where the deceased leaves no
spouse or relatives within the degrees
of succession, or where all the
successors have renounced the
succession, or where no successor is
known or claims the succession, the
State takes, by operation of law, the
property of the succession situated in
Québec.
Est sans effet la disposition
testamentaire qui, sans régler la
dévolution des biens, vient faire
échec à ce droit.
Any testamentary provision which
would defeat this right without
otherwise providing for the devolution
of the property is without effect.
697. L'État n'est pas un héritier; il est
néanmoins saisi, comme un héritier,
des biens du défunt, dès que tous
les successibles connus ont renoncé
à la succession ou six mois après le
décès, lorsque aucun successible
n'est connu ou ne réclame la
succession.
697. The State is not an heir, but is
nonetheless seized of the property
bequeathed, as is an heir, once all
known successors have renounced
the succession, or, where no
successor is known or claims the
succession, six months after the
death.
Il n'est pas tenu des obligations du
défunt au-delà de la valeur des
biens qu'il recueille.
It is not liable for obligations of the
deceased in excess of the value of
the property it takes.
698. La saisine de l'État à l'égard
d'une succession qui lui est échue
est exercée par le ministre du
Revenu.
698. Seisin of a succession which
falls to the State is exercised by the
Minister of Revenue.
Tant qu'ils demeurent confiés à
l'administration du ministre du
Revenu, les biens de la succession
ne sont pas confondus avec les
biens de l'État.
No property of a succession may be
mingled with the property of the State
so long as it remains under the
administration of the Minister of
Revenue.
699. Sous réserve de la Loi sur les
biens non réclamés (chapitre B-5.1)
et sans autre formalité, le ministre
du Revenu agit comme liquidateur
de la succession. Il est tenu de faire
inventaire et de donner avis de la
saisine de l'État à la Gazette
officielle du Québec; il doit
également faire publier l'avis dans
un journal distribué dans la localité
699. Subject to the Unclaimed
Property Act (chapter B-5.1) and
without any other formality, the
Minister of Revenue acts as liquidator
of the succession. He is bound to
make an inventory and give notice of
the seisin of the State in the Gazette
officielle du Québec; he shall also
cause the notice to be published in a
newspaper circulated in the locality
500-09-025326-158
PAGE: 4
où était établi le domicile du défunt.
where the deceased was domiciled.
700. À la fin de la liquidation, le
ministre du Revenu rend compte au
ministre des Finances.
700. At the end of the liquidation, the
Minister of Revenue renders an
account to the Minister of Finance.
Il donne et publie un avis de la fin de
la liquidation, de la même manière
que s'il s'agissait d'un avis de la
saisine de l'État; il indique, à l'avis,
le reliquat de la succession et le
délai pendant lequel tout successible
peut faire valoir ses droits d'héritier.
The Minister of Revenue gives and
publishes a notice of the end of the
liquidation in the same manner as for
a notice of seisin of the State. He
indicates in the notice the residue of
the succession and the time granted
to successors to assert their rights of
heirship.
701. Le ministre du Revenu, au
moment où il rend compte, remet au
ministre des Finances les sommes
constituant le reliquat de la
succession, qui sont alors acquises
à l'État.
701. The Minister of Revenue, upon
rendering account, transfers to the
Minister of Finance the amounts
constituting the residue of the
succession, which then become the
property of the State.
Tout héritier qui établit sa qualité
peut néanmoins, dans les 10 ans qui
suivent soit l'ouverture de la
succession, soit le jour où son droit
s'est ouvert, récupérer ces sommes
auprès du ministre du Revenu avec
les
intérêts,
capitalisés
quotidiennement et calculés depuis
la remise de ces sommes au
ministre des Finances au taux fixé
en application du deuxième alinéa
de l'article 28 de la Loi sur
l'administration fiscale (chapitre A6.002).
Heirs who establish their quality may,
however, within 10 years from the
opening of the succession or from the
day their right arises, recover those
amounts from the Minister of
Revenue with interest capitalized
daily and calculated from the time the
amounts were transferred to the
Minister of Finance, at the rate set
under the second paragraph of
section 28 of the Tax Administration
Act (chapter A-6.002).
776. La liquidation de la succession
ab intestat ou testamentaire consiste
à identifier et à appeler les
successibles, à déterminer le
contenu de la succession, à
recouvrer les créances, à payer les
dettes de la succession, qu'il
s'agisse des dettes du défunt, des
charges de la succession ou des
dettes alimentaires, à payer les legs
particuliers, à rendre compte et à
776. The liquidation of an intestate or
testate succession consists in
identifying and calling in the
successors, determining the content
of the succession, recovering the
claims, paying the debts of the
succession, whether these be debts
of the deceased, charges on the
succession or debts of support,
paying the legacies by particular title,
rendering an account and delivering
500-09-025326-158
500-09-025326-158
PAGE: 5
faire la délivrance des biens.
Unclaimed Property Act, CQLR c B-5.1
1. La présente loi a pour objet de
favoriser la récupération par leurs
ayants droit des biens non réclamés
et d'assurer la remise à l'État des
biens sans maître ou dont les ayants
droit
demeurent inconnus
ou
introuvables. Elle prévoit les règles
régissant l'administration provisoire
de ces biens.
1. The purpose of this Act is to
facilitate the recovery of unclaimed
property by right-holders and to
ensure that property without an owner
or property in respect of which the
right-holders remain unknown or
untraceable is delivered to the State.
The Act also sets out the rules
governing provisional administration
of that property.
2. Outre
les
biens
dont
l'administration lui est par ailleurs
confiée en vertu de la loi, le ministre
du Revenu est administrateur
provisoire des biens suivants:
2. In addition to property otherwise
entrusted by law to the administration
of the Minister of Revenue, the
Minister of Revenue is the provisional
administrator of
[…]
[…]
4°les biens d'une succession qui
sont situés au Québec, jusqu'à ce
que les héritiers ou un tiers, désigné
conformément
aux dispositions
testamentaires du défunt ou par le
tribunal, soient en mesure d'exercer
la charge de liquidateur de la
succession ou jusqu'à ce que le
ministre, notamment dans les cas où
l'État est saisi de ces biens, soit
habilité à agir à ce titre;
(4) property belonging to a succession
and situated in Québec, until the
heirs, or a third person designated in
accordance with the testamentary
provisions made by the deceased or
designated by the court, are able to
discharge the office of liquidator of the
succession or until the Minister, in
particular in cases where the State is
seized of the property, is empowered
to act in that capacity;
15. Le ministre a la simple
administration des biens qui sont
confiés à son administration, à
moins que la loi ne le prévoie
autrement.
15. The Minister has the simple
administration
of
the
property
entrusted
to
the
Minister's
administration,
unless
the
law
provides otherwise.
Il n'est toutefois pas tenu
conserver ces biens en nature.
The Minister is not, however, required
to preserve the property in kind.
de
[3]
the property.
PAGE: 6
28. […]
28. […]
4° en l'absence d'un bénéficiaire de
l'administration et dans tous les cas
où les biens sont administrés pour le
compte de l'État, lorsque la
liquidation des biens par le ministre
prend fin et que les opérations
permettant d'assurer la remise des
sommes administrées ou provenant
de cette liquidation sont complétées.
(4) in the absence of any beneficiary
of the administration and in all cases
where the property is administered on
behalf of the State, once the Minister's
liquidation of the property has ended
and all operations for the delivery of
the administered sums of money and
of those deriving from the liquidation
have been completed.
29. Le ministre doit, à la fin de son
administration, rendre compte de
celle-ci et remettre les biens à ceux
qui y ont droit.
29. On
the
termination
of
administration, the Minister must
render
an
account
of
the
administration
and
deliver
the
property
to
the
right-holders
concerned.
Lorsque l'administration se termine
dans les conditions prévues au
paragraphe 4° de l'article 28, la
reddition de compte et la remise des
sommes qui restent à la fin de
l'administration sont faites au
ministre des Finances.
If the administration terminates in
circumstances described in paragraph
4 of section 28, the account is to be
rendered, and the sums of money
remaining are to be delivered, to the
Minister of Finance.
Le
gouvernement
peut,
par
règlement, déterminer la forme et le
contenu de la reddition de compte
que doit faire le ministre en vertu du
présent article, de même que les
modalités de remise des sommes
visées au deuxième alinéa.
The Government may, by regulation,
determine the form and content of the
account to be rendered by the
Minister under this section, as well as
the terms for the delivery of the sums
of money referred to in the second
paragraph.
30. Les sommes remises au ministre
des Finances sont acquises à l'État.
30. All sums of money delivered to the
Minister of Finance become property
of the State.
Tout ayant droit aux sommes ainsi
remises, y compris aux biens dont la
liquidation a produit ces sommes,
peut néanmoins les récupérer
auprès du ministre, avec les intérêts,
capitalisés
quotidiennement
et
calculés depuis cette remise au taux
Any right-holder with respect to sums
of money so delivered, or with respect
to the property from whose liquidation
such sums derive, may recover the
sums from the Minister, with interest
capitalized daily and calculated from
500-09-025326-158
fixé en application du deuxième
alinéa de l'article 28 de la Loi sur
l'administration fiscale (chapitre A6.002).
Sous
réserve
des
dispositions du Code civil relatives à
la pétition d'hérédité, ce droit est
imprescriptible, sauf à l'égard des
sommes dont le montant est
inférieur à 500 $ au moment de leur
remise au ministre des Finances, où
le droit de les récupérer se prescrit
par 10 ans à compter de cette
remise.
[…]
PAGE: 7
the date of delivery, at the rate set
under the second paragraph of
section 28 of the Tax Administration
Act (chapter A-6.002). Subject to the
provisions of the Civil Code relating to
the petition of inheritance, the right of
recovery is not subject to prescription,
except where it relates to a sum of
money amounting to less than $500 at
the time of its delivery to the Minister
of Finance, in which case the right to
recovery is prescribed 10 years after
the date of delivery.
[…]
31. Il appartient à celui qui réclame
un bien ou qui veut récupérer une
somme auprès du ministre d'établir
sa qualité.
31. It is incumbent upon persons who
claim property or want to recover a
sum of money from the Minister to
establish their quality.
500-09-025326-158

please click here - Fasken Martineau

Transcription

Documents pareils

Maison pour artistes à vendre, Sifnos

House For Sale L`Île-Bizard/Sainte

Villa de luxe à vendre à Naxos

Article sur OZE Energies dans la revue Immobilier Services

Job Title : Property Administrator Reference Number

Villa avec piscine à Sifnos

Villa à vendre à Sifnos, Vathi

Untitled

Sifnos, Faros, villa avec piscine

BNP PARIBAS REAL ESTATE PROPERTY MANAGEMENT