CITATION: Ontario Racing Commission v. O'Dwyer, 2008 ONCA 446
DATE: 20080606
DOCKET: C46275
COURT OF APPEAL FOR ONTARIO
WEILER, ROULEAU JJ.A. and PARDU J. (ad hoc)
BETWEEN:
ONTARIO RACING COMMISSION
Defendant (Appellant)
and
THOMAS O’DWYER
Plaintiff (Respondent)
Brendan Van Niejenhuis for the appellant
Daniel Mayo for the respondent
Heard: January 29, 2008
On appeal from the judgment of Justice Colin D. McKinnon of the Superior Court of Justice dated October 27, 2006 with reasons reported at (2006), 152 A.C.W.S. (3d) 761.
ROULEAU J.A.:
INTRODUCTION
[1] The Ontario Racing Commission appeals from a finding of liability for the torts of misfeasance in public office, inducing breach of contract and intentional interference with economic relations. The liability arose from a telephone call made by one of its officials to the Rideau-Carlton Raceway where the respondent had been employed. The official advised that the respondent would not be approved as a starter for the 2003 season. As a result of the telephone call, the respondent was not rehired by the raceway and suffered damages. The trial judge found that the telephone call constituted an “intentional illegal act” sufficient to make out the torts.
[2] For the reasons that follow, I would dismiss the appeal. In respect of the tort of misfeasance in public office, while I am of the view that the official’s phone call did not constitute an “intentional illegal act”, I find that the appellant’s conduct, considered as a whole, satisfies the essential requirements of the tort. The Commission effectively frustrated all efforts by the respondent to have the decision to refuse his approval reviewed, as was his statutory right. This conduct, considered together with the official’s phone call, was done with reckless indifference as to its legality or its probable consequences to the respondent and was contrary to certain provisions of the Racing Commission Act, 2000, S.O. 2000, c. 20 (the Act).
[3] I find that the trial judge erred in imposing liability for the torts of inducing breach of contract and interference with economic relations. However, this finding does not ultimately interfere with the trial judge’s damage award, which, as I will explain, applies with equal force on the basis of the finding of liability for the tort of misfeasance in public office.
FACTS
[4] The respondent has been involved in the horse racing industry since 1977, including seven years spent as a starter for the Rideau-Carleton Raceway in Ottawa. He has a grade seven education and, as found by the trial judge, is ill-suited to any other occupation besides Standardbred horseracing.
[5] The appellant, the Ontario Racing Commission (the Commission), operates in accordance with a regulatory scheme established pursuant to the Racing Commission Act, 2000. The Commission is responsible for governing, directing, controlling and regulating horseracing in any and all of its forms throughout Ontario: Racing Commission Act, 2000, s. 7(a).
[6] In accordance with the regulatory scheme, each year, four weeks prior to the beginning of the racing season, race tracks must apply for and obtain the approval of the director of racing for those persons whom they wish to employ as racing officials. Racing Commission Act, 2000, s. 7(h).
[7] On February 28, 2003, Bill Fines, the Ontario Racing Commission’s Supervisor of Standardbred Racing, received a report from a Commission investigator, citing a number of allegations of misconduct against the respondent. The most significant allegation was that the respondent maintained a hidden ownership interest and covert training responsibility for a horse owned by his step-daughter. The report included audio-taped interviews conducted with the respondent by a Commission investigator on February 24, 2003, in which the respondent denied the allegations.
[8] In early March 2003, Mr. Fines telephoned Ron Barr, the general manager of the Rideau-Carleton Raceway. By this time, the raceway was two weeks late in submitting its 2003 application of approval for officials for the upcoming season. In this phone call, Mr. Fines told Mr. Barr that the respondent “would not be approved” as a starter for the upcoming season if his name was included on the application. Mr. Barr was told that he was “required to get somebody else” for approval.
[9] Mr. Barr perceived the instruction from Mr. Fines as a “directive” or “a mandate from the Racing Commission”. He therefore excluded the respondent from the list of officials for approval when that list was submitted to the Commission.
[10] Mr. Barr subsequently informed the respondent that the Commission had advised him that he would not be approved and that, as a result, he would not be able to re-hire him for the new season. He informed the respondent by letter that he had the “intention to re-hire” him for the new season but that:
…as a result of a directive from the Ontario Racing Commission that instructed Rideau Carleton Raceway they would not approve Mr. O’Dwyer for the position, we were forced to seek the assistance of a new Starter. [Emphasis added.]
[11] After being advised of the Commission’s “directive”, the respondent telephoned Mr. Fines and explained that the horse in question was owned by his step-daughter. He later faxed Mr. Fines the bill of sale for the horse, proof of ownership of the horse by his step-daughter and other documents supporting his position that he was not the owner. The Commission did not provide the respondent with a response to his apparent efforts to challenge the Commission’s decision to refuse his approval.
[12] The Commission’s lack of response to the respondent’s inquiries continued for months until the respondent hired a lawyer in December 2003, who made further inquiries of the Commission. Although the correspondence from the respondent’s solicitor did, at times, confuse the licensing of the respondent with the approval of the respondent as a starter, the purpose of the complaint is nonetheless clear. The respondent wanted Mr. Fines’ decision reversed. He wanted to be approved as a starter for the Rideau-Carlton Raceway’s 2003 season.
[13] In correspondence with the respondent’s counsel, the Commission’s senior legal counsel maintained that no decision had been made respecting the respondent’s status as a starter. Instead, Commission counsel communicated that the Commission was not, at that time, inclined to approve the respondent should the Rideau-Carlton Raceway propose him as a starter.
[14] The respondent’s solicitor then sought to obtain the Commission’s reasons for refusing to consider the respondent’s request to be approved as a starter. The Commission did not provide reasons, maintaining that no “decision” had been made as no raceway operator had requested that the respondent be approved as a starter.
[15] Throughout this period of correspondence, the respondent was prohibited from returning to his employment at the raceway. Finally, in April 2005, likely out of frustration from the dismissive position adopted by the Commission, the respondent issued his Superior Court action alleging liability for the torts of misfeasance in public office and intentional interference with economic relations.[^1]
TRIAL DECISION
[16] After reviewing the audio-taped interviews conducted in relation to the February 2003 investigation, the trial judge concluded that “there was no case against Tom O’Dwyer”, and that the evidence supporting the allegations of the hidden ownership of the horse was “woefully lacking”. He further determined that, because no steps were ever taken against the respondent and others allegedly involved, the Commission members who received the investigation report must have reached the same conclusion.
[17] The trial judge rejected the Commission’s submission that the action was subject to a limitation period under the Public Authorities Protection Act, R.S.O. 1990, c. P.38. In this respect, he determined that Mr. Fines’ telephone call to Mr. Barr constituted a “private act” affecting only the respondent. The trial judge found additional support for this conclusion by reference to the misconduct of the Commission, noting that:
In the final analysis, it would be shameful to impose a limitation period against Tom O’Dwyer given the duplicitous conduct on the part of the Ontario Racing Commission. He was essentially left to hang out and dry.
[18] He further determined that, even if Mr. Fines’ call could be characterized as a “public act”, the limitation period did not begin to run until the respondent’s solicitor received the letter from the Commission July 7, 2004, which stated that no decision respecting approval of the respondent had been made. By January 1, 2004, a new two year limitation period was in effect pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, and the respondent issued his claim within this time limit.
[19] The trial judge went on to find that the respondent was not barred from suing in the Superior Court of Justice simply because remedies were available under the Racing Commission Act, 2002. He reviewed s. 11(7) of the Act, which provides, in part, as follows:
…a person who considers oneself aggrieved by a decision of a person to whom the Commission has delegated a power under subsection (3)…is entitled to a hearing by the Commission…
He determined that this provision did not have application because no decision had been made by “a person to whom the Commission has delegated power under subsection (3)”. He further determined that even if the respondent could compel a hearing pursuant to s. 11(7), he was not foreclosed from pursuing a Superior Court action for damages since the Commission’s powers do not extend to the authority to order payment of damages.
[20] In assessing the tort of misfeasance in public office, the trial judge reviewed the essential elements of the tort as described in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at paras. 22-28, and concluded that all required elements had been satisfied on the facts of this case. In reaching this conclusion, he noted the following at para. 55:
On the facts of this case I conclude that Bill Fines has … acted with knowledge that he had no power to do the act complained of and that the act was likely to injure Tom O'Dwyer. …[H]e committed an intentional illegal act by acting with reckless indifference or willful blindness of his lack of statutory authority to make the telephone call that he did and that he had actual knowledge that harm would result or he was recklessly indifferent or willfully blind to the harm which resulted. There was no statutory authority for his preemptive conduct. It effectively precluded Tom O'Dwyer from the right to a hearing. It was patently obvious that his telephone call would result in Tom O'Dwyer's loss of employment. Mr. Fines acted as prosecutor, judge, jury and executioner in relation to Tom O'Dwyer. His conduct exhibited a stunning insensitivity to Tom O'Dwyer's rights.
[21] Having found that Mr. Fines committed an intentional illegal act, the trial judge went on to apply a similar analysis and find that Mr. Fines’ actions also made out the torts of inducing breach of contract and intentional interference with economic relations.
ISSUES
[22] The issues relevant to this appeal are :
Did the trial judge err in finding that all requisite elements of the tort of misfeasance in public office have been established?
Was there sufficient evidence of an enforceable contract between the respondent and the raceway as required to make out the tort of inducing breach of contract?
Was there “wrongful interference” with the raceway that was intended to injure the respondent as required to make out the tort of intentional interference with economic relations?
Did the trial judge err in concluding that the claim was not barred by a statutory limitation period?
ANALYSIS
1. Misfeasance in public office
[23] The appellant’s submission that the elements required to make out the tort of misfeasance in public office were not established is premised on three main arguments:
The telephone call was not an “illegal act”. The governing legislation provides that a starter must be approved by the Commission and permits communications between the raceway and the regulator about regulatory matters. The trial judge’s decision threatens the ability of the regulator to effectively govern the industry by labelling informal communications about pending regulatory applications as “unlawful”.
The finding that the call deprived the respondent of a right to a hearing was based on the licensing provisions of the Act, which are irrelevant to and independent of the administrative approval process in issue here. Since a decision to revoke the respondent’s license was never made, the respondent was never entitled to a hearing in accordance with the licensing provisions of the Act.
The requisite mental elements to make out the tort of misfeasance in public office were not established. The trial judge’s conclusion that Mr. Fines “acted with knowledge that he had no power to do the act complained of and that the act was likely to injure Tom O’Dwyer” was an inference improperly drawn from his misunderstanding of the regulatory regime.
[24] I agree with the appellant’s submission that, in his legal analysis, the trial judge incorrectly confused the Commission’s licensing and administrative approval procedures. In my view, however, all of the necessary elements for the tort of misfeasance in public office are nonetheless made out when the correct legal standards are applied to the findings of fact made by the trial judge. In reaching this conclusion, I have adopted an approach distinct from that of the trial judge since I have determined that the official’s telephone call did not constitute an “intentional illegal act”.
The telephone call did not constitute an “intentional illegal act”
[25] Horseracing is a highly regulated sport. Virtually every aspect, from ownership of the horses to carrying out the races is subject to governing legislation and rules.[^2] The Racing Commission Act, 2000, and the rules define the role of the Commission and provide it with a wide array of administrative powers and broad jurisdiction to regulate the horse racing industry: Ontario Harness Horse Assn. v. Ontario (Racing Commission) (2002), 2002 CanLII 41981 (ON CA), 62 O.R. (3d) 44 at para. 38 (C.A.). The Commission also maintains the authority to delegate these broader powers to members of its Administration, such as Mr. Fines, as the Supervisor of Standardbred Racing. Section 11(3)2 provides:
In its rules, the Commission may delegate to stewards, judges, veterinarians, race track officials, racing association officials, licensing agents or officers of the Commission any of the following powers that the Commission considers expedient:
- The power to enforce the carrying out of this Act, the regulations, the rules and all requirements of the Commission made under this Act.
[26] The Commission has in fact delegated such authority to Mr. Fines through its Rules of Standardbred Racing, which involves duties such as “the supervision of all Commission and Association officials and employees in the performance of their duties”: rule 4.02(iii).
[27] Despite the detailed rules, delegated officials may still be required to act in circumstances not specifically contemplated by the governing statute or rules. In the present case, Mr. Fines was faced with one of these unforeseen scenarios. He had just received an investigation report that raised concerns respecting the respondent, and this report, in his judgment, justified refusing to approve the respondent as a starter. Mr. Fines was aware that the respondent had been a starter at the Rideau-Carlton Raceway for the previous season. Mr. Fines was also aware that the raceway was two weeks late in submitting its list of officials and, should its list of officials not be approved and in place within the ensuing two weeks, it was at risk of not being able to start its racing season as planned.
[28] In the circumstances, Mr. Fines felt justified in calling Mr. Barr because he wanted to ensure that the start of the Rideau-Carlton Raceway’s racing season not be delayed. He also wanted to pre-empt a possible problem by informing Mr. Barr of his concerns should the respondent have been proposed as a starter. He judged it important that Mr. Barr be made aware of these concerns so that Mr. Barr could ensure that another starter would be available for the beginning of the season.
[29] Although Mr. Fines’ authority to make the call is not specifically provided for in the governing legislation or the rules, it did not, in my view, constitute an “intentional illegal act” within the particular circumstances as described. Nothing in the records suggests that Mr. Fines was intentionally committing an act he knew to be illegal. The call was in his view, pre-empting a problem, and came within the broad scope of his duties provided within the governing statutory scheme.
[30] My conclusion that Mr. Fines’ telephone call did not constitute an “illegal act” does not, however, end the analysis of misfeasance in public office.
Statutory obligations of the Commission
[31] In order to ascertain whether the Commission engaged in the unlawful conduct required to make out the tort, an appreciation of the nature of the Commission’s statutory obligations is necessary.
[32] Broad powers and discretion are given to the Commission by the Racing Commission Act, 2000. As noted, this includes the authority to delegate specific powers. The exercise of such powers by these delegated officials has the potential to directly and significantly impact the ability of those working in the sport to earn a livelihood. In recognition of this, the legislation seeks to ensure that the powers and discretion are exercised fairly and that persons adversely affected by a decision, whether made by the Commission or by a delegated authority, are entitled to due process and a fair hearing by the Commission. Two specific provisions of the Act bear out this function.
[33] First, s. 6 of the Ontario Racing Commission Act, 2000 sets out in broad terms, the duty of the Commission as follows:
The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.
[34] Second, s. 11(7) sets out the procedure applicable in respect of decision making powers of the Commission that have been delegated:
…a person who considers oneself aggrieved by a decision of a person to whom the Commission has delegated a power under subsection (3) or by a decision resulting from a hearing held pursuant to a delegation under subsection (4), is entitled to a hearing by the Commission, at which the Commission may exercise its powers and duties under section 7 as if it had not delegated them. [Emphasis added.]
[35] The concern that arises here then, is whether the “directive” given by Mr. Fines to the effect that the respondent would not be approved as a starter constitutes a “decision” that falls within the ambit of s. 11(7). In my view, a decision was made by Mr. Fines such that s. 11(7) applied, which entitled the respondent to the right to a hearing before the Commission to challenge that decision.
[36] What constitutes a “decision” for the purposes of s. 11(7) is not defined in the Act. Absent a definition, I would adopt the view expressed by MaCaulay and Sprague in Practice and Procedure before Administrative Tribunals, vol. 3, looseleaf, (Toronto: Thomson Carswell, 1988) at p. 22-54 that, “[i]n the absence of a legislative provision specifying the form decisions must take there is no required format for decisions” and further, “[i]t is what a thing does that makes it a decision, not how it is formatted or what it is called.”
[37] What Mr. Fines did in his call to Mr. Barr was to “decide” that the respondent would not be approved as the raceway’s starter for the coming season. This was a decision that he was authorized to make pursuant to the Act, the enforcement of which had been delegated to him by virtue of s. 11(3)2 and the Rules of Standardbred Racing.
[38] I view this decision, therefore, as falling squarely within the kind of delegated decision contemplated by s. 11(7). I therefore disagree with the trial judge’s conclusion that the respondent “was not entitled to ask for a hearing under s. 11(7).”
Satisfying the elements of misfeasance in public office
[39] Having determined that the respondent was entitled to a hearing in accordance with s. 11(7) to challenge the decision, I must now determine whether the Commission’s failure to provide the hearing considered together with Mr. Fines’ actions falls within the type of misconduct required to make out the tort of misfeasance in public office.
(a) The defining elements of the tort
[40] In accordance with the Supreme Court decision in Odhavji Estate v. Woodhouse at para. 22, the tort of misfeasance in public office can arise in one of two ways. It may arise by conduct that is “specifically intended to injure a person or class of persons”, referred to as “Category A”. Alternatively, it may arise where a public officer acts “with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff”, referred to as “Category B”. In either case, the essential elements that must be established include: (1) deliberate and unlawful conduct in the exercise of public functions, and (2) awareness that the conduct is unlawful and likely to injure the plaintiff: Odhavji at para. 23. The distinguishing features between the two categories of the tort were described by Iacobucci J. in Odhavji at para. 23 in this way:
What distinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff.
[41] In respect of the nature of the misconduct, the focus of the inquiry is on whether the alleged misconduct is deliberate and unlawful. As noted in Odhavji at para. 24, “[t]his may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose.” Importantly, the defendant must have been aware that his conduct was unlawful.
[42] The state of mind required to establish liability depends on which category the tort falls into. Category A involves “targeted malice”, whereas the requirement of intentional misconduct for Category B may be satisfied by “reckless indifference as to the legality of the act or its probable consequences.”[^3] As established in Odhavji at para. 38, “[a]t the very least…the defendant must have been subjectively reckless or wilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct”.
[43] The requirement that the tort be committed by a “public officer” was addressed in the seminal case of Three Rivers D.C. v. Bank of England (No. 3), [2000] 2 W.L.R. 1220, in which the House of Lords commented that public office is to be defined in “a relatively wide sense”. The decision in Jones v. Swansea City Council, [1990] 1 W.L.R. 1453 (C.A.), was cited for the purpose of demonstrating that a collective public body such as a council can be liable for the tort. The decision in Three Rivers was largely adopted into Canadian law through the Supreme Court decision in Odhavji Estate v. Woodhouse.
[44] Finally, the plaintiff must prove that the tortious conduct was the legal cause of his injuries and that the injuries suffered are compensable in tort.
(b) Application to the facts of this case
[45] There is no evidence here that the appellant specifically intended to injure the respondent through its conduct as required under Category A of the tort. Thus, the only manner in which this tort may be satisfied is through Category B, namely, by evidence that the appellant acted with knowledge that it had no power to do the act complained of and that the act is likely to injure the respondent.
[46] The first constituent element of the tort, namely, deliberate and unlawful conduct in the exercise of public functions, is established by virtue of the conduct of Mr. Fines in having framed the decision as an expression of concern to the raceway, and the subsequent conduct of the Commission in refusing to acknowledge the existence of such a decision and provide the respondent with his statutory entitlement to a hearing. This position was maintained for months despite clear efforts by the respondent to have the decision of Mr. Fines challenged and reviewed by contacting Mr. Fines directly to explain his position and forwarding various documents to the Commission to support his assertions. Considered together, this conduct constitutes an improper exercise of the Commission’s statutory authority and satisfies the requirement of unlawful conduct.
[47] As a person seriously affected by a decision of an officer of the Commission, the respondent was entitled, in accordance with s. 11(7), to have the matter considered by the Commission at a hearing. Instead, the Commission engaged in unhelpful and misleading correspondence in response to the respondent’s efforts to have the decision reviewed. As a result, the respondent was left in an impossible situation. He was barred from the position he had had for several years, but was left with no avenue to seek relief.
[48] From such misconduct, it is reasonable to conclude that Commission officials were recklessly indifferent or wilfully blind as to the illegality of refusing to acknowledge the existence of the decision and deprive the respondent of his statutory right to challenge the decision under s. 11(7). These circumstances satisfy the requirement of deliberate and unlawful conduct in the exercise of public functions under the first element of the tort.
[49] This conclusion is strengthened by the fact that this misconduct fails to comply with the Commission’s statutory obligation under s. 6 of the Act, to exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.
[50] Insofar as the second element is concerned, the trial judge’s findings of fact provide assistance in assessing the subjective state of mind of the Commission officials involved in the respondent’s case, and specifically, whether they were aware that the conduct was unlawful and that it was likely to harm the respondent.
[51] The trial judge found that the Commission was “playing games” with the respondent; engaging in “duplicitous conduct”; engaging in “unhelpful and misleading correspondence”; and leaving the respondent to essentially “hang out to dry”. These findings were directed towards the conduct of those officials involved in the respondent’s case, namely, Mr. Fines and Commission counsel. Such findings establish that the Commission officials involved in the respondent’s case acted deliberately and, at a minimum, were subjectively reckless or wilfully blind as to the legality of their actions and to the harm which resulted from their misconduct.
[52] Lastly, the tortious conduct of the appellant impaired the respondent’s employment opportunities and, as determined by the trial judge, subjected the respondent to “significant social embarrassment.” Such injuries are compensable by damages in tort law.
[53] In my view, therefore, although the trial judge erred in the reasoning he adopted, he nonetheless reached the correct result on this issue, finding that all requisite elements of the tort had been established.
2. Inducing breach of contract
[54] The trial judge concluded that by calling Mr. Barr, Mr. Fines had induced the Rideau-Carlton Raceway to breach its contract with the respondent. In my view, the tort of inducing a breach of contract has not been made out on the facts of this case. One of the essential elements necessary to make out this tort is that the plaintiff has a valid and enforceable contract with a third party: Drouillard v. Cogeco Cable Inc. (2007), 2007 ONCA 322, 86 O.R. (3d) 431 at para. 26 (C.A.).
[55] As found by the trial judge, the Rideau-Carlton Raceway had not yet hired the respondent. The raceway was simply contemplating rehiring the respondent for the coming season. Thus, there was no “valid and enforceable contract” in existence that could result in the application of this tort.
3. Intentional interference with economic relations
[56] As noted, the respondent originally pleaded both misfeasance in public office and intentional interference with economic relations. The trial judge found the requirements for each of these torts were established on the facts of this case. In reaching this conclusion, the trial judge failed to consider the circumstances essential to make out the tort of intentional interference with economic relations.[^4]
[57] The House of Lords decision in Allen v. Flood, [1898] A.C. 1, has been described as the “watershed case” that initially recognized that intentionally interfering with another person’s economic interests is not actionable if the means used are lawful. The corollary proposition taken from that case is that “intentional interference with another person’s economic interests is actionable in tort if the means used are unlawful. That is the proposition that has formed the foundation for the economic torts in England, Canada and throughout the Commonwealth, since 1898.”[^5]
[58] The decision in Allen v. Flood and the tort of intentional interference with economic relations was reviewed more recently in the House of Lords decision in OBG Ltd. v. Allan, Douglas v. Hello! Ltd., and Mainstream Properties Ltd. v. Young, [2007] UKHL 21 [OBG]. In that case at para. 46, the rationale for the tort as described in Quinn v. Leathem [1901] AC 495, 534-35 was set out as follows:
[A] person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact – in other words, if he is wrongfully and intentionally struck at through others, if he is thereby damnified – the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done.
[59] The historical basis for the tort has therefore involved some form of wrongful interference with a third party which is intended to cause economic loss to the plaintiff. This was confirmed in OBG through the statement of Lord Hoffman who provided at para. 47: “The essence of the tort therefore appears to be (a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant.”
[60] In this case, the “third party” is the raceway. The difficulty however, is that no wrongful interference was procured against the actions of the raceway. The phone call and the decision not to approve the respondent as a starter were, for the reasons already described, entirely legitimate in the circumstances. I have instead concluded that the Commission acted with reckless indifference as to the legality of its authority to make a decision while depriving the respondent of his statutory right to challenge the decision and that the Commission was subjectively reckless or wilfully blind to the harm it would cause to the respondent. Thus, the circumstances necessary to make out the tort of intentional interference with economic relations are not present in this case.
4. Application of a statutory limitation period
[61] As noted, the trial judge found that the Public Authorities Protection Act did not apply because “the act undertaken by Bill Fines was private and affected only [the respondent].” Whether the trial judge’s conclusion on this point was proper need not be decided in this case in light of his alternative determination respecting the application of the limitation period under the Limitations Act, 2002.
[62] The trial judge found that the limitation period did not begin to run until the respondent’s solicitor received a letter from the Commission dated July 7, 2004, which reiterated that no decision had been made by the Commission respecting the respondent. As the claim was issued in April 2005, this fell within the two year limitation period established pursuant to the Limitations Act, 2002.
[63] I have concluded that the tort of misfeasance in public office was established on the basis of the combined actions of Mr. Fines and the Commission’s refusal to provide the respondent with a hearing pursuant to s. 11(7). Thus, the appellant’s July 7, 2004 letter is a continuation of the tort and the limitation period would not begin to run until that date at the earliest. Therefore, the claim is not statute-barred.
DAMAGES
[64] The trial judge concluded that the respondent suffered damages as a result of the actions of the Commission. Although not explicitly addressed, it is apparent from the trial judge’s reasons that he concluded that the information provided by the respondent to Mr. Fines had adequately responded to the concerns raised. There was, therefore, no basis for Mr. Fines’ continuing refusal to allow the respondent to act as a starter for the Rideau-Carlton Raceway. If Fines’ decision had been subject to a hearing in accordance with the statute, a review of that decision, with the benefit of additional information, would have resulted in the respondent being absolved of any misconduct. It is reasonable to conclude that the Rideau-Carlton Raceway would have rehired the respondent as a starter soon thereafter given that it had informed him that it had the “intention to re-hire” him before the decision to refuse his approval was made.
[65] The trial judge assessed global damages at $69,148. This sum represented primarily an estimate of the amount the respondent would have earned if he had worked as a starter for the raceway between 2003 and 2005. The award was ultimately reduced to $50,000, that being the maximum allowed for claims brought pursuant to Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[66] I have adopted a different route than the trial judge in reaching the conclusion that the appellant is liable in tort for abuse of public office. I have also found that the trial judge erred in imposing liability for inducing breach of contract and intentional interference with economic relations. However, the trial judge’s assessment of damages does not represent a cumulative assessment on the basis of each tort; rather, the analysis seems to turn purely on the assessment of the damage suffered as a result of the exclusion from employment and the humiliation and embarrassment occasioned by the Commission. Thus, I see no reason to depart from the amount of damages assessed by the trial judge in this case.
DISPOSITION
[67] For these reasons, I would dismiss the appeal with costs to the respondent fixed at $7,500 inclusive of GST and disbursements.
“Paul Rouleau J.A.”
“I agree K.M. Weiler J.A.”
“I agree G. Pardu J. (ad hoc)
RELEASED: June 6, 2008
[^1]: The tort of inducing breach of contract was not initially included in the Statement of Claim. However, when the issue arose during the course of the trial, the judge permitted an amendment to the claim to include this tort.
[^2]: See the Racing Commission Act, 2002. See also the Rules of Standardbred Racing, 2001, Chapter 33.
[^3]: Lewis N. Klar et al., Remedies in Tort, vol. 4, looseleaf (Canada: Carswell, 1987, updated in 2007) at p. 24-60.25 referring to Three Rivers District Council v. Bank of England (No. 3), [2000] 2 WLR 1220 (H.L.).
[^4]: The reasons also fail to consider the distinction between the nature and purpose of the tort of misfeasance in public office, which is directed towards the performance of public duties, as contrasted against intentional interference with economic relations, which appears to be directed largely towards private interests. The distinction between these two torts has yet to be clearly defined within Canadian law. Other jurisdictions have, however, suggested that misfeasance in public office is a distinct tort that should not be subsumed in some wider economic tort, such as intentional interference with economic relations: See Sanders v. Snell [1998] HCA 64 at paras. 37 & 39.
[^5]: No. 1 Collision Repair & Painting (1982) Ltd. v. Insurance Corp. of British Columbia (2000), 2000 BCCA 463, 80 B.C.L.R. (3d) 62 at paras. 12 & 13 (C.A.).