Documentation:Torts/Misfeasance in public office

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Misfeasance in public office

The misfeasance in public office tort is an intentional tort rooted in the principles of responsible government and the rule of law.[1][2] The tort applies broadly to situations where a public official abuses their authority to intentionally cause harm to the plaintiff, either by act or omission.[3][4][5] Canadian courts have recognized two variants of the misfeasance in public office tort, one for maliciousluy inflicted harm and the other for unlawful and reckless infliction of harm.[6] While some scholars have criticized the tort for usurping the functions of public law, other academic commentators have recognized the importance of the tort in ensuring the accountability of elected officials and providing plaintiffs with adequate redress.[7][8][9]

Rationale for the misfeasance in public office tort

The misfeasance in public office tort finds its roots in the principle that "those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen".[1] The House of Lords in Three Rivers District Council v. Governor and Company of the Bank of England (No 3) stated that "the rationale of the tort is that in a legal system based on the rule of law executive or administrative powers 'may be exercised only for the public good' and not for ulterior and improper purposes".[2]

Development of the misfeasance in public office tort

A white, blue, and red ballot drop box on a concrete sidewalk.

The tort was historically limited to situations where a public officer abused powers which they legitimately possessed, but was expanded in the seminal case of Roncarelli v. Duplessis, where the premier of Quebec was found liable for revoking a business owner's liquor licence despite possessing no such statutory authority to do so.[10] After Roncarelli, the tort was expanded to include both situations where a public official abused their statutory or prerogative power and those where they had actual knowledge of their lack of statutory authority and continued to act in a manner that they knew would harm the plaintiff.[11]

In the leading Canadian case regarding the tort of misfeasance in public office, Odhavji Estate v. Woodhouse, the Supreme Court of Canada confirmed the broad ambit of the tort.[12] The Court stated that the tort was not restricted only to situations where the public officer is engaged in the unlawful exercise of statutory/prerogative power, but also any situation where a public official engages in unlawful conduct in the exercise of public functions generally.[13] The Court adopted the reasoning of the House of Lords decision in Three Rivers District Council v. Governor and Company of the Bank of England (No 3), stating that the question defining the tort is whether the alleged misconduct is deliberate and unlawful, with unlawfulness encompassing statutory breaches, actions in excess of statutory authority, and actions pursuant to an improper purpose.[3] As such, the tort of misfeasance in public office now applies to situations where a public official wilfully harms another, where they abuse their power or intentionally exceed it, or deliberately fail to discharge their public duty.[4] The tort can be founded on any act or omission made by an official in the performance of their office.[5] The Supreme Court of Canada in Ontario (AG) v. Clark has since affirmed the broad ambit of the tort established in Odhavji.[14]

The two variants of the misfeasance in public office tort

General elements of misfeasance in public office

The Supreme Court of Canada in Odhavji set out the elements of the tort of misfeasance in public office as follows:

Elements of misfeasance in public office[15]
1. [D]eliberate unlawful conduct in the exercise of public functions; and
2. [A]wareness that the conduct is unlawful and likely to injure the plaintiff
3. [T]he public official's tortious conduct was the illegal cause of the plaintiff's injuries;
4. [T]he injuries suffered are compensable in tort law.

The evidentiary distinction between the two variants

Iacobucci J, speaking for the Court in Odhavji, explained the two ways in which the misfeasance in public office tort can be committed:[6]

(a) Category A, also know as targeted malice, occurs where the public officer specifically intended to harm a person or class of persons; and (b) Category B involves a situation where a public officer acts with the knowledge that they have no power to do the act complained of and that the act is likely to injure the plaintiff.

Both categories are rooted within the same elements described above, with the primary distinction between them being a matter of proof.[16] With Category A, the plaintiff only needs to demonstrate that the official acted with the purpose of harming them to satisfy the first two elements.[16] In other words, it is sufficient to prove that the official acted in bad faith by exercising their public power for an improper or ulterior motive.[17] However, with Category B, the plaintiff must prove the first two elements independently (i.e. that the official's conduct was unlawful and that it was likely to harm the plaintiff).[16]

Clarifying the mental element required for Category B

The Court in Odhavji clarified that the required mental element for the Category B formulation of the tort was a minimum of subjective recklessness, rejecting a negligence standard.[18] The Court explained that misfeasance in public office is an intentional tort, and as such, it requires at least some form of subjective fault, whether wilful blindness or subjective recklessness by the defendant to the possibility that harm to the plaintiff was likely to result from the alleged misconduct.[18][19] The Ontario Court of Appeal in Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est stated that "it is sufficient for the plaintiff to show that the public official acted with reckless indifference to both the unlawfulness of [their] act and the likelihood that it would injure the plaintiff".[20] Importantly, the British Columbia Court of Appeal, in J.P. v. British Columbia (Children and Family Development), clarified that "subjective recklessness or wilful blindness requires a higher standard of proof than objective foreseeability of harm for negligence”.[21] The Supreme Court of Canada in Ontario (AG) v. Clark has since affirmed that subjective recklessness by the official to the lawfulness of their impugned conduct and its harmful consequences is sufficient to ground a claim in misfeasance in public office under Category B of the tort.[14]

The Ontario Court of Appeal in Slater v. Pedigree Poultry Ltd. also rejected the notion that actions taken in "good faith", or with public interest in mind, are inherently defensible from a claim for misfeasance in public office.[22] The Court explained that a public officer cannot avoid their obligation under law to conduct business in accordance with the statutory regime and the duty of fairness by asserting that the same results would have followed had they been compliant with such standards.[22] The Court reiterated that a breach of procedural fairness or the principles of natural justice can sufficiently support a finding of misfeasance, regardless of whether the public officer believes that their actions have advanced a righteous cause, as the primary question is whether the official has acted against the law that governs the exercise of their public functions.[22]

Policy considerations of a "public law" tort

In the news
SCOTUS decision grants presidential immunity from legal action

Consider this news report by CBS News detailing the US Supreme Court's decision recognizing US presidential immunity against legal consequences for actions taken in exercise of their official role.[23][24] Justice Sonia Sotomayor, in dissent, stated that, "in every use of official power, the president is now a king above the law".[23]

Having regard to the Diceyan idea that "every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen,"[25] is this US Supreme Court decision consistent with the role the misfeasance in public office tort plays in other common law jurisdictions?

Accountability

In the House of Lords judgment of Watkins v. Home Office & Ors, Lord Bingham described the logic of the misfeasance in public office tort, stating that "if a public officer knowingly and deliberately acts in breach of [their] lawful duty [they] should be amenable to civil action at the suit of anyone who suffers at [their] hands. There is an obvious public interest in bringing public servants guilty of outrageous conduct to book."[26][27] The tort of misfeasance in public office is but another mechanism for citizens to ensure governmental accountability, which supports the legitimacy of the power held by governmental officials.[7] Some academic commentators view the existence of the tort itself as a means of ensuring governmental accountability, as the possibility of tortious liability may act as a deterrent to misfeasance.[28] However, other scholars have criticized the deterrent effect of the misfeasance tort as weak in light of vicarious liability doctrines that often exonerate the individual public official from paying damages out of their own pocket.[29]

Compensation

Some academic commentators have criticized the misfeasance in public office tort for being redundant given the function judicial review of administrative action plays in the public law sphere, arguing that such matters should be left to public law.[8] However, tort law serves a myriad number of functions, beyond that of solely promoting accountability.[9][30] As put by Lord Bingham in Watkins, "the primary role of the law of tort is to provide monetary compensation for those who have suffered material damage rather than to vindicate the rights of those who have not.”[9][30]

As such, while public law within Canada provides means for citizens to ensure responsible government and uphold the rule of law, the availability of "public law" torts such as misfeasance in public office is not redundant with the functions of public law, as they provide a means through which a plaintiff can seek redress for material damage caused by the inappropriate actions of a public offical.[9] Accordingly, Canada has taken a similar position through its developments on public authority negligence liability, blurring the stark divide between public and private law.[31]

Discussion questions

  • Given that mistake is generally no defence to tort liability (§6.2.3), is recklessness—rather than a defendant’s actual knowledge that they are acting unlawfully—a fair and principled mental element for the tort of misfeasance in public office?
  • Is the common law of tort an appropriate mechanism for addressing a public official’s misfeasance, or should misfeasance in public office cases be exclusively governed by public law procedures and doctrines?
  • How can the recent US Supreme Court judgement be reconciled with the need for public officials to be held accountable and the rule of law?[23]


  1. ↑ 1.0 1.1 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 84, citing Freeman-Maloy v. Marsden, 2006 CanLII 9603 (ONCA) at para 10.
  2. ↑ 2.0 2.1 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 84, citing Three Rivers District Council v. Governor and Company of the Bank of England (No 3), [2000] UKHL 33 (BAILII) at 1230.
  3. ↑ 3.0 3.1 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 86, citing Odhavji Estate v. Woodhouse, 2003 SCC 69 at para 24.
  4. ↑ 4.0 4.1 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 87.
  5. ↑ 5.0 5.1 Odhavji Estate v. Woodhouse, 2003 SCC 69 at para 20.
  6. ↑ 6.0 6.1 Odhavji Estate v. Woodhouse, 2003 SCC 69 at para 22.
  7. ↑ 7.0 7.1 Rock, Ellen (2019). "Misfeasance in Public Office: A Tort in Tension". Melbourne U L Rev. 43 (1): 341–342.
  8. ↑ 8.0 8.1 Nolan, Donal (2019). "Tort and Public Law: Overlapping Categories". L Quarterly Rev. 135: 281.
  9. ↑ 9.0 9.1 9.2 9.3 Chamberlain, Emma (2009). "What is the Role of Misfeasance in a Public Office in Modern Canadian Tort Law?". Canadian Bar Rev. 88: 586.
  10. ↑ Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 85, citing Roncarelli v. Duplessis, 1959 CanLII 50 (SCC).
  11. ↑ Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 85.
  12. ↑ Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 86.
  13. ↑ Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 86, citing Odhavji Estate v. Woodhouse, 2003 SCC 69 at paras 17, 19.
  14. ↑ 14.0 14.1 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 94, citing Ontario (AG) v. Clark, 2021 SCC 18 at para 23.
  15. ↑ Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 88, citing Odhavji Estate v. Woodhouse, 2003 SCC 69 at para 32.
  16. ↑ 16.0 16.1 16.2 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 90.
  17. ↑ Odhavji Estate v. Woodhouse, 2003 SCC 69at para 25, citing Powder Mountain Resorts Ltd. v. British Columbia, 2021 BCCA 619 at para 7.
  18. ↑ 18.0 18.1 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 91, citing Odhavji Estate v. Woodhouse, 2003 SCC 69at para 38.
  19. ↑ Powder Mountain Resorts Ltd. v. British Columbia, 2021 BCCA 619.
  20. ↑ Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499 at para 24.
  21. ↑ Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 101, citing J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308 at para 329.
  22. ↑ 22.0 22.1 22.2 Slater v. Pedigree Poultry Ltd., 2022 SKCA 113 (§10.12.1) at para 111.
  23. ↑ 23.0 23.1 23.2 Panetta, Alexander (6 Jul 2024). "Did the Supreme Court really just give U.S. presidents the power to assassinate opponents?". CBC.
  24. ↑ CBS News (1 Jul 2024). "Supreme Court's presidential immunity ruling and Trump's 2024 campaign". Youtube.
  25. ↑ Dicey, Albert Venn (1915 (reprint)). Introduction to the Study of the Law of the Constitution. Liberty Fund. Check date values in: |year= (help)
  26. ↑ Watkins v. Home Office & Orse, [2006] UKHL 17 (BAILII) at para 8.
  27. ↑ Chamberlain, Emma (2009). "What is the Role of Misfeasance in a Public Office in Modern Canadian Tort Law?". Canadian Bar Rev. 88: 585–586.
  28. ↑ Rock, Ellen (2019). "Misfeasance in Public Office: A Tort in Tension". Melbourne U L Rev. 43 (1): 368.
  29. ↑ Nolan, Donal (2019). "Tort and Public Law: Overlapping Categories". L Quarterly Rev. 135: 281.
  30. ↑ 30.0 30.1 Watkins v. Home Office & Ors, [2006] UKHL 17 at para 9.
  31. ↑ Nelson (City) v. Marchi, 2021 SCC 41 (§19.5.2.2).
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