The Second Opinion: Appeal Court Clarifies the Contours of the Tort of Misfeasance in Public Office

Are policy decisions made by the government beyond the reach of the tort of abuse of public office?  A recent decision of the Ontario Court of Appeal provides a nuanced answer to this question.

The pertinent facts of the decision in Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 are as follows.  Trillium Power Wind Corporation (“Trillium”) is a developer of off-shore wind power projects in Ontario.  One of Trillium’s projects was cancelled by the Province of Ontario (“Ontario”) during a provincial election campaign.

Trillium commenced a claim against Ontario alleging breach of contract, unjust enrichment; expropriation, negligent misrepresentation, negligence, intentional infliction of economic harm and misfeasance in public office.  The motion judge struck all of the claims (without leave to amend) on the basis that they disclosed no reasonable cause of action, and dismissed the action.  Trillium appealed only the issue of the tenability of the abuse of public office claim.

Trillium’s claim for misfeasance in public office was two-fold.  First, it asserted that former Premier McGuinty, his Ministers and their staff acted in bad faith for purely political motives of electoral expediency in order to win more seats in the upcoming election, knowing their actions would harm Trillium.  Second, Trillium alleged that Ontario’s actions in cancelling the wind power projects were specifically designed to cripple Trillium so that it did not have the resources to litigate the matter.

The Court of Appeal ruled that the first prong of Trillium’s pleading did not disclose a cause of action for abuse of public office.  However, the Court of Appeal ruled that the second prong of Trillium’s pleading survived the motion to strike.  More specifically, the Court of Appeal ruled that “a decision by the Ontario Government to continue, suspend, or discontinue its province-wide offshore wind power policy initiative…falls within the type of ‘core policy decisions’ that are immune from attack unless they are irrational or taken in bad faith” (at para. 50).  Elaborating further, the Court of Appeal stated (at para. 54):

“[I]t is not 'inconsistent with the obligations of office' for the Premier and his or her Ministers to respond to public pressure, even where that response is designed to shore up the government’s electoral base and win more seats in an election. Ministerial policy decisions made on the basis of ‘political expediency’ are part and parcel of the policymaking process and, without more, there is nothing unlawful or in the nature of ‘bad faith’ about a government taking into account public response to a policy matter and reacting accordingly. That is what governments do, in pursuit of their political and partisan goals in a democratic society…”

However, the Court of Appeal went on to rule (at para. 55):

“[T]o the extent that Ontario’s decision was not made for political purposes, but was made with the specific intention of injuring the plaintiff, that…decision is subject to attack in tort.”

The Court of Appeal then addressed the adequacy of the pleading for the tort of misfeasance in public office.  Although noting that the pleading was “disorganized and prolix”, the Court of Appeal ruled that the pleading was not “completely bald” but rather was “detailed and as fact-specific as…can be at this stage of the proceeding” (at para. 60).  The allegations “link to actual events, documents and people” (at para. 60).  Accordingly, Trillium’s claim for misfeasance in public office was permitted, in part, to proceed.

The decision in Trillium Power Wind Corporation represents an important clarification of the types of government decisions which will be shielded from liability for the evolving tort of misfeasance in public office.  Only those decisions which are made for collateral non-political reasons, are manifestly devoid of rationality or otherwise evince bad faith will attract liability, while “core” policy decisions will enjoy immunity.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.

2013 ONCA 683 Abuse of Public Office bad faith Cancellation of Project Core Policy Decisions Irrationality Liberal Government Ministry of Energy Ministry of Environment Ministry of Natural Resources Misfeasance in Public Office motion to strike Ontario Court of Appeal Political Expediency Premier McGuinty tort Trillium Power Wind Corporation v. Ontario (Natural Resources) Wind Power

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