Simon looking earnest in Preveza, Greece
Simon Shields, LLB

Advising Self-Representing
Ontario Litigants
Since 2005

contracts / tenant / small claims / welfare (ontario works) / odsp / human rights / employment / consumer /
collection agencies / criminal injuries compensation / sppa (admin law)
/ line fences / animal cruelty / dogs & cats / wild animal law (all Canada) / war / conditions of guide use

home / about / client testimonials / areas of practice / about self-representation

Your
Self-Representation
Service Options

Simon Shields, LLB




























Civil Procedure - Pleadings - Striking Pleadings

Torts - Misfeasance in Public Office

Torts - Negligence - Elements

Castrillo v. Workplace Safety and Insurance Board (Ont CA, 2017)

In this case the Court of Appeal sets out the basic principles applicable to striking pleadings under Rule 21.01(b) for showing no reasonable cause of action or defence:
[14] The framework for assessing whether to strike a pleading under r. 21.01(b) of the Rules of Civil Procedure on the ground that it discloses no reasonable cause of action is set out by Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2d ed. (Markham: LexisNexis Canada Inc., 2014), at p. 532:
The following principles apply to a Rule 21 motion to strike a pleading for failing to disclose a reasonable cause of action or defence: (a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof; (b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings; (c) a claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses; the facts pleaded are the basis upon which the claim is evaluated (d) [the] novelty of the cause of action is of no concern at this stage of the proceeding; (e) the statement of claim must be read generously to allow for drafting deficiencies; and (f) if the claim has some chance of success, it must be permitted to proceed.[Internal citations omitted.]
[15] The claim will only be struck where it is “plain and obvious” that it has no reasonable prospect of success: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959; R v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at paras. 17-19; Taylor v. Canada (Attorney General), 2012 ONCA 479 (CanLII), 111 O.R. (3d) 161, at para. 22; and Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 (CanLII), 117 O.R. (3d) 721, at para. 30. While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact unsupported by material facts.
Additionally, the Court usefully discusses the elements of the tort of misfeasance in public office in the below quotes (the case is generally a useful read for anyone suing a public agency in tort):
[17] To set the legal context, I observe that this court succinctly expressed the purpose of the tort of misfeasance in public office in Freeman-Maloy v. Marsden (2006), 2006 CanLII 9693 (ON CA), 79 O.R. (3d) 401, 267 D.L.R. (4th) 37 (Ont. C.A.), at para. 10:
The tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen. As Lord Steyn put it in Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, at 1230 “The rationale of the tort is that in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior and improper purposes”. The “underlying purpose” of the tort of misfeasance in a public office “is to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions”: Odhavji, 2003 SCC 69 (CanLII), [2003 SCC 69, [2003] 3 S.C.R. 263] supra at para. 30.
..........

[19] To pass scrutiny under r. 21.01(1)(b), a pleading of misfeasance in public office must allege facts capable of establishing the ingredients of the tort, in addition to the usual tort requirements of causation and damages. The ingredients are: (1) the defendant must be a public official; (2) the claim must arise from the exercise of power as a public official; and (3) the public official “must have acted with malice or bad faith” so as to satisfy the mental element: Freeman-Maloy, at para. 11.

[20] Another way of framing the test is that the plaintiff must show: first, the public official was engaged in unlawful conduct in the exercise of his or her public functions; and, second, the public official was aware that the conduct in question was unlawful and was likely to injure the plaintiff: Trillium Power Wind Corporation, at paras. 38-39, drawing on the Supreme Court’s decision in Odhavji Estate v. Woodhouse, at paras. 28, 30 and 32; see also, Pikangikum First Nation v. Nault, 2012 ONCA 705 (CanLII), 298 O.A.C. 14, at para. 54, leave to appeal refused, [2013] S.C.C.A. No. 10; St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280 (CanLII), 319 D.L.R. (4th) 74, at para. 20; Granite Power Corporation v. Ontario (2004), 2004 CanLII 44786 (ON CA), 72 O.R. (3d) 194 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 409, at paras. 37-39.

...........

[39] The law, as set out in Freeman-Maloy, is that the claimant need not allege or prove actual malice in order to make out the mental element of the cause of action of misfeasance, only bad faith. ...
Lastly, the court succinctly states the elements of the tort of negligence:
[78] In order to establish a duty of care in negligence, three elements are necessary: (1) The harm complained of must have been reasonably foreseeable; (2) There must have been sufficient proximity between the plaintiff and the defendant that it would be fair and just to impose a duty of care; and (3) There must be no residual policy reasons for declining to impose such a duty: Williams v. Toronto (City), 2016 ONCA 666 (CanLII), 402 D.L.R. (4th) 678; Cooper v. Hobart, 2001 SCC 79 (CanLII), [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80 (CanLII), [2001] 3 S.C.R. 562; Childs v. Desormeaux, 2006 SCC 18 (CanLII), [2006] 1 S.C.R. 643; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII), [2007] 3 S.C.R. 83; see also Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); and Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2.

Lawyer License #37308N / Website © Simon Shields 2005-2017