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Crown Liability - Misfeasance in Public Office (3). Phixaykoune v. Ontario
In Phixaykoune v. Ontario (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the denial of a CLPA s.17(2) ['Leave to proceed required, automatic stay'] motion for leave "to lift the automatic stay" - where such leave is required when the plaintiff advances a "tort based on bad faith" [CLPA s.17(1)].
Here the court walks through a statutory interpretation of the phrase: "a tort based on bad faith", as used in CLPA 17(1) - citing the tort example of misfeasance in public office:E. Analysis
[23] The appellant submits that the motion judge erred in finding that the negligence claims against the Officers were claims in respect of “a tort based on bad faith” for purposes of s. 17(1).
[24] According to the appellant, the words “a tort based on bad faith” are clear: they refer to a tort where bad faith is a necessary legal element of the tort – for example, misfeasance in public office or malicious prosecution. He contends that “a tort based on bad faith” excludes claims in negligence because bad faith is not a constituent element of negligence: see, for example, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3. Here, the motion judge is said to have erred in concluding that leave was required since the only tort claims against the Officers were negligence claims.
[25] By contrast, the respondents read “a tort based on bad faith” more broadly. They submit that s. 17 is designed to screen out baseless bad faith allegations against government actors, made in the context of tort claims aimed at circumventing good faith immunity provisions. In such circumstances, bad faith becomes a necessary part of the negligence claim, resulting in a claim in respect of a “tort based on bad faith”.
[26] It is trite law that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.
[27] Applying these principles, I conclude that the motion judge erred in interpreting the phrase “a tort based on bad faith” in the context of s. 17(1) to include negligence claims.
[28] The CLPA is relatively new legislation. Broadly speaking, it “refines and clarifies the Crown’s substantive and procedural immunity”: Sunil S. Mathai & Brent Kettles, The Annotated Ontario Crown Liability and Proceedings Act, 2019 (Toronto: Thomson Reuters Canada Ltd., 2024), at p. 9. It has four main sections: “Interpretation and Application” (ss. 1-7), “Crown Liability” (ss. 8-11), “Proceedings Involving the Crown” (ss. 12-27), and “General Matters” (ss. 28-31).
[29] As this court has recognized, the purpose of s. 17 is to establish a screening process – “a procedure that allows the superior courts to screen out unmeritorious claims”: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, 479 D.L.R. (4th) 469, leave to appeal refused, [2023] S.C.C.A. No. 188, at para. 37. It is aimed at screening claims brought in proceedings against the Crown or officers or employees of the Crown.[1] As for the type of claim, it applies to claims in respect of a tort of misfeasance in public office or a tort based on bad faith. It has been noted that “misfeasance claims have proliferated as a way of avoiding claims in negligence which require a plaintiff to establish that a defendant owed the plaintiff a duty of care”: Mathai & Kettles, at p. 124; Karen Horsman and Gareth Morley, Government Liability: Law and Practice (Toronto: Thomson Reuters Canada Ltd., 2020), at § 8.1.
[30] Notably, the phrase “a tort based on bad faith” is not a defined term or a term of art. The parties have not brought our attention to any use of this phrase elsewhere in the Ontario statute book.
[31] Reading s. 17(1) carefully, it refers to “a tort based on bad faith”, not a “claim based on bad faith” (emphasis added):17(1) This section applies to proceedings … that include a claim in respect of … a tort based on bad faith .... This distinction is important. It signals that the legislature was not concerned with any and all claims alleging bad faith but, rather, claims in respect of “a tort based on bad faith”.
[32] The French version of s. 17(1) lends further insight into the legislature’s intention:17 (1) Le présent article s’applique aux instances qui sont introduites contre la Couronne ou un de ses fonctionnaires ou employés et qui comprennent une demande à l’égard d’un délit de mauvaise exécution dans l’exercice d’une charge publique ou délit de mauvaise foi concernant un acte accompli dans l’exercice effectif ou censé tel des pouvoirs ou fonctions du fonctionnaire ou de l’employé. [Emphasis added.] As can be seen, the phrase “a tort based on bad faith” is translated as a “délit de mauvaise foi”. Directly translated, it means a “tort of bad faith” (emphasis added).
[33] As the Supreme Court has noted, “[t]he law does not recognize a stand-alone action for bad faith”: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 78. There are, however, torts where bad faith is a constituent element of the tort. The obvious example – the one specified in s. 17(1) – is misfeasance in public office. There is no dispute that the tort of misfeasance in public office can be described as a “tort of bad faith” or, using the English phrasing, a “tort based on bad faith.”
[34] In terms of its legislative history, s. 17 has been amended since the CLPA’s enactment. Both the original and amended versions of s. 17 are aimed at screening claims in respect of a tort of misfeasance in public office or a “tort based on bad faith”. No discussion was captured in Hansard about the meaning of a “tort based on bad faith”, either at the time the CLPA was enacted or when it was amended.
[35] The respondents submit that s. 17(1) must be read together with s. 12(1) of the MCSA, which I repeat here for ease:12 (1) No action or other proceeding for damages shall be instituted against the Deputy Minister or any officer or employee of the Ministry or anyone acting under his or her authority for any act done in good faith in the execution or intended execution of his or her duty or for any alleged neglect or default in the execution in good faith of his or her duty or for any act of an inmate, parolee or probationer while under his or her custody and supervision. [Emphasis added.] [36] As noted, the respondents submit that where a claimant is faced with a statutory good faith immunity provision such as s. 12(1), bad faith becomes a necessary element of their negligence claim, resulting in a claim in respect of a “tort based on bad faith”.
[37] A similar view is expressed by the authors of the Annotated Ontario Crown Liability and Proceedings Act, 2019, at pp. 131-132, although their analysis focuses on statutory good faith immunity provisions within the CLPA:[Under s. 11 of the CLPA], no cause of action arises against the Crown, or an officer, employee, or agent of the Crown in respect of a “policy” or “regulatory” decision made in good faith. The statutory immunities will not apply where the plaintiff claims that the impugned “policy” or “regulatory” decision at issue was taken in bad faith…. When this type of bad faith conduct is alleged in the context of a negligence claim (likely to avoid application of the common law immunity or s. 11 immunities), it is the authors’ view that s. 17 should apply.
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In the context of a negligence claim where it is alleged that a Crown employee, agent or officer acted in bad faith so as to defeat the application of s. 11 immunities, then the authors’ view is that negligence becomes a “tort based on bad faith” because bad faith becomes a prerequisite for permitting the claim to proceed. [Emphasis added.] [38] Although I agree that s. 17(1) must be read in context, the broader context cannot displace the precise wording of s. 17(1).
[39] As I have noted, on its face, s. 17(1) does not catch claims based on bad faith – rather, it catches claims in respect of torts based on bad faith. In my view, a claim framed in negligence that includes factual allegations of bad faith does not amount to a claim in respect of a tort based on bad faith. The elements of a negligence claim do not change in the face of a statutory immunity clause. The purpose of the allegation of bad faith is rather to fend off good faith statutory immunity.
[40] This narrower reading of “a tort based on bad faith” is consistent with both the English and the French wording.
[41] Had the legislature intended s. 17 to capture all allegations of bad faith made in the context of employment-related tort claims brought against the Crown or its officers, it could have made this clear in the drafting of s. 17(1).
[42] In conclusion, the motion judge erred in interpreting “a tort based on bad faith” as including negligence claims and finding that s. 17 applied in this case. . Patterson v. Eastern Residential Services Inc.
In Patterson v. Eastern Residential Services Inc. (Ont CA, 2026) the Ontario Court of Appeal partially dismisses an appeal, here brought against the "order made on a r.21 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which struck his statement of claim against Eastern Residential Services Inc. (“ERS”) and Simcoe Muskoka Family Connexions (“SMFC”), except for the breach of contract claim against ERS, which was struck with leave to amend".
Here the court considered the tort of 'misfeasance in public office':a. Applicable Legal Principles
[37] The tort of misfeasance in public office has two elements as articulated in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23: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. [38] To properly plead the tort, a plaintiff must allege material facts showing that the defendant: (i) was a public officer; (ii) deliberately engaged in unlawful conduct in that capacity; (iii) knew the conduct was unlawful and likely to harm the plaintiff; and (iv) legally caused compensable injury: Meekis v. Ontario, 2021 ONCA 534, 158 O.R. (3d) 1, at para. 73.
[39] Misfeasance in public office requires that the public officer have subjective knowledge, or be reckless or willfully blind to the fact, that their conduct is unlawful and likely to harm the plaintiff: Hartman v. Canada (Attorney General), 2026 ONCA 270, 9 C.C.L.T. (5th) 315, at para. 55, leave to appeal to S.C.C. requested, 42403. The tort also requires particularized allegations of bad faith or malice.
[40] Where misfeasance in public office is alleged, the defendant – in this case, the Societies – must be able to understand precisely what conduct is said to be wrongful. As this court stated in Hartman, at para. 60, the pleading must identify “circumstances, particulars, or facts … upon which a trier of fact could infer or conclude that the public officer’s conduct was deliberate and unlawful, with knowledge of the potential consequence to the plaintiff.” On a r. 21 motion, a bare allegation of malice is insufficient. Rule 25.06(8) of the Rules similarly requires that, “[w]here fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.” The appellant submits that his statements of claim are amplified by the responses to the demands for particulars, and that those responses plead facts from which malice can be inferred.
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[50] However, the information set out in the response to the demand for particulars, summarized in the discussion that follows, is capable of supporting inferences of unlawfulness and malice. At the pleadings stage, it is generally sufficient to identify a “narrow window of opportunity” for the alleged misfeasance to have occurred: Granite Power Corporation v. Ontario (2004), 2004 CanLII 44786 (ON CA), 72 O.R. (3d) 194 (C.A.), at para. 40, leave to appeal refused, [2004] S.C.C.A. No. 409. . Resler v. Anglin
In Resler v. Anglin (SCC, 2026) the Supreme Court of Canada dismissed a defendant's SCC appeal, this brought against an Alberta CA ruling that allowed an appeal where the Alberta QB struck the plaintiff's "amended statement of claim in its entirety, finding that it amounted to an abuse of process, disclosed no reasonable cause of action and, in any case, the allegations had no reasonable chance of success given Resler’s common law and statutory immunities".
Here the court extensively considers the tort of 'misfeasance in public office':(2) The Misfeasance in Public Office Claim
[76] The origins of the misfeasance in public office tort can be traced back to English electoral cases. In Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126 (K.B.), rev’d (1703), 1 Bro. P.C. 62, 1 E.R. 417 (H.L.), a returning officer prevented the plaintiff from voting. The House of Lords characterized the right to vote as a property right, but their decision left some ambiguity as to whether the loss of that right constituted a form of damage in itself or whether it needed to be associated with a pecuniary loss. Nevertheless, Ashby clarified that redress is available when a right has been violated fraudulently or maliciously by a public officer.
[77] As noted by Anglin, Ashby expanded the earlier scope of claims against Crown officers, which were founded in trespass, to permit more generalized claims for abuse of power in a public office (R.F., at para. 56). The majority of the Court of King’s Bench in Ashby had ruled that the issue must be left to Parliament. The House of Lords set aside this decision, ruling that a remedy must follow a right and that the courts, not Parliament, had the jurisdiction to determine such cases.
[78] An earlier English decision acknowledged an entitlement to compensatory damages for misfeasance in public office in the electoral context. In Turner v. Sterling (1671), 2 Ventris 25, 86 E.R. 287, the complainant brought a claim to recover the profits he would have earned had he gained a seat in municipal office as a bridge-master. He alleged that he had received more votes than his opponent, but that the mayor had declared his opponent to be the winner without holding a poll to count the votes. The court found that it was as “bad as if he had turned him out of his office” (p. 289) and that the complainant was therefore entitled to compensatory damages. In this case, “it was the possibility of damage that was important” (E. Chamberlain, Misfeasance in a Public Office (2016), at p. 28 (emphasis in original)).
[79] These early English decisions illustrate that the electoral context is not incompatible with the tort of misfeasance in public office. Indeed, it appears that the tort originated precisely from this type of claim.
[80] Although the tort originally applied only where a public officer abused a power that it actually possessed, this Court’s decision in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, confirmed that the reach of the tort is broader than its early formulations in English cases and set the contours of its modern application in Canadian law (Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 18 and 19; H. Wruck, “The Continuing Evolution of the Tort of Misfeasance in Public Office” (2008), 41 U.B.C. L. Rev. 69, at pp. 72 and 74). In Roncarelli, the owner of a restaurant alleged that Duplessis, who was then Premier of Quebec, had acted outside of his legal powers by arbitrarily ordering the Quebec Liquor Commission to cancel his liquor licence under the Alcoholic Liquor Act, R.S.Q. 1941, c. 255. He claimed that Duplessis intended to punish him for providing bail to members of Jehovah’s Witnesses who had been charged with breaching municipal by-laws by distributing literature. The restaurant owner pursued a civil claim against Duplessis for damages, and the Court found him to be personally liable for ordering the cancellation of the licence without legal justification.
[81] Whereas, in Ashby, the election officer had the authority to prevent an individual from voting, Duplessis was not exercising any of his lawful official powers when he ordered the cancellation of the liquor licence (Roncarelli, at pp. 158 and 184). Despite this, the Court found Duplessis liable in tort law, establishing that misfeasance in public office may arise from the exercise of any public power, even where the impugned conduct does not involve the breach of powers actually held. This development was significant, as it showed that the tort targets a distinct harm — the bad-faith exercise of public power — rather than the nature or source of the public officer’s statutory or prerogative authority.
[82] The tort of misfeasance in public office can be established when a public official’s deliberate and unlawful actions, carried out with the knowledge that the conduct was unlawful and likely to cause harm, cause compensable damage to the complainant (Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] 1 S.C.R. 607, at para. 22; Odhavji Estate, at paras. 23 and 32). Three appellate decisions charted the course of the misfeasance tort and “set out in considerable detail the underlying rationale for [its] modern version” (see E. Chamberlain, “What is the Role of Misfeasance in a Public Office in Modern Canadian Tort Law?” (2009), 88 Can. Bar Rev. 575, at p. 578). The first, Three Rivers DC v. Bank of England (No. 3), [2001] UKHL 16, [2003] 2 A.C. 1, set out the elements of the tort and provided guidance on the elements of duty and malice. The Three Rivers framework was then adopted in Odhavji Estate and, in Watkins v. Home Secretary, [2006] UKHL 17, [2006] 2 A.C. 395, which emphasized the need to establish material damage and not merely the violation of a right.
[83] In Odhavji Estate, at para. 22, the Court cited Three Rivers, in which the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways. The first involves conduct that is specifically intended to injure a person or class of persons. The second involves a public officer who acts with knowledge both that they have no power to do the act complained of and that the act is likely to injure the plaintiff.
[84] Professor Chamberlain notes that the tort of misfeasance in public office occupies a unique position at the intersection of tort law and administrative law (“When Unlawfulness Becomes Tortious: Misfeasance in a Public Office and Administrative Law” (2015), 44 Advocates’ Q. 489, at p. 502). Its very purpose is to serve as a tool against misconduct by government officials (p. 501). The tort does not stand in contradiction to administrative law proceedings. Rather, it addresses conduct that is uniquely tortious in nature and distinct from an administrative wrong, thus providing an entirely separate remedy (pp. 492-93). In fact, since a misfeasance claim requires proof of “deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff”, as well as material damage, a plaintiff cannot bring such a claim merely to vindicate a right or because a public officer has acted unlawfully, or breached a statutory duty (Odhavji Estate, at para. 23; see also Watkins, at para. 27; Welbridge Holdings Ltd. v. Greater Winnipeg, 1970 CanLII 1 (SCC), [1971] S.C.R. 957, at pp. 969-71; R. in right of Canada v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205, at pp. 224-28). Those seeking declarations to remedy such breaches or reconsideration of a decision are restricted to administrative law remedies (Chamberlain (2015), at p. 493).
[85] The focus in tort is not on reassessing the propriety of the administrative decision. Instead, actions taken in the administrative context become tortious when the use of public power serves a purpose outside the proper scope of public law, such as injuring the plaintiff (A. Ripstein, Private Wrongs (2016), at pp. 182-83). In exercising public powers for a purpose beyond the scope for which they were conferred, public officers create a “relationship that lack[s] a basis in public law” and instead “makes those powers private as between the official and the person against whom they are used” (pp. 183-84).
[86] The tort of misfeasance in public office therefore provides a form of redress that holds public officers accountable for intentionally misusing their public power. As Professor Chamberlain explains, its goals differ from those of judicial review:The gist of the tort is the deliberately unlawful act, not the rightness or wrongness of the decision. . . . [I]f one examines successful misfeasance cases, it is clear that most plaintiffs are not interested in having the decision retaken. Typically, the relevant opportunity has already been lost. . . . This highlights that the goals of judicial review and misfeasance in a public office are entirely separate ...
(Chamberlain (2015), at pp. 501-2) [87] Thus, the tort of misfeasance in public office is a legitimate legal avenue through which a candidate can challenge the misconduct of public officials without challenging the membership of the legislature. However, the tort is not a free-for-all that allows anyone to bring civil claims seeking damages against public officers as its specific features are designed to protect them from being sued for errors made in good faith. A complainant must establish both bad faith and material damage to succeed. Otherwise, they will be limited to administrative remedies (Chamberlain (2015), at p. 504; see also Odhavji Estate, at para. 32).
[88] As the Court of Appeal majority in this case noted, there are various elements of the amended statement of claim that could meet the Odhavji Estate test for misfeasance in public office. Anglin’s claim contains allegations relating to Resler’s position and duties as a public officer, indicating malicious intent, as well as material damages caused by his conduct. The fact that the tort of misfeasance in public office has not yet been applied to an electoral context in the way that Anglin’s claim does is not a reason to prevent it from proceeding.
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