Abuse of Public Office

Cable Assembly Systems Ltd. et al. v. Ben Barnes et al., 2019 ONSC 97 (CanLII)

[58] I accept the comments of Justice Then, sitting in the Divisional Court in Mitchell (Litigation Administrator) v. Ontario (2003), 2003 CanLII 72345 (ON SCDC), 66 O.R. (3d) 737, at para. 20, with respect to the elements necessary to prove the tort of Abuse of Public Office:

The leading Ontario case on the tort of misfeasance in public office is the Ontario Court of Appeal decision of Odhavji. In this case, the court clarified the elements of this tort in the context of a motion under rule 21.01(1)(b) to strike out the claim as not disclosing a reasonable cause of action.

The Court of Appeal, at para. 22, adopted the elements of this tort as stated by Lord Steyn in Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, [2000] 3 All E.R. 1 (H.L.):

(1) The defendant must be a public officer.

(2) The defendant must be exercising power in his or her capacity as a public officer.

(3) There are two different forms of liability for the tort which depend on the state of mind of the defendant.

a. The first is targeted malice by a public officer which involves bad faith in the sense of the exercise of public power for an improper or ulterior motive.

b. The second form is where a public officer acted knowing that he or she had no power to do the act complained of and that the act would probably injure the plaintiff. The fact that the act was performed in reckless indifference as to the outcome is also sufficient to ground the tort in its second form. The plaintiff had to prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act.

There are also the additional requirements of a duty to the plaintiff, causation, damage and remoteness.

[59] I agree with the submissions of the Plaintiff. The evidence clearly establishes on the balance of probabilities that Barnes was acting as a public officer who was exercising decision making powers granted to him pursuant to a statute and his employment position at the City of Brantford.

[60] The City of Brantford was required to have a purchasing policy as set out in the Municipal Act. That policy was enacted as Bylaw 23-2014. This policy is detailed earlier in these reasons.

[61] The ultimate decision over which contractors were engaged for City projects was with Barnes. For some minor projects, John Trumble engaged a contractor, but he could only use contractors who had already been approved by Barnes. I find that at all material times, Barnes made all the decisions under the purchasing policy regarding projects with a cost of between $0.00 and $25,000.00. I find that the decision not to hire the services of CAS Ltd. after October 22, 2014 was made by Barnes while exercising his statutory power.

[62] I find that the decision not to use CAS Ltd. was made by Barnes for improper or ulterior motives and therefore they were decisions made with targeted malice.

[63] I expand later in these reasons my findings relative to Barnes misleading claims of poor workmanship on the part of CAS Ltd. These claims were the most significant reason that Barnes gave for stopping the hiring of CAS Ltd. I find that Barnes primary motivation for not hiring CAS Ltd. was the series of complaints made by Manese against Barnes. This finding is supported in details that are set out below.