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CROWN - Provincial and territorial legislatures - Capacity of Crown to sue or be sued

Friday, May 11, 2018 @ 8:38 AM  

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Appeal by electricity ratepayers from the dismissal of their action against the Premier of Ontario and several Ministers arising from the sale of Hydro One. The ratepayers were required to pay debt retirement charges to the Ontario Electricity Financial Corporation. Their action was based on the tort of misfeasance of public office. They alleged that the Premier and Ministers acted in bad faith in connection with the privatization plan, in particular to reward past donors and to obtain further donations to the Ontario Liberal Party. The judge struck the claim because it was not justiciable. The judge considered the impugned decision a matter of core policy, immune from suit because it was not demonstrated to have been made in bad faith.

HELD: Appeal dismissed. The judge was entitled to find that the pleadings did not support a cause of action in misfeasance of public office. It was important to ensure that this tort was adequately pleaded because matters of core policy were supposed to be immune from suit, absent rare cases of irrationality or bad faith. The judge did not reject the pleadings because the ratepayers objected to the policy being pursued, but instead because they were raising the sort of objections to which the immunity was intended to apply.

Canadian Union of Public Employees v. Ontario (Premier), [2018] O.J. No. 1804, Ontario Court of Appeal, J.L. MacFarland, G. Huscroft and I.V.B. Nordheimer JJ.A., March 27, 2018. Digest No. TLD-May72018009