The Tort of Public Misfeasance

This edition of the Toronto Injury Lawyer Blog addresses the viability of a civil tort claim against the OPP and/or the Crown arising from a poorly done police investigation into a fatal car crash.

The Tort of Public Misfeasance

What the Tort Requires

The leading case is the Supreme Court of Canada decision in Odhavji Estate v. Woodhouse (2003). That case arose after police officers fatally shot a young man during an attempted arrest. The shooting triggered an investigation by the Special Investigations Unit, and the officers involved were required by statute to cooperate by, among other things, remaining separated, making themselves available for interviews, and producing their notes. The victim’s family alleged that the officers deliberately failed to comply with those obligations and that senior police officials knowingly failed to ensure they did.

The Supreme Court of Canada held that those allegations, if proven, were capable of establishing the tort of misfeasance in public office. The Court explained that public misfeasance is a narrow tort intended to protect citizens from the deliberate misuse of governmental authority. It is not enough to show that a public official made a mistake, exercised poor judgment, or carried out public duties incompetently.

The Court identified two essential elements of the tort.

• First, the public official must deliberately engage in unlawful conduct while exercising public powers or performing public duties. the Court confirmed that “unlawful conduct” can include the deliberate failure to perform a mandatory statutory duty.
• Second, the plaintiff must establish the required mental element. The public official must know that the conduct is unlawful and know that it is likely to harm the plaintiff, or be recklessly indifferent to both the unlawfulness of the conduct and the likelihood of harm.

That distinction is important. Mere negligence, carelessness, poor judgment, or a misunderstanding in the course of police conduct is not enough.

How Courts Have Applied Odhavji

Subsequent decisions demonstrate that courts have applied Odhavji (2003) cautiously. The mental element remains the main difficulty, and courts are reluctant to let allegations of negligence be reframed as bad faith without concrete supporting evidence.

Manoharan v. Taylor (2025) illustrates the kind of allegations that may satisfy that requirement. The plaintiffs alleged that an OPP officer investigating their eligibility for cannabis retail licences approached the investigation with the predetermined intention of ensuring that the licences would be refused. Rather than conducting an independent investigation, the officer allegedly repeated serious organized-crime allegations supplied by another officer without attempting to verify them, despite the absence of corroborating evidence. Those allegations later unravelled before the Licence Appeal Tribunal, which found in the plaintiffs’ favour.

That mattered because the plaintiffs were not simply alleging that the investigation was wrong. They alleged deliberate investigative misconduct: that the investigator intentionally relied on allegations he knew were unverified, ignored contrary information, and used public authority to achieve a predetermined outcome.

Courts have also recognized that plaintiffs will rarely have direct evidence of a public official’s state of mind. In Ray v. Ontario (2025), the court accepted that exceptionally reckless conduct may, in rare circumstances, permit an inference of bad faith. However, the threshold remains high. The conduct must be so inexplicable or so fundamentally inconsistent with the governing statutory scheme that deliberate unlawfulness or reckless indifference becomes a reasonable inference. Ordinary negligence—even serious negligence—does not meet that standard.

Courts have also rejected attempts to plead public misfeasance based on speculation that evidence of bad faith may emerge later during discovery. In Yadeta v. The Regional Municipality of Peel Police Services Board (2023), the plaintiff alleged that police and Crown officials acted maliciously but largely relied on the hope that disclosure and discoveries would eventually uncover supporting evidence. The court rejected that approach, emphasizing that plaintiffs must plead concrete material facts capable of supporting every element of the tort before discovery begins. Similarly, in Aboagye v. Ontario (2025), the court emphasized that a plaintiff cannot avoid the requirements applicable to bad-faith claims by describing the allegations differently. If, in substance, the claim alleges deliberate abuse of public authority, the strict pleading requirements governing public misfeasance will apply.

Collectively, these cases reinforce the narrow scope of the tort recognized in Odhavji Estate v. Woodhouse (2003). Public misfeasance is reserved for deliberate abuse of governmental authority.

The Crown Liability and Proceedings Act, 2019: A Significant Hurdle to Public Misfeasance

Even if the elements of public misfeasance could be pleaded, there is another major obstacle that does not arise in an ordinary negligence claim. Section 17 of the Crown Liability and Proceedings Act, 2019 (“CLPA”) requires plaintiffs to obtain leave (permission) from the Superior Court before pursuing claims against the Crown or Crown employees based on misfeasance in public office or other torts founded on bad faith. Until leave is granted, the proceeding is automatically stayed. The purpose of this requirement is to shield the Crown from unmeritorious allegations.

The Leave Test

Section 17(7) of the CLPA provides that leave will only be granted if the court is satisfied that:

1. the proceeding is being brought in good faith; and
2. there is a reasonable possibility that the claim requiring leave will ultimately be resolved in the plaintiff’s favour.

The Ontario Court of Appeal explained in Poorkid Investments Inc. v. Ontario (Solicitor General) (2023) that this is intended to be a meaningful screening process, not simply a procedural formality. Plaintiffs must do more than identify an arguable legal theory—they must present a plausible claim supported by evidence capable of demonstrating a realistic possibility of success. More recently, Wei v. Ontario (2026) confirmed that, although a leave motion is not intended to become a “mini-trial,” the court must still undertake a meaningful assessment of both the legal basis for the claim and the evidence supporting it.

One of the most significant practical consequences of the CLPA is that plaintiffs must satisfy this test before the ordinary discovery process begins.

Plaintiffs must file affidavit evidence setting out the material facts on which they rely, together with an affidavit of documents identifying all relevant documents currently in their possession, control, or power. The Crown may respond with its own evidence and cross-examine the plaintiffs and their witnesses, but plaintiffs cannot examine Crown witnesses before the leave motion is heard.

This creates a particular challenge in public misfeasance claims because the evidence needed to establish bad faith—such as internal communications, investigative notes, or supervisory discussions—is often in the Crown’s possession. Plaintiffs cannot satisfy the leave requirement by arguing that evidence of bad faith will likely emerge during discovery. The evidentiary foundation must already exist before leave will be granted.

From a practical perspective, the leave requirement makes public misfeasance claims significantly more onerous, time-consuming, and procedurally complex than ordinary negligence claims. The parties must first prepare for a contested motion, which will take notable time to schedule due to court backlog. Even if leave is granted, the litigation proceeds in the ordinary course: documentary production, discoveries, expert evidence, and trial remain to come, and the Crown may still bring a motion to strike or a motion for summary judgment. Surviving the leave stage does not mean the claim will ultimately succeed or even make it to trial.

The Tort of Ordinary Negligence

Unlike public misfeasance, an ordinary negligence claim does not require proof that public officials deliberately misused their authority or knowingly acted unlawfully.

Instead, the claim asks four familiar questions:

1. Did the OPP owe the Plaintiff a duty of care?
2. If so, did the OPP breach the applicable standard of care?
3. Did that breach cause the losses being claimed?
4. If all of those questions are answered “yes,” what damages are recoverable?

Although those questions appear straightforward, the first—whether the OPP owed a private duty of care—is the most significant obstacle in this case. If a court concludes that no such duty exists, the negligence claim ends there, regardless of whether the investigation could have been conducted differently.

Duty of Care

The first question in any negligence claim is whether the defendant owed the plaintiff a duty of care: a legal obligation to take reasonable care to avoid causing foreseeable harm. That principle becomes more complicated when the defendant is a public authority such as the OPP.

Police officers owe duties to the public. They investigate crimes, enforce the law, preserve public safety, etc. A negligence claim requires something more: a private duty of care, meaning a legal obligation owed specifically to a plaintiff rather than to the public generally. Courts have been reluctant to recognize private duties of care arising out of police investigations. Otherwise, every disappointed complainant, suspect, victim, witness, or family member could potentially sue over investigative decisions, which could interfere with the ability of police to investigate independently and make difficult discretionary decisions in the public interest.

Public Duty vs. Private Duty

A key decision is Wellington v. Ontario (2011). That case arose after a young man was fatally shot by a police officer. The SIU investigated whether criminal charges should be laid against the officer. The deceased’s family later sued the Province, alleging that the SIU negligently conducted its investigation and that a proper investigation would likely have resulted in criminal charges.

The Ontario Court of Appeal held that the SIU did not owe the family a private duty of care. The Court accepted that the family had an obvious personal interest in the outcome, but emphasized that the SIU’s statutory role was to investigate allegations of criminal misconduct independently and in the public interest. Its responsibility was not to advance the interests of victims or their families, but to determine whether charges were warranted based on the evidence.

That reasoning creates a significant hurdle for Plaintiffs in these cases.

Can Statutory Duties Create the Necessary Proximity?

Proximity is central to this issue. Even if it is foreseeable that a poor police investigation may harm a Plaintiff’s civil case, courts also ask whether the relationship between the parties is sufficiently close that it is fair and just to impose a private legal obligation. One way proximity may arise is where legislation imposes specific obligations directed at a particular class of persons or a particular type of investigation.

Traversy v. Smith (2007) also arose from an OPP collision investigation. The plaintiffs alleged that shortcomings in the investigation impaired their subsequent civil action. The court refused to strike the negligence claim because the pleadings relied on provisions of the Highway Traffic Act requiring officers investigating reportable collisions to gather specified information and prepare written collision reports. Those statutory duties arguably created sufficient proximity that the issue should be decided on a full factual record rather than at the pleadings stage.

The recent decision in Delfin v. CAA Insurance (2025) illustrates both the potential and the limits of that argument. The plaintiffs alleged that shortcomings in an OPP collision investigation prevented them from identifying the responsible driver and pursuing a civil claim. The court rejected a broad duty requiring police to conduct competent investigations for the benefit of future civil litigants, but distinguished claims based on specific statutory or regulatory duties governing how investigations must be carried out.

Breach of the Standard of Care

Even if a court concludes that the OPP owed a Plaintiff a private duty of care, the Plaintiff would still need to prove that it breached the applicable standard of care. The question is not whether the OPP reached the wrong conclusion, or whether the investigation could have been conducted differently. Police officers, like other professionals, are expected to exercise reasonable judgment, and the law allows room for reasonable errors. The issue is whether the investigation fell outside the range of what a reasonably competent collision investigation required in the circumstances.

Answering that question would require expert evidence regarding accepted police investigative practices. Specific statutory duties, regulations, or internal OPP investigative procedures would also be highly relevant.

Causation

If duty of care and breach can be established, the Plaintiffs would still need to prove that the alleged negligence damages. This is called causation.

Each link in that chain requires evidence. It is not enough to show that a better investigation might have produced a different result. The Plaintiffs would need to show that on a balance of probabilities, it would have. Expert evidence would also be required on this causation part of the case.