One year ago, the Malaysian jetliner MH370 vanished shortly after taking off from Kuala Lumpur. The plane’s sudden disappearance became one of the most significant and strangest tragedies in aviation history. To this date, the families of the missing passengers and crew members still do not have answers as to what happened aboard the plane; although the Malaysian government has since formally declared its disappearance to be an accident. It is likely that everyone aboard the flight passed away, but without bodies to prove death, the family members of the passengers may face significant legal obstacles in administering the estates of their missing loved ones.
In Ontario an interested person may apply to the Court to have a missing person legally declared dead so that his or her estate can be administered.
The Ontario Declarations of Death Act provides that an individual may be declared dead by the Court if he or she is missing for at least seven years and has not been heard from by the applicant or any other person. The legislation was updated in 2002 to create another presumption of death in circumstances where an individual has been missing for less than the required seven year period. Section 2(4) of the Act provides that a person may be declared dead if the Court is satisfied that:
- The individual has disappeared in circumstances of peril;
- The applicant has not heard of or from the individual since the disappearance;
- To the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;
- The applicant has no reason to believe that the individual is alive; and
- There is sufficient evidence to find that the individual is dead.
The meaning to be given to “circumstances of peril” was considered by Justice Parfett in the decision of Poole v. Poole, 2008 CarswellOnt 4103. Mr. Poole was missing for some time and an application was brought before the Court to declare him legally dead. Mr. Poole was severely depressed at the time of his disappearance and had previously attempted suicide. There was also evidence that he had left a handwritten note in his apartment around the time he went missing stating “no more hurting the ones I love except this last big one then it’s done.” At the time of the hearing, there was no case law interpreting the meaning of the term “circumstances of peril”. In the absence of any case law on point, Parfett J. noted several obvious examples, including a person who disappears on a boat and when only the empty boat is found, a person who vanishes while mountain climbing in an area where there is a risk of an avalanche and a person who disappears while flying a small plane in bad weather. Then, relying on the Oxford Dictionary definition of peril (a situation of serious and immediate danger), Parfett J. granted the declaration finding that there was ample evidence before the Court that Mr. Poole was in serious and immediate danger at the time of his disappearance.
In a subsequent case called Re Puffer, 2012 CarswellOnt 8257, the Court was again tasked with applying s.2 (4) of the Act. Mr. Puffer went missing from his cottage on June 26, 2007 and an application for a declaration of death was filed in 2012. The evidence before the Court was that Mr. Puffer had visited the cottage alone and that his family had discovered his vehicle along the shores of Lake Huron with his kayak missing. The Court also heard that he had previously attempted suicide and even informed his physician that he was planning to commit suicide by walking into a lake while on medication. In considering whether an inclination to commit suicide, an abandoned car at the shoreline and a missing kayak were sufficient circumstances to constitute “circumstances of peril”, Lederer J. noted that generally a person is at peril due to events external to the individual and referred to natural events such as hurricanes, earthquakes and forest fires. To distinguish the Poole decision, Lederer J. noted that unlike the situation in Poole, there was no suicide note in the present case. On this basis, Lederer J. concluded that there was insufficient evidence to demonstrate that Mr. Puffer had disappeared in circumstances of peril.
The developing case law in this area suggests that a certain threshold of factors external to the individual must be present to demonstrate the existence of circumstances of peril. While the different types of external events will be identified by the judiciary over time; it seems obvious that the disappearing Malaysian airlines flight would constitute the kind of event that would trigger Section 2(4) of the Act.