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Crown and Government Liability - Misfeasance in Public Office
MORE CASES
Part 2
. The Catalyst Capital Group Inc. v. Dundee Kilmer
In The Catalyst Capital Group Inc. v. Dundee Kilmer (Ont CA, 2022) the Court of Appeal considered the tort of misfeasance in public office:[13] As this court set out in L. (A.) v. Ontario (Minister of Community and Social Services) (2006), 2006 CanLII 39297 (ON CA), 218 O.A.C. 150 (C.A.), at para. 35, leave to appeal refused, [2007] S.C.C.A. No. 36:The tort of misfeasance in public office is founded on the principle that those that hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of ordinary citizens. [14] The elements of the misfeasance tort were set out by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 63. The court explained that the tort of misfeasance in public office can arise in one of two ways. What it called Category A involves conduct that is specifically intended to injure a person or a 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. The court explained, at para. 23, that there are elements common to both forms of the tort: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 public office from the other is the manner in which the plaintiff proves each ingredient of the tort. [15] The court in Odhavji went on to explain that the requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in public office requires an element of “bad faith” or “dishonesty”. The fact that a public official makes a decision that harms a member of the public is not, in and of itself, a basis to infer bad faith. As the court stated at para. 28:In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. [16] In Pikangikum First Nation v. Nault, 2012 ONCA 705, 298 O.A.C. 14, at para. 77, leave to appeal refused, [2013] S.C.C.A. No. 10, this court explained that:The tort of misfeasance of public office is difficult to establish. The plaintiff must prove more than mere negligence, mismanagement or poor judgment. To succeed, the plaintiff must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff. . Meekis v. Ontario
In Meekis v. Ontario (Ont CA, 2021) the Court of Appeal extensively considered the elements of the tort of misfeasance of public office:[70] In Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361, at para. 22, a majority of the Supreme Court summarized the tort of misfeasance in public office in the following terms:A successful misfeasance claim requires the plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a public official, and that the official was aware that the conduct was unlawful and likely to harm the plaintiff. [Citations omitted.] [71] This court described 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 (C.A.), at para. 10, leave to appeal refused, [2006] S.C.C.A. No. 201, as follows: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 (U.K. H.L.), 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 … at para. 30. [72] The past four decades have seen a revival in the application of the tort of misfeasance in public office, both in Canada and abroad. The wide-ranging situations in which plaintiffs have claimed misfeasance against various kinds of public officials illustrate that it is “a tort of great flexibility and breadth”: Erika Chamberlain and Stephen G.A. Pitel, Fridman’s The Law of Torts in Canada (Toronto: Thomson Reuters, 2020), at p. 1099.
The elements of misfeasance in public office
[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.
A “narrow window of opportunity” to succeed at trial is sufficient
[76] While the material facts may lack detail in the early stages of a proceeding, at the pleadings stage it is generally enough for a plaintiff to establish “a narrow window of opportunity” to make out a misfeasance claim at trial: Granite Power Corp. v. Ontario, 2004 CanLII 44786 (ON CA), 72 O.R. (3d) 194, at para. 40.
[77] However, the tort requires more than a “bald pleading” that a public official acted for an improper purpose; there must be material facts about specific officials and their specific unlawful purpose in acting as they did: Trillium Power Wind Corporation v. Ontario (National Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at paras. 59-61.
Discriminatory conduct may satisfy the unlawful act element
[78] In Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, 136 O.R. (3d) 654, at para. 45, Lauwers J.A. found that a misfeasance claim based on an alleged improper purpose in the exercise of a discretionary public spending power was “adequate in strictly pleadings terms”. He explained that this amounted to a specific application of “the more general proposition that a statutory power must only be used for a proper purpose” [Emphasis added].
[79] It is well-settled that exercising discretion based on discriminatory considerations constitutes an improper purpose: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 53. There can be no doubt that a failure to act, if based on discriminatory considerations, is equally improper. Indeed, in his oft-cited judgment in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, Rand J. affirmed that using one’s public power to discriminate against a particular class of persons is “knowingly foreign” to the proper exercise of discretionary statutory decision-making.
[80] In Madadi v. Nichols, 2021 BCCA 10, 455 D.L.R. (4th) 471, the British Columbia Court of Appeal recently considered the adequacy of pleadings in support of a claim for misfeasance in public office where the plaintiff alleged that a disciplinary body penalized him for the improper purpose of discrimination. The court confirmed, at para. 72, that a misfeasance claim grounded in part on the pleading that a public body exercised its discretion based on “discriminatory reasoning”, coupled with “pleas of knowledge that the conduct was unlawful, subjective awareness of the consequential harm to the respondent, and improper purpose” was sufficient to establish a possible cause of action for misfeasance in public office.
Failures to act may be unlawful even where there is no positive duty to act
[81] Additionally, this court has confirmed that omissions by public officials may be the source of a claim for misfeasance in public office. In Grand River, Epstein J.A. explicitly rejected the argument that an omission to act cannot be unlawful without a deliberate breach of an express statutory duty. Rather, Epstein J.A. held as follows, at para. 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”. 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. [Emphasis added.] The two categories of misfeasance in public office
[82] In Odhavji, at paras. 22-23, Iacobucci J. discussed two ways in which the tort of misfeasance can arise: (a) through conduct that is specifically intended to injure a person or class of persons, sometimes called “targeted malice” (“Category A”); and (b) where a public official 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” (“Category B”).
[83] In Foschia, at para. 24, this court elaborated on the key distinction between Category A and Category B claims of misfeasance in public office:While the constituent elements of the tort do not change depending on the Category of misfeasance alleged, the way those elements are proven does. If the plaintiff proves that the public official was acting for the improper purpose of deliberately causing harm to the plaintiff, this will be sufficient to prove both the [unlawful act] and [knowledge] elements of the tort. If, on the other hand, the plaintiff is alleging misfeasance in the form of Category B, then it is necessary to individually prove both the [unlawful act] and [knowledge] elements. In proving the [knowledge] element, it is sufficient for the plaintiff to show that the public official acted with reckless indifference to both the unlawfulness of his or her act and the likelihood that it would injure the plaintiff. [Citations omitted.] ....
[102] According to Iacobucci J. in Odhavji, at para. 25, the knowledge element may be satisfied by showing that the public official acted with recklessness or “conscious disregard” as to the unlawfulness of their conduct and the likelihood that it would injure the plaintiff. . Flood v. Boutette
In Flood v. Boutette (Ont CA, 2021) the Court of Appeal quickly dismissed a tort claim of misfeasance in public office:[114] Finally, the Papics’ claim of misfeasance in public office must fail. The City councillors were not acting unlawfully or in bad faith when they elected to vote on the site control plan application: see Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at paras. 37-39. They were acting in response to community opposition to the Papics’ proposed variance.
[115] In sum, the Papics sought a variance to a property. Community members objected and raised their concerns with City Council, the role of which is to resolve such disputes. There is nothing particularly unusual, much less tortious, about the events that followed. . Ontario (Attorney General) v. Clark
In Ontario (Attorney General) v. Clark (SCC, 2021) the Supreme Court of Canada sets out the basics of the tort of misfeasance in public office:[22) The elements and proper scope of the tort of misfeasance are not disputed in this appeal. A successful misfeasance claim requires the plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a public official, and that the official was aware that the conduct was unlawful and likely to harm the plaintiff (Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 263, at para. 23, per Iacobucci J.).
[23] The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely an act in excess of the public official’s powers, an exercise of a power for an improper purpose, or a breach of a statutory duty (Odhavji, at para. 24). The minimum requirement of subjective awareness has been described as “subjective recklessness” or “conscious disregard” for the lawfulness of the conduct and the consequences to the plaintiff (Odhavji, at paras. 25 and 29; Powder Mountain Resorts Ltd. v. British Columbia (2001), 2001 BCCA 619 (CanLII), 94 B.C.L.R. (3d) 14 (C.A.), at para. 7; Three Rivers District Council v. Bank of England (No. 3) (2000), [2003] 2 A.C. 1 (H.L.), at pp. 194-95, per Lord Steyn). . Conway v. The Law Society of Upper Canada
In Conway v. The Law Society of Upper Canada (Ont CA, 2016) the Court of Appeal commented briefly on the elements of the tort of misfeasance in public office:[20] The tort of misfeasance in public office has been variously described in the case law as the tort of abuse of public office or abuse of statutory power: Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), at paras. 25 and 30. Whatever the nomenclature, the essence of the tort is the deliberate and dishonest wrongful abuse of the powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff: Odjhavji Estate v. Woodhouse, at para. 23. Bad faith or dishonesty is an essential ingredient of the tort: Odhavji Estate v. Woodhouse, at para. 28 and Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 321, at para. 85. . Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada)
In Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada) (Ont CA, 2017) the Court of Appeal 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. . Castrillo v. Workplace Safety and Insurance Board
In Castrillo v. Workplace Safety and Insurance Board (Ont CA, 2017) the Court of Appeal 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.
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[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. ... . Clark v. Ontario (Attorney General)
In Clark v. Ontario (Attorney General) (Ont CA, 2019) the Court of Appeal considered a claim in misfeasance in public office:E. Does an action lie against the Crown for misfeasance in public office?
[97] The Attorney General’s motion to strike the officers’ claim for misfeasance in public office was brought under r. 21.01(1)(b) of the Rules of Civil Procedure. The applicable principles were reviewed in the preceding section of this decision.
[98] The elements of the tort of misfeasance in public office were set out 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. The motion judge succinctly and accurately detailed the elements of this tort for the category of claim made in this case, at para. 141:[T]he tort is made out by “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.” [Odhavji at para. 22] … “[T]he tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff”: Odhavji (at para. 23). The tort of “misfeasance in a public office requires an element of bad faith or dishonesty”: Odhavji (at para. 28). For a public officer's “conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent within the obligations of the office”: Odhavji (at para. 28). [99] The Attorney General makes two arguments: first, the tort of misfeasance in public office was inadequately pleaded and the motion judge erred in failing to so find; and second, the motion judge erred in failing to find that Crown attorneys are immune from civil liability for misfeasance in public office. We do not accept these arguments, for the reasons that follow.
Misfeasance in public office was adequately pleaded
[100] The motion judge set out the allegations made by the officers and stated, at para 149:[T]he officers have pleaded that the Crown Attorneys acted unlawfully by acting in breach of their statutory duties under the Crown Attorneys Act and by breaching their oath of office. In my view, they have pleaded the essential elements of the tort of misfeasance in public office by asserting knowing, deliberate, and unlawful disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiffs. [101] The motion judge added, at para. 150:The dispute between the parties largely relates to the proper construction of the statutory duties of Crown Attorneys and whether they were in fact breached in this case. At this stage, a motion to strike, I am not called upon to decide that the plaintiffs can prove their allegations; instead, I am required to assume they can. [102] We agree with the motion judge’s conclusion that the pleading of misfeasance in public office was adequate, as a careful review of the statement of claim reveals. The pleading of this tort focuses in particular on the Crown’s conduct of the appeal. This court’s reasons were especially hard on the officers, noting that their “conduct in this case might well be characterized as ‘torture’”. The court noted, at para 43, to repeat:What occurred here was the administration of a calculated, prolonged and skilfully choreographed investigative technique developed by these officers to secure evidence. This technique involved the deliberate and repeated use of intimidation, threats and violence, coupled with what can only be described as a systematic breach of the constitutional rights of detained persons - including the denial of their rights to counsel. It would be naïve to suppose that this type of egregious conduct, on the part of these officers, would be confined to an isolated incident. [103] The statement of claim asserts, in paras. 33 and 34:During oral argument at the appeal, Justice Doherty, asked Ms. Alyea many questions about what had occurred. She never advised him, or the court, about the new material facts that the Crown had learned about the conduct of Ms. Cressman, and more importantly, the exculpatory findings with respect to the conduct of the police officers which she had come to know.
As such, the Crown, either negligently or deliberately, attempted to protect its own agents conduct, rather than respecting their duty of care and responsibility to the officers and the administration of justice. [Emphasis added.] [104] The statement of claim states plainly, at para. 47, that Crown counsel “committed the tort of misfeasance in public office by engaging in deliberate and unlawful conduct in their capacity as Crown attorneys, clearly in contravention of their sworn statutory duty.” It was “deliberate and unlawful conduct.” Further:The new material facts Ms. Alyea and her superiors became aware of which clearly exonerated the police officers and implicated Ms. Cressman’s conduct, were supressed by senior Crown Law Officers and were kept from the judges of the Court of Appeal. [Emphasis added.] [105] Other critical elements of the tort were also pleaded, at para. 48:Crown attorneys involved in this case deliberately engaged in conduct that they knew to be inconsistent with the obligations of the Crown attorney and they did so in bad faith, with the knowledge that this misconduct was likely to injure the officers. [Emphasis added.] [106] The pleading of misfeasance in public office is adequate, properly particularized, and carefully tracks the elements of the Odhavji Estate test. The motion judge did not err in so finding.
Crown attorneys are not immune from civil liability for misfeasance in public office
[107] The Attorney General argues that Crown attorneys are immune from liability for misfeasance in public office, and enlists the same two grounds it deployed in the successful argument that Crown attorneys are immune from liability for negligence in the performance of their duties: the prospect of liability for misfeasance could divert Crowns from their duties and could have a chilling effect on their conduct. These were the policy reasons Moldaver J. rejected in Henry when he extended liability for Charter damages for wrongful non-disclosure in a criminal prosecution.
[108] The motion judge rejected these arguments in relation to the claim for misfeasance in public office.
[109] We conclude that Crown attorneys are not immune from claims of liability for misfeasance in public office. The trigger for liability provides the functional equivalent of the “high liability threshold” Moldaver J. set in Henry for liability for Charter damages for wrongful disclosure.
[110] The nerve of the Supreme Court’s decisions in the trilogy and in Henry is the deliberate abuse of authority by Crown attorneys. See Nelles, at paras. 55-56, per Lamer J.; and Proulx, at para. 35, per Iacobucci and Binnie JJ. In Miazga, Charron J. said, at para. 51:Thus, the public law doctrine of abuse of process and the tort of malicious prosecution may be seen as two sides of the same coin: both provide remedies when a Crown prosecutor's actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non-intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact. [111] In Miazga, several parties sought to amend the test from Nelles so that malice could be inferred because “independent evidence of malice presents too high a barrier,” but Charron J. rejected these arguments, at para. 52, because they “are ill-conceived and do not account for the careful balancing established in Nelles and Proulx between the right of individual citizens to be free from groundless criminal prosecutions and the public interest in the effective and uninhibited prosecution of criminal wrongdoing.” She concluded that “the ‘inherent difficulty’ in proving a case of malicious prosecution was an intentional choice by the Court, designed to preserve this balance.” See also paras. 79-84.
[112] The need to establish abuse of authority was noted by Moldaver J. in Henry, at para. 49, which we repeat for convenience:It is a bedrock principle that the exercise of core prosecutorial discretion is immune from judicial review, subject only to the doctrine of abuse of process. The presence of bad faith and improper motives may indicate this type of conduct. [Citations omitted.] [113] Drawing on Henry, there are “compelling good governance” concerns that require a “high liability threshold” in order for the tort of misfeasance in public office to be a tenable cause of action against Crown attorneys. That “high liability threshold” is satisfied by the requirement of the tort of misfeasance in public office set out in Odhavji that the claimants show the presence of bad faith or improper motives. We also note Moldaver J.’s qualification, at para. 83 of Henry, that “there may be case-specific policy concerns that militate against an award, even if the appellant has made out the heightened per se threshold.” This qualification applies equally to the tort of misfeasance in public office, but requires cogent evidence to substantiate it.
[114] We agree with the motion judge’s conclusion that the pleading of misfeasance in public office was adequate and that Crown attorneys are not immune from claims of liability for misfeasance in public office.
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