H. Governmental Liability

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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In the early common law, the government or Crown was immune from all tort liability. This was reflected in the maxim that "the King can do

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no wrong." Eventually a special procedure known as a Petition of Right was used to bring tort actions against the government. Today, federal and provincial legislation have removed the procedural obstacles against bringing tort actions against the government.161The legislation recognizes that governments are liable for the torts committed by its officers, employees, and agents. Nevertheless, special care must be taken when suing governments. The pertinent enabling legislation must be addressed, its conditions must be complied with, and other related legislation may impose special procedural rules relating to limitation periods or the giving of notice before commencing an action. Moreover, the removal of procedural obstacles against bringing tort actions against the government has ironically led to the introduction of some common law protections and limitations on governmental liability in negligence. The courts have been particularly concerned about the need to control the extent of governmental liability in negligence for losses caused by the exercise of governmental powers.

Before we address the issue of governmental liability in negligence, it is useful and convenient to make some preliminary reference to the special rules relating to liability for corrupt governmental practices.

1) Corruption and Negligence

Canada is not plagued by the public corruption that is commonplace in some countries. Canada’s public servants and officers may make occasional mistakes and blunders and from time to time they may be negligent but in general they are honest. Consequently, most of the litigation centres on allegations of negligence. Nevertheless, tort liability for harm caused by the dishonest and unlawful actions of public officials is well established. The applicable tort is misfeasance in public office. The gravamen of the tort is that public officers162must carry out

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their functions for the public good and exercise their powers in good faith to achieve the purposes for which are given. The ambit of the tort is quite narrow and until recently it was rarely litigated. Towards the end of the last century the tort enjoyed a renaissance and today is much more frequently the subject of litigation. The leading decision is Odhavji Estate v. Woodhouse163in which the Supreme Court canvassed the traditional scope of the tort and indicated that it has a wider application than previously thought.

Prior to Odhavji the tort was understood to deal with two kinds of wrongdoing; the abuse of a power that the public official actually possessed and conduct that was knowingly beyond the power or jurisdiction of the public official. The first branch of the tort was commonly referred to as an abuse of statutory powers. It was established where a public officer exercised a statutory power or authority for the purpose of causing harm to the plaintiff (a phenomenon known as targeted malice) or for any other improper purpose, such as to reward friends or to gain personally. The second branch was established where a public officer with actual knowledge of his lack of statutory power or authority acted in a manner that he knew would probably harm the plaintiff. The requirement of knowledge was also probably met when the public officer exhibited a reckless indifference to his authority or to the probable consequences of his act. The decision of the Supreme Court in the famous case of Roncarelli v. Duplessis164is illustrative of both branches. In that case, the plaintiff’s liquor licence was cancelled by the Quebec Liquor Commission at the direction of the defendant premier of the province. This move was made in order to punish the plaintiff for providing bail money to fellow members of the Jehovah’s Witness faith who had been charged with offences relating to the distribution of their religious literature. The behaviour of the premier could clearly have been characterized as targeted malice, but the premier had to his knowledge no authority to revoke the licence (that power lay with the Commission) and he knew that harm would be caused to the plaintiff. Consequently, the second branch of the tort was satisfied. If the premier had exercised his own power in revoking the licence, the targeted

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malice would have been an essential element to liability under the first branch.

In Odhavji the Supreme Court held that the tort was not restricted to these two conventional scenarios. The case involved a police shooting which caused the death of a family member of the plaintiffs. The plaintiffs alleged that the chief of police and other police officers, in breach of their statutory duties, failed to co-operate with the Special Investigations Unit charged with the task of investigating the shooting. The plaintiffs alleged that they had suffered nervous shock as a consequence of the defendants’ misfeasance in public office. The defendants moved to strike the statement of claim on the grounds that it disclosed no reasonable cause of action. The Court held that the tort is "broadly based on unlawful conduct in the exercise of public functions generally"165and is established where a public officer has engaged in deliberate and unlawful conduct in her capacity of a public officer and the public officer was aware both that her conduct was unlawful and that it was likely to harm the plaintiff.166Since the plaintiffs alleged these two elements in their statement of claim their case was permitted to proceed.

Although the decision in Odhavji has generalized and extended the tort of misfeasance of public office it still requires proof of conscious wrongdoing of public officers. There is no liability merely because an action is ultra vires the powers of the officer and good faith discretionary decisions can be made without the anxiety of possible tort liability. The tort of misfeasance in public office may, however, in appropriate cases, be complemented by other torts, such as malicious prosecution, fraud, conspiracy, and intimidation, which also provide protection against the dishonest and deliberate wrongdoing of public officials.

Tort law has a limited power to address judicial corruption. The interest of society in an independent and fearless judiciary generally outweighs competing interests of individual litigants. Judges enjoy a generous judicial immunity from tort liability. There is a complete immunity in respect of all judicial acts done within the court’s jurisdiction, and it probably extends to acts beyond the court’s jurisdiction where the judge has an honest belief that the act was within the court’s jurisdiction.167Liability is only likely where a judge acts knowingly in excess of jurisdiction and with malice, a most improbable situation. The

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matter is, however, complicated by some uncertainty as to the meaning of jurisdiction, the relevance of the level of the court, and legislative protections. The lack of a private tort remedy does not, of course, indicate any indulgence of judicial wrongdoing. Judicial councils act as the watchdogs on judicial conduct and judges can be removed from office for serious wrongdoing.

2) Negligence

Most governmental activities and services are carried out under permissive or enabling statutes. The legislation does not normally impose a duty to carry out certain tasks or services. It is written in terms of what the government or public authority may do, not what it must do. The legislation is empowering rather than mandatory because the need and demand for governmental services are infinite and the resources and money of government are finite. Statutory powers permit political and discretionary decisions to be made to determine the allocation of scarce resources, the priority of competing needs, and the manner in which governmental services are delivered. Yet, in a time of activist government, there is no shortage of private citizens alleging that they would have avoided certain losses if the government had acted differently in respect of a matter that has directly and adversely affected them. One vehicle to voice a complaint and possibly secure a remedy for the alleged inadequacy of governmental services is an action in negligence. It may be argued that the government owed a private law duty of care to prevent the loss suffered by the...

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