I had the pleasure together with some 147 other registrants of listening to the CBA’s online session The Tort of Misfeasance – Recent Developments and Practice Points on November 23, 2020. The moderator, Rolf Warburton, and speakers, Graham Underwood and Johnny Van Camp, all hail from the British Columbia Ministry of the Attorney General, Legal Services Branch. They provided an extremely informative overview of the law of misfeasance and practical guidance for counsel dealing with such claims, including providing a comprehensive list of authorities on the subject.
Graham Underwood started the session with an explanation that misfeasance in public office is an intentional tort, which requires the plaintiff to prove a specific mental state. This requires plaintiff counsel to plead specific material facts and then prove them at trial. Graham noted that although there are a few trial-level decisions that have considered misfeasance against “bodies,” government organizations are incapable of committing the tort, which involves the conduct of individual officials. To establish misfeasance in public office the defendant must be a person acting on behalf of a public body.
Graham noted that the court in Rain Coast Water Corp. v. British Columbia 2019 BCCA 201, confirmed that the rationale underlying the tort is to protect the reasonable expectation that those in public office will not harm the public through an unlawful exercise of their office. Graham went on to explain that the courts have identified two categories of misfeasance. Category “a” involves an official doing an act that they have the power to do with a specific intention to injure a person or class of persons or deliberately exercising a lawful power for an improper motive, with the intention of causing harm to the plaintiff(s). Category “b” addresses acts done by an official with the knowledge that they have no power to do the act and that their conduct is likely to injure the plaintiff. Graham referred to the Supreme Court of Canada’s decision in Odhavji Estate v. Woodhouse, 2003 SCC 69, which noted that the tort is not limited to the abuse of power that is actually possessed, but that any act or omission can found an action for misfeasance in public office.
Graham explained that the elements common to both categories of the tort are that they involve deliberate and unlawful conduct that it is known will likely cause harm to the plaintiff. Accordingly, it is essential in pleading, and in providing proof, that it is established that the official knew that the conduct was unlawful. A pleading that says, “knew or ought to have known” that the conduct was illegal or might cause harm is insufficient, as it does not address the element of subjective knowledge. The tort also requires more than an adverse impact. The conduct must be deliberate and inconsistent with the obligations of the public office. The tort does not capture inadvertent or negligent acts, maladministration, incompetence, or bad judgment. A plaintiff must establish that there was a subjective intent to cause harm.
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