Thursday, January 28, 2016

The tort of misfeasance in public office

Conway v. The Law Society of Upper Canada, 2016 ONCA 72:

[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, 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.

[21]       The LSUC relies on the statutory immunity under s. 9 of the Law Society Act, for acts engaged in good faith in the performance of its duties or functions.  Section 9 of the Law Society Act provides as follows:

No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice and procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.  

[22]       Mere negligence in the good faith performance of the LSUC's duties or functions is not enough to establish liability. However, an absence of good faith or "bad faith", involving malice or intent, is sufficient to ground a properly pleaded cause of action against the LSUC. See: Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562; Finney v. Barreau du Québec, [2004] 2 S.C.R. 17.

Of the Law Societies of Upper Canada and Nunavut 

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