TORT LAW UPDATE: ELEMENTS OF THE TORT OF ABUSE OF AUTHORITY/MISFEASANCE IN PUBLIC OFFICE

Transcription

1 TORT LAW UPDATE: ELEMENTS OF THE TORT OF ABUSE OF AUTHORITY/MISFEASANCE IN PUBLIC OFFICE ) \. These materials were prepared bydarryl Brown of the Civil Law Division,'Saskatchewan Justice, Regina.,Sl:iskatchewan for the SaskatchevvanLegalEdLication Society Inc. seminar, Tort l,aw Decisions Highlights, June

2 ) / ( ) /

3 2 INTRODUCTION In the1959 decision ofroncarelli v. Duplessis [1959] S.C.R. 121, 16 D.L.R. (2d) 689, 1959 Carswell Que. 37 (S.C.C.), the Supreme Court of Canada recognized a common law tort in Canada which has come to be known as 'misfeasance in public office', also referred to by some as 'abuse of authority'. In the past several years it would seem that a number of cases have been brought forward utilizing this tort as a basis. This was recognized in Powder Mountain Resort Ltd. v. B.C. (2001) B.C.C.A. 619: Misfeasance in or abuse ofpublic office... lay in relative obscurity in this country until recently. In the last few years it has been reasserted by Plaintiffs as a means of obtaining tangible redress where the traditional remedies of certiorari or mandamus would provide only a pyrrhic victory... or where no duty of care in negligence is owed to the public or a class thereof by an official who has exceeded or misused public powers. I Given the increase of late in litigation involving this tort it was logically only a matter of time before the Supreme Court. of Canada would again consider it in a modern context. This occurred relatively recently in the case of Odhavji Estate v. Woodhouse et al [2003] S.c.J. No. 74, 233 D.L.R. (4 th ) 193. As would seem to be the nature oflawyers and torts, the limits of such are tested until clear guidance is given indicating the allowable extent which the same will be given. It is the purpose of this brief paper to attempt to outline what the limits of the tort were and what those presently appear to be. BACKGROUND Roncarelli v. Duplessis The beginning point of a discussion regarding the tort of misfeasance in public office is Roncarelli v. Duplessis [1959] S.c.R. 121, 16 D.L.R. (2d) 689, 1959 Carswell Que. 37 (S.c.c.) 1 See paragraph 1 of Powder Mountain.

4 3 The facts in Roncarelli v. Duplessis are that the Plaintiff, Roncarelli, was the proprietor of a restaurant in Montreal which had been licensed to sell liquor for some 34 years. He was also a Jehovah's Witness who was not himself involved in distributing Jehovah's Witness publications which were considered by some to be offensive to the Roman Catholic population of Quebec but he had posted bail for numerous members of the Jehovah's Witness faith who were arrested for distributing such publications. When Roncarelli's involvement in the providing of liberty to the Jehovah's Witness' involved in the distribution of the publications became known, the Premier, (and incidentally Attorney General) of the day in Quebec, Maurice Duplessis, contacted the General Manager of the Liquor Commission, a Mr. Archambault, with a view to the revocation of Roncarelli' s liquor licence. As a result of Duplessis' involvement, Roncarelli's licence was permanently revoked by the Liquor Commissioner. Subsequently, the Roncarelli establishment suffered a loss of profit and was ultimately closed. Roncarelli then brought action against Duplessis for his actions in bringing about the termination of the liquor licence which thereby caused the losses. The trial judge found as a fact that the licence was revoked and permanently cancelled as a result of Duplessis' actions? As such, damages were awarded. The Quebec Court of Appeal determined that the matter was not actionable and concluded there was no liability on behalf of Duplessis. In a 5-4 decision the Supreme Court allowed the appeal, restored the trial decision and awarded damages for the diminution of the value of good will and loss of future profit Roncarelli suffered from the closure of his establishment. 2This was derived from the evidence of Duplessis and Archambault themselves. It would appear that they made no attempts to characterize the purpose of the revocation and permanent prohibition differently but to the contrary appear to have felt it was a popular action to undertake at the time.

5 4 There were three written judgments on behalf of the five member majority. Rand J. wrote for himself and Judson J. They agreed with the finding of the trial judge that the activities of Roncarelli in enabling the Jehovah's Witness' to carry on their campaign of publishing what they believe to be the truth was the sole basis on which his liquor licence had been permanently revoked. Factually Rand J. also concluded that the liquor permit was essential for any superior class restaurant to carry on a successful business. As such, a determination to revoke that license was a matter of some importance which required impartiality and integrity by the licencing agency and that no absolute and untrammeled discretion can be found to exist when exercised for capricious, irrelevant or arbitrary purposes. 3 The analysis of Rand as to whether the defacto exercise of power through the purported vehicle of a statutory public function which had the effect of destroying the business interests of a citizen warranted legal redress began with an examination of the governing statute. Having a discretion with far reaching effects implies a requirement to exercise it in good faith in discharging the public duty associated with it even if that is not expressly stated to be so by the governing statute. Good faith could not include arbitrarily and illegally attempting to divest a citizen of an incident of his civil status. 4 Ultimately it was considered an act of malice to punish a liquor licencee for doing what he had a right to do (post bail for others) regarding matters that were irrelevant to the purposes of The Alcoholic Liquor Act. Duplessis, by acting for a reason and purpose knowingly foreign to the administration with the added element of intentional punishment 3See paragraph 41 of Roncarelli v. Duplessis [1959] S.C.R. 121, 16 D.L.R. (2d) 689, 1959 Carswell Que. 37 (S.c.c.) 4 See paragraph 46 of Roncarelli v. Duplessis

6 through "vocation outlawry" was not acceptable conduct for a public official. s 5 Regarding the parameters of the matter, the following statement at paragraph 44 is of some interest: The principle is not, by this language, intended to be extended to ordinary governmental employment: with that we are not here concerned. Respecting the potential distinction between the acts of the official with clear legislative authority to take certain steps and the influence placed on that official by another public officer, at paragraph 49 Rand J. indicated that, Where, by a statute restricting the ordinary activities of citizens, a privilege is conferred by an administrative body, the continuance of that enjoyment is to be free from the influence of third persons on that body for the purpose only of injuring the privilege holder. As such, the conclusion at paragraph 50 was stated thus: The act was quite beyond the scope of any function or duty committed to [Duplessis], so far so that it was one done exclusively in a private capacity, however much in fact the influence of public office and power may have carried over into it. The judgment of Locke J. and Martland J. was delivered by Martland J. Their analysis began with an evaluation of the purpose of the Liquor Commission as well as the purpose of the offices of the Attorney General and Premier. The conclusion was that the only function of the Attorney General under The Alcoholic Liquor Act was in relation to assuring the observance of its provisions, of which the Appellant Roncarelli had not been in breach. As such, Duplessis had not been acting in the exercise of any official powers when he brought about the termination of Roncarelli's liquor licence and the permanent prohibition of issuing same. The power to cancel the licence was to be exercised solely SSee paragraph 42 of Roncarelli v. Duplessis.

7 6 by the Commission. That power was, however, in fact exercised by Duplessis acting through the Manager of the Commission. This was not a proper and valid exercise of a power. Instead, with respect to Duplessis acting either as Premier or Attorney General, it was the purported exercise of a power that was not in fact actually possessed. It was an excess of actual power and therefore could not be an action in the exercise of a function as a public official. As there was nothing on which Duplessis could found the belief that he was entitled to deprive the Appellant of his liquor permit 6 his actions were an intentional infliction of damage upon the Appellant with knowledge of an absence of authority to do the same thus reasonably resulting in civil liability. Abbott J. writing for himself added the 5 th opinion from which to form the 5-4 majority that carried the day. He included in his reasons that while he believed Duplessis thought it was in the best interests of the people of the Province to do what he did that had no relevance to the issue of his responsibility in damages for acts done in excess of his legal authority. As Attorney General and Premier of the Province, Duplessis would have known he was not authorized in law to interfere with the administration of the Quebec Liquor Commission or give an order such as he did. 7 As such, the combination of opinions in Roncarelli v. Duplessis resulted in a fairly unified statement ofprinciple regarding the tort of misfeasance in public office. While different categories of the tort were not identified the starting point would be to consider the statutory authority being relied on and compared as against the authority of the defendant. At that point the analysis would shift and take into account the motivation behind the activity. Ultimately, while writing three separate concurring judgments, the 6Roncarelli v. Duplessis at paragraph 99 7 Roncarelli v. Duplessis at paragraph 168

8 7 tort necessarily would include the principle that a high ranking elected official cannot act in a way that is intentionally harmful to an individual when that harm is brought about as a result of the exercise of purported authority that in fact is notgiven by statute. The excess of authority was actually known by Duplessis as was the harm that would befall the subject of the targeted punishment and liability should result. Forty-four years later, in the wake of an increasing number of actions alleging the same tort, the Supreme Court examined misfeasance in public office in detail once again in the case of Odhavji Estate v. Woodhouse et al [2003] S.C.J. No. 74, 233 D.L.R. (4 th ) 193. CURRENT JURISPRUDENCE Odhavji Estate; Facts The facts in Odhavji are that the Toronto police fatally shot Manish Odhavji while he was running from his car subsequent to a bank robbery. Within 25 minutes of the shooting, an Assistant Chief of Police notified the Special Investigations Unit ("SIU") of the death. The SIU's statutory mandate was to carry out independent investigations of police conduct in cases of deaths caused by police officers. As part of the investigation the SIU requested that the two officers involved in the shooting remain segregated, make themselves available for interviews that day and provide to investigators their shift notes, clothing and blood samples. Section 113(9) of Ontario's Police Services Act provided that: Members of police forces shall co-operate fully with the members of the [SIU] in the conduct of the investigation. As well, section 41 (1)(d) of the same statute stated that the Chief ofpolice was under a duty to ensure that, Members of the police force carry out their duties in accordance with the Act and

9 8 the Regulations in a manner that reflects the needs of the community and that discipline is maintained in the police force. The Plaintiffs, being the Estate of Odhavji and his immediate family, brought an action alleging that the two officers involved had intentionally breached their statutory obligation to co-operate with the SID investigation, that they didn't attend for interviews until four days after the shooting, that they did not remain segregated nor supply shift notes, clothing or blood samples in a timely manner, and that they gave inaccurate and misleading statements to the SID. The alleged lack of this appropriate investigation into the circumstances surrounding Manish Odhavji's death was claimed to have resulted in mental anguish, stress, anger, depression and anxiety, which consequences the officers purportedly knew or ought to have known would result from such an inadequate investigation. The claim was also brought against the Chief of Police alleging breach of his duty to ensure that the police officers complied with their obligations. The action was grounded in differing torts, the important one for these purposes being the tort of misfeasance in public office as against the police officers and the Chief ofpolice. The Defendants applied to strike the claim on the grounds that it disclosed no reasonable cause of action. The action was found to be obviously doomed to failure by the Chambers judge. The Court of Appeal agreed with that conclusion. The Supreme Court found that, assuming the elements of the tort as pleaded could be proved, the action should proceed to trial as against the two police officers and the Chief. Odhavji Estate; Supreme Court's Reasoning The Supreme Court in this instance wrote as one unified body, all nine judges agreeing in both result and in the reasoning behind it. Justice Iacobucci wrote for the court.

10 9 The key point in the reversal of the Ontario Court of appeal was that the Supreme Court interpreted the Ontario Court of Appeal's decision as limiting the tort of misfeasance in public office to the abuse of a power actually held. This was rejected as running contrary to Roncarelli v. Duplessis, which was described as involving the exercise of powers which, as Premier and Attorney General, Duplessis did not possess. Therefore the tort could and should include actions where the power was not in fact held as well as where the power was held but exceeded. The Supreme Court's conclusions appear to have been somewhat affected by the House of Lords decision in Three Rivers District Council v. Bank ofengland (2000) 257 N.R. 1 (H.L.), a case that inevitably appeared to be influential in many lower court decisions prior to the guidance given in Odhavji. Taking into account the Three Rivers rationale, the formulation of the test by the Supreme Court became a twofold analysis or exercise described as follows: Category A involves conduct that is specifically intended to injure a person or persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the Plaintiff. 8 The elements to the tort as set out in Odhavji are that the Defendant must have engaged in deliberate and unlawful conduct and further, the Defendant must have both known the conduct was unlawful and known it was likely to harm the Plaintiff. 9 Misfeasance in public office only therefore deals with knowingly unlawful conduct that was also known to likely harm the Plaintiff. Of note regarding an attempt to better understand the parameters of this is the statement at paragraph 26 that; 8 See paragraph 22 of Odhavji 9 See paragraph 23 of Odhavji

11 10 The tort could not be committed by an officer who failed to discharge his or her duties due to budgetary constraints or other factors beyond the officer's control. As to the underlying purpose of the tort, it was described as follows;... to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions. 10 Questions arising out of Odhavji: 1. What is required to make out the tort? When considering the two categories, the difference between Category A and Category B would be in the proof ofeach element of the tort. To explain further, in Category A, acting with the express purpose of harming a Plaintiff is sufficient proof whereas in Category B the two ingredients there need to be proven independently. In each case proof of the tort involves establishing a deliberate disregard of official duty coupled with the knowledge that the misconduct is likely to injure the Plaintiff. Iacobucci in writing for the entire court made several things clear in this regard. - Misfeasance in public office is not directed at a public officer who inadvertently or negligently fails adequately to discharge the obligations of his or her office (see paragraph 26). As such any mistaken, negligence or inadvertence based acts are not included. - The tort is not directed at a public officer who is unable to discharge his or her obligations but rather is directed at a public officer who could have discharged his or her obligations yet willfully chose to do otherwise. (see paragraph 26). 10 See paragraph 30 of Odhavji.

12 11 - The tort is not directed at a public officer who fails adequately to discharge the obligations of the office as a consequence ofbudgetary constraints or other factors beyond his or her control (see also paragraph 26). As such, the question of how budget impacts on liability will still continue to be the question in regulatory liability analyses as set out in the paper ofmark Kindrachuk. - The simple knowledge of harm is an insufficient basis on which to conclude that there has been bad faith or dishonesty resulting in misfeasance in public office (see paragraph 28). As such, while foreseeability is going to remain a touchstone to issues at play in regulatory negligence, it only enters into the picture in a misfeasance in public office action after there has been proof of knowledge of lack of legal authority. - Liability will not attach to an officer who disregards his or her official duty. It will only apply to a public officer who in addition to that blatant disregard also demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question (see paragraph 29). In summary, the tort is truly just as was described by the Supreme Court; An intentional tort whose distinguished elements are two-fold; (1) deliberate and unlawful conduct in the exercise of public functions and (2) awareness that the conduct is unlawful and likely to injure the Plaintiff' What state of mind is essential with respect to this tort in order to ground liability (ie. how does "recklessness" play into a determination)? In a number of cases from elsewhere in the common law context outside of Canada (England in Three Rivers, supra, Australia in Northern Territory ofaustralia v. Mengel II See paragraph 32 of Odhavji

13 12 (1995) 185 CLR 307 and New Zealand in Garrett v. Attorney General [1997] 2 N.Z.L.R.) the issue of recklessness and the tort of misfeasance in public office seems not to have been fully or finally clarified. As such, in the B.C. Court of Appeal case Powder Mountain Resort, in which the central matter argued on the appeal was the tort of misfeasance in public office it appeared that the standard of 'recklessness' would be applied to Part B of the test at both stages 1 and 2 of the analysis. If so, then recklessness by the defendant as to that public officer's act being without or in excess of authority as opposed to actual knowledge of the illegality would suffice for establishment of conduct falling under that branch of the test. Put another way, in addition to recklessness being the state of mind required respecting the possibility that the actions would harm the Plaintiff or a class of persons including the Plaintiff, recklessness as to the knowledge of one's illegality would suffice. The Supreme Court in Odhavji, however, states that actual knowledge of the illegality of one's acts is in fact required. Whereas recklessness to the possibility that harm to the Plaintiff was likely is the appropriate test on that branch of the test, it is important that there be proof of knowledge of the excess or lack of lawful authority to make the tort OUL I2 In following through on this clarification the Supreme Court disallowed the phrase to remain in the pleadings that the officers and/or Chief "ought to have known" their acts were unauthorized. The Supreme Court only allowed the allegation that there was "actual knowledge" of the illegality to survive. 13 Further, the Court indicated at paragraph 28; The requirement that the Defendant must have been aware that his or her conduct was unlawful reflects the well established principle that misfeasance in public office requires an element ofbad faith or dishonesty. (Emphasis added) 12 See paragraph 38 of Odhavji. 13 See also paragraph 38 of Odhavji.

14 13 And again in summarizing the tort itself at paragraph 32, Iacobucci indicates; I am of the opinion that the tort of misfeasance in public office is an intentional tort whose distinguishing elements are... awareness that the conduct is unlawful and likely to injure the Plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge the Plaintiff must also prove the other requirement cornmon to all torts. (Emphasis added) As such, while not insignificant reliance was placed on the decisions from other common law jurisdictions in coming to an understanding of what the tort entails, the application of the recklessness standard to only Part 2 of Branch B of the tort indicates that Canada has adopted stringent requirement for Plaintiffs bringing forward allegations of this type. 3. Does the allowance of a breach of a statutory duty in the context of the requirements of the tort of misfeasance in public office change the standard as set out in Saskatchewan Wheat Pool that breach ofstatute is not itself the tort but mere evidence of negligence? The Supreme Court in Odhavji Estate made it clear that the effect of the definition of the parameters of the tort of misfeasance in public office did not change the law clarified by R. v. Saskatchewan Wheat Pool [1983] 1 S.c.R Just as a public officer who breaches his statutory obligation or duty mayor may not be liable in negligence, the breach itselfbeing merely "some evidence" ofnegligence but not conclusively so, so also a public officer who has exceeded their lawful authority and breached a statutory duty has not necessarily committed the tort of misfeasance in public office. While it is the starting point ofan analysis, the motives, intentions and knowledge ofthat public officer will still need to be fully assessed in order to determine whether the tort of misfeasance in public office has been made out.

15 14 4. What other considerations should be kept in mind when determining whether to proceed with this type of claim? While it would appear that the Powder Mountain decision utilized a slightly different standard for making out the requirements of the tort of misfeasance in public office, the British Columbia Court of Appeal nonetheless concluded after the matter had gone through to trial that not only had there not been any such conduct but that there were also important factors a Plaintiff should keep in mind, stated thus; The tort must be used cautiously. Otherwise the courts risk straying into the arena of political decision-making... the court should not, by means of the tort, take on the role of Ombudsman, a parliamentary committee or an organ of public opinion in reviewing even egregious acts of maladministration, official incompetence, or bad judgment. 14 And further that; The court should be slow to find bad faith in the conduct of democratically elected representatives acting under legislative authority unless there is no other rational conclusion Is the tort therefore ever available? While the proof of Branch A of the tort (intentional malicious infliction of harm through use of one's office) is going to be rare indeed, one can see from the Duplessis case the type of facts that may provide for such a finding. Indeed for the Premier to act capriciously in the way identified there and arbitrarily revoke Mr. Roncarelli's licence for activities that were both lawful and unconnected to the issuance or maintenance of the licence is and should be actionable and redress provided. In Uni-Jet Industrial Pipe Ltd. v. Canada (A.G.) [2001] M.J. No. 167, 198 D.L.R. (4 th ) 14 See Powder Mountain, supra, at paragraph See Powder Mountain, supra, at paragraph 37.

16 15 577, 2001 CarswellMan 171 (C.A.) the intentional release of information to media contacts about search warrants which were about to be executed was found to be a misfeasance in public office. Although it was prior to the Supreme Court's decision in Odhavji, it would most likely be decided the same way in the post Odhavji world provided the requisite knowledge of illegality were also firmly established. A situation where a medical superintendent recommended and had sterilization performed on individuals who were known to fall outside of the criteria established by statute for the same would seem to be a pertinent case for application of the finding of liability under the new test (see D.E. et al v. The Queen (2005) BCCA 134, 34 BCLR (4 th ) 89, 28 CCLT (3d) 283 where a new trial respecting some of the plaintiffs was ordered but is not yet concluded). Other Considerations and Cases of Note As a practical matter, it would seem to weigh against a Plaintiff in bringing a misfeasance in public office action when the potential for an application for judicial review on administrative law principles was available but was not pursued. This would likely be considered a failure to mitigate such that the Plaintiff will be seen to have been sitting on his or her rights only to later claim damages after the problem could well have been remedied in another way. As such, taking the initial course ofjudicial review of administrative actions rather than bringing a tort claim for damages based on misfeasance in public office would be prudent While not every case touching on the issue of misfeasance in public office has been canvassed for this paper, it is likely worth mentioning some other cases of interest. Simpson et al v. Chiropractic Association ofsaskatchewan et al (1999) 185 Sask. R. 7 (Q.B.). In this case Mr. Justice Albright, considerably in advance of the Supreme Court

17 16 determining Odhavji Estate, set out quite accurately what the test was and what, as it turns out, the Supreme Court was going to ultimately set as the standard in Canada. In this regard, ofnote is the statement at paragraph 272, The intention to do harm to a Plaintiff is an essential element of this tort, and in order to succeed, a Plaintiff must prove that the Defendant had the requisite intent. This intent can be in the form of malice or knowingly taking action without authority. Accordingly, to find liability under this tort, a Plaintiff must show either malicious intent to harm or alternatively, the intentional doing of a wrongful act with the knowledge that the Plaintiff would likely be injured as a consequence. Provided "wrongful act" means acting without or in excess of lawful authority, the quote is precisely in line with what ultimately the Supreme Court set out in Odhavji. Powder Mountain Resort v. British Columbia. This case has been referenced previously but will be mentioned again here as the primary issue at play in the appeal was the tort of misfeasance in public office. It is noteworthy that after a substantial trial and considerable factual determinations there was found to be a bona fide belief that terminating ongoing negotiations with the Plaintiff was done as it was thought to be in the interests of the Province. Looking for an alternative proponent was also considered to be in the interests of the Province. Regarding the question of intention, of note is the statement at paragraph 9;... it is important to consider the actions and motivations of each of the individual actors separately. One should not attribute, for example, the detailed knowledge of persons at one level of administration to persons at another level who have only general knowledge of the subject and are largely dependent on the advice of others. Mitchell Estate v. Ontario 2004 Carswell Ont. 3017,242 D.L.R. (4 th ) 560. This case involves the death of an infant in an Ontario hospital. In this case the facts were not properly pleaded so as to establish either Category A (conduct specifically intended to injure a person or class of persons) or Category B (knowledge of a lack of authority and reckless intent with respect to the injuries that might flow from acting in that way)

18 17 misfeasance. As well the fatal flaw in this case was that there was found to be no statutory duty to do anything beyond what was done at this hospital for this particular child. Freeman Maloy v. Marsden [2005] OJ. No Onto S.CJ.,2005 CarswellOnt 1709, where a president of a university was found not to be a "public officer" and therefore misfeasance in public office was not an appropriate action to bring. With the expansion of who is a public officerfrom Duplessis (only the highest office recognized) through Odhavji (police officers included) this is a factor one ought to keep in mind as well. CONCLUSION With the clarity recently provided by the Supreme Court in Odhavji,16 the standard for the tort of misfeasance in public office has now been provided such that activities which are clearly and knowingly unlawful and recklessly undertaken regarding a likely and harmful outcome are sanctioned. This involvement of the courts is appropriate and is balanced through the availability of and appropriateness respecting leaving the other areas of law (judicial review, regulatory liability, and general negligence) in their own spheres where the courts can deal with actions or decisions which are sought to be challenged. Keeping in mind the underlying rationale that Iacobucci has now set out as the basis for such a tort and the fact that, unlike most civil actions and requisite burdens of proof therein, motive and intent are critical to the success of such an action, one necessarily must assess the relative merit of forwarding allegations of misfeasance in public office. It 16 Being the first time the Supreme Court has commented in a substantive way on the tort of misfeasance in public office since Roncarelli v. Duplessis in 1959.

19 18 is a most difficult tort to establish as it is, in all honesty, quite unlikely to have occurred. Proceeding without properly considering what level of proof is required could well be a waste ofresources to a party pursuing the same.

20 19 CASES REFERENCED (in order) Roncarelli v. Duplessis [1959] S.c.R. 121, 16 D.L.R. (2d) 689, 1959 Carswell Que. 37 (S.c.c.), Powder Mountain Resort Ltd. v. B.C. (2001) B.c.c.A. 619: Odhavji Estate v. Woodhouse et al [2003] S.C.J. No. 74, 233 D.L.R. (4 th ) 193 Three Rivers District Council v. Bank ofengland (2000) 257 N.R. 1 (B.L.), Northern Territory ofaustralia v. Mengel (1995) 185 CLR 307 Garrett v. Attorney General [1997] 2 N.Z.L.R.) R. v. Saskatchewan Wheat Pool [1983] 1 S.c.R Uni-Jet Industrial Pipe Ltd. v. Canada (A.G.) [2001] M.J. No. 167, 198 D.L.R. (4 th ) 577, 2001 CarswellMan 171 (C.A.) D.E. et al v. The Queen (2005) BCCA 134,34 BCLR (4 th ) 89,28 CCLT (3d) 283 Simpson et al v. Chiropractic Association ofsaskatchewan et al (1999) 185 Sask. R. 7 (Q.B.). Mitchell Estate v. Ontario 2004 Carswell Ont. 3017,242 D.L.R. (4 th ) 560. Freeman Maloy v. Marsden [2005] O.J. No Ont. S.C.J. ACKNOWLEDGMENTS "Monetary Remedies for Administrative Law Errors", Lisa J. Mrozinski, A.G.B.c. October, 2003 "Parameters of the Tort of Misfeasance in Public Office", S.C.L.R. (2d) 179 by Nicholas Rafferty