T-194-75
David Benjamin Edward Greenway, Executor of
the Estate of Anthony Frederick Mancuso
(Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, June 20,
21, 22, and July 10, 1979.
Public Service — Superannuation benefits — Widow living
separate and apart from contributor for several years at time
of his death — Treasury Board to decide if widow to be
deemed not to be surviving spouse pursuant to criterion set out
in statute — Evidence was only public gathered information,
without invitation for representations from estate's solicitor —
Case not presented to Treasury Board because, in the public
servant's opinion, there was not enough evidence for it to deem
the widow not to be a widow — Benefits administered to widow
— Whether or not there was a duty and breach of that duty
concerning the conduct of the inquiry — Whether or not the
benefits should be paid the estate — Public Service Superan-
nuation Act, R.S.C. 1970, c. P-36, s. 13(5).
Plaintiff seeks an order that any sums accruing by way of
superannuation or death be paid to the estate of the deceased
rather than to his widow, from whom he had been separated for
several years. The contributor had a memorandum placed in his
file directing that all benefits arising as a result of his public
service should be paid to the estate and apportioned in accord
ance with his will, and noting the length of his separation and
the fact that no separation allowances or maintenance had been
paid her. The Public Service Superannuation Act provided for
an allowance to be paid a widow but also made provision for
the Treasury Board to deem a widow, having regard to the
circumstances, as having predeceased the contributor, if she
had lived apart from the contributor for a number of years in
circumstances disentitling her to maintenance. The widow pre
sented her claim to the authority administering the benefits,
but the solicitor for the estate was not requested to make
representations nor given an opportunity to do so. A public
servant decided that there was no evidence from which it would
appear to the Treasury Board that the widow was entitled to
maintenance. The matter was not put before the Treasury
Board. The same public servant, knowing that there was a
dispute between rival claimants that would result in litigation,
directed that an award of benefits be made to the widow. It is
alleged that there was a duty and a breach of that duty—that a
proper investigation was not carried out and that the investiga
tion was not conducted fairly. Plaintiff sought payment of the
benefits accruing to the contributor to his estate.
Held, a right to damages is allowed. When a decision is
required to be made by a statute, certain of these statutory
decisions are required to be made on a judicial or quasi-judicial
basis even though the matter may be administrative in nature.
Paramount among decisions of this kind are those affecting or
creating civil rights or liabilities such as pension rights. A
discretionary power such as that conferred on the Treasury
Board by section 13(5) must be exercised only by the authority
to which it has been committed. No authority had been con
ferred on the civil servant to make the decision as to whether or
not the widow had been living apart from her husband in
circumstances which would disentitle her to separate mainte
nance, and depending on the answer to this question, whether
or not she was deemed to predecease her husband. This decision
was to be made by Treasury Board. The public servant's duties
were only to gather the information and to refer the matter for
decision, and the inquiry conducted within the administrative
field open to him did not conform to the general duty of
fairness. The Court cannot issue an order directing that any
superannuation or death benefits accruing be paid to the plain
tiff because the Court would then make a decision to be made
by Treasury Board, even though Treasury Board was precluded
from doing so by the action of the public servant. This is not a
case to apply the principle that, where the machinery set up by
an instrument defining rights between parties breaks down it is
the privilege of the Court to supply the defect which has
occurred. It was plaintiff's right to have the question of the
applicability of section 13(5) of the Act decided by Treasury
Board, or an authorized official responsible to it. The plaintiff
was denied that right and has a right to damages therefor.
Ahmad v. Public Service Commission [ 1974] 2 F.C. 644,
considered. Woollett v. Minister of Agriculture and Fish
eries [1955] 1 Q.B. 103, considered. Mantha v. City of
Montreal [1939] S.C.R. 458, considered. Point of Ayr
Collieries, Ltd. v. Lloyd-George [1943] 2 All E.R. 546,
discussed. Selvarajan v. Race Relations Board [1976] 1
All E.R. 12, discussed. Zamulinski v. The Queen [1956-
1960] Ex.C.R. 175, applied.
ACTION.
COUNSEL:
David Hughes for plaintiff.
Leslie S. Holland for defendant.
SOLICITORS:
Watson, Alexandor, Hughes & Fontana,
Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This matter had its origin in
the month of October 1953 when the late Anthony
Frederick Mancuso, who for many years prior to
his death on January 8, 1974, had been a public
servant employed by Her Majesty and as such was
a contributor under the Public Service Superan-
nuation Act, R.S.C. 1970, c. P-36, married for the
second time.
Oscar Wilde in The Picture of Dorian Gray has
said that a woman marries for a second time
because she detested her first husband and a man
marries for the second time because he adored his
first wife.
There were two children to Mr. Mancuso's first
marriage, the elder a son, Robert and a daughter,
Theresa Ann. It was a happy marriage. At the
time of their father's death neither qualified for
benefits under the Act by reason of their respective
ages.
Oscar Wilde's observation does not apply in its
full implications to the motivation of Mr. Man-
cuso's widow, Frances, because this was her first
and only marriage. Her sister testified that she had
had no suitors before or after Tony (that is Mr.
Mancuso).
There is an old French proverb that marriages
are made in heaven which is reproduced in John
Heywood's Proverbs published in 1590. If this be
so I fail to understand why all marriages are not
happier.
Certainly this does not appear to have been a
happy marriage. The parties remained together a
scant 18 months.
They were married in October 1953. In October
1954 a son, Kenneth Anthony, was born to the
union and in April 1955 the wife, Frances, left the
matrimonial home taking her infant son with her
never to return.
She has indicated that she made an effort at
reconciliation but was repulsed by her husband.
On the other hand Mr. Mancuso was described as
a gentle and kindly man who held himself out as
ready to welcome his wife back to the matrimonial
home if he were satisfied that she sincerely wished
to return.
The family home was on an arterial highway
leading into the City of Ottawa at a distance
variably estimated as from six to nine miles from
the city limits.
It was established that the wife, Frances, both
before and after the birth of her son, Kenneth,
after having done the household chores, such as
preparing the meals, would seclude herself in her
room and that there was tension between her and
her stepdaughter.
Later it was her custom, three to four times a
week, to leave the house by a window in her room
with her infant son in her arms, go to the highway
and hitch-hike her way into the city to her married
sister's home.
This, to me, was the action of an extremely
distraught woman but I do not know the cause of
her distraction. On her part she ascribes their
separation "due mostly to my husband's cruelty".
There were suggestions of constant bickering be
tween the husband and wife. It would appear that
those disputes were caused by the husband's
efforts to have his wife forego some title right in
the matrimonial home or another property which
the wife was determined to resist to the death and
it was suggested by the sister-in-law that Mr.
Mancuso attempted to choke his wife into submis
sion albeit unsuccessfully.
On the other hand the suggestion was that the
wife was not ready to accept her marriage role. By
mathematical computation from other facts I
would estimate her age to have been about 39
years at the time of her marriage. It was estab
lished that she had had no suitors prior to her
marriage in 1953 and none after her separation
from her husband in 1955. It would seem to follow
that she may not have been prepared for the
acceptance of married life and certainly her
mature age would make child bearing a difficulty
and a shock to her former unattached life style. It
was also suggested that the disruption of the mar
riage was attributable to interference by the hus
band's mother-in-law which made it difficult for
the parties to the marriage to work out their own
solution to problems which arose.
In my view it is not obligatory upon me to assess
the ultimate fault for this marriage breakdown,
which could not be terminated by a divorce a
vinculo because of the firm religious beliefs of the
parties, other than to say that there was undoubt
edly much to be said on either side.
As I have said before the wife left the
matrimonial home in 1955 and never returned. At
no time did she seek to obtain maintenance from
her husband by any means. The husband volun
tarily contributed $20 monthly to the support of
their son Kenneth until he was 16 years of age.
Again I would estimate that these contributions
ceased in October 1971. With the exception of this
contribution, which I cannot escape the feeling
that the wife considered niggardly, she provided
for herself and her son. This, I think, she has done
very well. She has this year retired from the Public
Service. In her last year of service her salary was
$16,000 and her pension is based upon $11,000
being the average of her best six years.
She may well have outstripped her husband in
earning capacity and I am convinced that she is an
astute business woman who is well aware of and
vigilant in protecting and realizing her own finan
cial interests.
Mr. Mancuso obviously felt no qualms of con
science consequent upon the failure of this mar
riage. He was apparently willing to receive his wife
back in the matrimonial home and there provide
for her. As time passed by it became evident to
him that this was not to be.
By his last will and testament dated April 18,
1957 he left all his estate real and personal to his
son Robert and daughter Theresa Ann, in equal
shares, that is, his children by his first marriage.
His wife, Frances, and their son, Kenneth, were
left nothing. Clearly the testator had concluded
that he was not morally obligated to his wife and I
would assume that he concluded that he was not
legally obligated to her either because he sought
legal advice in preparing this will and this will was
executed two years to the month after the wife had
left.
There is no doubt that superannuation and
death benefits arising under the Public Service
Superannuation Act increasing with the length of
Mr. Mancuso's public service would constitute a
substantial portion of the assets passing on his
death.
With this clearly in his mind some sixteen years
after the marriage breakdown he prepared a docu
ment, dated October 22, 1970, with the assistance
of Mr. A. A. Keyes an officer in the Ottawa office
of the National Film Board, where Mr. Mancuso
was employed, familiar with such matters.
The document was addressed to the personnel
branch of the Board in Montreal to be placed on
his file to receive attention when occasion arose.
The body of that document reads:
Would you please place this memo on my file.
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.
My will is on file with Allen Moore, Q.C., 77 Metcalfe Street,
Ottawa.
The purpose and implication of this document is
clear.
Mr. Mancuso states that he is married but has
been separated from his wife for the past 16 years
and that he has not paid any separation mainte
nance or allowances to her. The significance of the
inclusion of that language in this document is
abundantly clear. 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 cir
cumstances which would have disentitled his wife
to separate maintenance. If this is so then on
certain procedures in the Public Service Superan-
nuation Act in the event of Mr. Mancuso's death
being followed the superannuation and death ben
efits would vest in his estate and be distributed in
accordance with his will.
This document he placed upon his file against
the inevitable eventuality of his death to ensure
that the requisite procedures would be begun
forthwith to ensure the result he sought to achieve.
Mr. Mancuso did not achieve that end. Events
after his death served to frustrate his intention.
He did not reckon with his wife's self-protective
financial instincts.
When her husband was confined to hospital with
major surgery she did not visit him or send any
messages. She had no concern for him. They were
as strangers.
Mr. Mancuso died on January 8, 1974. His son
Robert thought the proper thing to do was to
inform his stepmother forthwith which he did by
telephone on that day. She was not a mourner nor
sent any tribute. She was as a stranger.
However she did take other immediate action.
With what might be termed indecent haste and
before her husband was buried she wrote a letter
dated January 10, 1974 to the director of person
nel of the Film Board advising that she had been
the wife of the late Anthony F. Mancuso since
October, 1953 and that although they had been
separated for a considerable number of years there
had never been a legal separation, that the separa
tion was due "mostly" to her husband's cruelty
and that she provided for herself. She concluded
her letter by advising that she had placed the
matter in the hands of her legal advisor and
requested that, until such time as entitlement to
superannuation and death benefits was deter
mined, payments be withheld.
The widow, being herself a public servant, must
have had a familiarity with the benefits available
to a public servant and his widow under the Public
Service Superannuation Act and that by virtue of
that statute it is the widow and children (as
defined) of a contributor who are entitled to ben
efits except in the exceptional circumstance of the
widow living apart from her husband under cir
cumstances disentitling her to an order for sepa
rate maintenance under the laws of the province in
which the contributor was ordinarily resident.
Upon the separation in 1955 Mrs. Mancuso at
no time subsequent sought or obtained a mainte
nance order. Her failure to do so does not neces
sarily mean that she might not have gotten such an
order if she had sued for it. She had not done so
but had she obtained an order for separate mainte
nance that would have conclusively established her
right thereto.
This no doubt explains her haste to file her
caveat and engage legal help to prosecute her
claim. Neither is it beyond possibility that she
knew her husband had cut her from his will and in
all likelihood his superannuation and death ben
efits as well because she wanted payment withheld
(and that could only be from someone other than
herself) until the matter was "legally straightened
out".
Thus the stage is set for the confrontation be
tween the rival claimants to the superannuation
and death benefits, the widow on the one hand and
the executor for Mr. Mancuso who seeks to carry
out the testator's wishes as expressed in his will
and in the document lodged with his employer that
these benefits should be paid to his estate on the
other.
It is to the estate of a deceased contributor that
these benefits are paid when it is found that the
widow is not entitled to them.
In the present instance benefits were paid for
the parties' son, Kenneth, and the propriety of
those payments is not in dispute.
Under section 4(1) of the statute every person
employed in the Public Service, with provided
exceptions, is required to contribute to the super-
annuation account by reservation from salary or
otherwise.
Section 11(4)(a) provides for the allowance to
the widow on the death of a contributor with less
than five years' pensionable service and paragraph
(b) provides for an allowance to each child.
Section 12, subsections (2) and (3) likewise
provide for allowance to a widow and children of a
contributor with five or more years' pensionable
service.
There is no question that by virtue of the provi
sions of the statute it is the widow of a contributor
who is entitled to the superannuation and death
benefits and those benefits are not assignable.
A common law wife may be deemed a widow if
she satisfies the Treasury Board that she meets the
conditions in section 13 (4) of the Act.
An exception to the widow being entitled to the
benefits is provided in section 13(5) which reads:
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-
tied 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.
Section 13(5) conforms to the expedient fre
quently adopted by Parliament of conferring upon
a public authority the power, couched in subjective
terms, to determine if a certain state of affairs
exists as a condition precedent to exercising a
power with relationship to the subject matter con
ferred upon the public authority for ultimate
decision.
Under section 13(5) there are two steps to be
taken by the Treasury Board. First it must appear
to the Treasury Board that the widow of the
contributor had been living apart from him for a
number of years under circumstances that would
disentitle her to separate maintenance. That is the
first decision to be made by the Board. If it should
appear to the Treasury Board that such does not
appear to be the case then the benefits are payable
to the widow. However if the contrary should
appear to the Treasury Board to be the case then
the second decision to be taken by the Treasury
Board follows. If the Treasury Board so directs,
having regard to surrounding circumstances
including the welfare of any children involved, the
widow shall be deemed to have predeceased the
contributor. In effect she is deemed not to be the
widow because a widow is a wife who has survived
her husband.
When Parliament so confers on an executive
authority the subjective right to determine the
existence of a matter of law or fact which will give
rise to its ultimate jurisdiction it does not follow
that the executive authority's opinion as to the
existence of that matter of fact or law is
conclusive.
Under section 13(5) the decision as to whether
or not a widow of a contributor has been living
apart from the contributor under circumstances
which disentitle her to separate maintenance under
the law of the province in which the contributor
resides is not a question collateral to the action to
be or not to be taken but is the essence of the
matter.
A discretionary power such as the twofold dis
cretion conferred by section 13(5) on the Treasury
Board must, in general, be exercised only by the
authority to which it has been committed. It is a
well known principle that when a power has been
confided to a person in circumstances indicative
that trust is being placed in that person's individu
al judgment and discretion he must exercise that
power personally unless that person has been
authorized to delegate that power to another.
Special considerations arise when a statutory
power vested in a minister or department of gov
ernment is exercised by a departmental official.
The same general principles which have evolved
from the decided cases would be applicable to the
Treasury Board.
The Treasury Board is created by Part I of the
Financial Administration Act, R.S.C. 1970, c.
F-10, and is, by virtue of section 3, a committee of
the Queen's Privy Council presided over by a
President appointed by Commission under the
Great Seal. It consists of the President, the Minis
ter of Finance and four other members of the
Privy Council plus alternates.
Thus the President of the Treasury Board is as a
Minister.
There is also appointed by the Governor in
Council an officer called the Secretary of the
Treasury who shall rank and have all the powers of
the deputy head of a department. This officer is as
a deputy minister.
The responsibility and authority of the Treasury
Board is outlined in the statute and is basically the
general administrative policy in the Public Service,
including financial control and the like. Specifical
ly the Board exercises powers under the Public
Service Superannuation Act.
To conduct its business such other officers and
employees as are necessary shall be appointed and
they are numerous.
The principal difference between the Treasury
Board and a department of the government proper
is that the Treasury Board is a Committee of
Ministers with a presiding Minister.
In Ahmad v. Public Service Commission [ 1974]
2 F.C. 644 the question arose as to whether a
public servant was properly recommended for
release under section 31 of the Public Service
Employment Act, because "in the opinion of the
deputy head" he was "incompetent" beause the
deputy head had not personally formed the opinion
that the employee was incompetent.
Section 6(5) of the Public Service Employment
Act provides that a deputy head may authorize one
or more persons under his jurisdiction "to exercise
and perform any of the powers, functions or duties
of the deputy head" under that Act. The deputy
head by a written instrument authorized the direc
tor of personnel to perform his duties under section
31. The instrument was criticized in that it author
ized the director to perform the deputy head's
"powers" only.
Jackett C.J. delivering the unanimous judgment
of the Court of Appeal said at page 650:
In my view, while not as aptly worded as it might have been,
this instrument was adequate authority for the Director to form
the opinion of the applicant's incompetency that was a condi
tion precedent to a recommendation under section 31.
That effectively concluded this objection.
If my recollection of the facts is correct the
recommendation to the Public Service Commission
under section 31 of the Act was signed by the
deputy head. The objection to the recommendation
was that it was made to the Commission "after"
the applicant had been notified of the intention to
do so rather than "before" as contemplated by
section 31. It was held that there was substantial
compliance with section 31 in this respect.
The salient point however, as it affects the
present matter, is that while the discretionary
power in subjective terms, i.e., "in the opinion of
the deputy head" was conferred on the deputy
head and should normally be exercised by him, the
statute itself contained a provision authorizing the
deputy head to delegate that responsibility to
another.
In most modern statutes such express authority
to delegate is found but not in all.
In the Ahmad case (supra) Jackett C.J. went on
to say at pages 650-651:
In any event, quite apart from special statutory authorization,
in my view, this opinion was not one that required personal
attention from the deputy head and was validly formed by
appropriate departmental officials on the basis of the principles
applied in such cases as Carlton, Ltd. v. Comrs. of Works
([1943] 2 All E.R. 560).
He then quoted the remarks of Lord Greene
M.R. on page 563 of that case reading:
In the administration of government in this country the
functions which are given to ministers (and constitutionally
properly given to ministers because they are constitutionally
responsible) are functions so multifarious that no minister
could ever personally attend to them. To take the example of
the present case no doubt there have been thousands of requisi
tions in this country by individual ministries. It cannot be
supposed that this regulation meant that, in each case, the
minister in person should direct his mind to the matter. The
duties imposed upon ministers and the powers given to minis
ters are normally exercised under the authority of the ministers
by responsible officials of the department. Public business could
not be carried on if that were not the case. Constitutionally, the
decision of such an official is, of course, the decision of the
minister. The minister is responsible. It is he who must answer
before Parliament for anything that his officials have done
under his authority, and, if for an important matter he selected
an official of such junior standing that he could not be expected
competently to perform the work, the minister would have to
answer for that in Parliament. The whole system of departmen
tal organisation and administration is based on the view that
ministers, being responsible to Parliament, will see that impor
tant duties are committed to experienced officials. If they do
not do that, Parliament is the place where complaint must be
made against them.
In the Carltona case the "competent authority"
was the Commissioners of Works. The Commis
sioners of Works are a body that never meets. By
statute the powers and functions of that body are
exercised by the First Commissioner of Works who
also holds a ministerial appointment as Minister of
Works and Planning. He held a dual office, that of
Minister and First Commissioner and accordingly
the competent authority as regards the Commis
sioners of Works was the Minister of Works and
Planning in his office of First Commissioner. The
person acting for the First Commissioner in the
matter was the Assistant Secretary. The Assistant
Secretary was a very high official of the Ministry
and it was to him that the Minister entrusted the
work of looking after the particular matter and
that high official directed his mind to the matter
he was bound to direct it to so as to act properly
under the regulations.
After quoting the passage from the Carltona
case in the Ahmad case Jackett C.J. then con
tinued to say at page 651:
It would be quite impossible for the deputy head of a large
modern government department to give personal attention to all
such matters, important as they may be to individuals con
cerned. That is why departmental administration is organized
as it is and, in my view, there is a necessary implication, in the
absence of something expressly or implicitly to the contrary,
that ministers' powers, and deputy ministers' powers, are exer
cised on their behalf by their departmental organizations as
long as they are of an administrative character.
The Court of Appeal which decided the Carl-
tona case consisted of Lord Greene M.R., God-
dard and du Parcq L.JJ. One week earlier the
Court so composed decided Point of Ayr Collier
ies, Ltd. v. Lloyd-George [1943] 2 All E.R. 546.
When this matter came before the Court on an
interlocutory appeal Lord Greene suggested that
[at page 548]:
... in a case of such importance as this, signature by the
Minister himself might appear to be more appropriate than
signature by someone on the staff of the Ministry, however
highly placed.
He added:
The obvious advantage of having matters of this high impor
tance signed by the Minister is to take away any possibility of
suggesting that he personally has not given attention to the
case.
Lord Greene made it clear that was a suggestion
only and was not intended as a ruling nor that
under this particular regulation that it was not the
view of the Court that signature by the Minister
was necessary for its validity but he was careful to
restrict this comment to the particular regulation
and not others.
Woollett v. Minister of Agriculture and Fisher
ies [1955] 1 Q.B. 103 involved the composition of
an agricultural land tribunal. Two members of
such a tribunal "shall, for each reference to the
tribunal, be appointed by the Minister". Two
nominated members of such a tribunal, whose
names were on selected panels, were asked to sit on
the tribunal by a person who was a servant of the
Minister and Secretary of the tribunal. The ques-
tion was whether this person acted as Secretary of
the tribunal or servant of the Minister.
It was held by Lord Denning that the absence of
any actual or professed authority to appoint on the
Minister's behalf was a defect in the appointment.
(That this defect was subsequently corrected by
the Minister in accordance with a provision in the
statute to do so does not detract from the state
ment that there must be "actual or professed
authority" to act on behalf of the Minister.)
He said at page 121:
The absence of writing would no doubt only be an informality,
but the absence of any actual or professed authority to appoint
on behalf of the Minister was, I think, more than an informal
ity. It was a defect which is fatal unless it is cured by the other
provisions of the Act.
Lord Denning said earlier at page 120:
I am quite aware that the Act does not require any formali
ties, and that the Minister can act by any servant in his
department, at any rate so long as the servant uses the magic
words "I am directed by the Minister" to do it: see CarIlona
Ld. v. Commissioners of Works, and Metropolitan Borough
and Town Clerk of Lewisham v. Roberts; but here not even
those words were used, and in the absence of them the proce
dure was irregular, to say the least. There is some virtue in
expecting a civil servant, when duly authorized, to use the
words "I am directed by the Minister" and so forth: for that
should bring home to him the significance of what he is doing
and should make him realize that if he does anything wrong he
will be implicating the Minister. The words may have some
legal significance too. Suppose, for instance, that in this case
Mr. Comins had written a letter of appointment professing to
act on behalf of the Minister, then, even though he had no
authority in fact to write the letter, the Minister could have
ratified his action. Indeed, the statutory certificate would have
amounted to a ratification, because the Minister could not have
given the certificate except on the footing that the tribunal had
been validly appointed. But ratification is not admissible in law
unless the agent professed to act on behalf of the principal: see
the notes to Armory v. Delamirie and Keighley Maxsted & Co.
v. Durant. So here, without some words by Mr. Comins profess
ing to act on behalf of the Minister, there was nothing capable
of ratification.
Jenkins L.J. proffered the remark [at page 124]:
It is surprising that no document could be produced conferring
on Smithies or on Comins the Minister's authority to appoint
the nominated members of the tribunal.
With these considerations in mind it is expedient
to review how this matter was dealt with by
employees of the Department of Supply and
Services.
It will be recalled that by virtue of the Financial
Administration Act the Treasury Board is author
ized to exercise the powers under the Public Ser
vice Superannuation Act.
By Order in Council, P.C. 1969-655 dated
March 31, 1969 the Minister of Supply and Ser
vices was authorized "to provide all the adminis
trative services that are necessary in relation to the
employee benefit plans and superannuation"
including the Public Service Superannuation Act.
It is the administrative services that are to be so
provided. It would seem to follow that whatever
action remains to be done by the Treasury Board
would not be administrative.
This department has a Superannuation Division
presided over by a director. Further down the line
is a Processing Section presided over by a chief.
This section is divided into units each of which is
presided over by a manager.
There is also an Advisory Services Section con
sisting of advisory service staff officers presided
over by a chief.
The names are indicative of the functions.
When the contributor, Mr. Mancuso, died on
January 8, 1974, and his widow advised of her
version of her status and staked her claim to
superannuation benefits on January 10, 1974, the
administrative process was set in motion.
The personnel branch of the National Film
Board wrote the Superannuation Division on Janu-
ary 15, 1974.
On February 4, 1974 a unit manager wrote the
Film Board a very comprehensive and explicit
letter advising of the material the unit would
require to process the claim. (Exhibit P-12.)
It was pointed out that it is specifically provided
in the statute that on the death of a contributor the
benefits are paid to the widow except when the
circumstances outlined in section 13(5) exist. It
was stated in the widow's letter dated January 10,
1974 that she was living separate and apart from
her husband for many years.
The Film Board was therefore requested to
obtain from the legal widow nine enumerated
documents all of which are obviously essential to
process the claim.
The two items which have a particular bearing
on this present matter are Item 2 which reads:
Two sworn statements by disinterested persons of some stand
ing in the community who are aware of the facts leading to and
surrounding the widow's sworn statement and reflecting her
moral conduct since the separation.
and Item 9, the last will and testament of the
contributor.
I am reasonably certain that the Film Board
would have forwarded to the Department the
document dated October 22, 1970 completed by
Mr. Mancuso directing that "any and all benefits
and proceeds ... arising out of my public service,
including all Superannuation and Death Benefits,
are to be paid to my estate and apportioned in
accordance with my will" even though he was
married but because he was living apart from his
wife for sixteen years.
If this were not so then by letter dated July 30,
1974 the solicitor for the estate forwarded a copy
of the letters probate dated April 4, 1974 to which
was annexed the death certificate and the direction
of the contributor dated October 22, 1970 and the
solicitor also enclosed an affidavit of A. A. Keyes
which was in essence an affidavit to the execution
of the document dated October 22, 1970 by Mr.
Mancuso.
In the letter dated February 4, 1974 to the
National Film Board requesting the material upon
which to process the claims for benefit mention
was also made of claim by a common law widow
and the requisite material to support her claim.
This claim was subsequently abandoned.
On August 14, 1974 a unit manager of the
Department wrote the solicitor for the estate, per
haps in response to the solicitor's letter dated July
30, 1974 advising that "an allowance for the
widow has not been established as yet" but no
representations were invited from the solicitor.
On September 13, 1974 the solicitor for the
estate again wrote to the Department again refer
ring to the disposition of the superannuation and
death benefits by the deceased contributor and the
affidavit of execution of the document so directing
by Mr. Keyes. A further copy of such material was
enclosed.
On October 8, 1974 the unit manager wrote the
solicitors for the estate advising that benefits
under the Public Service Superannuation Act
would be paid to Mrs. Frances Mancuso, as the
legal widow of Anthony Mancuso.
On October 10, 1974 the solicitor replied to this
letter that steps were being taken to have this
matter litigated and meanwhile requested that no
payment be made to the widow until the matter
had been determined in a court of law.
On October 18, 1974, M. R. Hagglund, Adviso
ry Services, responded to the solicitor's letter dated
October 10, 1974. He refused to withhold payment
of benefits to Mrs. Frances Mancuso as had been
requested by the solicitor. He referred to and
quoted section 13(5) of the Act and said that
"after investigation it has been determine [sic]
that no direction to deem Mrs. Mancuso to have
predeceased her husband will be made" and that
payment of all superannuation and death benefits
would be made forthwith to Mrs. Mancuso.
The solicitor for the estate replied by letter
dated October 24, 1974 indicating that he was
aware of section 13(5) and his consideration of
that section and its implications prompted his
letter of October 10, 1974 and that the request to
withhold payment had been made in view of the
fact that the matter was to be litigated. The letter
went on to indicate that a statement of claim
would issue shortly.
A statement of claim was filed on January 24,
1975 and was served on the Deputy Attorney
General of Canada on January 27, 1975.
A statement of defence was filed on February
21, 1975.
In the meantime the Department on January 3,
1975 informed the solicitor for the estate that
following his letter of October 24, 1974 payment
to Mrs. Mancuso had been held for about two
months but since no further word had been
received from him payment was being authorized
to Mrs. Mancuso forthwith. A requisition for a
cheque in the amount of $7,500 payable to Mrs.
Frances A. Mancuso was made on January 27,
1975 the date upon which the statement of claim
was filed in the Registry. That cheque issued and
was given to Mrs. Mancuso who negotiated it.
However by an undated memorandum (Exhibit
P-9) signed by R. Hagglund, Advisory Services,
and addressed to Miss L. Gendron, this was said:
In view of the evidence on file, I am satisfied that submission of
this case to the Treasury Board for consideration under Section
13(5) would not be warranted. Please proceed with authoriza
tion of the relevant benefits to Mrs. Mancuso. The lawyer for
Mr. Mancuso's estate should also be advised of this decision.
This memorandum must have been written prior
to October 8, 1974 because it was the inspiration
and the authorization of the letter dated October
8, 1974 written by N. Austin, Unit Manager, to
the solicitor for the estate stating that benefits
would be paid to Mrs. Frances Mancuso as the
legal widow of Anthony Mancuso.
Mr. Hagglund was called as a witness. He testi
fied that this matter was referred to him for advice
by the Processing Section. He directed the Pro
cessing Section to obtain additional evidence by
way of affidavit in corroboration of the widow's
allegations.
These affidavits were produced in evidence.
The letter dated February 4, 1974 (Exhibit
P-12) written to the National Film Board request
ing documentation was clear and explicit. It asked
for two sworn statements by disinterested persons
of some standing in the community who were
aware of the facts leading to and surrounding the
separation. I was not made aware of such evidence
being produced to the Department. All that was
provided was evidence by way of affidavit that the
widow had lived an exemplary life after separation
from her husband in 1955. There was no evidence
of which I was made aware by two sworn state
ments of the facts leading to or surrounding the
separation. I assume that there were none other
wise they would have been produced because there
was a great deal of production.
Neither do I think that the widow made a sworn
statement, at least no such statement was pro
duced. All that was produced was her letter dated
January 10, 1974 laying claim to superannuation
and death benefits accruing on the death of her
husband. She acknowledged their lengthy separa
tion which she attributed "mostly to her husband's
cruelty".
Certainly Mr. Hagglund did not request any
representations or evidence from the solicitor for
the estate as to what might be said on the hus
band's side of the matter.
In my view whatever evidence which had been
gathered was incomplete.
Whatever evidence that may have been gathered
was satisfactory to Mr. Hagglund because in his
memorandum he said, that in view of the evidence
on file he was satisfied that there was no evidence
from which it could appear to the Treasury Board
that the widow was disentitled to separate
maintenance.
Mr. Hagglund testified that he made no deci
sion. That was an exercise in semantics on his part.
It is clear from his memorandum that he was
satisfied that the case should not be referred to the
Treasury Board for decision. That was a decision
made by him. By his initial decision he made the
decision for the Treasury Board that there was no.
question to be decided under section 13(5) of the
Act and by making this initial decision for the
Treasury Board and by his decision not to refer the
matter to the Treasury Board for its decision he
effectively precluded the Treasury Board from
deciding whether to deem or not to deem the wife
to have predeceased her husband.
He decided that the benefits should be paid to
Mrs. Mancuso and he instructed the Unit Manag
er to advise the solicitor for the estate of "this
decision", i.e., the decision made by Mr.
Hagglund.
In view of the principles to which I have
referred, that is that in general a decision must be
made only by the person or body to whom it is
committed in the absence of an express or implicit
authorization to delegate that responsibility, that
there must be an actual or professed authority to
act on behalf of the person or body the absence of
which is a fatal defect, that normally a document
is in existence conferring the authority on a ser
vant to act, and the admonition of Lord Denning
that while a minister can act by a servant in his
department "at any rate so long as the servant uses
the magic words `I am directed by the Minister' to
do it" I was particularly anxious that Mr. Hagg-
lund should indicate in his testimony under what
authorization he professed to act as he did.
At the adjournment of the trial on one afternoon
to be resumed the next morning Mr. Hagglund
was testifying. Therefore I specifically asked that
Mr. Hagglund be prepared when he resumed his
testimony to indicate by what authorization he
purported to act on behalf of the Treasury Board.
This he did the next ensuing morning. He prof
fered in evidence a memorandum dated August 30,
1966 from H. D. Clark to C. E. Caron. Mr. Clark
was an officer of the Treasury Board knowledge
able in pension matters. Mr. Caron, to whom the
memorandum was addressed in response to an
inquiry from him, was a public servant in a depart
ment of Government charged with the administra
tion of the Public Service Superannuation Act and
who subsequently continued those duties in the
Department of Supply and Services when that
Department was created under the Government
Organization Act, 1969, S.C. 1968-69, c. 28, and
when, by Order in Council dated March 31, 1969,
all administrative services in relation to the Public
Service Superannuation Act were to be provided
by the Minister of Supply and Services.
While this document antedates the creation of
the Department of Supply and Services, I accept it
as the exposition by the Treasury Board through
its hierarchy as to how these particular matters are
to be processed and filtered up to the Secretary of
the Treasury Board and in all likelihood through
him to the agenda of the Treasury Board in meet-
ing again in all likelihood with a summary of the
matter and his recommendation as to the disposi
tion of the matter by the Board.
It was proffered as the authorizing instrument
on behalf of the Treasury Board and as intimated I
accept it as such. No other instrument was
forthcoming.
The memorandum is entitled "Cases under sec
tion 12(4) and 12(5) under the Public Service
Superannuation Act". When this memorandum
was written on August 30, 1966 sections 13(4) and
13(5) of the present Act were sections 12(4) and
12(5) of the predecessor Act. The sections are
identical in their terms only the numbering of the
sections differ.
The body of this memorandum is reproduced in
its entirety because it was under this instrument
and in accordance with the directions therein that
Mr. Hagglund purported to act.
I would like to make the following comments as a result of
your memorandum of August 9, 1966 on this subject.
I would agree that there would be no need to submit the
following types of cases for ministerial decision:
(1) cases of separation where no common law is involved and
where the wife has obviously not lived in circumstances that
would have disentitled her to an order for separate
maintenance;
(2) cases of separation where the wife has obviously not lived
in circumstances that would have disentitled her to an order
for separate maintenance and where a common law claimant
under section 12(4) clearly does not meet the requirements of
12(4).
In view of the possibility of appeals to the Treasury Board, it
would seem that any decision to deny a claim which, on the
face of it, appears to fit the conditions described in either 12(4)
or 12(5) should be reached by Mr. Bryce, on the Minister's
behalf, rather than by your Branch. In other words, all cases
where either section 12(4) or 12(5) might well be applied
should be submitted for ministerial decision, at least until we
gain some experience with the appeal provisions.
It thus follows that certain types of cases where decisions
were previously reached by your Branch without referral to
Treasury Board should now be submitted to this Division for
submission to Mr. Bryce. A good illustration of this is the
Harrison case (P.F. 364.665) where both the legal widow and
the common-law wife appear to have a strong case. No matter
what decision is reached in this case, and even though the
eventual outcome might be not to apply either section 12(4)
and 12(5), it can be easily foreseen that the person whose claim
is denied would appeal.
Clearly the direction in this memorandum is
that when a claim appears to fit the conditions
described in section 13(5) a decision should not be
made by the Branch but should be referred to the
Secretary of the Treasury Board for ministerial
decision.
The circumstances of this matter are those
described in section 13(5). There is no question
that there is a dispute between rival claimants and
that the matter would result in litigation.
Knowing this Mr. Hagglund nevertheless denied
the plaintiff's claim and directed an award of the
benefits to the widow by decisions made by him on
his own initiative without reference to the Trea
sury Board. No such authority was vested in him.
His action in this respect was, in my view, a
dereliction of his duty.
Despite the circumstances that a Minister can
act by a servant in his department there are cer
tain statutory decisions which are administrative in
nature which have been held to be required to be
made by the person to whom authority has been
conferred and that such decisions must be made on
a judicial or quasi-judicial basis. A source of much
jurisprudence in this respect was the town and
country planning legislation in the United King
dom following the second world war. Basically the
legislation provided for a scheme for a new de
velopment originating with the Minister or local
authority. When such a development was in con
templation the statute required that a public local
inquiry be held and a report made by the officer
who held that inquiry.
In Franklin v. Minister of Town and Country
Planning [1948] A.C. 87 Lord Thankerton said
that since the Minister's functions with respect to
new towns were administrative predicated upon
policy, accordingly bias could not be attributed to
the Minister even though the plan originated with
him and his mind might be foreclosed to objections
made to the plan. The object of the local inquiry
was to inform the Minister's mind and not to
consider any issue between himself and objectors
to the plan. Lord Thankerton said at page 103 that
the sole question was whether or not the Minister
had discharged his duty to have "genuinely con-
sidered the objections and the report, as directed
by the Act."
Lord Thankerton accepts that the consideration
to the report must be personally done by the
Minister. Therefore it would follow that the con
ferment of responsibility for this Act upon a minor
departmental official would invalidate the
performance of the Act. The ultimate decision and
genuine consideration of the report must be that of
the Minister.
Thus, while there is no general rule that minis
ters or deputy ministers when discharging func
tions of an administrative or judicial character
must direct their own minds to the cases before
them nevertheless it has been held that some mat
ters are so important that the ministers or deputy
ministers must address themselves to these matters
personally.
The author of the memorandum dated August
30, 1966 (Exhibit P-13) under which Mr. Hagg-
lund purported to act recognized that principle. By
virtue of Order in Council, P.C. 1969-655, the
Department of Supply and Services was charged
with the provision of "all the administrative ser
vices" necessary in relation to the Public Service
Superannuation Act. The memorandum did not
relieve the Departmental staff of the obligation to
gather information and documentation relative to
processing pension entitlement but it did direct
that when such was done and it was apparent that
section 13(5) might well be applied then the
matter should be submitted for ministerial deci
sion. There was a reference in the memorandum to
the possible establishment of some form of appeal
procedure but in response to a question by myself I
was informed that no appeal procedure was ever
implemented and thus the memorandum stood and
still stands effective without reference to appeals.
When a decision is required by a statute to be
made, certain of these statutory decisions are
required to be made on a judicial or quasi-judicial
basis even though the matter may be administra
tive in nature. Paramount among decisions of this
kind are those affecting or creating civil rights or
liabilities such as pension rights.
In Mantha v. City of Montreal [1939] S.C.R.
458 a fireman applied by letter for superannuation
under a by-law on the ground of incapacity by
reason of ill health. Municipal doctors examined
the applicant and found him fit to discharge his
duties. Under section 11 of the by-law it
"devolve [d] upon the Executive Committee to
decide, in each case, whether any civic employee is
eligible for superannuation and pension". The fire-
man's application was rejected. His letter was
treated as a letter of resignation. He was not
informed for months that his application for pen
sion was rejected nor of the doctors' report that he
was fit for duty.
Duff C.J. had this to say at pages 466-467:
It is clear, as already observed, that everybody understood he
was applying for superannuation under the by-law on the
ground of incapacity by reason of ill health and the officials of
the Corporation must have realized, if they gave the matter the
slightest attention, that it was their duty at once to inform him
that his application for superannuation had been rejected. In
giving effect to the application as a simple resignation and
keeping him in ignorance of the report of the doctors that he
was fit for duty and of the decision of the Executive Commit
tee, they were either deceiving him deliberately or acting with
gross inattention to their plain duty.
One thing is plain: the appellant not having been informed of
the nature of the report of the doctors was given no opportunity
of answering that report before the Executive Committee had
reached their decision.
It is obvious, of course, that in these circumstances there was
no inquiry of the character contemplated by section 11. The
duty of an administrative body charged with an inquiry into
facts the results of which is to affect the civil rights of parties
has been stated many times. It will be sufficient to refer to the
language of Lord Loreburn in Board of Education v. Rice
([1911] A.C. 179 at 182):
I need not add that *** they must act in good faith and
fairly listen to both sides. *** They can obtain information in
any way they think best always giving a fair opportunity to
those who are parties to the controversy for correcting or
contradicting any relevant statement prejudicial to their
view.
The type of inquiry contemplated was judicial or
quasi-judicial.
Ridge v. Baldwin [ 1964] A.C. 40 has in effect,
obliterated the distinction between those who per
form ministerial acts and those who perform judi
cial acts, and proclaimed a duty to act fairly
applicable to the former as to the latter.
In Wiseman v. Borneman [1971] A.C. 297 Lord
Guest said at page 310:
It is reasonably clear on the authorities that where a statu
tory tribunal has been set up to decide final questions affecting
parties' rights and duties, if the statute is silent upon the
question, the courts will imply into the statutory provision a
rule that the principles of natural justice should be applied.
This implication will be made upon the basis that Parliament is
not to be presumed to take away parties' rights without giving
them an opportunity of being heard in their interest. In other
words, Parliament is not to be presumed to act unfairly.
A recent exposition of the duty to act fairly by
an administrative board with no judicial functions
occurred in Selvarajan v. Race Relations Board
[1976] 1 All E.R. 12 when Lord Denning had this
to say at page 19:
In recent years we have had to consider the procedure of many
bodies who are required to make an investigation and form an
opinion. Notably the Gaming Board, who have to enquire
whether an applicant is fit to run a gaming club (see R. v.
Gaming Board for Great Britain, ex parte Benaim [1970] 2 All
E.R. 528), and inspectors under the Companies Acts, who have
to investigate the affairs of a company and make a report (see
Re Pergamon Press Ltd [1970] 3 All E.R. 535), and the
tribunal appointed under s. 463 of the Income and Corporation
Taxes Act 1970, who have to determine whether there is a
prima facie case (see Wiseman v. Borneman [1971] A.C. 297).
In all these cases it has been held that the investigating body is
under a duty to act fairly; but that which fairness requires
depends on the nature of the investigation and the consequences
which it may have on persons affected by it. The fundamental
rule is that, if a person may be subjected to pains or penalties,
or be exposed to prosecution or proceedings, or deprived of
remedies or redress, or in some such way adversely affected by
the investigation and report, then he should be told the case
made against him and be afforded a fair opportunity of answer
ing it. The investigating body is, however, the master of its own
procedure. It need not hold a hearing. It can do everything in
writing. It need not allow lawyers. It need not put every detail
of the case against a man. Suffice it if the broad grounds are
given. It need not name its informants. It can give the sub
stance only. Moreover it need not do everything itself. It can
employ secretaries and assistants to do all the preliminary work
and leave much to them. But, in the end, the investigating body
itself must come to its own decision and make its own report.
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 conclusion was reached on this question to
deem or not to deem Mrs. Mancuso to have pre
deceased her husband.
In the circumstances of this particular case all
that Mr. Hagglund and the staff under his direc
tion 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.
He knew that the widow of the contributor laid
claim to the superannuation and death benefits in
that she lived apart from her husband because he
by his conduct had made it impossible for her to
do otherwise. This is clear from her letter dated
January 10, 1974. If he gave the matter the atten
tion he should have he must have realized that the
contributor took the diametrically opposite posi
tion that his wife had deserted him and according
ly chose to live apart from him despite his willing
ness to restore her conjugal rights by reason of
which she was not entitled to separate mainte
nance. This should have been manifest to him from
the contributor's will dated April 18, 1957 where
by he bequeathed all his estate to his two children
by his first marriage and from the document dated
October 22, 1970 filed by him with his employer
directing payment of all superannuation and death
benefits to his estate because that is where those
benefits would be paid if the wife lived separate
from him without entitlement to separate mainte
nance as the contributor considered to be the case.
This direction cannot be construed as an
attempted assignment of a Crown debt by the
contributor which is prohibited but rather an
explanation as to why it should be paid to his
estate under the statute. That is what is meant by
the statement that for sixteen years his wife lived
apart from him and he paid her no separation
maintenance because he was not morally or legally
obligated to do so.
Mr. Hagglund knew that the widow had
engaged legal assistance to advance her claim. He
knew that the estate of the contributor had
engaged a solicitor to probate the estate and that
solicitor had advanced a claim for those benefits
even though the solicitor did not do so in specific
terms until October 10, 1974.
That there was a dispute between rival claim
ants should have been abundantly clear to Mr.
Hagglund.
The Unit Manager diligently gathered material
in support of the widow's claim. Mr. Hagglund
directed that some further material be obtained to
this end. At no time did he or the Unit Manager
invite the solicitor for the contributor's estate to
submit information, evidence or representations
supportive of the deceased contributor's position
and claim.
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 invit
ed to do so. He was entitled to know the case being
made against his client and afforded the opportu
nity of meeting it. He was not so informed and
therefore had no opportunity to meet any allega
tions adverse to his client's interests.
The solicitor for the estate is not entirely with
out fault. He should have insisted on putting his
client's case forward notwithstanding the negative
attitude of the Departmental officials but the stark
fact remains that Mr. Hagglund acted unfairly
and arbitrarily toward the plaintiff. It is quicker,
easier and simpler to decide a dispute if only one
side of that dispute is canvassed but the duty to act
fairly must not be sacrificed to a departmental
official's concept of administrative efficiency by an
economy of time and effort.
The prayer and claim for relief in the statement
of claim dated January 24, 1975 is contained in
paragraphs 9 and 10 which read:
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.
At trial, with consent of counsel for the defend
ant, the plaintiff moved to amend his pleadings
stating that the amendments were "to include the
following claims for relief". There then followed
three paragraphs numbered one to three with
paragraphs 1 and 3 having subparagraphs.
Contrary to what was stated in the introduction
to the motion these amendments were not claims
for relief but allegations of fact.
It is alleged that there was a duty and a breach
of that duty. The particulars of the breach are
basically that:
(1) a proper investigation was not carried out, and
(2) the investigation was not conducted fairly with particulars
thereof in sub-paragraph (1)(a), (b) and (c) and sub-paragraph
(3)(b)(i), (ii), (iii), (iv) and (v) respectively.
Paragraph 3(a) which reads in part: "no officer or
employee of Treasury Board made any such inqui
ry" and "This non-action by the officers of the
Treasury Board amounts to a negligent breach of
their statutory duty for which the Defendant is
liable" is susceptible of being an allegation that
the Treasury Board made no decision in the matter
nor was any such decision made by a servant of the
Treasury Board authorized to do so.
The relief sought by the plaintiff remains as
outlined in paragraphs 9 and 10 of the statement
of claim dated January 24, 1975. Those para
graphs were not amended.
For the reasons expressed above I have conclud
ed that Mr. Hagglund was not authorized to
decide whether or not the circumstances contem
plated by section 13(5) of the Public Service
Superannuation Act redounded to the contributor
or his wife and accordingly no decision was made
by the Treasury Board or any servant authorized
to act on its behalf. Also for the reasons expressed
above I would be prepared to hold that Mr. Hagg-
lund did not act fairly in the investigation conduct
ed by him or under his direction.
What is sought in the prayer for relief is an
order directing that any superannuation or death
benefits accruing be paid to the plaintiff, i.e., the
estate of Mr. Mancuso.
This I do not think I can do. To do so would be
for me 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.
Neither do I think that this is a case where the
principle of Cameron v. Cuddy [1914] A.C. 651
enunciated by Lord Shaw at page 656 is appli
cable. That principle, which was applied by the
Supreme Court in Mantha v. City of Montreal
(supra), is that where the machinery set up by an
instrument defining rights between parties breaks
down it is the privilege of a Court to supply the
defect which has occurred.
In the Mantha case the dispute was between the
claimant and the City. Here the dispute was be
tween the estate of the plaintiff and his widow. In
the Mantha case the disputants were also the
parties. In the present case the rival claimants to
the pension rights are not the parties to this action.
Furthermore 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.
As I have repeatedly stated it was the right of
the plaintiff to have the question of the applicabili
ty of section 13(5) of the Act decided by the
Treasury Board or an officer responsible to that
Board authorized to decide the question on behalf
of the Board. No such decision was made. There
fore the plaintiff was denied that right.
The denial of that right gives rise to an action
for damages. That is the action which was sought
to be brought by the amendments to the statement
of claim however ineptly expressed.
In Zamulinski v. The Queen [1956-1960]
Ex.C.R. 175 by petition of right the suppliant, a
postal clerk who was dismissed from his employ
ment, sought inter alia in his prayer for relief
damages for not having been given, prior to his
dismissal, an opportunity to present his side of the
case to a senior officer of the Post Office Depart
ment nominated by the deputy head under section
118 of the Civil Service Regulations. The suppli
ant was not given that opportunity before being
dismissed.
Thorson P. said at pages 697-698:
In my opinion, the suppliant has a claim arising under a
Regulation made by the Governor in Council, namely, a claim
under s. 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 et al. (1703), 2 Ld. Raym. 938, 92 E.R.
126. Here there was a denial of a right to which the suppliant
was legally entitled and he has a right to damages therefor.
So too the plaintiff in this matter has been
denied a right to which he was legally entitled and
he has a right to damages therefor.
My difficulty is in assessing the quantum of
damages. It is agreed that the amount of superan-
nuation and death benefits which would have been
paid to the contributor's estate, the executor of
which is the plaintiff herein, had those benefits not
been paid to the widow consequent upon the direc-
tion of Mr. Hagglund, was $10,164. If I were
certain that the Treasury Board would have found
that the widow had been living apart for the years
she did from the contributor under circumstances
which would have disentitled her to an order for
separate maintenance under the laws of the Prov
ince of Ontario and if the Treasury Board had
directed that the widow be deemed to have pre
deceased the contributor then the measure of dam
ages would have been $10,164.
But I cannot be certain that the Treasury Board
would have made those decisions. Even if the
Treasury Board had not so decided if it had been
given the opportunity to do so the plaintiff would
still be entitled to damages for the denial of his
legal right but not necessarily in that full amount.
The difficulty in assessing the damages is no
reason for not assessing them. This is not a matter
of nominal damages. The damage suffered by the
plaintiff was real even though difficult to assess in
monetary terms.
While the possible maximum damage sustained
by the plaintiff is $10,164 that amount must be
discounted by an amount proportionate to the
possibility of the decisions of the Treasury Board
having been adverse to the plaintiff. The plaintiff
had an arguable case for presentation to Treasury
Board but there could be no assurance that case
would prevail. The plaintiff was entitled to present
that case but was obstructed from doing so by the
assumption of authority by Mr. Hagglund beyond
that bestowed upon him. In doing so Mr. Hagg-
lund acted in good faith and without malice in the
exercise of a supposed right. Therefore exemplary
damages are not appropriate but he did act unfair
ly though not necessarily with a complete and
callous disregard for the plaintiff's rights. But
because he acted unfairly that is a ground for
measuring damages with a more liberal hand.
Taking these circumstances into account and
particularly the imponderable as to what the Trea
sury Board may have decided I think it would not
be unfair to assess the plaintiff's damages at
$7,500 and I award this amount.
Accordingly there will be judgment for the
plaintiff in the amount of $7,500 with taxable
costs.
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.