The Ontario Court of Appeal’s decision in Trillium Power Wind Corporation v Ontario (Natural Resources), 2013 ONCA 683, clarifies both the kind of government decisions that will be sheltered from liability for the tort of misfeasance in public office, and the necessary elements of the claim.
The case arose from a decision in February 2011 by the Ontario government to put a halt to an off-shore wind power project proposed by the plaintiff, Trillium Power Wind Corporation. The province was heading into an election in the fall of 2011, and wind farms were a politically contentious issue that faced vigorous opposition from voters, especially in rural areas.
Trillium sued Ontario, alleging a variety of causes of action including misfeasance in public office. On a motion by Ontario, the motion judge struck the statement of claim and dismissed the action with costs on the basis that it disclosed no reasonable cause of action against Ontario.
Trillium appealed, and the Court of Appeal allowed only the claim for misfeasance in public office to proceed, based on the allegation that the government’s decision to cancel the wind power program was specifically intended to injure Trillium by crippling its financial capacity.
Legal Tenability of Trillium’s Claim for Misfeasance in Public Office
Trillium’s claim for misfeasance in public office asserts that the Premier, his ministers, and their staff acted in bad faith by acting out of political motivation to win seats in an upcoming election with the knowledge that their actions would harm Trillium, and purposefully disrupting Trillium’s pending financing and placing Trillium in a position where it would not have the financial resources to litigate against Ontario.
Citing from the Supreme Court’s decision in Odhavji Estate v Woodhouse, 2003 SCC 69, the Court of Appeal set out the essential elements of the tort of misfeasance in public office:
a) The official engaged in unlawful conduct in the exercise of his or her public functions; and,
b) The official was aware that the conduct in question was unlawful and likely to injure the plaintiff.
The Court of Appeal also reiterated the Supreme Court’s holding that a public officer may make a decision adverse to the interest of certain members of the public, so long as the decision is rational, made in good faith, and it is not inconsistent with the obligations of public office. Furthermore, the Court held that it is not inconsistent with the obligations of public office to consider public response to a policy matter, and in fact, this is within the role of government in a democratic society.
The Court went on to state that a pleading alleging misfeasance in public office should be as detailed and fact specific as possible, linking allegations to actual events, documents and people. The plaintiff must plead material facts that establish deliberate unlawful conduct by a public officer in the exercise of a public function and awareness that the conduct is unlawful and likely to injure the plaintiff.
With this decision the Ontario Court of Appeal has clarified that a government decision based on rational public policy considerations, even where made in response to public pressure or for electoral expediency, will not attract liability for the tort of misfeasance in public office.