Duhaime's Law Dictionary


Deem Definition:

To accept a document or an event as conclusive of a certain status in the absence of evidence or facts which would normally be required to prove that status.

Related Terms: Legal Fiction, Presumption of Fact, Rebuttable Presumption

To accept the proposition of a document, a status or an event as conclusive of it in the absence of evidence or facts which would normally be required to prove that status.

For example, in matters of child support, a decision of a foreign court could be deemed to be a decision of the court of another, for the purpose of enforcement. The registration of a trade-mark is deemed proof of the first use of that trademark.

In The Queen (R) v Norfolk County, an 1891 case, Justice Cave wrote a judgment which contained a classic snippet of legalese:

"When you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless it is to be deemed to be that thing."

In one Australia case before the High Court of Australia (Hunter Douglas), Justice William John Victor Windeyer adopted these words:

"Deemed is commonly used for the purpose of creating a statutory fiction that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced....

"The verb deem, or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote. This is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect. After all, to deem means simply to judge or reach a conclusion about something.

"The words deem and deemed when used in a statute thus simply state the effect of meaning which some matter or thing has - the way in which it is to be adjudged. This need not import artificiality or fiction. It may be simply the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant.

"There is no presumption, still less any rule, that wherever the word deemed appears in a statute it demonstrates a fiction or some abnormality of terminology. Sometimes it does. Often it does not."

In St. Leon Village, Justice Shultz of the Manitoba Court of Appeal wrote:

"The words deem, deemed and shall be deemed when used in statutes usually imply an element of finality, but that meaning is not inflexible or invariable. In some cases these words, or words of identical import, are construed to establish a conclusive presumption....

"Deemed (means) nothing less than adjudged or conclusively considered for the purpose of the legislation."

In Marsh v Canada, Justice Beaubien of the Tax Court of Canada had to define the term as it was used in the employment insurance regulation:

"10(1). Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment."

Justice Beaubien used these words in Marsh:

"The word deem derives from doom. Originally to deem was to speak judgment, as in doomsday or domesday.

"Deem (means) to give or pronounce judgment; to act as judge, sit in judgment; to give one's decision, sentence, or opinion; to arbitrate.

"Deemed is defined as judged, thought, supposed.

"The precedents interpreting the word deemed are agreed in deciding that whether the word deemed is to be regarded as conclusive so as to mean conclusively presumed depends upon the context in which it is used in a document, statute or regulation."

A fact which is deemed is not irrefutable, but merely a rebuttable presumption; will stand until and unless proven otherwise:

"The word deemed is capable of meaning rebuttably presumed, that is, presumed until the contrary is proved."1

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