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Crown and Government Liability - Misfeasance in Public Office (2)

. Kudrocova v. Waterloo Region District School Board

In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered the law of misfeasance in public office:
Misfeasance of public office

[15] Misfeasance of public office is an intentional tort which requires: (i) that a public officer engaged in deliberate and unlawful conduct in their capacity as a public officer and, (ii) the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23. Further, where unlawful conduct is grounded in a failure to take action with no statutory duty to act, misfeasance cannot be established unless there is an intent to harm: Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 81.

[16] These decisions also highlight the need for the plaintiff to prove bad faith. As stated in Grand River, at paras. 93-94,
I agree with the Crown that knowledge of harm, without intent to harm, is insufficient to establish misfeasance. This court made that point 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:
The tort of misfeasance in 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. [Emphasis added]
A similar point was made in Odhavji [Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263], at para. 28:
The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of “bad faith” or “dishonesty”. 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. [Emphasis added by the Court of Appeal.]
....

[25] It is also plain and obvious that the misfeasance claim fails on other grounds. Misfeasance requires “bad faith” or “dishonesty”; the person who holds a public office must deliberately engage in conduct that he or she knows will likely injure the plaintiff. However, as the Court of Appeal put it in Grand River, quoted above, “knowledge of harm, without intent to harm, is insufficient to establish misfeasance.” Yet this is precisely what has been pleaded: that in acting as they did, or in failing to act, the Appellants did so “with the knowledge… that said conduct was likely to injure Ms. Kudrocova.”

[26] The claim, insofar as it pleads misfeasance, does not state that any of the individual Appellants “in bad faith chose a course of action specifically to injure the plaintiff.” Proving that the Appellants knew of the joint custody order does not establish bad faith or support a finding that school staff engaged in conduct with intent to injure the Respondent. There are no facts pleaded to support bad faith or a specific intent to injure on the part of any of the employees named in the Statement of Claim and, unlike knowledge, bad faith (or malice) and intent cannot be inferred: Rules of Civil Procedure, r. 25.06(8).
. Bigeagle v. Canada

In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered the tort of misfeasance in public office:
[80] Misfeasance in public office is distinct from the tort of negligence. It is an intentional tort that is directed at the conduct of public officials in the exercise of their duties. In Odhavji Estate, at paragraph 32, the Supreme Court of Canada summarized the elements of the tort in the following manner:
To summarize, I am of the opinion that the 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.
. Poorkid Investments Inc. v. Ontario (Solicitor General)

In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal heard (and allowed) an appeal of a "declaration that s. 17 of the CLPA violates s. 96 of the Constitution Act, 1867 and is of no force and effect", in the course of a class action against the Crown and police regarding allegation of 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario. CLPA s.17 requires a plaintiff to obtain prior leave (permission) from the court when suing for misfeasance in public office, or for "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" [CLPA s.17(1)].

This quote addresses the CLPA s.17 provisions:
The Crown Liability and Proceedings Act, 2019

[8] The CLPA replaced the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Like that Act, the CLPA imposes liability on the Crown for tortious conduct from which it would otherwise be immune at common law. The CLPA preserves various immunities for the Crown and officers, employees, and agents of the Crown with respect to the performance of certain duties and governs the conduct of proceedings in which the Crown is a party. The Act maintains some procedural provisions similar to those in the Proceedings Against the Crown Act but effects a significant change concerning some torts. Specifically, s. 17 of the CLPA establishes a screening procedure that applies to claims against the Crown, or an officer or employee of the Crown, for misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of powers, duties, or functions.

[9] Proceedings concerning the tort of misfeasance in public office or torts based on bad faith in the exercise or intended exercise of public authority are deemed stayed, unless leave to bring the proceeding is granted pursuant to s. 17(2) of the CLPA:
(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.
[10] The CLPA sets out a detailed leave procedure that limits the evidence that may be adduced by the parties in ss. 17(3)-(7):
(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.

(4) On a motion for leave under subsection (2), the defendant may serve on the claimant and file an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the defendant intends to rely for the defence, but is not required to do so.

(5) No person may be examined or summoned for examination on the contents of an affidavit or prescribed document referred to in subsection (3) or (4) or in relation to the motion for leave, other than the maker of the affidavit or prescribed document.

(6) The defendant shall not be subject to discovery or the inspection of documents, or to examination for discovery, in relation to the motion for leave.

(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.
[11] In summary, claimants must file an affidavit setting out the material facts on which they intend to rely, along with an affidavit of documents; the defendant may file an affidavit but is under no obligation to do so; no one is to be examined or summoned for examination in regard to the affidavit, affidavit of documents, or in relation to the motion for leave except for the maker of the affidavit or prescribed document; and the defendant is not subject to discovery or the inspection of documents, or to examination for discovery. The constitutionality of this screening process is the question at the heart of this appeal.



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Last modified: 14-12-23
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