Can a Public Clerk Be Sued?

A Public Official or Entity Including Institutions Such as a Governing Body, Professional Regulator, Licensing Board, Among Others May Be Sued For Abuse of Power When An Official Acts In Bad Faith or Without Good Faith With Knowledge That Such Would Cause Harm to a Person.
A Helpful Guide on How to Determine and Understand What Legally Constitutes As the Tort of Misfeasance in Public Office

Lawsuit Document Alleging Misfeasance by Public Official Great power brings great responsibility!  Accordingly, persons who act as officials holding high positions within government of any level, adjudicative bodies, among other positions of 'public office' are enabled to do good while also enabled to do harm if the bestowed powers are misused.  When a malicious misuse of power occurs, the tort of misuse of public office, or misfeasance of public office, may arise.  Misuses could arise due to the holding of a grudge or possibly even the targeting of a specific individual for persecution as an example to others to 'toe the line or else'.  The elements requiring proof within a misuse of public office case were recently articulated in Conway v. The Law Society of Upper Canada, 2016 ONCA 72 where it was said:

[20]      The tort of misfeasance in public office has been variously described in the case law as the tort of abuse of public office or abuse of statutory power:  Odhavji Estate v. Woodhouse2003 SCC 69 (CanLII), at paras.  25 and 30.  Whatever the nomenclature, the essence of the tort is the deliberate and dishonest wrongful abuse of the powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff: Odjhavji Estate v. Woodhouse, at para.  23.  Bad faith or dishonesty is an essential ingredient of the tort: Odhavji Estate v. Woodhouse, at para.  28 and Gratton-Masuy Environmental Technologies Inc.  v. Ontario2010 ONCA 321, at para. 85.

[21]      The LSUC relies on the statutory immunity under s.  9 of the Law Society Act, for acts engaged in good faith in the performance of its duties or functions.  Section 9 of the Law Society Act provides as follows:

No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice and procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.

[22]      Mere negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability.  However, an absence of good faith or “bad faith”, involving malice or intent, is sufficient to ground a properly pleaded cause of action against the LSUC.  See: Edwards v. Law Society of Upper Canada2001 SCC 80 (CanLII), [2001] 3 S.C.R.  562; Finney v. Barreau du Québec2004 SCC 36 (CanLII), [2004] 2 S.C.R.  17.

Abuse of Power, politicians

A seminal case involving abuse of power was the Roncarelli v. Duplessis, [1959] S.C.R. 121, which involved a constitutional decision by the Supreme Court of Canada.  In the Roncarelli case, the Supreme Court determined that Maurice Duplessis, who was the Premier of Quebec, misused the power as Premier of Quebec to revoke a liquor licence without good faith and for inappropriate reasons, being the freedom of religion beliefs and stance of the liquor license holder. The facts in Roncarelli can be summed up simply as a malicious effort by Duplessis to use the power of Premier to abuse Roncarelli in retaliation for financial support (bail money) that Roncarelli was providing to members of the Jehovah's Witness that were protesting against Catholicism.

Summary Comment

Those persons who hold high positions of power may cause considerable harm to a person victimized by abuse of such power in addition to considerable harm to the image and reputation of the institution in which the person wields such power.  Accordingly, persons who hold such power should be diligent to retain impartiality and to avoid improperly motivated conduct such as using the power held by position of public office to engage in a personal vendetta by misusing the power of position as a means to cause unjust harm.

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