It occasionally occurs in estate litigation that a party has complaints about the misfeasance of public officials, (usually against the Public Guardian and Trustee), as a result of perceived deliberate unlawful actions on the part of the public official against the complainant
The tort of misfeasance is the legal remedy when appropriate to seek compensation for such unlawful conduct on the part of the public official.
In my experience, such actions rarely succeed except in the most egregious instances where it is proved that the official abused his or her powers to the detriment of the ordinary citizen.
The Supreme Court of Canada has set out the elements of the tort of misfeasance in public office in Odhavji Estate v. Woodhouse 2003 SCC 69, [2003] 3 S.C.R. 263 (S.C.C.), at para. 23, and in St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, 319 D.L.R. (4th) 74 (Ont. C.A.), at para. 20, as follows:
(a) that a public officer, acting in his or her capacity as a public officer, engages in deliberate and unlawful conduct;
(b) the public officer is aware both that the conduct is unlawful and that it is likely to harm the plaintiff;
(c) the public officer’s tortious conduct was the legal cause of the plaintiff’s injuries; and
(d) the injuries suffered are compensable in law.
104 In Freeman-Maloy v. York University (2006), 79 O.R. (3d) 401 (Ont. C.A.), (sub nom Freeman-Maloy v. Marsden) 2006 CanLII 9693, at para. 10, leave to appeal refused, [2006] S.C.C.A. No. 201 (S.C.C.), Sharpe J.A. writing for the Court stated that “[t]he tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen.”
