Misfeasance in public

St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, released earlier today, outlines the elements of the tort of misfeasance in public office:

 

[20]         Misfeasance in public office is an intentional tort.  The tort is meant to provide a measure of accountability for public officials who do not exercise their duties of office in good faith.  To make out this tort, a plaintiff must prove four elements:

 

·                    The public official deliberately engaged in unlawful conduct in the exercise of public functions;

 

·                    The public official was aware that the conduct was unlawful and was likely to injure the plaintiff;

 

·                    The public official's tortious conduct was the legal cause of the plaintiff's injuries; and

 

·                    The injuries suffered are compensable in tort law.

 

See Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 at para. 32.

 

[21]         At its core, the tort targets officials who act dishonestly or in bad faith.  As Iacobucci J. said in Odhavji, public officials who deliberately engage in conduct that they know to be inconsistent with the obligations of their office risk liability for the tort.  Conversely, public officials who honestly believe their acts are lawful, and do not intend to cause harm or know that harm would likely result from their actions, fall outside the ambit of misfeasance in public office.  In this way, the required mental element achieves a balance between curbing unlawful, dishonest behavior and enabling public officials to do their jobs free from claims by those adversely affected by their decisions.