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Crown Liability - Misfeasance in Public Office (3). 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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