Misfeasance in Public Office

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-24
CLNP Page ID:	154
Page Categories:	[Tort Law]
Citation:	Misfeasance in Public Office, CLNP 154, <4m>, retrieved on 2024-04-24
Editor:	Sharvey
Last Updated:	2021/11/15

Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17

17 (1) This section applies to proceedings brought against the Crown or an officer or employee of the Crown that include a claim in respect of a tort of misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or employee’s duties or functions. 2020, c. 11, Sched. 7, s. 1.

(2) A proceeding to which this section applies that is brought on or after the day section 1 of Schedule 7 to the Smarter and Stronger Justice Act, 2020 comes into force may proceed only with leave of the court and, unless and until leave is granted, is deemed to have been stayed in respect of all claims in that proceeding from the time that it is brought. 2020, c. 11, Sched. 7, s. 1.

(3) On a motion for leave under subsection (2), the claimant shall, in accordance with section 15 if applicable, serve on the defendant and file with the court,

(a) an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the claimant intends to rely; and

(b) an affidavit of documents, or such other document as may be prescribed, disclosing, to the full extent of the claimant’s knowledge, information and belief, all documents relevant to any matter in issue in the proceeding that are or have been in the claimant’s possession, control or power. 2020, c. 11, Sched. 7, s. 1.

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(7) The court shall not grant leave unless it is satisfied that,

(a) the proceeding is being brought in good faith; and

(b) there is a reasonable possibility that the claim described in subsection (1) would be resolved in the claimant’s favour. 2020, c. 11, Sched. 7, s. 1.

(8) Each party to the motion for leave shall bear its own costs of the motion. 2020, c. 11, Sched. 7, s. 1.

(9) The granting of leave under subsection (2) lifts the stay of the proceeding. 2020, c. 11, Sched. 7, s. 1.

(10) If leave is not granted under subsection (2),

(a) the proceeding is rendered a nullity; or

(b) if the proceeding contains any claims other than the claim described in subsection (1), the proceeding is rendered a nullity in respect of the claim described in that subsection and the stay is lifted with respect to the remainder of the proceeding. 2020, c. 11, Sched. 7, s. 1.

Meekis v. Ontario, 2021 ONCA 534 (CanLII)

[73] Iacobucci J. set out the elements of the tort of misfeasance in public office in Odhavji, at para. 32. As summarized in Lewis N. Klar et al., Remedies in Tort (Toronto: Thomson Reuters, 2021), at §60, to succeed on a misfeasance claim, a plaintiff must show that:

1) the defendant was a public official exercising public functions at the relevant time;

2) the public official deliberately engaged in an unlawful act in their public capacity, which, as affirmed in Clark, at para. 23, is typically established by proving any of(a) an act in excess of the public official’s powers, (b) an exercise of a power for an improper purpose, or (c) a breach of a statutory duty (the “unlawful act element”);

3) the public official was aware both that their conduct was unlawful and that it was likely to harm the plaintiff, which, as noted in Clark, at para. 23, may be established through actual knowledge, subjective recklessness, or “conscious disregard” for the lawfulness of the conduct and the consequences to the plaintiff (the “knowledge element”);

4) the public official’s tortious conduct was the legal cause of the plaintiff’s injuries; and

5) the injuries suffered are compensable in tort law.

[74] The first three of these elements are unique to the tort of misfeasance in public office, while the other two are common to torts generally: Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499, 266 O.A.C. 17, at para. 22.

[75] I do not take the respondents to be disputing that the coroners involved in the investigation into Brody’s death were public officials exercising public functions at the relevant times. As such, I will focus my analysis below on the remaining four elements of the tort, and in particular the unlawful act and knowledge elements.

Norquay v. Kasprzyk, 2015 ONSC 5292 (CanLII)

[78] The constituent elements of a claim for misfeasance in public office have been stated by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), (2003) 3 S.C.R. 263, at paras. 22-23.

[22] What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on the pleadings in this case? In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. This understanding of the tort has been endorsed by a number of Canadian courts. It is important, however, to recall that the two categories merely represent two different ways in which a public officer can commit the tort; in each instance, the plaintiff must prove each of the tort’s constituent elements. It is thus necessary to consider the elements that are common to each form of the tort.

[23] In my view, there are two such elements. First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff. [footnotes omitted]

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[79] There are allegations made with respect to both branches of the tort: (1) that the defendants have engaged in conduct specifically intended to injure Norquay; and (2) that they have acted “knowing that [they have] no power to do the act complained of and that the act will probably injure the plaintiff.” (Three Rivers District Council v. Governor and Company of the Bank of England (No. 3), [2003] A.C. 1 (H.L.) at 191.

[80] Knowledge, in this case, includes reckless indifference or wilful blindness to the lack of statutory authority for the act (Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney General), 2001 MBCA 40 (CanLII), 156 Man.R. (2d) 14, at para. 55).

[81] The particulars of the misfeasance were stated by Norquay as follows:

a. the defendants had direct knowledge that the Guideline that they were enforcing is beyond their statutory authority;

b. the defendants were not acting to further fire safety since the Buildings were not in violation of the Fire Code nor the Building Code and were not deemed to be unsafe;

c. the Inspection Orders were required to remain posted until the Inspection Orders were overturned by the delegate of the Fire Marshal;

d. the defendants “attempted to use s. 21(1)(f) of the FPPA to justify their Inspection Orders to circumvent the law”;

e. the defendants made the Inspection Orders without first obtaining a legal opinion as to their validity;

f. the defendants rescinded the Inspection Orders on the basis that they lacked sufficient technical evidence to support the Inspection Orders, “when it was known to the defendants based on their legal opinion they never could obtain evidence of lack of audibility”; and

g. the defendants have refused to approve a non-conditional Fire Safety Plan.

[82] These allegations relate primarily to four actions by the Fire Department:

1. The issuance of the Inspection Orders;

2. The requirement that the Inspection Orders to remain posted during the period in which the Inspection Orders were stayed;

3. The withdrawal of the Inspection Orders prior to judicial review; and

4. The non-approval of the Fire Safety Plan.

St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280 (CanLII)

[20] Misfeasance in public office is an intentional tort. The tort is meant to provide a measure of accountability for public officials who do not exercise their duties of office in good faith. To make out this tort, a plaintiff must prove four elements:

• The public official deliberately engaged in unlawful conduct in the exercise of public functions;
• The public official was aware that the conduct was unlawful and was likely to injure the plaintiff;
• The public official’s tortious conduct was the legal cause of the plaintiff’s injuries; and
• The injuries suffered are compensable in tort law.

See Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), (2003) 3 S.C.R. 263 at para. 32.

[21] At its core, the tort targets officials who act dishonestly or in bad faith. As Iacobucci J. said in Odhavji, public officials who deliberately engage in conduct that they know to be inconsistent with the obligations of their office risk liability for the tort. Conversely, public officials who honestly believe their acts are lawful, and do not intend to cause harm or know that harm would likely result from their actions, fall outside the ambit of misfeasance in public office. In this way, the required mental element achieves a balance between curbing unlawful, dishonest behavior and enabling public officials to do their jobs free from claims by those adversely affected by their decisions.