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A-566-79
The Queen (Appellant) v.
David Benjamin Edward Greenway, Executor of the Estate of Anthony Frederick Mancuso (Respondent)
Court of Appeal, Heald and Urie JJ. and Kerr D.J.—Ottawa, March 31 and April 6, 1981.
Public Service — Superannuation — Appeal from decision of Trial Judge awarding damages to respondent for breach of statutory duty — Public Service Superannuation Act provides that Treasury Board may deem that widow of contributor predeceased contributor in certain circumstances — Benefits were paid to widow without reference to Treasury Board, although Department was aware of conflicting claims — Whether damages were appropriate remedy for breach of statutory duty — Public Service Superannuation Act, R.S.C. 1970, c. P-36, s. 13(5) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 44 — Federal Court Rule 1723.
This is an appeal from a judgment of the Trial Division whereby the respondent was awarded damages for breach of a statutory duty. The evidence disclosed that there was a dispute between the estate of the deceased and his widow over his superannuation and death benefits. Section 13(5) of the Public Service Superannuation Act provides that Treasury Board may deem that the widow of a contributor who was living apart from the contributor under circumstances that would have disentitled her to an order for maintenance, predeceased the contributor. The Department that administered the Act paid the benefits to the widow without reference to Treasury Board, although it was aware of the dispute between the claimants. The Trial Judge held that the appellant had breached a statu tory duty to the respondent and awarded damages to the respondent. The question is whether damages were the appro priate remedy, particularly since they were not sought in the prayer for relief.
Held, the appeal is dismissed. It is a matter of discretion for the Trial Judge to determine whether or not a declaration should be granted. The exercise of that discretion should not be interfered with by the Court of Appeal. The same reasoning is applicable to the appellant's contention that mandamus should issue. While a prayer for general relief will justify the Court in granting any relief justified by the facts, "You cannot, under a general prayer for further relief, obtain any relief inconsistent with that relief which is expressly asked for". The award of damages in this case is not inconsistent with a request for an order directing that the superannuation or death benefits be paid to the respondent. The respondent had been denied a right to which he was entitled and thus had a right to damages therefor. There is no requirement in the Rules requiring the amount of general damages to be stated in the pleadings. Thus,
the principle relating to general relief is not limited by the failure to disclose the quantum of damages sought. The only practical method for compensating the respondent would be award of damages. So far as the quantum is concerned, in order for the appellate Court to intervene, the Trial Judge must have either applied a wrong principle or awarded an amount that was so inordinately low or high that it was a wholly erroneous estimate of the damage. The Court was not persuaded that it should interfere with the award on either of the foregoing bases. In contract or tort cases, a plaintiff is entitled to recover nominal damages only if he fails to prove any actual damage. The same principle should prevail in cases of breach of statu tory duty. The plaintiff did show actual, measurable damage. Therefore, this is not a case for nominal damages only.
Duryea v. Kaufman (1910) 21 O.L.R. 161, considered. Slater v. The Central Canada R. W. Co. (1878) 25 Gr. 363, considered. Cargill v. Bower (1878) 10 Ch. D. 502, referred to. Brickles v. Snell [1916] 2 A.C. 599, referred to. Zamulinski v. The Queen [1956-1960] Ex.C.R. 175, referred to.
APPEAL. COUNSEL:
L. S. Holland for appellant. Edward Greenway for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Edward Greenway, Ottawa, for respondent.
The following are the reasons for judgment rendered in English by
URIE J.: This is an appeal from a judgment of the Trial Division [[1980] 1 F.C. 269] whereby the respondent was awarded the sum of $7,500 in damages to be paid by the appellant by reason of the breach of a statutory duty found to be owed to the respondent.
The learned Trial Judge exhaustively reviewed the facts and it is unnecessary for purposes of this appeal to examine them in detail. Briefly stated, the relevant facts follow.
Anthony Frederick Mancuso, a public servant who had during his employment been a contributor under the Public Service Superannuation Act, R.S.C. 1970, c. P-36, died testate on January 8, 1974. He had two children by a first marriage who, at the time of his death, did not qualify for benefits under the Act by reason of their respective ages. Mr. Mancuso married Frances Mancuso in October, 1953 from which union a son was born. Mrs. Mancuso permanently left the matrimonial home in 1955. From that time she neither sought nor received maintenance from her husband although he paid a small monthly allowance, voluntarily, for the support of his son.
By his will, Mr. Mancuso left the whole of his estate to the two children of his first marriage to share and share alike. On October 22, 1970 he caused to be placed in his employment file a memorandum to receive attention when the occa sion arose reading, in part, as follows:
It is directed in my will that my estate be divided equally between my two children. This is to have on record that any and all benefits and proceeds of any nature arising out of my public service, including all Superannuation and Death Ben efits, are to be paid to my estate and apportioned in accordance with my will.
I am married but have not been living with my wife for the past sixteen years and I have not paid any separation maintenance or allowances to her.
The learned Trial Judge held [at page 274] that the significance of the document was clear. He found:
He has not paid separation maintenance to his wife because he is not obliged to do so and he would not be obliged to do so only if his wife was living apart from him under circumstances which would have disentitled his wife to separate maintenance. If this is so then on certain procedures in the Public Service Superannuation Act in the event of Mr. Mancuso's death being followed the superannuation and death benefits would vest in his estate and be distributed in accordance with his will.
On January 10, 1974, two days after her hus band's death, Mrs. Mancuso wrote the Personnel Director of Mr. Mancuso's employer, the National Film Board, indicating her claim for superannua- tion and death benefits.
By letter dated July 30, 1974, the solicitor for the estate of the deceased forwarded to the Department of Supply and Services, which admin isters the Act on behalf of the Treasury Board, a copy of the letters probate of the will of the deceased, the death certificate and a copy of the memorandum dated October 22, 1970, from which the excerpt quoted above was extracted. Those documents and later letters from the solicitor made it abundantly clear that the estate was claiming the superannuation and death benefits notwithstanding the claim of the widow that she was entitled thereto. In fact he warned of impend ing litigation in the Federal Court of Canada.
The provision of the Public Service Superannu- ation Act to which the learned Trial Judge direct ed his comment in the above quotation from his reasons for judgment is subsection 13(5) which reads as follows:
13....
(5) If, upon the death of a contributor, it appears to the Treasury Board that the widow of the contributor had, for a number of years immediately prior to his death, been living apart from him under circumstances that would have disenti- tled her to an order for separate maintenance under the laws of the province in which the contributor was ordinarily resident, and if the Treasury Board so directs, having regard to the surrounding circumstances, including the welfare of any chil dren involved, she shall be deemed, for the purposes of this Part, to have predeceased the contributor.
From all of the foregoing, the learned Trial Judge concluded, that since there was a dispute between rival claimants, the circumstances were such that subsection 13(5) of the Act would apply. That being so, the decision required to be made pursu ant thereto was one which ought not to have been made by the Department of Supply and Services but rather the matter should have been referred to the Secretary of the Treasury Board for Ministeri al decision. Notwithstanding this fact, an official of the Department of Supply and Services, a Mr. Hagglund, directed an award of the benefits in issue to the widow without reference to the Trea sury Board. As a result, the learned Trial Judge held as follows, at pages 293-294:
For the reasons previously expressed it is my opinion that no authority had been conferred on Mr. Hagglund to make the decision as to whether or not Mrs. Mancuso had been living apart from her husband in circumstances which would disenti- tle her to separate maintenance and depending on what conclu sion was reached on this question to deem or not to deem Mrs. Mancuso to have predeceased her husband.
In the circumstances of this particular case all that Mr. Hagglund and the staff under his direction or reporting to him were authorized to do was to gather information and having done so refer the matter to the Secretary of the Treasury Board for ministerial decision.
As previously indicated Mr. Hagglund did not do this. Rather he decided the matter himself without being authorized to do so and by not referring the matter to the Treasury Board as he was directed to do he thereby deprived the plaintiff of his right to have the matter decided by the Treasury Board. In the language of Lord Denning in the Woollett case that was a defect fatal to the order and not susceptible of ratification.
In my opinion the inquiry conducted by Mr. Hagglund within the administrative field allocated to him did not conform to the general duty of fairness.
Further at page 295 he amplified his finding as to the lack of fairness:
In short being aware of the dispute or having ought to have been so aware Mr. Hagglund obtained representations and evidence from one party to the dispute and totally ignored the other.
That is contrary to the elementary duty to act fairly. Both sides are entitled to be heard.
The solicitor for the estate was not precluded from making representations but he was not invited to do so. He was entitled to know the case being made against his client and afforded the opportunity of meeting it. He was not so informed and there fore had no opportunity to meet any allegations adverse to his client's interests.
The prayer for relief in the respondent's statement of claim is the following two paragraphs:
9. Wherefore the Plaintiff prays that the superannuation and death benefits accruing to the late Anthony Frederick Mancuso be made payable to the estate of the late Anthony Frederick Mancuso in accordance with his Will and wishes as expressed in the memorandum of October 22nd, 1970.
10. The Plaintiff therefore claims as follows:
a) An Order directing that any sums accruing by way of superannuation or death benefit be paid to the estate of Anthony Frederick Mancuso;
b) His costs of this action;
c) Such further and other relief as to this Honourable Court may seem just.
The learned Trial Judge held, quite properly in my view, that he could not direct that the benefits be paid to the estate of the late Mr. Mancuso. To do so, he held, would be for him to make a decision that was the function of the Treasury Board to make and which that Board was precluded from making by the action of Mr. Hagglund. He then found that amendments to the statement of claim permitted by his order at trial had the effect of alleging that the appellant had, by virtue of sub-
section 13(5), a statutory duty and that there had been a breach of that duty with the result that the respondent was entitled to damages. He fixed those damages at the sum of $7,500. It is from the award of damages only that the appellant appeals.
Appellant's counsel at the outset of the appeal made the following concessions:
1. That by virtue of subsection 13(5) of the Act, a duty was owed to the respondent to have a determination made by the Treasury Board as between the competing claims, and, if the estate's claim was to have prevailed, to have a decision as to whether or not, in the circum stances of the case, the widow should be deemed to have predeceased Mr. Mancuso;
2. that there had been a breach of that duty;
3. that the respondent was entitled to some relief; and
4. that damages could be awarded as a result of the breach of duty but if they were to be award ed they should only be nominal damages.
As a result of these important and, I believe quite proper concessions, the only issue to be resolved in this appeal is whether damages were the appropriate remedy in the circumstances of the case.
Counsel, as her first position, argued that the learned Trial Judge erred in awarding damages at all. Rather, she said, a more appropriate remedy would have been to make a declaration with respect to the rights of the parties or, pursuant to section 44 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to issue a mandamus order directing the Treasury Board to hear the matter. In the alternative, and as a secondary position, she argued that no damages had been proved or suf fered and that if the other remedies were not to be granted, the damages awarded ought to have been nominal only and that this Court could fix such nominal damages.
It was appellant's contention that Rule 1723 provides the foundation upon which the Court
could and should, in the circumstances of this case, make a declaratory order respecting the rights of the parties. That Rule reads as follows:
Rule 1723. No action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.
It should first be observed that neither party in their pleadings sought a declaration or declaratory order. However, even if paragraph 10(c) of the statement of claim, supra, could be interpreted as enabling the Court to make such a declaration or order, it is a matter of discretion for the Trial Judge to determine whether or not it should be granted. We were informed that appellant's coun sel at trial argued that an order of that kind should be made. Although he made no mention of it in his reasons, obviously the Trial Judge rejected the suggestion because rather than acceding to it he awarded the damages complained of. Assuming he had the right to make such an award, I do not believe that the exercise of his discretion should be interfered with by this Court.
The same reasoning is applicable to appellant's contention that mandamus should issue requiring the Treasury Board to consider the matter. Coun sel based her submission on this point on section 44 of the Federal Court Act reading as follows:
44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or upon such terms and conditions as the Court deems just.
Clearly the application of that section depends on the formulation of an opinion by the Trial Judge. An Appeal Court will not interfere with the failure of a Trial Judge to reach the opinion that man- damus should issue unless he proceeded on a wrong principle in failing to make such an order. Nothing in the reasons of the learned Trial Judge gives any clue that he made any error in not granting mandamus as requested. His decision not to issue a mandamus, is not then, in the circum stances, a reviewable error.
I turn now to the question of the award of damages. The attack thereon was two-pronged. First, it was said, not only were damages not sought in the prayer for relief in the statement of claim, but no damage was suffered by the failure of Mr. Hagglund to remit the matter to the Trea sury Board for decision and certainly none was proved. Until the Board made a decision on the status of the competing claims it could not be said, in counsel's view, that the respondent suffered any loss.
With respect to the prayer for relief in the statement of claim containing no specific claim for damages, the learned Trial Judge had this to say [at pages 297-298]:
... the amendments to the statement of claim in substance allege a different cause of action, that is a statutory duty to the plaintiff, a breach of that duty with consequent liability on the defendant. While it is not stated the obvious liability is for damages.
That would be included in the catch-all clause in paragraph 10(c) of the relief sought.
In my opinion, the learned Trial Judge was on solid jurisprudential ground in concluding that the prayer for general relief, on the basis of the facts pleaded, entitled him to award damages for the breach of duty although there was no specific claim for them.
In Duryea v. Kaufman', Riddell J. stated the principle in the following way:
No doubt, ... the relief claimed is to be stated either simply or in the alternative; but it is well decided that a prayer for general relief will justify the Court in granting any relief justified by the facts ....
In the earlier case of Slater v. The Canada Central R. W. Co. 2 , Spragge C. in the circum stances of that case put the principle in this way:
The case of Wing v. The Grand Junction R. W. Co. (L.R. 3 Chy. 740) settled the question that where there is a vendor's lien the parties are entitled to enforce it in the way any other lien can be enforced, that is to say by sale. That being the proper remedy it should have been asked for in this case, and the question is whether on this bill, if the parties cannot have ejectmeut [sic] they can have any other remedy. I think they can. They pray primarily for ejectment, but they also pray for "further and other relief," and if on the facts that they allege their proper relief is to have a sale they are entitled to that.
' (1910) 21 O.L.R. 161 at 177-178. 2 (1878) 25 Gr. 363 at 368.
While those and other authorities state the gen eral principle, it is also true that "You cannot, under a general prayer for further relief, obtain any relief inconsistent with that relief which is expressly asked for" 3 . In my opinion, the award of damages in this case is not inconsistent with the claim set out in paragraph 10(a) supra, namely an order directing that the superannuation or death benefit be paid to the respondent. The learned Trial Judge could not grant that claim for the reasons earlier cited, but, on the basis of the pleadings and the facts proved, he found that there had been a breach of a statutory duty. That breach entitled the respondent to claim damages, he found, citing as his authority for this conclusion Zamulinski v. The Queen 4 . There being no incon sistency between the two types of relief he was, in my opinion, entitled to rely on the general relief claimed in paragraph 10(c) of the statement of claim, supra, as the basis for his award of damages.
In the Zamulinski case (supra), Thorson P. said:
In my opinion, the suppliant has a claim arising under a regulation made by the Governor in Council, namely, a claim under section 118 of the Civil Service Regulations. He had a right under that section to be given the opportunity, prior to his dismissal, to present his side of the case to a senior officer of the department nominated by the deputy head. I find as a fact that this right was not given to him. It is a fundamental principle that the violation of a right gives a cause of action: vide Ashby v. White. Here there was a denial of a right to which the suppliant was legally entitled and he has a right to damages therefor.
On this authority, the Trial Judge found that the respondent had been denied a right to which he was entitled under subsection 13(5) of the Public Service Superannuation Act and thus had a right to damages therefor.
The next question to be decided is whether the failure to state the quantum of damages claimed
3 Cargill v. Bower (1878) 10 Ch. D. 502 at 508 per Fry J.; see also: Brickles v. Snell [1916] 2 A.C. 599 at 604 per Lord Atkinson.
4 [1956-1960] Ex.C.R. 175 at p. 189.
affects the conclusion that the general relief claimed, in the circumstances of this case, enables the Trial Division to make an award of damages. In my opinion it does not. Unlike some of the rules of Provincial Superior Courts, there is no require ment in the General Rules and Orders of this Court, so far as I am aware, requiring the amount of general damages to be stated in the pleadings. That being so, the principle relating to general relief is not limited by the failure to disclose the quantum of damages sought.
I now turn to the contention that no damage was either suffered by the respondent from the breach of the statutory duty nor, in any event, were any damages proved. The short answer to those conten tions is, it seems to me, that, as the learned Trial Judge viewed the facts, the only practical way to compensate the respondent for the breach of duty was in damages. This seems to me to be implicit in his reasons. No doubt he formed this view on the basis of his conclusion that to remit the matter to the Treasury Board more than five years after the death of the deceased for a determination of the competing claims with the inherent difficulties after that period of time in obtaining credible evidence, would be virtually an impossible task. The fact that payments had already, over that period, been made to the widow and her son exacerbated the problems faced by the Treasury Board. That being so, the only practical method for compensating the respondent would be an award of damages for the breach of duty. I can only say that I agree.
So far as the quantum is concerned, it must be remembered that the damages here are general damages. As such they are presumed to be the direct, natural or probable consequence of the act complained of. Sufficient facts were adduced in evidence to enable the Trial Judge to calculate the loss with some certainty. He did so and explained his method of calculation. In order for this Court to intervene, we must be satisfied either that the Trial Judge applied a wrong principle or that the amount awarded was so inordinately low or high that it was a wholly erroneous estimate of the damage. I have not been persuaded that this Court
should interfere with the award in this case on either of the foregoing bases.
The second prong to appellant's attack on the question of damages was that if relief by way of damages was the proper remedy, then the damages should be nominal. I can deal with this submission very briefly. As I understand it, in either contract or tort cases, a plaintiff is entitled to recover nominal damages only if he fails to prove any actual damage. I should think the same principle should prevail in cases of breach of statutory duty. As I have already indicated, I am of the opinion, as was the learned Trial Judge, that the respond ent did show, from the evidence adduced, actual, measurable damage. Therefore, this is not a case for nominal damages only.
Accordingly, for all of the foregoing reasons, I would dismiss the appeal.
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HEALD J.: I concur.
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KERR D.J.: I concur.
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