Can a Member of Council Be Sued?

Abuse of Power By An Official Involves Use of Power By a Public Officer In a Malicious Manner With Knowledge That Such Conduct Is Likely to Cause Harm to An Abused Person. This Conduct May Constitute As Misfeasance of Public Office.

Understanding the Tort of Misfeasance in Public Office Including Requirement of Malice or Lack of Good Faith

Lawsuit Document With great power comes great responsibility; and accordingly, officials who hold high positions are empowered in certain ways that can do good when properly engaged or do harm when improperly misused.  The elements of the tort were recently articulated as, essentially, a misuse of power.  Misuses could arise from the misuse of power due to the holding of a grudge or possibly even the targeting of a specific individual for persecution as an example to others as was the issue alleged  in Conway v. The Law Society of Upper Canada, 2016 ONCA 72 where it was said:

[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. Woodhouse2003 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. Ontario2010 ONCA 321, at para. 85.

[21]  The LSUC relies on the statutory immunity under s. 9 of the Law Society Act, for acts engaged in good faith in the performance of its duties or functions.  Section 9 of the Law Society Act provides as follows:

No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice and procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.

[22]  Mere negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability.  However, an absence of good faith or “bad faith”, involving malice or intent, is sufficient to ground a properly pleaded cause of action against the LSUC.  See: Edwards v. Law Society of Upper Canada2001 SCC 80 (CanLII), [2001] 3 S.C.R. 562Finney v. Barreau du Québec2004 SCC 36 (CanLII), [2004] 2 S.C.R. 17.

The tort of misfeasance in public office was also described as malicious performance of duties within the case of Martin v. R., 2021 ONSC 3875 wherein the elements of were summarized under both headings and the court stated, or implied, that both headings were one-and-same, or likely near enough, rather than two distinctive torts.  Specifically, it was said:

[60]  The plaintiff asserts that there are separate torts, one being misfeasance in public office and one being malicious performance of duties. The Crown argues they are one and the same thing.

[61]  The parties agree that Odhavji Estate v. Woodhouse, 2003 SCC 69 is the seminal case setting forth the elements of misfeasance in public office, and para. 23 and 24 are key to understanding these elements. Those elements are:

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.

[62]  Of course, compensable damages and causation must also be proven.

[63]  For malicious performance of duties, the plaintiff relies on the following statement from Gershman v. Manitoba Vegetable Producers' Marketing Board, 1976 CanLII 1093, 69 D.L.R. (3d) 114 (MBCA) at p. 123 as a description of the elements of the tort:

a citizen who suffers damages as a result of flagrant abuse of public power aimed at him has the right to an award of damages in a civil action in tort.

[64]  The plaintiff argues that this description of the tort flows from Roncarelli v. Duplessis, [1959] S.C.R. 121, 1959 CanLII 50 (SCC).

[65]  I do not need to resolve whether these are separate torts. If there are two separate torts, the elements of each are similar enough that the distinction does not matter for purposes of this motion.

Abuse of Power, politicians

A seminal case involving abuse of power was the Roncarelli v. Duplessis, [1959] S.C.R. 121, which involved a constitutional decision by the Supreme Court of Canada.  In the Roncarelli case, the Supreme Court determined that Maurice Duplessis, who was the Premier of Quebec, misused the power as Premier of Quebec to revoke a liquor license without good faith and for inappropriate reasons, being the freedom of religion beliefs and stance of the liquor license holder. The facts in Roncarelli can be summed up simply as a malicious effort by Duplessis to use the power of Premier to abuse Roncarelli in retaliation for financial support (bail money) that Roncarelli was providing to members of the Jehovah's Witness that were protesting against Catholicism.

Summary Comment

Persons in high power positions may cause considerable harm to both the person directly abused by such power as well as to the image and reputation of the institution in which the person wielding such power.  Accordingly, persons with such power should be careful to remain impartial and refrain from conduct that is improperly motivated such as engaging in a personal vendetta or misusing a position as a means to gain personal advantages.

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Misfeasance In Public Office

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