Pikangikum First Nation v. Nault et al.,

• Jurisdiction: Ontario
• Judge: Mackinnon,Sharpe,Weiler
• Neutral Citation: 2012 ONCA 705
• Subject Matter: TORTS,CROWN
• Citation: (2012), 298 O.A.C. 14 (CA),2012 ONCA 705,298 OAC 14,(2012), 298 OAC 14 (CA),298 O.A.C. 14
• Date: 24 October 2012
• Court: Court of Appeal (Ontario)

Pikangikum First Nation v. Nault (2012), 298 O.A.C. 14 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. OC.030

Pikangikum First Nation (plaintiff/appellant/respondent by way of cross-appeal) v. Robert D. Nault (defendant/respondent/appellant by way of cross-appeal) and The Attorney General of Canada (defendant/respondent/appellant by way of cross-appeal)

(C53227; 2012 ONCA 705)

Indexed As: Pikangikum First Nation v. Nault et al.

Ontario Court of Appeal

Weiler and Sharpe, JJ.A., and Mackinnon, J.(ad hoc)

October 24, 2012.

Summary:

The Minister of Indian Affairs and Northern Development required that the Pikangikum First Nation, which was experiencing managerial and audit problems, agree to co-management or else funding for infrastructure projects would be withheld and programs would be delivered through a third-party manager. The First Nation refused any type of intervention and sought judicial review. The Minister insisted that funding would be withheld until the judicial review was withdrawn. The judicial review application succeeded ((2002), 224 F.T.R. 215) on procedural fairness grounds related to the lack of proper notice as to the difficulty or default giving rise to the intervention. There was no finding that the conditions for the appointment of a co-manager or third-party manager were not present. The First Nation sued the Minister for misfeasance in public office, arguing that he abused his power by withholding infrastructure funding.

The Ontario Superior Court, in a judgment reported [2010] O.T.C. Uned. 5122, dismissed the action. The Minister's insistence on a co-manager or third-party manager to monitor the public funds was not unreasonable. It was neither motivated by a vindictive desire to harm the First Nation nor considerations extraneous to legitimate issues between the First Nation and the Minister. The First Nation appealed.

The Ontario Court of Appeal dismissed the appeal. The trial judge's finding that the Minister did not act for an illegal or improper purpose was unassailable.

Crown - Topic 675

Authority of Ministers - Exercise of - Abuse of office - [See both Torts - Topic 9162 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The Ontario Court of Appeal stated that "the tort of public misfeasance in public office has two elements: (1) The defendant must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer; and (2) The defendant must have known that the conduct was unlawful and that it was likely to harm the plaintiff. ... '[A] failure to act can amount to misfeasance in a public office, but only in those circumstances in which the public officer is under a legal obligation to act. ... The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of "bad faith" or "dishonesty". ... In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.'" - See paragraphs 54 to 57.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The Minister of Indian Affairs and Northern Development required that the Pikangikum First Nation, which was experiencing managerial and audit problems, agree to co-management or else funding for infrastructure projects would be withheld and programs would be delivered through a third-party manager - The First Nation refused any type of intervention and sought judicial review - The Minister insisted that funding would be withheld until the judicial review was withdrawn - The judicial review application succeeded on procedural fairness grounds related to the lack of proper notice as to the difficulty or default giving rise to the intervention - There was no finding that the conditions for the appointment of a co-manager or third-party manager were not present - The First Nation sued the Minister for misfeasance in public office, arguing that he abused his power by withholding infrastructure funding - The trial judge dismissed the action - The Minister's insistence on a co-manager or third-party manager to monitor the public funds was not unreasonable - It was neither motivated by a vindictive desire to harm the First Nation nor considerations extraneous to legitimate issues between the First Nation and the Minister - The Ontario Court of Appeal dismissed the First Nation's appeal - The trial judge's finding that the Minister did not act for an illegal or improper purpose was unassailable - The required elements for the tort of misfeasance in public office were not present.

Cases Noticed:

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. 54].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al., [2011] 3 S.C.R. 535; 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 2011 SCC 56, refd to. [para. 61].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 76].

Counsel:

Joseph Magnet and Travis Moffatt, for the appellant/respondent by way of cross-appeal;

John Tyhurst and Abigail Martinez, for the respondents/appellants by way of cross-appeal.

This appeal and cross-appeal were heard on September 5-6, 2012, before Weiler and Sharpe, JJ.A., and Mackinnon, J.(ad hoc), of the Ontario Court of Appeal.

On October 24, 2012, Sharpe, J.A., released the following judgment for the Court of Appeal.