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.
* * *
HEALD J.: I concur.
* * *
KERR D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.