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Torts - Misfeasance in Public Office

Civil Procedure - Motions to Strike - Leave to Amend Claim

Conway v. The Law Society of Upper Canada (Ont CA, 2016)

In this case the Court of Appeal generally stated the principles applicable to granting leave to amend a Claim that has been struck down on a non-suit motion:
ii. Whether leave to amend the statement of claim should have been granted:

[15] The appellant argues that the motion judge erred in determining that the appellant should not be granted leave to amend his pleading because of the motion judge’s conclusion that there was no actionable tort possible on the facts as alleged in the statement of claim.

[16] The decision not to grant leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456 (CanLII), at para. 6. That said, the decision whether or not to grant leave to amend a pleading is a discretionary one, and absent palpable and overriding error of fact or error of law, such a decision is subject to deference on appeal: Mortazavi v. University of Toronto, 2013 ONCA 655 (CanLII), at para. 3.
The court also commented briefly on the elements of the tort of misfeasance in public office:
[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. Woodhouse, 2003 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. Ontario, 2010 ONCA 321, at para. 85.

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