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
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.
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.
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