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Torts - Misfeasance in Public Office

Civil Procedure - Proceedings - Colourable Purpose

Civil Procedure - Pleadings - Particularity - Where Identities of Persons Unknown

Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada) (Ont CA, 2017)

In this unique case some native business persons sought by way of a tort action to recover taxes they allege they were forced illegally to pay by the federal government. The federal Crown argued that the action was a disguised tax dispute which should be resolved under the exclusive tax legislation code for such disputes. In considering this the Court of Appeal stated as follows on the little-litigated issue of when the form of an action may be disregarded in favour of a more purposive analysis, so that the the court's jurisdiction might be addressed:
[46] The essence of a dispute must be based on a realistic appreciation of the practical result sought by the claimant: Domtar Inc. v. Canada, 2009 FCA 218 (CanLII), 392 N.R. 200, at para. 28, citing Canada v. Roitman, 2006 FCA 266 (CanLII), 353 N.R. 75, at para. 16, leave to appeal refused, [2006] S.C.C.A. No. 353. In order to assess its essential character, the claim must be read “holistically and practically without fastening onto matters of form”: Canada (Minister of National Revenue – M.N.R.) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 (CanLII), 367 D.L.R. (4th) 525, at para. 50.
The court also set out the elements of the tort of misfeasance in public office as follows:
[74] Despite the motion judge’s comment that the tort of misfeasance in public office is still developing and changing, there is no dispute about the test for establishing misfeasance in public office. The test was summarized by the Supreme Court in its 2003 decision in Odhavji Estate, at para. 32:
[T]he tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.

[81] On my reading of the relevant paragraphs from Odhavji, there is no requirement for a breach of a statutory duty to make out a claim for misfeasance in public office. Conduct by a public officer may be unlawful even where there is no positive duty to act, provided that the conduct was done with the intent to harm. Similarly, a refusal to exercise a power with a specific intent to injure might satisfy the test for misfeasance in public office. Here, the respondents plead that “the Ministers’ continuous course of conduct (including their failure to act) … was deliberate and unlawful in the exercise of their public functions: they knowingly acted for an improper purpose as described above and knowingly exceeded their authority”: para. 43 of the Fresh Statement of Claim. Thus, I reject the Crown’s argument that the misfeasance claim should have been struck because the respondents did not plead a failure to act in the face of a clear statutory duty.
Additionally, the court stated this with respect to the particularity of pleadings required in a malfeasance in public office claim, and otherwise in pleadings, where the plaintiff may not know the identities of all persons involved in the causation of their damages at the Claim-drafting stage:
[88] This court’s decision in Granite Power Corp. 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, supports the argument that the failure to name specific people within an organization may not necessarily result in a misfeasance claim being struck. In Granite Power, it was simply pleaded that the “Minister and/or his offices and staff” had acted with misfeasance. This court concluded the claim should not be struck even though it suffered from “a lack of clarity and precision”: para. 34. This court held that there existed “a narrow window of opportunity for Granite to make out its claim of misfeasance” and that “[r]egardless of how difficult it may be to establish, Granite should not be ‘driven from the judgment seat’ at that juncture of the proceeding": paras. 40, 42.

[89] Cases such as the following reflect an acknowledgment that, at the outset of litigation, a plaintiff may not be privy to information about the internal workings of an organization and which particular individual or individuals within an organization may have taken or failed to take a particular action: Capital Solar Power Corp. v. Ontario Power Authority, 2015 ONSC 2116 (CanLII), at paras. 13-14; Swift Current (City) v. Saskatchewan Power Corp., 2007 SKCA 27 (CanLII), 293 Sask. R. 6, at para. 29; and Georgian Glen Development Ltd. v. Barrie (City) (2005), 13 M.P.L.R. (4th) 194 (Ont. S.C.), at para. 11.

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