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
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 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
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.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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