Freeman-Maloy v. Marsden et al. [Indexed as: Freeman-Maloy v. Marsden]

79 O.R. (3d) 401

[2006] O.J. No. 1228

Docket: C43539

Court of Appeal for Ontario,

Goudge, Sharpe and LaForme JJ.A.

March 31, 2006

Torts -- Misfeasance in public office -- Plaintiff bringing action against President of York University for damages for misfeasance in public office after President suspended him for three years for alleged misconduct -- Not plain and obvious that plaintiff's claim could not succeed on basis that President did not hold public office within meaning of this tort -- Pleadings allege malicious abuse of statutory power by statutory officer -- Not plain and obvious that tort of misfeasance in public office should be restricted to those public officers who are subject to s. 32 of Charter -- Canadian Charter of Rights and Freedoms, s. 32 -- York University Act, 1965, S.O. 1965, c. 135.

The President of York University, pursuant to her "authority over the conduct of students", prohibited the plaintiff student from registering for and attending classes for three years on the basis of his alleged misconduct. York University regulations state that a student is entitled to a hearing by a University Discipline Tribunal before being prohibited from registering for classes on the grounds of alleged misconduct. No hearing was held before the plaintiff was suspended. The plaintiff brought an action against the President and the University pleading, among other causes of action, misfeasance in a public office by the President. On a motion by the defendants to strike all or part of the statement of claim pursuant to rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the parties agreed that the statement of claim should be struck, but that the plaintiff would have leave to file a fresh as amended statement of claim. The one remaining issue before the motion judge was whether it was plain and obvious that the President of York University does not occupy a "public office" within the meaning of the tort of misfeasance in a public office. The motion judge answered that question in the affirmative, holding that the mere fact that a statute passed by the Legislature of Ontario (the York University Act, 1965) provides for the office of President of the University, and accords the President so appointed certain powers in respect of the university community, does not make her a public officer. The motion judge held that the University's relations with its students are clearly one of its core functions, and the core functions of a university are non-governmental. The plaintiff appealed.

Held, the appeal should be allowed.

The tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizens. The underlying purpose of the tort is to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions. The ingredients of the tort are: (1) the defendant must be a public officer; (2) the claim must arise from the exercise of power as a public officer; and (3) the mental element, namely the defendant must have acted with malice or bad faith. It was common ground that the mental element for the tort had been adequately pleaded.

The office of President of York University is clearly a statutory office. It is equally clear that when she suspended the plaintiff, the President was purporting to exercise her statutory power "governing the conduct of students and student [page402] activities". At a minimum, the plaintiff had pleaded the malicious abuse of a statutory power by a statutory officer. It is not plain and obvious that the tort of misfeasance in a public office only applies to those public officers who are subject to s. 32 of the Canadian Charter of Rights and Freedoms. Although the President of York University is not subject to governmental control, she is in other respects subject to the regime of public law. Her decision to discipline the plaintiff was subject to judicial review as a statutory power of decision. While universities are at arm's length for purposes of academic freedom, they operate under a statutory framework, perform functions that are regarded as public in nature, and derive the major part of their funding from the government. Although the tort of misfeasance in a public office has deep roots in the history of the common law, it is constantly evolving. It has not been conclusively established that the degree of governmental control over the actions of the statutory officer required for the Charter to apply is essential for the tort claim to succeed.

APPEAL from the order of Hoy J., 2005 14319 (ON SC), [2005] O.J. No. 1730, 253 D.L.R. (4th) 728 (S.C.J.) striking a claim of misfeasance in a public office.

Ashby v. White (1703), 2 Raym. Ld. 983, 87 E.R. 810, 6 Mod. Rep. 45, 1 Bro. Parl. Cas. 62 (H.L.); Elliott v. Canadian Broadcasting Corp. (1995), 1995 244 (ON CA), 25 O.R. (3d) 302, [1995] O.J. No. 1710, 125 D.L.R. (4th) 534, 62 C.P.R. (3d) 19, 38 C.P.C. (3d) 332 (C.A.) [Leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 393], affg (1993), 1994 10569 (ON SC), 16 O.R. (3d) 677, [1993] O.J. No. 3204, 108 D.L.R. (4th) 385, 52 C.P.R. (3d) 145, (Gen. Div.), supp. reasons [1994] O.J. No. 308, 22 Admin. L.R. (2d) 272, 24 C.P.C. (3d) 143 (Gen. Div.); McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, 2 O.R. (3d) 319n, 45 O.A.C. 1, 76 D.L.R. (4th) 545, 118 N.R. 1, 2 C.R.R. (2d) 1, 91 CLLC 17,004; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 233 D.L.R. (4th) 193, 312 N.R. 305, 2003 SCC 69, 19 C.C.L.T. (3d) 163, 11 Admin. L.R. (4th) 45 (sub nom. Odhavji Estate v. Metropolitan Toronto Police Force); Paul v. Vancouver International Airport Authority, 2000 BCSC 341, [2000] B.C.J. No. 537, 5 B.L.R. (3d) 135 (S.C.); Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, consd Other cases referred to Denchant and Stevens, [2001] A.J. No. 172, 2001 ABCA 39, [2001] 5 W.W.R. 405, 89 Alta. L.R. (3d) 246, 281 A.R. 1 103 A.C.W.S. (3d) 633 (C.A.); First National Properties Ltd. v. Highlands (District), [2001] B.C.J. No. 925, 88 B.C.L.R. (3d) 125, 198 D.L.R. (4th) 443, 17 M.P.L.R. (3d) 80, 9 C.C.L.T. (3d) 34, 2001 BCCA 305 (C.A.), revg 1999 5447 (BC SC), [1999] B.C.J. No. 2246, 178 D.L.R. (4th) 505, 48 C.C.L.T. (2d) 94, 6 M.P.L.R. (3d) 31 (S.C.); Francoeur v. Canada, [1996] F.C.J. No. 306, 195 N.R. 313 (C.A.), affg [1994] F.C.J. No. 695, 78 F.T.R. 109 (T.D.); Freeman-Maloy v. York University, 2004 4349 (ON SCDC), [2004] O.J. No. 3123, 189 O.A.C. 22 (Div. Ct.); Gershman v. Manitoba (Vegetable Producers' Marketing Board), 1976 1093 (MB CA), [1976] M.J. No. 129, 69 D.L.R. (3d) 114, [1976] 4 W.W.R. 406 (C.A.); Hill v. University College of Cape Breton, 1991 4363 (NS SC), [1991] N.S.J. No. 264, 104 N.S.R. (2d) 285, 283 A.P.R. 285 (S.C.); Howard v. York University (1974), 1974 464 (ON SC), 8 O.R. (2d) 175 (Cty. Ct.); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); McGillivray v. Kimber (1915), 1915 608 (SCC), 52 S.C.R. 146, 26 D.L.R. 164; McLaughlin v. Halifax-Dartmouth Bridge Commission, 1993 NSCA 202, [1993] N.S.J. No. 420, 108 D.L.R. (4th) 506, 125 N.S.R. (2d) 288, 18 Admin. L.R. (2d) 198, 52 C.P.R. (3d) 225, 43 A.C.W.S. (3d) 873 (C.A.); Pike v. Council of the Ontario College of Art, 1972 1187 (ON SC), [1972] 3 O.R. 808, 29 D.L.R. (3d) 544 (H.C.J.); Scott v. Governors of University of Toronto (1913), 1913 494 (ON SC), 10 D.L.R. 154 (S.C.); Shuchuk v. Wolfert, [2003] A.J. No. 418, 2003 ABCA 109, [2003] 7 W.W.R. 587, 15 Alta. L.R. (4th) 5, 25 C.C.E.L. (3d) 10, 122 A.C.W.S. (3d) 41 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 195], affg [2001] A.J. No. 1598, 2001 ABQB 937, [2002] 3 W.W.R. 508, 98 Alta. L.R. (3d) 346, 16 C.C.E.L. (3d) 57, 110 A.C.W.S. (3d) 621 (Q.B.) [page403] Statutes referred to Canada Corporations Act, R.S.C. 1970, c. C-32 Canadian Charter of Rights and Freedoms, s. 32 Canadian Opera Company Act, S.O. 1987, c. Pr16 The United Church of Canada Act, S.O. 1925, c. 125 York University Act, 1965, S.O. 1965, c. 135, s. 13 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01(1), 25.11 Authorities referred to Bodner, M."The Odhavji Decision: Old Ghosts and New Confusion in Canadian Courts" (2005), 42 Alta. L.R. 1061 Evans, J.M., H.M. Janisch and D.J. Mullan, Administrative Law, 4th ed. (Toronto: Edmond Montgomery Press, 1995) Sadler, R.J."Intentional Abuse of Public Authority: A Tale of Three Rivers" (2001), 21 Aust. Bar Rev. 151

Peter Rosenthal and Selwyn Pieters, for appellant. Thomas G. Heintzman and Christopher A. Wayland, for respondents.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This appeal concerns the tort of misfeasance in a public office and raises one issue: should allegations in a statement of claim alleging misfeasance in a public office by the President of York University be struck out on the ground that it is "plain and obvious" that the President does not hold public office within the meaning of this tort?

Facts

[2] As this appeal arises from motion to strike the amended amended statement of claim (the "statement of claim"), pursuant to rules 21.01(1)(b) and 25.11 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], the facts pleaded must, for the time being, be assumed to be true. The statement of claim alleges the following facts. The appellant is an Honours political science student at York University. On April 21, 2004, York University President Dr. Lorna Marsden wrote to the appellant, stating that as a result of his alleged misconduct at two campus demonstrations, pursuant to her "authority over the conduct of students", she was prohibiting him from registering for classes and from attending [page404] on campus for three calendar years, effective May 1, 2004. The appellant was allowed to complete the current academic year. York University regulations state that a student is entitled to a hearing by a University Discipline Tribunal before being prohibited from registering for classes on the grounds of alleged misconduct. The appellant was afforded no hearing prior to his suspension.

[3] On May 7, 2004, York University posted on its website an article "From the President" outlining the circumstances of the disciplinary measures imposed against the appellant "[i]n accordance with the powers of the University president in the York University Act and in our regulations . . . ".

[4] The appellant brought a motion for judicial review to quash his suspension from the University. The respondents moved to quash the application for judicial review, stating that a campus disciplinary hearing would be convened to deal with the allegations of misconduct. The respondent's motion to quash the application for judicial review was dismissed and the appellant's cross-motion to stay the disciplinary hearing was granted: Freeman-Maloy v. York University, 2004 4349 (ON SCDC), [2004] O.J. No. 3123, 189 O.A.C. 22 (Div. Ct.). The respondents then vacated the suspension and allowed the appellant to register for classes in the fall of 2004.

[5] The statement of claim asserts claims for general, special, aggravated and punitive damages. In addition to misfeasance in a public office, the causes of action pleaded are: abuse of process, conspiracy to injure, negligence, defamation, breach of academic freedom, breach of fiduciary duty and breach of contract.

Legislation

[6] The York University Act, 1965, S.O. 1965, c. 135, s. 13, provides for the office of President of York University and confers certain powers upon the President:

13(1) There shall be a President of the University who shall be appointed by the Board after consultation with the Senate and who shall hold office during the pleasure of the Board.

(2) The President is Vice-Chancellor and chief executive officer of the University and,

(a) in the absence of the Chancellor or if there is a vacancy in the office of Chancellor, shall perform the functions of the Chancellor;

(b) shall supervise and direct the implementation of the educational policy and general administration of the University, the teaching staff, officers, servants and the students thereof;

(c) has power to formulate and implement regulations governing the conduct of students and student activities; [page405]

(d) has power to recommend to the Board the appointment, promotion and removal of the teaching staff, officers and employees of the University;

(e) has power to recommend to the Board or the Senate the establishment of new faculties, schools, institutes, programmes and projects;

(f) has power to examine all the activities of the University and developments in higher education;

(g) has power to recommend to the Board or the Senate regulations to govern the activities of the faculties, schools, institutes, teaching staff and students;

(h) has power to establish presidential committees to study and to recommend action on matters affecting the University;

(i) has such other powers and duties as from time to time may be conferred upon or assigned to him by the Board.

Proceedings Before the Motion Judge

[7] The respondents moved to strike all or part of the statement of claim pursuant to rules 21.01(1)(b) and 25.11 on the ground that it disclosed no reasonable cause of action or was frivolous, vexatious and an abuse of the process of the court. The parties agreed that the statement of claim would be struck, but that the appellant would have leave to file a fresh as amended statement of claim subject to the following constraints: there would be only two defendants, Dr. Lorna Marsden and York University, and there would be no claim for abuse of process or for conspiracy to injure.

[8] The parties also agreed that there remained one issue to be determined by the motion judge, namely, whether it is "plain and obvious" that Dr. Lorna Marsden, as President of York University, does not occupy a "public office" within the meaning of the tort of misfeasance in a public office.

[9] The motion judge answered that question in the affirmative, relying upon Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, defining the scope and purpose of the tort of misfeasance in a public office; McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, holding that universities are independent of government and not subject to the Canadian Charter of Rights and Freedoms; and Elliot v. Canadian Broadcasting Corp. (1993), 1994 10569 (ON SC), 16 O.R. (3d) 677, [1993] O.J. No. 3204 (Gen. Div.), affd (1995), 1995 244 (ON CA), 25 O.R. (3d) 302, [1995] O.J. No. 1710 (C.A.), leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 393, holding that in its broadcasting function, the C.B.C. could not be sued for misfeasance in a public office. The motion judge concluded [at para. 20]: [page406]

In my view, having regard to the findings by the Supreme Court of Canada in McKinney regarding the character of a university, the application of the reasoning in McKinney in Elliott, the only case before me as to whether or not a person is a public officer for the purpose of the tort of misfeasance in public office, and the purpose of the tort of misfeasance in public office, as very recently set out in Odhavji, it is "plain and obvious" that Dr. Marsden is not a public officer in her capacity as President of York University. The mere fact that a statute passed by the Legislature of Ontario provides for the office of President of the University, to be appointed by the Board of Governors, and accords the President so appointed certain powers in respect of the university community, does not make her a public officer. The University's relations with its students are clearly one of its core functions and McKinney held that the core functions of a university are non-governmental. The government does not have control over how the President regulates a particular student's conduct. The plaintiff is not a member of the public at large; he is a member of the University community, and, as he alleges in his pleadings and as was held by this court in Ciano v. York University, 2000 CarswellOnt 144 [also reported at [2000] O.J. No. 183,], as such he has a contractual relationship with the University. As counsel for Dr. Marsden argued, the Business Corporations Act (Ontario) provides for the existence of the office of directors of a corporation, and accords the directors of a corporation certain powers. One cannot argue that solely as a result thereof, the individual directors become public officers. While I fully appreciate that there is a significant difference in character between an institution such as a university, which receives public funds and engages in an important public function, and a private corporation, counsel for the plaintiff was clear that he relied on the statutory basis for the President's role and not the nature of the university institution.

Analysis

[10] The tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen. As Lord Steyn put it in Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, at p. 1230 W.L.R.: "The rationale of the tort is that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes." The "underlying purpose" of the tort of misfeasance in a public office "is to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions": Odhavji, supra, at para. 30.

[11] In Three Rivers, supra, the House Lords identified the ingredients of the tort as being: (1) the defendant must be a public officer; (2) the claim must arise from the exercise of power as a public officer; and (3) the mental element, namely, the defendant must have acted with malice or bad faith. In Odhavji, at para. 23, [page407] Iacobucci J. described the elements of the tort in similar terms: "First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff."

[12] It is common ground that the mental element for the tort has been adequately pleaded. The appellant alleges that the President intended to injure him and that she knew that she had no authority to suspend him from the University.

[13] The office of President of York University is clearly a statutory office: York University Act, supra, s. 13(1). It seems equally clear that when she suspended the appellant, the President was purporting to exercise her specific statutory power "governing the conduct of students and student activities": s. 13(2)(c). In her letter suspending the appellant, the President referred to her "authority over the conduct of students", and when she explained in the May 7 article to the university community at large the action she had taken, she referred to "the powers of the University president in the York University Act and in our regulations".

[14] Accordingly, at a minimum, the appellant has pleaded the malicious abuse of a statutory power by a statutory officer.

[15] The respondents argue that the essence of this tort is the abuse of power by government officials and that pleading the malicious abuse of a statutory power by a statutory officer is not enough. They say that the very essence of a university is that in the exercise of its core academic functions, it must be autonomous and independent of government: McKinney, supra, at [p. 273 S.C.R.]. Disciplining a student lies at the core of the academic affairs of the university. The respondents argue that as neither the statutory officer nor the statutory powers she exercised were subject to governmental control, the tort of misfeasance in a public office is not made out.

[16] I agree with the respondent and with the motion judge to this extent: if the tort of misfeasance in a public office only applies to those public officers who are subject to s. 32 of the Charter of Rights and Freedoms, it cannot apply in the circumstances pleaded to York University and its President given the autonomous nature of the university.

[17] The more difficult question for me is whether the tort of misfeasance in a public office must be restricted to public officers who are subject to that degree of governmental control. I do not agree that it is plain and obvious that the tort must be restricted in that respect.

[18] A pleading should only be struck under Rule 21 where it is "plain and obvious" that the claim has no chance of success and [page408] novel and unusual claims should be allowed to proceed to trial where they can be tested on a full factual record. "Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ... should the relevant portions of a plaintiff's statement of claim be struck out ...": Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, at para. 33.

[19] It has been noted in the literature that the "public officer" element of the tort has received surprisingly little judicial and academic attention: see Robert J. Sadler"Intentional Abuse of Public Authority: A Tale of Three Rivers" (2001), 21 Aust. Bar Rev. 151 at 171; Michael Bodner"The Odhavji Decision: Old Ghosts and New Confusion in Canadian Courts" (2005), 42 Alta. L.R. 1061 at para. 7. There is no case that squarely deals with the issue of precisely which statutory office holders are subject to being sued for their malicious acts.

[20] The respondents rely on Elliot v. Canadian Broadcasting Corporation, supra, where the plaintiff claimed damages for a broadcast that allegedly defamed the 25,000 surviving airmen who served with the Bomber Command during World War II. One of the torts pleaded was "abuse of power". Montgomery J. held, at p. 694 O.R., that as "[n]o government can tell the CBC how it can broadcast the facts of an historical event", the claim for abuse of power should be struck out. However, the claim in Elliot did not involve an allegation that a specific statutory power had been abused. Indeed, that was one of the reasons offered by Montgomery J., at p. 694 O.R., for dismissing the claim: "The power said to be misused must be an abuse of a statutory power." The abuse of power issue was not the focus of the unsuccessful appeal to this court and I see nothing in this court's judgment in Elliot that determines the issue to be decided in the case at bar.

[21] The respondents also cite Paul v. Vancouver International Airport Authority, 2000 BCSC 341, [2000] B.C.J. No. 537, 5 B.L.R. (3d) 135 (S.C.), dismissing a claim for damages arising from the defendant airport authority's withdrawal of support for a development on airport land. The plaintiff alleged, inter alia, abuse of public office. The trial judge found, at para. 10, that the Airport Authority was incorporated under the Canada Corporations Act, R.S.C. 1970, c. C-32 as "an independent, non-governmental, not-for-profit corporation, with no shareholders". The abuse of public office claim was dismissed, at para. 107, on the ground that the defendant "is not 'a public office' or a 'public body'; it is not a 'statutory actor'". As in Elliot, the issue was not the validity of a claim for the [page409] malicious abuse of a statutory power. I note as well that the judge in that case cited at, para. 104, First National Properties Ltd. v. Highlands (District), 1999 5447 (BC SC), [1999] B.C.J. No. 2246, 178 D.L.R. (4th) 505 (S.C.) and quoted the following formulation of the tort in terms of statutory actors from Francoeur v. Canada, [1994] F.C.J. No. 695, 78 F.T.R. 109 (T.D.), at para. 54:

Such unlawful action may arise either when a statutory actor purposefully exercises a power which they do not possess with the foreseeable result of injury to the plaintiff, or when a statutory actor exercises a discretion or power under a statute with malice, thereby rendering the action unlawful.

[22] In several cases, misfeasance in a public office claims have been allowed against statutory officers who enjoy considerable independence from the direction of government. Three Rivers, supra, involved a claim against officers of the Bank of England. McGillivray v. Kimber (1915), 1915 608 (SCC), 52 S.C.R. 146, 26 D.L.R. 164 involved a claim against a quasi-judicial pilotage authority for the improper revocation of a pilot's licence. Gershman v. Manitoba (Vegetable Producers' Marketing Board), 1976 1093 (MB CA), [1976] M.J. No. 129, 69 D.L.R. (3d) 114 (C.A.) involved a claim against a provincial marketing board. Shuchuk v. Wolfert, 2001 ABQB 937, [2001] A.J. No. 1598, 98 Alta. L.R. (3d) 346 (Q.B.), affd 2003 ABCA 109, [2003] A.J. No. 418, 15 Alta. L.R. (4th) 5 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 195, allowed a claim for misfeasance in a public office to proceed against the Workers' Compensation Board. Dechant v. Stevens, 2001 ABCA 39, [2001] A.J. No. 172, 89 Alta. L.R. (3d) 246 (C.A.) allowed a claim for misfeasance in a public office to proceed against the Law Society of Alberta. The seminal case Ashby v. White (1703), 2 Raym. Ld. 938, 87 E.R. 810 (H.L.) involved a claim against a returning officer. The absence of effective governmental control was one of the reasons for allowing the claim: "To allow this action will make public officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation" (per Lord Holt at p. 956).

[23] The respondents argue that York University is akin to many non-governmental, private institutions that are established by statute, and governed by officers whose powers, duties and responsibilities are derived from their constituting statute. Among the examples mentioned by counsel are The United Church of Canada Act, S.O. 1925, c. 125 and the Canadian Opera Company Act, S.O. 1987, c. Pr16. It is argued that extending the tort of misfeasance in a public office to all statutory office holders would mark a fundamental departure from the purpose of the [page410] tort and would open the door to spurious litigation against churches, opera companies and the like.

[24] I find this floodgate argument unpersuasive. The appellant alleges the malicious abuse of a specific statutory power by an individual who holds a specific statutory office. In my view, it is at least arguable that the claim as pleaded is sufficiently well circumscribed to avoid a floodgate of claims against bodies constituted by statute.

[25] Although the President of York University is not subject to governmental control, she is in other respects subject to the regime of public law. Her decision to discipline the appellant was subject to judicial review as a statutory power of decision. Administrative law, like the tort of misfeasance in a public office, is also concerned with the regulation of government power and the content of the rule of law. As J.M. Evans, H.N. Janisch & David J. Mullan, Administrative Law, 4th ed. (Toronto: Edmond Montgomery Press, 1995) note at p. 12, universities are at arm's length for purposes of academic freedom, but they "operate under a statutory framework, perform functions that are regarded as public in nature, and derive the major part of their funding from government ...". Universities have been denied certain protections from civil liability accorded to "Crown agents" (see Scott v. Governors of University of Toronto (1913), 1913 494 (ON SC), 10 D.L.R. 154 (Ont. S.C.); Pike v. Council of the Ontario College of Art, 1972 1187 (ON SC), [1972] 3 O.R. 808, 29 D.L.R. (3d) 544 (H.C.J.)) and "public authorities" (see Howard v. York University (1974), 1974 464 (ON SC), 8 O.R. (2d) 175 (Cty. Ct.)). However, University presidents have been held, for other purposes, to be "public officers": see Hill v. University College of Cape Breton, 1991 4363 (NS SC), [1991] N.S.J. No. 264, 104 N.S.R. (2d) 285 (S.C.) approved in McLaughlin v. Halifax-Dartmouth Bridge Commission, 1993 NSCA 202, [1993] N.S.J. No. 420, 125 N.S.R. (2d) 288 (C.A.), at para. 29.

[26] Although the tort of misfeasance in a public office has deep roots in the history of the common law, it is constantly evolving: see Odhavji, supra. In the end, I am not persuaded that it has been conclusively established that the degree of governmental control over the actions of the statutory officer required for the Charter to apply is essential for the tort claim to succeed. Of course, that is not to say that the claim will succeed, only that it should be allowed to proceed to trial to be fully considered on the basis of a proper factual record and in the light of the other claims the appellant has asserted.

[27] At its origin, in Ashby v. White, supra, the tort responded to the ubi ius, ibi remedium principle -- where there is a right, there is a remedy. Allowing the claim to proceed would permit the trial judge to consider it in conjunction with the other causes of [page411] action the appellant has pleaded. This will allow the appellant to air all aspects of his complaint and develop a full record to afford the court the opportunity to rationalize the appropriate scope and limits of this tort in relation to the other causes of action advanced by the appellant.

[28] As in Odhavji, at para. 42: "If the facts are taken as pleaded, it is not plain and obvious that the actions for misfeasance in a public office ... must fail. The plaintiffs may well face an uphill battle, but they should not be deprived of the opportunity to prove each of the constituent elements of the tort."

[29] Accordingly, I would allow the appeal, and set aside para. 4 of the order under appeal with costs to the appellant fixed at $12,000 inclusive of disbursements and GST.

Appeal allowed.