Freeman-Maloy v. Marsden et al., (2006) 208 O.A.C. 307 (CA)

• Judge: Goudge, Sharpe and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 02, 2006
• Jurisdiction: Ontario
• Citations: (2006), 208 O.A.C. 307 (CA)

Freeman-Maloy v. Marsden (2006), 208 O.A.C. 307 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. AP.022

Daniel Freeman-Maloy (appellant/plaintiff) v. Dr. Lorna Marsden, York University and The Board of Governors of York University (respondents/defendants)

(C43539)

Indexed As: Freeman-Maloy v. Marsden et al.

Ontario Court of Appeal

Goudge, Sharpe and LaForme, JJ.A.

March 31, 2006.

Summary:

The president of York University imposed disciplinary measures against the plaintiff student. The plaintiff sued the president of the university and the university, alleging, inter alia, misfeasance in public office. A motion brought by the defendants raised the issue of whether the allegation of misfeasance in a public office by the president of the university should be struck out on the ground that it was plain and obvious that the president did not hold a public office within the meaning of that tort.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 340, held that it was plain and obvious that the university president did not hold a public office for the purposes of the tort of misfeasance in public office. The court ordered that an amended statement of claim to be filed by the plaintiff not include a claim against the president of the university for misfeasance in public office. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal, holding that the claim against the university president for misfeasance in public office should be allowed to proceed to trial.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The office of the president of York University was a statutory office and the president of the university purported to exercise a statutory power in imposing disciplinary measures against the plaintiff student - The plaintiff sued the president of the university, alleging, inter alia, misfeasance in public office - The Ontario Court of Appeal held that the allegation should not be struck out as it was not plain and obvious that the university president did not hold a public office within the meaning of the tort of misfeasance in public office - The tort of misfeasance in public office was constantly evolving - The court was not persuaded that the tort was restricted to public officers who were subject to the degree of governmental control required for the Charter to apply.

Torts - Topic 9163

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Education authorities - [See Torts - Topic 9162 ].

Cases Noticed:

Freeman-Maloy v. York University et al. (2004), 189 O.A.C. 22 (Div. Ct.), refd to. [para. 4].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 9].

McKinney v. University of Guelph, [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 9].

Elliott et al. v. Canadian Broadcasting Corp. et al. (1993), 16 O.R.(3d) 677 (Gen. Div.), affd. (1995), 82 O.A.C. 115; 25 O.R.(3d) 302 (C.A.), leave to appeal refused (1996), 201 N.R. 80; 93 O.A.C. 80 (S.C.C.), consd. [para. 9].

Three Rivers District Council et al. v. Bank of England, [2000] 3 All E.R. 1; 257 N.R. 1; [2000] 2 W.L.R. 1220 (H.L.), consd. [para. 10].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 18].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Paul et al. v. Vancouver International Airport Authority, [2000] B.C.T.C. 153; 5 B.L.R.(3d) 135 (S.C.), consd. [para. 21].

First National Properties Ltd. v. Highlands (District) et al. (2001), 152 B.C.A.C. 83; 250 W.A.C. 83; 178 D.L.R.(4th) 505 (C.A.), refd to. [para. 21].

Francoeur et al. v. Canada (1994), 78 F.T.R. 109 (T.D.), refd to. [para. 21].

McGillivray v. Kimber (1915), 52 S.C.R. 146, refd to. [para. 22].

Gershman v. Manitoba Vegetable Producers' Marketing Board (1976), 69 D.L.R.(3d) 114 (Man. C.A.), refd to. [para. 22].

Wolfert et al. v. Shuchuk et al. (2001), 98 Alta. L.R.(3d) 346 (Q.B.), affd. [2003] A.R. Uned. 157; 15 Alta. L.R.(4th) 5; 2003 ABCA 109, leave to appeal refused (2003), 328 N.R. 199; 363 A.R. 197; 343 W.A.C. 197 (S.C.C.), refd to. [para. 22].

Dechant v. Stevens et al. (2001), 281 A.R. 1; 248 W.A.C. 1; 89 Alta. L.R.(3d) 246 (C.A.), refd to. [para. 22].

Ashby v. White et al. (1703), 2 Ld. Raym. 938; 92 E.R. 126, refd to. [para. 22].

Scott v. University of Toronto (Governors) (1913), 10 D.L.R. 154 (Ont. S.C.), refd to. [para. 25].

Pike et al. v. Council of the Ontario College of Art (1972), 29 D.L.R.(3d) 544, refd to. [para. 25].

Howard v. York University (1975), 8 O.R.(2d) 175 (Co. Ct.), refd to. [para. 25].

Hill v. University College of Cape Breton (1991), 104 N.S.R.(2d) 285; 283 A.P.R. 285; 1 Admin. L.R.(2d) 103 (T.D.), refd to. [para. 25].

McLaughlin v. Halifax-Dartmouth Bridge Commission (1993), 125 N.S.R.(2d) 288; 349 A.P.R. 288 (C.A.), refd to. [para. 25].

Authors and Works Noticed:

Bodner, Michael, The Odhavji Decision: Old Ghosts and New Confusion in Canadian Courts (2005), 42 Alta. L.R. 1061, para. 7 [para. 19].

Evans, J.M., Janisch, H.N., Mullan, David J., and Risk, R.C.B., Administrative Law: Cases, Texts and Materials (4th Ed. 1995), p. 12 [para. 25].

Sadler, Robert J., Intentional Abuse of Public Authority: A Tale of Three Rivers (2001), 21 Aust. Bar Rev. 151, p. 171 [para. 19].

Counsel:

Peter Rosenthal and Selwyn Pieters, for the appellant;

Thomas G. Heintzman and Christopher A. Wayland, for the respondents.

This appeal was heard on March 2, 2006, before Goudge, Sharpe and LaForme, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., and was released on March 31, 2006.