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Crown Liability - Misfeasance in Public Office (2). Gratton-Masuy Environmental Technologies Inc. v. Ontario
In Gratton-Masuy Environmental Technologies Inc. v. Ontario (Ont CA, 2010) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against a Divisional Court order that "allowed the respondents' appeal from the motion judge's decision [SS: which struck the claim in part on a R21 motion], dismissed the appellants' action against the Commission and struck the statement of claim as against the Subcommittee Members and the Crown."
Here the court considers the tort of misfeasance in public office:(i) Tort of misfeasance in public office
[83] First, all the appellants' pleas against the Subcommittee Members relate to their alleged failure to execute their duties properly and in good faith as members of the Commission. They invoke, therefore, the tort of misfeasance in public office. The constituent elements of this tort are well- established. In the leading case of Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, at paras. 22-23, Iacobucci J., writing for a unanimous court, described these elements as follows: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. . . . 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.
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. (Emphasis added) [84] The appellants argue that the Divisional Court erred in its appreciation of the requisite elements of the tort by proceeding on the basis that an express plea of actual malice, in the form of a specific intent to injure a person or class of persons, is a necessary element of the tort. I would reject this argument.
[85] As Iacobucci J. explained in Odhavji, at para. 28, bad faith or dishonesty is an essential ingredient of the tort of misfeasance in public office. Further, "In order for the conduct to fall within the scope of the tort, the officer must deliberately engage [page344] in conduct that he or she knows to be inconsistent with the obligations of the office."
[86] In this case, the core of the appellants' pleading against the Subcommittee Members consists of allegations of bad faith, actual malice and bias. In these circumstances, it was appropriate for the Divisional Court to address the sufficiency of the appellants' pleading in light of the malice allegations actually advanced. . Ontario (Attorney General) v. Clark [Crown attorneys immune from misfeasance at hands of police]
In Ontario (Attorney General) v. Clark (SCC, 2021) the Supreme Court of Canada maintains prosecutorial immunity in a unique case where several Toronto police officers sued the Ontario Crown for 'misfeasance in public office' (negligence was dismissed in a lower court). The court essentially denied the possibility of Crown Attorney liability for the reason that it would give the police such influence in prosecutorial discretion, and all the bias that would create in criminal cases down the road:[40] The question before us, then, in light of the accused-centered policy thread woven through the authorities, is whether we should further encroach on prosecutorial immunity to allow police officers to sue the Crown in misfeasance for decisions prosecutors make in the course of criminal proceedings. In my view, allowing police officers to initiate such causes of action would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system.
[41] One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independence from the police. The police role is to investigate crime. The Crown prosecutor’s role, on the other hand, is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused. Police and Crown prosecutors are expected to “act according to their distinct roles in the process, investigating allegations of criminal behaviour, and assessing the public interest in prosecuting, respectively” (Regan, at para. 87; see also Smith, at para. 72).
[42] In Regan, this Court emphasized the importance to the administration of justice of prosecutorial independence from the police. The issue in Regan concerned prosecutorial involvement in the pre-charge stage of an investigation. Ultimately, LeBel J. held for the majority that Crown involvement in pre-charge interviews did not constitute a per se abuse of process. He observed, however, that the “need for a separation between police and Crown functions has been reiterated in reports inquiring into miscarriages of justice which have sent innocent men to jail” (para. 66).
[43] Most pertinently, he concluded that “Crown objectivity and the separation of Crown from police functions are elements of the judicial process which must be safeguarded” (para. 70). This sentiment was echoed by Binnie J., when he said:. . . Crown prosecutors must retain objectivity in their review of charges laid by the police, or their pre-charge involvement, and retain both the substance and appearance of even-handed independence from the police investigative role. This is the Crown Attorney’s “Minister of Justice” function and its high standards are amply supported in the cases. . . . [para. 137, dissenting on other grounds] [44] The importance of prosecutorial objectivity in the review of charges laid by the police is driven by the fact that “prosecutors provide the initial checks and balances to the power of the police”. They act as a “buffer between the police and the citizen” in deciding how to proceed once a charge has been laid (paras. 159-60, per Binnie J.). Independent prosecutorial review of the police’s investigative process and decisions helps “ensure that both investigations and prosecutions are conducted more thoroughly, and thus more fairly” (para. 160, per Binnie J., quoting the Martin Report, at p. 39).
[45] In R. v. Beaudry, 2007 SCC 5 (CanLII), [2007] 1 S.C.R. 190, the Court made it clear that prosecutorial independence from police is not a one way street. The police “have a particular role to play in the criminal justice system . . . and it is important that they remain independent of the executive branch”. Accordingly, the relationship between prosecutors and the police is not a “hierarchical” one. In discharging their respective duties, both the police and the prosecutor have a “discretion that must be exercised independently of any outside influence” (para. 48). Cooperation is encouraged, but independence is mandatory.
[46] In Smith, Tulloch J.A. characterized the relationship between the prosecutor and the police as one of “mutual independence”, which “provides a safeguard against the misuse of both investigative and prosecutorial powers and can ensure that both investigations and prosecutions are conducted more thoroughly and fairly” (para. 86, citing the Martin Report, at p. 39).
[47] Making prosecutors liable to police officers for misfeasance is fundamentally incompatible with this “mutually independent” relationship. Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. To use misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor’s compliance with his or her public duties (Odhavji, at para. 29). Such a relationship of legal accountability between the prosecutor and the police is irreconcilable with their critically “separate and distinct” roles (Smith, at para. 65).
[48] The problem is not merely theoretical. As previously noted, the courts’ increased willingness to take a more active role in scrutinizing decisions of the Attorney General and its agents, including through the exceptions to prosecutorial immunity, has been driven by the realization that failing to provide appropriate checks and balances on Crown conduct, including the relationship with the police, can lead to gross injustices, including wrongful convictions.
[49] We have seen deplorable examples of injustice when the roles are integrated. The Report of the Royal Commission on the Donald Marshall Jr. Prosecution concluded that a distinct boundary between the function of the police and the Crown is essential to the proper administration of justice (Regan, at para. 66, citing Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations (1989), at p. 232). And in the 1998 Report of the Commission on Proceedings Involving Guy Paul Morin, the Commissioner concluded that the Crown’s failure to maintain objectivity throughout the process, which contributed to Morin’s wrongful conviction, was caused in part by too close contact with the police:The prosecutors showed little or no introspection about these contaminating influences upon witnesses for two reasons: one, the evidence favoured the prosecution; this coloured their objectivity; two, their relationship with the police which, at times, blinded them, and prevented them from objectively and accurately assessing the reliability of the police officers who testified for the prosecution.
(The Commission on Proceedings Involving Guy Paul Morin: Report (1998), vol. 2, at p. 911, cited in Regan, at para. 69.) [50] This reality was reinforced by the Court of Appeal in this case in its duty of care analysis rejecting the officers’ negligence claim. The court recognized that imposing a duty of care on Crown prosecutors toward investigating police officers could interfere with the prosecutors’ ability to act independently of police interests. It would “encourage Crown attorneys to focus on extraneous factors during the course of a prosecution” and “have a deleterious effect on the administration of justice by undermining the public’s faith in the integrity of independent Crown decision-making” (paras. 87-88).
[51] It would “tend to distort principled decision-making”, which the court explained as follows:The decision of Crown attorneys to initiate, continue, or terminate a prosecution should be based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest. The possibility of civil claims by the police would distort these venerable twin duties. It would have a deleterious effect on the administration of justice by undermining the public’s faith in the integrity of independent Crown decision-making. Moreover, exposing Crown attorneys to negligence claims by the police may result in prolonged court proceedings in which Crown attorneys make untenable prosecutorial decisions on Charter motions for fear of being sued. It would encourage the litigation of collateral issues, which does not sit well with the realities of finite criminal justice resources and the pressures of firm constitutional time constraints. [citation omitted; para. 88] [52] The motions judge similarly recognized the risks to the prosecutors’ integrity and independence if they were exposed to negligence claims from police officers:An expansion of the responsibilities of Crown Attorneys to include such a duty could result in cases proceeding to trial merely to resolve the concerns of the police. It would alter what should be a co-operative relationship between the police and Crown Attorneys into a potentially adversarial one, in which police would become not just investigators and witnesses, but also litigants with a stake in the outcome, as well as potential claimants against the Crown Attorneys. The potential for conflict and disruption to the relationship is apparent. [para. 135] [53] These policy concerns are no less critical when considering whether prosecutorial immunity should yield to misfeasance claims against a prosecutor by investigating police officers. Being at risk of civil liability for reputational harm to police officers means considering irrelevant considerations and risking independence and objectivity, the core of the prosecutor’s role. Police suing prosecutors for decisions they make in the course of a criminal prosecution is a recipe for putting prosecutors in conflict with their duty to protect the integrity of the process and the rights of the accused.
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[56] Beyond the risk of actual conflict between the prosecutors’ core duties and their risk of liability to the police, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice. As the joint interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys’ Association put it, permitting police lawsuits against Crown prosecutors would suggest to the public and to accused persons that police were “policing prosecutions” through the use of private law, imperiling public confidence in the independent and objective ability of prosecutors to conduct fair trials.
[57] This stands in stark contrast to the public interest in making prosecutors accountable for malicious prosecution, such as in Nelles, where Lamer J. recognized that public confidence in the system would be damaged if a prosecutor, “in a position of knowledge in respect of the constitutional and legal impact of his conduct”, were shielded from liability to the accused when he “abuses the process through a malicious prosecution” (p. 195). Here, the public interest argues against, not in favour of piercing prosecutorial immunity.
[58] Claims brought by the police against prosecutors risk not only the independence and objectivity of the prosecutor, but the accused person’s fair trial rights. Those obligations to the accused are jeopardized by accountability to the police whose interests are adverse to those of the accused. As Moldaver J. noted in Henry:The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown’s role as a quasi-judicial officer. [para. 73] [59] The police certainly have a legitimate expectation and interest in their reputations not being unfairly impaired. But the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between the police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused.
[60] The same holds true for third parties in general. Liability to third parties can be expected to raise the “chilling” concerns for prosecutors and distracting them from their public duty to promote the administration of justice. On the other hand, as previously noted, our immunity cases have recognized the particular need for remedies to protect accused persons, a concern that is lessened for third parties. In almost all cases of third-party claimants, the balance of these factors will tilt toward immunity.
[61] Piercing the immunity of Crown prosecutors to make them accountable to police officers puts them in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. Since prosecutorial immunity is preserved in these circumstances, it is “plain and obvious” that the officers’ misfeasance claim would not succeed. . Kudrocova v. Waterloo Region District School Board
In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered the law of misfeasance in public office:Misfeasance of public office
[15] Misfeasance of public office is an intentional tort which requires: (i) that a public officer engaged in deliberate and unlawful conduct in their capacity as a public officer and, (ii) the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23. Further, where unlawful conduct is grounded in a failure to take action with no statutory duty to act, misfeasance cannot be established unless there is an intent to harm: Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 81.
[16] These decisions also highlight the need for the plaintiff to prove bad faith. As stated in Grand River, at paras. 93-94,I agree with the Crown that knowledge of harm, without intent to harm, is insufficient to establish misfeasance. This court made that point in Pikangikum First Nation v. Nault, 2012 ONCA 705, 298 O.A.C. 14, at para. 77, leave to appeal refused, [2013] S.C.C.A. No. 10:The tort of misfeasance in public office is difficult to establish. The plaintiff must prove more than mere negligence, mismanagement or poor judgment. To succeed, the plaintiff must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff. [Emphasis added] A similar point was made in Odhavji [Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263], at para. 28:The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of “bad faith” or “dishonesty”. In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. [Emphasis added by the Court of Appeal.] ....
[25] It is also plain and obvious that the misfeasance claim fails on other grounds. Misfeasance requires “bad faith” or “dishonesty”; the person who holds a public office must deliberately engage in conduct that he or she knows will likely injure the plaintiff. However, as the Court of Appeal put it in Grand River, quoted above, “knowledge of harm, without intent to harm, is insufficient to establish misfeasance.” Yet this is precisely what has been pleaded: that in acting as they did, or in failing to act, the Appellants did so “with the knowledge… that said conduct was likely to injure Ms. Kudrocova.”
[26] The claim, insofar as it pleads misfeasance, does not state that any of the individual Appellants “in bad faith chose a course of action specifically to injure the plaintiff.” Proving that the Appellants knew of the joint custody order does not establish bad faith or support a finding that school staff engaged in conduct with intent to injure the Respondent. There are no facts pleaded to support bad faith or a specific intent to injure on the part of any of the employees named in the Statement of Claim and, unlike knowledge, bad faith (or malice) and intent cannot be inferred: Rules of Civil Procedure, r. 25.06(8). . Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered the tort of misfeasance in public office:[80] Misfeasance in public office is distinct from the tort of negligence. It is an intentional tort that is directed at the conduct of public officials in the exercise of their duties. In Odhavji Estate, at paragraph 32, the Supreme Court of Canada summarized the elements of the tort in the following manner:To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law. . Poorkid Investments Inc. v. Ontario (Solicitor General)
In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal heard (and allowed) an appeal of a "declaration that s. 17 of the CLPA violates s. 96 of the Constitution Act, 1867 and is of no force and effect", in the course of a class action against the Crown and police regarding allegation of 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario. CLPA s.17 requires a plaintiff to obtain prior leave (permission) from the court when suing for misfeasance in public office, or for "a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or employee’s duties or functions" [CLPA s.17(1)].
This quote addresses the CLPA s.17 provisions:The Crown Liability and Proceedings Act, 2019
[8] The CLPA replaced the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Like that Act, the CLPA imposes liability on the Crown for tortious conduct from which it would otherwise be immune at common law. The CLPA preserves various immunities for the Crown and officers, employees, and agents of the Crown with respect to the performance of certain duties and governs the conduct of proceedings in which the Crown is a party. The Act maintains some procedural provisions similar to those in the Proceedings Against the Crown Act but effects a significant change concerning some torts. Specifically, s. 17 of the CLPA establishes a screening procedure that applies to claims against the Crown, or an officer or employee of the Crown, for misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of powers, duties, or functions.
[9] Proceedings concerning the tort of misfeasance in public office or torts based on bad faith in the exercise or intended exercise of public authority are deemed stayed, unless leave to bring the proceeding is granted pursuant to s. 17(2) of the CLPA:(2) A proceeding to which this section applies that is brought on or after the day section 1 of Schedule 7 to the Smarter and Stronger Justice Act, 2020 comes into force may proceed only with leave of the court and, unless and until leave is granted, is deemed to have been stayed in respect of all claims in that proceeding from the time that it is brought. [10] The CLPA sets out a detailed leave procedure that limits the evidence that may be adduced by the parties in ss. 17(3)-(7):(3) On a motion for leave under subsection (2), the claimant shall, in accordance with section 15 if applicable, serve on the defendant and file with the court,
(a) an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the claimant intends to rely; and
(b) an affidavit of documents, or such other document as may be prescribed, disclosing, to the full extent of the claimant’s knowledge, information and belief, all documents relevant to any matter in issue in the proceeding that are or have been in the claimant’s possession, control or power.
(4) On a motion for leave under subsection (2), the defendant may serve on the claimant and file an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the defendant intends to rely for the defence, but is not required to do so.
(5) No person may be examined or summoned for examination on the contents of an affidavit or prescribed document referred to in subsection (3) or (4) or in relation to the motion for leave, other than the maker of the affidavit or prescribed document.
(6) The defendant shall not be subject to discovery or the inspection of documents, or to examination for discovery, in relation to the motion for leave.
(7) The court shall not grant leave unless it is satisfied that,
(a) the proceeding is being brought in good faith; and
(b) there is a reasonable possibility that the claim described in subsection (1) would be resolved in the claimant’s favour. [11] In summary, claimants must file an affidavit setting out the material facts on which they intend to rely, along with an affidavit of documents; the defendant may file an affidavit but is under no obligation to do so; no one is to be examined or summoned for examination in regard to the affidavit, affidavit of documents, or in relation to the motion for leave except for the maker of the affidavit or prescribed document; and the defendant is not subject to discovery or the inspection of documents, or to examination for discovery. The constitutionality of this screening process is the question at the heart of this appeal.
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