The tort of misfeasance in public office

[White Wolf]

The tort of misfeasance in public office

The tort of misfeasance in public office allows a person to sue a holder of government office for misuse of public power. There are two ways this can happen: (1) conduct by a public officer that is specifically intended to injure a person or class of persons, or (2) the public officer 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.

In Odhavji Estate v. Woodhouse, 2003 SCC 69, the Supreme Court of Canada held that a plaintiff must prove that the public official:

• engaged in deliberate unlawful conduct in the exercise of public functions;

• was aware that the conduct was unlawful; and

• was aware that the conduct was likely to injure the plaintiff.

The plaintiff must also prove that the public officer’s actions caused their loss and that the injuries are compensable. Additionally, the plaintiff is required to identify the alleged wrongdoers, although they need not name the individuals as parties to the action.

The unlawful act may arise from a breach of the statute, from the public officer acting in excess of their powers, or for an improper purpose.3 To determine these issues, the court will often have to make inferences about the public officer’s intentions. There is a high bar for inferring knowledge or recklessness of the conduct—the court must be able to conclude that there is no other reasonable inference other than bad faith. The Supreme Court of Canada has described the threshold as “inexplicable and incomprehensible, to the point that it can be regarded as an actual abuse of power.”4

However, the tort of misfeasance is not directed at mere maladministration or negligence, nor is it meant to compensate for incorrect decisions made by a decision-maker where bad faith is absent.5The BC Court of Appeal has, on several occasions, explicitly urged judicial caution and restraint in the application of this tort.6

Source:
https://canliiconnects.org/en/commentaries/92551