Odhavji Estate v. Woodhouse

Odhavji Estate v. Woodhouse
Collection
Supreme Court Judgments
Date
2003-12-05
Neutral citation
2003 SCC 69
Report
[2003] 3 SCR 263
Case number
28425
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Action
Civil procedure
Torts
Notes
SCC Case Information: 28425
Decision Content
Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69
Estate of Manish Odhavji, deceased, Pramod Odhavji,
Bharti Odhavji and Rahul Odhavji Appellants (Plaintiffs)
v.
Detective Martin Woodhouse, Detective Constable Philip Gerrits,
Officer John Doe, Officer Jane Doe, Metropolitan Toronto
Chief of Police David Boothby, Metropolitan Toronto Police
Services Board and Her Majesty The Queen
in Right of Ontario Respondents (Defendants)
and between
Metropolitan Toronto Chief of Police David Boothby Appellant on cross-appeal
v.
Estate of Manish Odhavji, deceased, Pramod Odhavji,
Bharti Odhavji and Rahul Odhavji Respondents on cross-appeal
and
Attorney General of Canada, Attorney General of
British Columbia, Canadian Civil Liberties Association,
Urban Alliance on Race Relations, African Canadian
Legal Clinic, Mental Health Legal Committee,
Association in Defence of the Wrongfully Convicted and
Innocence Project of Osgoode Hall Law School Interveners
Indexed as: Odhavji Estate v. Woodhouse
Neutral citation: 2003 SCC 69.
File No.: 28425.
2003: February 17; 2003: December 5.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Practice — Motion to strike — Police officers involved in fatal shooting —
Actions brought by estate and family of victim — Statement of claim alleging misfeasance in public office against police officers and chief of police and negligence against chief of police, police services board and province — Actions based on failure of police officers to cooperate in SIU investigation — Whether portions of statement of claim should be struck out as disclosing no reasonable cause of action — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b).
Torts — Tort of misfeasance in public office — Chief of police and police officers — Victim killed by police — Police officers involved in shooting not complying with statutory duty to cooperate with SIU investigation — Plaintiffs bringing actions in misfeasance in public office against police officers and chief of police — Whether tort of misfeasance in public office can arise from misconduct involving breaches of statutory duty — Whether tort limited to unlawful exercises of statutory or prerogative powers.
Torts — Negligence — Duty of care — Victim killed by police — Police officers involved in shooting not complying with statutory duty to cooperate with SIU investigation — Plaintiffs bringing actions in negligence against chief of police, police services board and province — Whether they owed plaintiffs duty to take reasonable care to ensure that police officers cooperated with investigation.
Costs — Court of Appeal’s costs award — Plaintiffs submitting that they are public interest litigants and should not have been required to pay costs — Actions involving public authorities and raising issues of public interest insufficient to alter essential nature of litigation — Plaintiffs not falling within definition of public interest litigants — No clear and compelling reasons to interfere with Court of Appeal’s decision to award costs in accordance with usual rule that successful party is entitled to costs.
O was fatally shot by police officers. The Special Investigation Unit (“SIU”) began an investigation. The police officers involved in the incident did not comply with SIU requests that they remain segregated, that they attend interviews on the same day as the shooting, and that they provide shift notes, on-duty clothing, and blood samples in a timely manner. Under s. 113(9) of the Ontario Police Services Act, members of the force are under a statutory obligation to cooperate with SIU investigations and, under s. 41(1), a chief of police is required to ensure that members of the force carry out their duties in accordance with the provisions of the Act. The SIU cleared the officers of any wrongdoing. O’s estate and family commenced a variety of actions. The statement of claim alleged that the lack of a thorough investigation into the shooting incident had caused them to suffer mental distress, anger, depression and anxiety. They claimed that the officers’ failure to cooperate with the SIU gave rise to actions for misfeasance in a public office against the officers and the Chief of Police, and to actions for negligence against the Chief, the Metropolitan Toronto Police Services Board, and the Province. The defendants brought motions under rule 21.01(1)(b) of the Ontario Rules of Civil Procedure to strike out the claims on the ground that they disclose no reasonable cause of action. The motions judge and the Court of Appeal struck out portions of the statement of claim. In this Court, the plaintiffs appeal against the Court of Appeal’s decision to strike the claims for misfeasance in a public office against the officers and the Chief, and the claims for negligence against the Board and the Province. The Chief cross‑appeals against the Court of Appeal’s decision to allow an action for negligence against him to proceed.
Held: The appeal should be allowed in part and the cross-appeal dismissed. The actions in misfeasance in a public office against the police officers and the Chief and the action in negligence against the Chief should be allowed to proceed. The actions in negligence against the Board and the Province should be struck from the statement of claim.
Under rule 21.01(1)(b), a court may strike out a statement of claim for disclosing no reasonable cause of action when it is plain and obvious that the action is certain to fail because the statement of claim contains a radical defect. In this case, if the facts of the motion to strike are taken as pleaded, it is not plain and obvious that the actions for misfeasance in a public office against the police officers and the Chief must fail.
The failure of a public officer to perform a statutory duty can constitute misfeasance in a public office. Misfeasance is not limited to unlawful exercises of statutory or prerogative powers. It is an intentional tort distinguished by (1) deliberate, unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is unlawful and likely to injure the plaintiff. The requirement that the defendant must have been aware that his or her unlawful conduct would harm the plaintiff establishes the required nexus between the parties. A plaintiff must also prove the requirements common to all torts, specifically, that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.
Here, the statement of claim pleads each of the constituent elements of the tort. The officers’ alleged failure to cooperate with the SIU investigation and the Chief’s alleged failure to ensure that they did cooperate both constitute unlawful breaches of statutory duties under the Police Services Act. The allegation that the officers’ acts and omissions “represented intentional breaches of their legal duties as police officers” satisfies the requirement that the officers were aware that their conduct was unlawful and that it was intentional and deliberate. The allegation that the Chief deliberately failed to segregate the officers satisfies the requirement that he intentionally breached his legal obligation to ensure compliance with the Police Services Act. However, the same cannot be said of his alleged failures to ensure that the officers produced timely and complete notes, attended interviews, and provided accurate and complete accounts. A mere failure to discharge obligations of an office cannot constitute misfeasance in a public office and the plaintiffs must prove the failures were deliberate. The allegation that the officers and the Chief “ought to have known” that their misconduct would cause the plaintiffs to suffer must be struck from the statement of claim because misfeasance in a public office is an intentional tort requiring subjective awareness that harm to the plaintiff is a likely consequence of the alleged misconduct. Lastly, at the pleadings stage, it is sufficient with respect to damages that the statement of claim alleges mental distress, anger, depression and anxiety as a consequence of the alleged misconduct, but the plaintiffs will have to prove at trial that the alleged misconduct caused anxiety or depression of sufficient magnitude to warrant compensation.
To succeed with their actions in negligence against the Chief, the Board, and the Province, the plaintiffs must first establish that these defendants owed the plaintiffs a duty to take reasonable care to ensure that the police officers cooperated with the SIU investigation. To do so, the plaintiffs must demonstrate that: (1) the harm complained of is a reasonably foreseeable consequence of the alleged breach; (2) there is sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care on the defendants; and (3) there exist no policy reasons to negative or otherwise restrict that duty.
The circumstances of this case raise a prima facie duty of care owed by the Chief to the plaintiffs. First, it is reasonably foreseeable that the officers’ failure to cooperate with the SIU investigation would harm the plaintiffs. As the Chief was responsible for ensuring that cooperation, it is reasonably foreseeable that his failure to do so would harm the plaintiffs. Second, a finding of proximity is supported by the relatively direct causal link between the alleged misconduct — negligent supervision — and the complained of harm, and by the fact that members of the public reasonably expect a chief of police to be mindful of the injuries that might arise as a consequence of police misconduct. The public expectation is consistent with the statutory obligations the Police Services Act imposes on the Chief. No broad policy considerations exist that ought to negative the prima facie obligation of the Chief to prevent the misconduct. With respect to damages, the same principles set out in the context of the actions in misfeasance in a public office are applicable.
The relationship between the plaintiffs and the Board and the Province, however, are not such that a duty of care may rightly be imposed. The Board is not under a private law duty to ensure that police officers, as a matter of general practice, cooperate with the SIU. There is no close causal connection between the misconduct alleged against the Board and the alleged harm. The Board does not supervise officers and is not involved in their day‑to‑day conduct. This weakens substantially the nexus between the Board and members of the public injured as a consequence of police misconduct. Further, the Board has no statutory obligation to ensure that police officers cooperate with the SIU. Courts should be loath to interfere with the Board’s broad discretion to determine what objectives and priorities to pursue or what policies to enact, and a decision not to enact additional policies or training procedures for the purpose of ensuring cooperation under s. 113(9) does not constitute a breach of its obligation to provide adequate and effective police services.
Similarly, the Province does not have a private law obligation to institute policies and training procedures for the purpose of ensuring that police officers, as a matter of general policy, cooperate with the SIU. There is insufficient proximity between the parties to conclude that the Province is under a private law obligation to ensure that members of the force comply with an SIU investigation. The Province is too far removed from the day-to-day conduct of members of the force and the Solicitor General is not under a statutory obligation to ensure that police officers cooperate with the SIU. The Solicitor General’s decision not to enact additional policies or training procedures in respect of s. 113(9) does not constitute a breach of his duty to ensure that the Board provides adequate and effective police services.
Cases Cited
Applied: Anns v. Merton London Borough Council, [1978] A.C. 728; explained: R. v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; referred to: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126; Roncarelli v. Duplessis, [1959] S.C.R. 121; Powder Mountain Resorts Ltd. v. British Columbia (2001), 94 B.C.L.R. (3d) 14, 2001 BCCA 619; Alberta (Minister of Public Works, Supply and Services) v. Nilsson (2002), 220 D.L.R. (4th) 474, 2002 ABCA 283, aff’g (1999), 70 Alta. L.R. (3d) 267, 1999 ABQB 440; Northern Territory of Australia v. Mengel (1995), 129 A.L.R. 1; Henly v. Mayor of Lyme (1828), 5 Bing. 91, 130 E.R. 995; Garrett v. Attorney-General, [1997] 2 N.Z.L.R. 332; Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220; Granite Power Corp. v. Ontario, [2002] O.J. No. 2188 (QL); R. v. Dytham, [1979] Q.B. 722; Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney General) (2001), 156 Man. R. (2d) 14, 2001 MBCA 40; Guay v. Sun Publishing Co., [1953] 2 S.C.R. 216; Frame v. Smith, [1987] 2 S.C.R. 99; Le Lievre v. Gould, [1893] 1 Q.B. 491; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; B.D.C. Ltd. v. Hofstrand Farms Ltd., [1986] 1 S.C.R. 228; Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299; Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85; Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79; Donoghue v. Stevenson, [1932] A.C. 562; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165; Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000 SCC 60; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.
Statutes and Regulations Cited
Police Services Act, R.S.O. 1990, c. P.15, ss. 3(2), 31(1), 41(1), 113(1), (9).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 21.01(1)(b), 57.01(1).
Rules of Court, B.C. Reg. 221/90, r. 19(24)(a).
Authors Cited
Fleming, John G. The Law of Torts, 9th ed. Sydney: LBC Information Services, 1998.
Smith, John William. A Selection of Leading Cases on Various Branches of the Law, 13th ed. Toronto: Carswell, 1929.
APPEAL and CROSS-APPEAL from a judgment of the Ontario Court of Appeal (2000), 52 O.R. (3d) 181, 194 D.L.R. (4th) 577 (sub nom. Odhavji Estate v. Toronto Metropolitan Police Force), 142 O.A.C. 149, 3 C.C.L.T. (3d) 226, [2000] O.J. No. 4733 (QL), varying a judgment of the Ontario Court (General Division), [1998] O.J. No. 5426 (QL). Appeal allowed in part and cross-appeal dismissed.
Julian N. Falconer and Richard Macklin, for the appellants/respondents on cross-appeal.
Kevin McGivney, Cheryl Woodin and Robert W. Traves, for the respondents Woodhouse and Gerrits.
Ansuya Pachai and Kerri Kitchura, for the respondent/appellant on cross-appeal the Metropolitan Toronto Chief of Police David Boothby and the respondent the Metropolitan Toronto Police Services Board.
John P. Zarudny, Troy Harrison and James Kendik, for the respondent Her Majesty the Queen in Right of Ontario.
David Sgayias, Q.C., and Anne M. Turley, for the intervener the Attorney General of Canada.
D. Clifton Prowse and J. Gareth Morley, for the intervener the Attorney General of British Columbia.
Written submissions only by John B. Laskin and Kristine M. Di Bacco, for the intervener the Canadian Civil Liberties Association.
Written submissions only by Peter J. Pliszka and Anne C. McConville, for the intervener the Urban Alliance on Race Relations.
Written submissions only by Marie Chen and Sheena Scott, for the intervener the African Canadian Legal Clinic.
Written submissions only by Suzan E. Fraser and Najma Jamaldin, for the intervener the Mental Health Legal Committee.
Written submissions only by Sean Dewart and Louis Sokolov, for the intervener the Association in Defence of the Wrongfully Convicted.
Written submissions only by Marlys A. Edwardh and Breese Davies for the intervener the Innocence Project of Osgoode Hall Law School.
The judgment of the Court was delivered by
1 Iacobucci J. — This appeal concerns actions for misfeasance in a public office and negligence within the context of motions to strike the actions as disclosing no reasonable cause of action. Unlike the Court of Appeal, I would permit the actions for misfeasance in a public office to proceed. Like the Court of Appeal, I would permit the action against Metropolitan Toronto Chief of Police David Boothby to proceed, but would strike the actions for negligence against the Metropolitan Toronto Police Services Board and Her Majesty the Queen in Right of Ontario.
I. Facts
2 On September 26, 1997, Manish Odhavji was fatally shot by officers of the Metropolitan Toronto Police Service while running from his vehicle subsequent to a bank robbery. Within 25 minutes of the shooting, an assistant to Metropolitan Toronto Chief of Police David Boothby (the “Chief”) notified the Special Investigations Unit of the Ministry of the Solicitor General (the “SIU”) of the incident.
3 The SIU is a civilian agency statutorily mandated to conduct independent investigations of police conduct in cases of death or serious injury caused by the police. The SIU began its investigation immediately. It requested that the defendant officers remain segregated, that they make themselves available for same-day interviews, and that they provide their shift notes, on-duty clothing, and blood samples. Under s. 113(9) of the Police Services Act, R.S.O. 1990, c. P.15, members of the force are under a statutory obligation to cooperate with members of the SIU in the conduct of the investigation. Under s. 41(1) of the Police Services Act, a chief of police is required to ensure that members of the force carry out their duties in accordance with the provisions of the Act.
4 The estate of Mr. Odhavji and the members of his immediate family (the “plaintiffs”) allege that the defendant officers intentionally breached their statutory obligation to cooperate fully with the SIU investigation. In particular, the plaintiffs allege that the defendant officers did not attend for interviews with the SIU until September 30, that they did not comply with the request to remain segregated, and that they failed to comply with the request for shift notes, on-duty clothing, and blood samples in a timely manner — and that when statements were eventually given to the SIU, they were both inaccurate and misleading. In the plaintiffs’ statement of claim, the lack of a thorough investigation into the shooting incident has caused the plaintiffs to suffer mental distress, anger, depression and anxiety. The plaintiffs further allege that these damages are consequences that the defendant officers and the Chief knew or ought to have known would result from an inadequate investigation into the shooting incident.
5 The actions at issue in this appeal are not related to the allegedly wrongful death of Mr. Odhavji, but, rather, to the defendant officers’ alleged failure to cooperate with the SIU. It is the plaintiffs’ submission that the foregoing facts give rise to an action for misfeasance in a public office against the defendant officers and the Chief, and actions for negligence against the Chief, the Metropolitan Toronto Police Services Board (the “Board”) and Her Majesty the Queen in Right of Ontario (the “Province”). More specifically, this appeal concerns: (i) the plaintiffs’ appeal against the Court of Appeal’s decision to strike the actions for misfeasance in a public office, and the actions for negligence against the Board and the Province, on the basis that they disclose no reasonable cause of action; and (ii) the Chief’s cross-appeal against the Court of Appeal’s decision to allow the action for negligence against the Chief to proceed.
II. Relevant Statutory Provisions
6 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21
rule 21 determination of an issue before trial
21.01 (1) A party may move before a judge,
. . .
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
Police Services Act, R.S.O. 1990, c. P.15
3. — . . .
(2) The Solicitor General shall,
(a) monitor police forces to ensure that adequate and effective police services are provided at the municipal and provincial levels;
(b) monitor boards and police forces to ensure that they comply with prescribed standards of service;
. . .
(d) develop and promote programs to enhance professional police practices, standards and training;
31. — (1) A board is responsible for the provision of police services and for law enforcement and crime prevention in the municipality and shall, [since amended]
. . .
(b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality;
(c) establish policies for the effective management of the police force;
. . .
(e) direct the chief of police and monitor his or her performance;
. . .
(4) The board shall not direct the chief of police with respect to specific operational decisions or with respect to the day‑to‑day operation of the police force.
41. — (1) The duties of a chief of police include,
. . .
(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;
113. — (1) There shall be a special investigations unit of the Ministry of the Solicitor General.
. . .
(9) Members of police forces shall co-operate fully with the members of the unit in the conduct of investigations.
III. Judicial History
A. Ontario Court (General Division), [1998] O.J. No. 5426 (QL)
7 According to Day J., misfeasance in a public office can be established in one of two ways: either by proof of malice with intent to injure, or by proof that the public officer intentionally engaged in acts that were ultra vires the scope of his or her office and that she or he could foresee with a degree of certainty that harm would be caused to the plaintiff. As applied to the facts of this case, Day J. concluded that the action against the defendant officers could proceed, but only if the cause of action for misfeasance was framed in malice. He held that it was plain and obvious that the action for misfeasance in a public office against the Chief would fail, owing to the fact that he was not directly and consciously involved in the breach of the obligation to cooperate with the SIU investigation.
8 Day J. allowed the action for negligent supervision against the Chief to proceed on the basis that he made no submissions in respect of this issue. In respect of the actions for negligent supervision against the Board and the Province, Day J. found that there was sufficient proximity between the parties to conclude that the defendants owed a duty of care to the appellants. Nonetheless, Day J. struck the action against the Board, on the basis that a duty of care is negatived in situations in which the agency’s involvement was limited to establishing policy. He found that the action for negligent supervision against the Province could succeed, on the basis that a cause of action for negligence lies where the responsible Minister fails to take sufficient steps to implement a particular policy decision, in this instance the decision to establish the SIU.
B. Ontario Court of Appeal (2000), 52 O.R. (3d) 181
9 Borins J.A., for the majority of the court, held that the defining element of misfeasance in a public office is the unlawful exercise of a statutory or prerogative power that adheres to the defendant’s office. On this view, the failure of a public officer to perform a statutory duty cannot constitute misfeasance in a public office. Consequently, Borins J.A. found it plain and obvious that neither action for misfeasance in a public office could succeed, owing to the fact that the defendants had not been engaged in the exercise of a statutory or prerogative power that adhered to their respective offices. The most that could be said was that the defendants failed to comply with the obligations imposed upon them by the Police Services Act.
10 In respect of the actions for negligent supervision, Borins J.A. held that the action against the Chief was based on s. 41(1)(b) of the Police Services Act, which imposes a duty on a chief of police to ensure that members of the police force carry out their duties in accordance with the Act and its regulations. Borins J.A. concluded that it was not plain and obvious that the action for negligent supervision against the Chief must fail. It was, however, plain and obvious that the actions against the Board and the Province must fail. With respect to the Board, Borins J.A. agreed with Day J. that the Board’s involvement was limited to establishing policy. With respect to the Province, Borins J.A. held that the Police Services Act does not impose a duty on the Province to control the operational conduct of the municipal police officers or to ensure that police officers comply with their obligation to cooperate with an SIU investigation.
11 Feldman J.A., dissenting, did not agree that it was plain and obvious that the actions for misfeasance in a public office must fail. In her view, the essence of the tort is the misfeasance in or misuse of the office itself; its purpose is to prevent the deliberate injuring of members of the public by the intentional disregard of official duty. Feldman J.A. thus held that there is no principled reason to distinguish between a public officer who improperly exercises a power and a public officer who deliberately fails to carry out a duty where they know or are recklessly indifferent to the fact that injury to the plaintiff is the likely result. Applied to the facts of this case, Feldman J.A. would have found that the actions for misfeasance in a public office should have been allowed to proceed.
12 Feldman J.A. also was of the view that each of the actions for negligent supervision should have been allowed to proceed. She agreed with Borins J.A. that the Province is not under an obligation to ensure that individual officers comply with their statutory obligation to cooperate with the SIU, but noted that the nature of the claim was that the Province failed to implement training procedures or other policies in order to ensure that officers, as a matter of general practice, cooperated with the SIU. Feldman J.A. was uncertain whether the Police Services Act imposes a statutory duty on the Province in respect of these operational matters, and thus felt it inappropriate to strike the claim at this stage of the action. In respect of the Board, Feldman J.A. found that it was not immediately clear whether the Board is under an obligation to establish policies and monitor their implementation for the purpose of ensuring that police officers comply with their statutory obligations. Thus, Feldman J.A. would have found that it was not plain and obvious that the actions for negligent supervision could not succeed.
IV. Analysis
13 In discussing the issues in this appeal, I will begin by stating the test for striking a statement of claim on the basis that it discloses no reasonable cause of action. I will then consider that test within the context of the actions for misfeasance in a public office, and then within the context of the actions for negligence.
A. Striking Out a Statement of Claim
14 The defendants’ motions to have the actions dismissed were made pursuant to rule 21.01(1)(b) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 21.01(1)(b) stipulates that a court may strike out a statement of claim that discloses no reasonable cause of action. The rules with respect to striking out a statement of claim are much the same in other provinces. In British Columbia, for example, rule 19(24)(a) of the Rules of Court, B.C. Reg. 221/90, states that a court may strike out a pleading on the ground that it discloses no reasonable claim.
15 An excellent statement of the test for striking out a claim under such provisions is that set out by Wilson J. in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980:
. . . assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect . . . should the relevant portions of a plaintiff’s statement of claim be struck out . . . .
The test is a stringent one. The facts are to be taken as pleaded. When so taken, the question that must then be determined is whether there it is “plain and obvious” that the action must fail. It is only if the statement of claim is certain to fail because it contains a “radical defect” that the plaintiff should be driven from the judgment. See also Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.
B. The Actions for Misfeasance in a Public Office
16 The essence of the Court of Appeal’s decision is that the “radical defect” from which the actions for misfeasance in a public office suffer is their failure to plead the constituent elements of the tort. In particular, the Court of Appeal held that the defining element of the tort is the unlawful exercise of the statutory or prerogative powers that adhere to the defendant’s office. Because the alleged misconduct involved the breach of a statutory duty rather than the improper or unlawful exercise of a statutory or prerogative power, it is “plain and obvious”, on this view, that the actions for misfeasance in a public office cannot succeed.
17 Consequently, I begin by considering the Court of Appeal’s conclusion that the unlawful exercise of a statutory or prerogative power is a constituent element of the tort. With respect, a review of the leading cases clearly reveals that the tort is not limited to circumstances in which the defendant officer is engaged in the unlawful exercise of a particular statutory or prerogative power. As I will discuss, the class of conduct at which the tort is targeted is not as narrow as the unlawful exercise of a particular statutory or prerogative power, but more broadly based on unlawful conduct in the exercise of public functions generally.
(1) The Defining Elements of the Tort
18 The origins of the tort of misfeasance in a public office can be traced to Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126, in which Holt C.J. found that a cause of action lay against an elections officer who maliciously and fraudulently deprived Mr. White of the right to vote. Although the defendant possessed the power to deprive certain persons from participating in the election, he did not have the power to do so for an improper purpose. Although the original judgment suggests that he was simply applying the principle ubi jus ibi remedium, Holt C.J. produced a revised form of the judgment in which he stated that it was because fraud and malice were proven that the action lay: J. W. Smith, A Selection of Leading Cases on Various Branches of the Law (13th ed. 1929), at p. 282. Thus, in its earliest form it is arguable that misfeasance in a public office was limited to circumstances in which a public officer abused a power actually possessed.
19 Subsequent cases, however, have made clear that the ambit of the tort is not restricted in this manner. In Roncarelli v. Duplessis, [1959] S.C.R. 121, this Court found the defendant Premier of Quebec liable for directing the manager of the Quebec Liquor Commission to revoke the plaintiff’s liquor licence. Although Roncarelli was decided at least in part on the basis of the Quebec civil law of delictual responsibility, it is widely regarded as having established that misfeasance in a public office is a recognized tort in Canada. See for example Powder Mountain Resorts Ltd. v. British Columbia (2001), 94 B.C.L.R. (3d) 14, 2001 BCCA 619; and Alberta (Minister of Public Works, Supply and Services) v. Nilsson (2002), 220 D.L.R. (4th) 474, 2002 ABCA 283. In Roncarelli, the Premier was authorized to give advice to the Commission in respect of any legal questions that might arise, but had no authority to involve himself in a decision to revoke a particular licence. As Abbott J. observed, at p. 184, Mr. Duplessis “was given no statutory power to interfere in the administration or direction of the Quebec Liquor Commission”. Martland J. made a similar observation, at p. 158, stating that Mr. Duplessis’ conduct involved “the exercise of powers which, in law, he did not possess at all”. From this, it is clear that the tort is not restricted to the abuse of a statutory or prerogative power actually held. If that were the case, there would have been no grounds on which to find Mr. Duplessis liable.
20 This understanding of the tort is consistent with the widespread consensus in other common law jurisdictions that there is a broad range of misconduct that can found an action for misfeasance in a public office. For example, in Northern Territory of Australia v. Mengel (1995), 129 A.L.R. 1 (H.C.), Brennan J. wrote as follows, at p. 25:
The tort is not limited to an abuse of office by exercise of a statutory power. Henly v. Mayor of Lyme [(1828), 5 Bing. 91, 130 E.R. 995] was not a case arising from an impugned exercise of a statutory power. It arose from an alleged failure to maintain a sea wall or bank, the maintenance of which was a condition of the grant to the corporation of Lyme of the sea wall or bank and the appurtenant right to tolls. Any act or omission done or made by a public official in the purported performance of the functions of the office can found an action for misfeasance in public office. [Emphasis added.]
In Garrett v. Attorney-General, [1997] 2 N.Z.L.R. 332, the Court of Appeal for New Zealand considered an allegation that a sergeant failed to investigate properly the plaintiff’s claim that she had been sexually assaulted by a police constable. Blanchard J. concluded, at p. 344, that the tort can be committed “by an official who acts or omits to act in breach of duty knowing about the breach and also knowing harm or loss is thereby likely to be occasioned to the plaintiff”.
21 The House of Lords reached the same conclusion in Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220. In Three Rivers, the plaintiffs alleged that officers with the Bank of England improperly issued a licence to the Bank of Credit and Commerce International and then failed to close the bank once it became evident that such action was necessary. Forced to consider whether the tort could apply in the case of omissions, the House of Lords concluded that “the tort can be constituted by an omission by a public officer as well as by acts on his part” (per Lord Hutton, at p. 1267). In Australia, New Zealand and the United Kingdom, it is equally clear that the tort of misfeasance is not limited to the unlawful exercise of a statutory or prerogative power actually held.
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: see for example Powder Mountain Resorts, supra; Alberta (Minister of Public Works, Supply and Services) (C.A.), supra; and Granite Power Corp. v. Ontario, [2002] O.J. No. 2188 (QL) (S.C.J.). 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.
24 Insofar as the nature of the misconduct is concerned, the essential question to be determined is not whether the officer has unlawfully exercised a power actually possessed, but whether the alleged misconduct is deliberate and unlawful. As Lord Hobhouse wrote in Three Rivers, supra, at p. 1269:
The relevant act (or omission, in the sense described) must be unlawful. This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose.
Lord Millett reached a similar conclusion, namely, that a failure to act can amount to misfeasance in a public office, but only in those circumstances in which the public officer is under a legal obligation to act. Lord Hobhouse stated the principle in the following terms, at p. 1269: “If there is a legal duty to act and the decision not to act amounts to an unlawful breach of that legal duty, the omission can amount to misfeasance [in a public office].” See also R. v. Dytham, [1979] Q.B. 722 (C.A.). So, in the United Kingdom, a failure to act can constitute misfeasance in a public office, but only if the failure to act constitutes a deliberate breach of official duty.
25 Canadian courts also have made a deliberate unlawful act a focal point of the inquiry. In Alberta (Minister of Public Works, Supply and Services) v. Nilsson (1999), 70 Alta. L.R. (3d) 267, 1999 ABQB 440, at para. 108, the Court of Queen’s Bench stated that the essential question to be determined is whether there has been deliberate misconduct on the part of a public official. Deliberate misconduct, on this view, consists of: (i) an intentional il