Misfeasance in Public Office

Norquay v. Kasprzyk, 2015 ONSC 5292 (CanLII)

[78] The constituent elements of a claim for misfeasance in public office have been stated by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), (2003) 3 S.C.R. 263, at paras. 22-23.

[22] What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on the pleadings in this case? In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who 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. This understanding of the tort has been endorsed by a number of Canadian courts. It is important, however, to recall that the two categories merely represent two different ways in which a public officer can commit the tort; in each instance, the plaintiff must prove each of the tort’s constituent elements. It is thus necessary to consider the elements that are common to each form of the tort.

[23] In my view, there are two such elements. 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. What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff. [footnotes omitted]

[79] There are allegations made with respect to both branches of the tort: (1) that the defendants have engaged in conduct specifically intended to injure Norquay; and (2) that they have acted “knowing that [they have] no power to do the act complained of and that the act will probably injure the plaintiff.” (Three Rivers District Council v. Governor and Company of the Bank of England (No. 3), [2003] A.C. 1 (H.L.) at 191.

[80] Knowledge, in this case, includes reckless indifference or wilful blindness to the lack of statutory authority for the act (Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney General), 2001 MBCA 40 (CanLII), 156 Man.R. (2d) 14, at para. 55).

[81] The particulars of the misfeasance were stated by Norquay as follows:

a. the defendants had direct knowledge that the Guideline that they were enforcing is beyond their statutory authority;

b. the defendants were not acting to further fire safety since the Buildings were not in violation of the Fire Code nor the Building Code and were not deemed to be unsafe;

c. the Inspection Orders were required to remain posted until the Inspection Orders were overturned by the delegate of the Fire Marshal;

d. the defendants “attempted to use s. 21(1)(f) of the FPPA to justify their Inspection Orders to circumvent the law”;

e. the defendants made the Inspection Orders without first obtaining a legal opinion as to their validity;

f. the defendants rescinded the Inspection Orders on the basis that they lacked sufficient technical evidence to support the Inspection Orders, “when it was known to the defendants based on their legal opinion they never could obtain evidence of lack of audibility”; and

g. the defendants have refused to approve a non-conditional Fire Safety Plan.

[82] These allegations relate primarily to four actions by the Fire Department:

1. The issuance of the Inspection Orders;

2. The requirement that the Inspection Orders to remain posted during the period in which the Inspection Orders were stayed;

3. The withdrawal of the Inspection Orders prior to judicial review; and

4. The non-approval of the Fire Safety Plan.