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ABUSE OF PUBLIC OFFICE - Elements of tort

Monday, November 23, 2020 @ 9:14 AM  


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Appeal by the plaintiffs from the summary judgment dismissing their claims against the Government and 13 Crown officers and employees for breach of contract, misfeasance in public office and spoliation of evidence. In 2012, the Government entered into a memorandum of understanding (MOU) with the plaintiff 7645686 Canada Inc. (TBT) for the purpose of facilitating negotiations, for a 60-day term, of an agreement that would provide for TBT to establish a financial services centre in the province. The plaintiffs alleged the Government breached the exclusivity and confidentiality provisions of the MOU by approaching competitors and recruiting them for the same services. They further alleged misfeasance in public office against public officers for wrongfully using their offices to undermine the plaintiffs’ interests protected by the MOU and by initiating a securities investigation against the plaintiffs. They alleged Government officials intentionally destroyed e-mail accounts. On appeal, the plaintiffs applied to adduce fresh evidence consisting of 107 documents obtained following a FOIPPA request.

HELD: Appeal allowed in part. Motion to adduce fresh evidence dismissed. All the documents could have been adduced at trial by counsel had he exercised due diligence. The summary judgment dismissing the plaintiffs’ claims against all 13 individual defendants was upheld. The motions judge correctly found that none of the elements of spoliation was borne out by the evidence. There was no reviewable error in the motions judge’s finding that none of the elements of deliberate unlawful conduct, awareness the conduct was unlawful and likely to injure, malice or knowledge, and causation of injuries were made out in relation to the plaintiffs’ misfeasance in public office claim. The motions judge correctly found that the plaintiff, not being privy to the MOU, could not maintain an action for breach of contract. The motions judge erred in dismissing TBT’s claim for breach of contract against the Government. The motions judge erred by interpreting the MOU term “financial services centre” without consideration of the surrounding factual matrix and by instead inappropriately resorting to the contra proferentem rule. A sustainable definition of the TBT business interest protected by the exclusivity provision of the MOU was a necessary foundation to an informed determination of whether the Government breached the MOU. The conclusion that there was no genuine issue for trial on the breach of contract claim was not sustainable. The pleadings, factum and oral submissions of counsel for the appellants were replete with inflammatory language, baseless allegations of dishonesty, scandalous accusations, contemptuous comments, and false conclusions against the respondents and the motions judge. Costs of the appeal were awarded to the defendants Scales, Dowling, Dow and Cutcliffe on a substantial indemnity basis. The Government was awarded one-half of its partial indemnity costs, fixed at $22,000, to emphasize the disapproval of the appellants’ unwarranted attack.

Capital Markets Technologies, Inc. v. Prince Edward Island, [2020] P.E.I.J. No. 41, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., October 28, 2020. Digest No. TLD-November232020001