Can insurance premiums paid during the absence of a person be recovered?

Not surprisingly, Quebec case law confirms that there are circumstances in which what has been paid during the absence of a person because of the legal consequences attached to that person’s status as an absentee cannot be recovered. In Savard v. Metropolitan Life Insurance, [1971] C.S. 631, for example, a plaintiff sought to obtain the proceeds of a life insurance policy pursuant to art. 2529 C.C.L.C. (then art. 2593a C.C.L.C.) (which, it will be recalled, exceptionally provided that a life insurance beneficiary could obtain a “declaration of presumption of death” where the insured person had been absent for seven years). The plaintiff sought such a declaration, as well as an order for the reimbursement of the insurance premiums paid since the day of the disappearance of the absentee. While the court allowed the plaintiff’s request for a declaration of presumption of death, it did not order the reimbursement of the insurance premiums, noting that to obtain such an order the plaintiff should have proceeded pursuant to arts. 70 et seq. C.C.L.C., which allowed for an order fixing the date of death at the date of disappearance, but only where death could be held to be certain (which was not the case there). But when a judgment granting a request for a presumption of death was rendered under art. 2529 C.C.L.C., the date of death was fixed at the date of the judgment. On this point, Brière explains as follows (at para. 53): [translation] It should be noted that, unlike a declaratory judgment of death, a judicial declaration of presumption of death made under article 2529 C.C.L.C., in the life insurance context, could not fix the date of death at the time the death likely occurred; the court could only declare that the assured was presumed to be dead at the date of the judgment; as a result, it was impossible to obtain reimbursement of the premiums paid since the start of the absence. In contrast, a declaratory judgment of death could be set up immediately against the insurer that had insured the life of the deceased as long as that insurer had been impleaded (art. 71 para. 3 C.C.L.C.). [Footnote omitted.]