Gratton-Masuy Environmental Technologies Inc. (c.o.b. as Ecoflo Ontario) et al. v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: Gratton-Masuy Environmental Technologies Inc. v. Ontario]

101 O.R. (3d) 321

2010 ONCA 501

Court of Appeal for Ontario,

Cronk, MacFarland and Karakatsanis JJ.A.

July 12, 2010

Civil procedure -- Parties -- Legal capacity -- Building Materials Evaluation Commission not suable entity for purpose of obtaining declaratory and injunctive relief.

Civil procedure -- Pleadings -- Statement of claim -- Plaintiff suing members of Building Materials Evaluation Commission for misfeasance in public office -- Claim not disclosing reasonable cause of action -- Full particulars must be pleaded in cases involving allegations of malice -- Bald plea of malice insufficient to defeat motion under rule 21.01(1)(b) of Rules of Civil Procedure -- Statement of claim containing mere speculation and assumptions about motivation underlying defendants' conduct -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(b).

The plaintiffs provided on-site sewage treatment systems. The defendant Commission was a statutory body continued under s. 28(1) of the Building Code Act, 1992, S.O. 1992, c. 23. The Commission proposed to amend certain authorizations granted to the plaintiffs under the Act. An ad hoc subcommittee was appointed to discuss technical issues relating to the authorizations and to prepare a report for the full Commission. After the subcommittee submitted its final report, the Commission informed the plaintiffs that it was considering amendments to the authorizations. Before any amendments were made, the plaintiffs brought an action against the Commission, seeking declaratory and injunctive relief. The plaintiffs also sued the individual members of the Commission, including the members of the subcommittee, and the Crown. The defendants moved under rule 21.01(3) of the Rules of Civil Procedure for an order dismissing the action or striking the statement of claim. The motion judge struck the claims as against the individual respondents, except for the subcommittee members, and dismissed the motion in all other respects. The Divisional Court allowed the defendants' appeal, dismissed the action against the Commission and struck the statement of claim as against the subcommittee members and the Crown. The plaintiffs appealed.

Held, the appeal should be dismissed.

The Commission was not a suable entity. It was a non-corporate entity and was not expressly liable to suit by the terms of the Act. The Act did not contain any indication of a legislative intent that legal capacity to be sued should be inferred of the Commission. Indeed, the provisions of the Act relating to the Commission significantly undercut that suggestion. As the Commission was not a suable entity, it was irrelevant that the claim was for declaratory and injunctive relief and not for damages. The liability to suit of non-corporate statutory entities is not augmented where declaratory or injunctive relief is claimed.

The claim against the subcommittee members was for misfeasance in public office. The core of their pleading against the subcommittee members consisted of allegations of bad faith, actual malice and bias. To avoid the protective ambit of the immunity from suit provision in s. 31(1) of the Act, sufficient facts had to be pleaded to support assertions of bad faith or malice. Moreover, in cases involving allegations of malice, rule 25.06(8) of the Rules of Civil Procedure requires that full particulars be pleaded. A bald plea of malice is insufficient to defeat a rule 21.01(1)(b) motion. The only substantial facts pleaded by the plaintiffs were assumptions and speculations about the motivations underlying the conduct of the subcommittee members and that the asserted facts were nothing more than legal conclusions or bald assertions of bad faith or malice. It was plain and obvious that the statement of claim did not disclose a reasonable cause of action against the subcommittee members. As the individual defendants were not liable, the Crown was similarly not liable.

APPEAL from the order of Jennings, Thomson and Reilly JJ., [2009] O.J. No. 2677 (Div. Ct.) allowing an appeal from the order of the motion judge.

Cases referred to

Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, J.E. 90-1436, 49 B.C.L.R. (2d) 273, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105, 23 A.C.W.S. (3d) 101; Westlake v. Ontario (1973), 33 D.L.R. (3d) 256 (S.C.C.), affg [1972] 2 O.R. 605, [1972] O.J. No. 1767, 26 D.L.R. (3d) 273 (C.A.), affg [1971] 3 O.R. 533, [1971] O.J. No. 1925, 21 D.L.R. (3d) 129 (H.C.J.), apld Bingo Enterprises Ltd. v. Manitoba (Lotteries and Gaming Licensing Board), [1983] M.J. No. 57, 148 D.L.R. (3d) 730, [1983] 5 W.W.R. 710, 23 Man. R. (2d) 33, 2 Admin. L.R. 286, 21 A.C.W.S. (2d) 27 (C.A.); Campbell Soup Co. v. Ontario (Farm Products Marketing Board) (1977), 16 O.R. (2d) 256, 77 D.L.R. (3d) 725 (C.A.), affg (1975), 10 O.R. (2d) 405, [1975] O.J. No. 2501, 63 D.L.R. (3d) 401 (H.C.J.); Dyson v. Attorney-General, [1911] 1 K.B. 410 (Eng. & Wales C.A.); Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, [1952] O.R. 366, [1952] O.J. No. 439, [1952] 3 D.L.R. 162 (C.A.); Seaway Trust Co. v. Ontario (1983), 41 O.R. (2d) 532, [1983] O.J. No. 2210, 146 D.L.R. (3d) 620 (C.A.), revg (1983), 41 O.R. (2d) 501, [1983] O.J. No. 2211, 146 D.L.R. (3d) 586 (Div. Ct.) [Leave to appeal to S.C.C. refused [1983] S.C.C.A. No. 127, 52 N.R. 235]; Smith v. New Brunswick (Human Rights Commission), [1997] N.B.J. No. 29, 143 D.L.R. (4th) 251, 185 N.B.R. (2d) 301, 68 A.C.W.S. (3d) 1037 (C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 169], consd

Other cases referred to

Atikokan Forest Products Ltd. v. Ontario, [2000] O.J. No. 2475, 2000 CarswellOnt 2363 (S.C.J.); Bemis v. Belleville (City), [1990] O.J. No. 688, 38 O.A.C. 310, 20 A.C.W.S. (3d) 1034 (Div. Ct.); Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; Energy Probe v. Canada (Atomic Energy Control Board), [1984] F.C.J. No. 936, [1985] 1 F.C. 563, 15 D.L.R. (4th) 48, 56 N.R. 135, 11 Admin. L.R. 287, 13 C.E.L.R. 162, 28 A.C.W.S. (2d) 310 (C.A.) [Leave to appeal to S.C.C. refused [1984] S.C.C.A. No. 36, 58 N.R. 316]; First Real Properties Ltd. v. Hamilton (City) (2002), 59 O.R. (3d) 477, [2002] O.J. No. 1796, 21 C.P.C. (5th) 93, 29 M.P.L.R. (3d) 314, 113 A.C.W.S. (3d) 806 (S.C.J.); Gratton-Masuy Environmental Technologies (c.o.b. Ecoflo Ontario) v. Building Materials Evaluation Commission (2002), 60 O.R. (3d) 245, [2002] O.J. No. 4252, 161 O.A.C. 208, 44 Admin. L.R. (3d) 64, 18 C.L.R. (3d) 8, 118 A.C.W.S. (3d) 161 (Div. Ct.); Miguna v. Ontario (Attorney General), [2005] O.J. No. 5346, 262 D.L.R. (4th) 222, 205 O.A.C. 257, 144 A.C.W.S. (3d) 573 (C.A.); Miguna v. Toronto (City) Police Services Board, [2008] O.J. No. 4784, 2008 ONCA 799, 301 D.L.R. (4th) 540, 243 O.A.C. 62, 171 A.C.W.S. (3d) 818; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 2003 SCC 69, 233 D.L.R. (4th) 193, 312 N.R. 305, J.E. 2004-47, 180 O.A.C. 201, 11 Admin. L.R. (4th) 45, 19 C.C.L.T. (3d) 163, 127 A.C.W.S. (3d) 178; Operation Dismantle v. Canada, [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22, 18 D.L.R. (4th) 481, 59 N.R. 1, J.E. 85-495, 12 Admin. L.R. 16, 13 C.R.R. 287, 31 A.C.W.S. (2d) 45; Pearlman v. Manitoba Law Society Judicial Committee[cf1 su], [1991] 2 S.C.R. 869, [1991] S.C.J. No. 66, 84 D.L.R. (4th) 105, 130 N.R. 121, [1991] 6 W.W.R. 289, J.E. 91-1507, 75 Man. R. (2d) 81, 2 Admin. L.R. (2d) 185, 6 C.R.R. (2d) 259, 29 A.C.W.S. (3d) 406; Pispidikis v. Scroggie (2003), 68 O.R. (3d) 665, [2003] O.J. No. 4830, 180 O.A.C. 45, 127 A.C.W.S. (3d) 424 (C.A.), affg (2002), 62 O.R. (3d) 596, [2002] O.J. No. 5081, [2002] O.T.C. 1033, 119 A.C.W.S. (3d) 911 (S.C.J.); Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 12 O.R. (3d) 750, [1990] O.J. No. 589, 20 A.C.W.S. (3d) 769 (H.C.J.); South-West Oxford (Township) v. Ontario (Attorney General) (1983), 44 O.R. (2d) 376, [1983] O.J. No. 3272, 8 Admin. L.R. 30, 40 C.P.C. 86, 23 A.C.W.S. (2d) 209 (H.C.J.); Telezone Inc. v. Canada (Attorney General) (2008), 94 O.R. (3d) 19, [2008] O.J. No. 5291, 2008 ONCA 892, 86 Admin L.R. (4th) 163, 40 C.E.L.R. (3d) 183, 245 O.A.C. 91, 303 D.L.R. (4th) 626 [Leave to appeal to S.C.C. granted [2009] S.C.C.A. No. 77]

Statutes referred to

Building Code Act, 1992, S.O. 1992, c. 23, ss. 28(1), (4) [as am.], 31(1) [as am.] Canadian Charter of Rights and Freedoms Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2) [as am.], 97 [as am.] Interpretation Act, R.S.O. 1960, c. 191 [rep. S.O. 2006, c. 21, Sch. F, s. 134] Interpretation Act, R.S.O. 1990, c. I.11 [rep. S.O. 2006, c. 21, Sch. F, s. 134] Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2(1), 7, 8 Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 134 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5(1), (2), (4)

Rules and regulations referred to

Rules of Court, N.B. Reg. 82-73, rule 69.01 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21, 21.01(1)(b), (2)(b), (3), (b), 25.06(1), (8)

Authorities referred to

Brown, Donald J.M., and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998) Jones, David Phillip, and Anne S. de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009)

Y. Monica Song, for appellants. Leslie M. McIntosh, for respondents.

The judgment of the court was delivered by

[1] CRONK J.A.: -- This appeal concerns the legal capacity of a non-corporate statutory entity, whose conduct is subject to supervision by way of judicial review, to be sued for declaratory and injunctive relief. Also in issue is whether a reasonable cause of action is disclosed by a pleading in which allegations of bad faith, malice and bias are advanced against the non-corporate statutory entity and certain of its members.

I. Facts

(1) The parties

[2] The appellants, Gratton-Masuy Environmental Technologies Inc. (c.o.b. as Ecoflo Ontario) and Waterloo Biofilter Systems Inc., provide on-site sewage treatment systems in Ontario.

[3] The respondent, the Building Materials Evaluation Commission (the "Commission"), is a statutory body continued under s. 28(1) of the Building Code Act, 1992, S.O. 1992, c. 23 (the "Act"). It is comprised of part-time members, appointed by the lieutenant governor in council under the Act, who are engineers, designers, manufacturers, contractors, consultants and former municipal officials. The individual respondents are current or former members of the Commission.

[4] The Commission's statutory powers and duties are set out in s. 28(4) of the Act:

28(4) The [Commission] may, (a) conduct research on, and examine, construction materials, systems and building designs or cause such research to be conducted and examinations to be undertaken; (b) upon application therefor, authorize the use, subject to any conditions that may be set out, of any innovative material, system or building design in respect of any building or part thereof; and (c) make recommendations to the Minister respecting changes in this Act or the building code.

[5] The Crown is named as a party in her representative capacity, pursuant to the provisions of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (the "PACA").

(2) The Authorizations

[6] The appellants' sewage treatment systems use filtration media to pre-treat septic tank effluent prior to its discharge into the natural environment. On April 29, 1999, the Commission granted authorizations under the Act to the appellants for the use of their filter-based sewage treatment units with a soil absorption system, known as an "area bed", which was designed by the appellants in the mid-1990s to treat effluent (the "Authorizations").

(3) First review of the Authorizations

[7] In late June 2001, the Commission initiated a review of the appellants' sewage treatment systems. This eventually led to a decision by the Commission to amend the Authorizations.

[8] The appellants sought judicial review of the Commission's decision to amend the Authorizations. In support of their application, they argued that the Commission had no jurisdiction to reconsider and amend the Authorizations. In the alternative, they maintained that they had been denied natural justice and procedural fairness in the Commission's review process.

[9] The Divisional Court concluded that the Commission had the legislative authority to reconsider the Authorizations, reasoning in part as follows:

In fulfilling its adjudicative role, the [Commission] must be alive to issues of public health and safety, as this is the purpose of its enabling legislation. It seems almost axiomatic that a tribunal that is concerned with innovative materials, systems, or building design must be able to respond to new information that may subsequently become available and to act on this information where the protection of public health and safety warrants. This would logically have to take place not only where it is determined that the technology is performing unsatisfactorily, but also where a potential danger to the public arises. (Emphasis in original)

See Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflo Ontario) v. Building Materials Evaluation Commission (2002), 60 O.R. (3d) 245, [2002] O.J. No. 4252 (Div. Ct.), ("Gratton-Masuy"), at para. 22.

[10] However, the Divisional Court also accepted the appellants' argument that the Commission had failed to provide them with adequate notice and a meaningful opportunity to be heard in respect of the amendments to the Authorizations. Accordingly, by judgment dated June 18, 2002, the Divisional Court granted the appellants' judicial review application and remitted the matter back to the Commission "for a rehearing on proper notice and disclosure": Gratton-Masuy, at paras. 36-40.

(4) Second review of the Authorizations

[11] In November 2002, following the Divisional Court's decision, the Commission commenced a second review of the Authorizations.

[12] In their factum on appeal, the appellants assert that the Commission failed to disclose any facts, evidence or allegations leading to "its decision to re-open the Appellants' Authorizations". The respondents disagree. They argue that the Commission provided the appellants with a "Notice and Disclosure" package on November 11, 2002 that included details of the Commission's concerns about the appellants' sewage treatment systems. In their pleading in the litigation that eventually ensued between the parties, which I discuss later in these reasons, the appellants reference and acknowledge their receipt of the Commission's Notice and Disclosure package.

[13] On February 27, 2003, the appellants proposed a joint working group process to address the Commission's concerns regarding the Authorizations. The Commission appointed eight of its members as an ad hoc subcommittee to meet with the appellants to discuss technical issues relating to the Authorizations and to prepare a report for the full Commission (the "Subcommittee"). As relevant to this appeal, five of the individual respondents were members of the Subcommittee: Gregory Ford, Douglas Joy, Donald J. Morton, Rashmi Nathwani and James Wilkinson (collectively, the "Subcommittee Members").

[14] The appellants attended some of the Subcommittee's numerous meetings and otherwise communicated in writing with the Commission or the Subcommittee. In October 2003, the appellants made a three-day presentation to the Subcommittee regarding the functioning, safety and efficacy of their sewage treatment systems.

[15] The appellants allege that, contrary to the Commission's assurances to them, the Subcommittee Members failed to engage in direct dialogue with them on the "science-related" issues raised in their presentation. They say that this failure constituted "bad faith" by the Subcommittee Members, "consistent with their malicious and undisclosed intention of achieving the [Commission's] pre-determined outcome", that is, amendments to the Authorizations. The appellants further claim that they understood that any draft report by the Subcommittee concerning the Authorizations would be submitted to the full Commission only with the appellants' prior consent.

[16] In late November or early December 2004, the Subcommittee sent the appellants a draft report regarding the Authorizations and invited them to a meeting to discuss the draft before it was finalized. The appellants objected to the report and its proposed submission to the Commission.

[17] In their factum on appeal, the respondents maintain that the draft report included "an overview of the [Commission's] stated health and safety concerns [regarding the Authorizations], an outline of the [appellants'] submissions to the Subcommittee, the Subcommittee's analysis and the conclusions and proposed recommendations for the [Commission]".

[18] In contrast, the appellants claim that they had no input into the draft report and that their "uncontradicted scientific evidence" regarding their sewage treatment systems -- proffered during their October 2003 presentation to the Subcommittee -- was "ignored without explanation and with no indication of what additional information would be required". The appellants also maintain that in delivering the draft report, the Subcommittee informed them for the first time that the report would be "confirmed" regardless of the appellants' objections.

[19] The Subcommittee submitted its final report to the full Commission on October 25, 2005 (the "Subcommittee Report"). On November 11, 2005, it provided a copy to the appellants.

[20] In early June 2006, the Commission informed the appellants that it was considering amendments to the Authorizations. The Commission provided the appellants with a copy of the proposed amendments and invited them to a meeting to discuss their content. The appellants declined this invitation.

(5) The litigation

[21] On August 24, 2006, before any amendments to the Authorizations were made, the appellants brought an action against the Commission, 19 Commission members -- including the Subcommittee Members -- and the Crown. In their pleading, the appellants claim (1) declaratory relief quashing certain resolutions of the Commission relating to the Authorizations on the grounds that the Commission allegedly exceeded its jurisdiction, acted in breach of the terms on which the appellants agreed to meet with the Subcommittee, and acted for improper purposes in initiating and continuing the 2001 and 2002 reviews of the Authorizations; (2) injunctive relief prohibiting the Commission from acting on the Subcommittee Report or "proceed[ing] against the Authorizations" pending the final disposition of the action; and (3) as against the individual respondents and the Crown, general, special and punitive damages in the approximate amount of $8.25 million for alleged misfeasance in public office.

[22] According to the appellants' claim, (1) after the grant of the Authorizations, the Commission engaged in a process "aimed at achieving the ulterior and improper purpose of bringing the [Authorizations] back into line" with authorizations issued by the Commission to third parties (para. 32 of the claim); (2) throughout its review process, the Commission was "motivated by bad faith and ulterior motive" and reflected a "pre-determined agenda of amending the Authorizations"; further, the Commission engaged in "an unwarranted and targeted attack" on the appellants that was motivated by bad faith and ulterior motive and that lacked any "foundation in fact or in science" (para. 33 of the claim); (3) neither the Commission nor any of its members "reached or held the honest belief" that "a valid health and safety concern" or "a potential danger to the public" exists that would warrant amendment of the Authorizations (paras. 36 and 47 of the claim); and (4) the Commission and the individual respondents "directed an attack on the [appellants] with the malicious intention of defeating those provisions in the Authorizations which . . . provide to the [appellants] a commercial advantage"; further, the individual respondents were "improperly motivated to 'level the field'" and "by the desire to win what they perceived to be a war against the [appellants]", with the knowledge that it would result in injury to the appellants "in the form of lost market share and disruption of their activities" (paras. 37-38 and 41 of the claim).

[23] The appellants further allege that the Subcommittee Members deliberately and improperly used their office as members of the Commission. In their statement of claim, the appellants plead: (1) a lack of transparency in the Commission's review process, including in the Subcommittee's work (paras. 42-45 of the claim); (2) an absence of any basis in fact or science and of any honestly held belief that the Authorizations gave rise to an existing or potential health and safety concern, warranting review of the Authorizations (paras. 33, 36-38, 39-41 and 46-48 of the claim); (3) the breach of the terms of the working group process regarding the Authorizations (paras. 60-67 of the claim); (4) a lack of independent decision-making by the individual Subcommittee Members (paras. 68-70 of the claim); and (5) a series of individual acts of bias, malice or conflict of interest by each of the Subcommittee Members (paras. 45 and 69-88 of the claim).

(6) Defence response to the appellants' pleading

[24] The respondents did not deliver a statement of defence. Instead, they moved under rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") for an order dismissing the action or, in the alternative, for an order under rule 21.01(1)(b) striking the statement of claim in its entirety. They argued that (1) the Commission lacked the legal capacity to be sued; (2) the court had no jurisdiction over the subject matter of the appellants' action; (3) the matters complained of were subject to the doctrine of res judicata or otherwise constituted an abuse of process; and (4) the appellants' pleading disclosed no reasonable cause of action.

[25] Several documents mentioned in the appellants' statement of claim were filed by the respondents on their Rule 21 motion, including the Commission's Notice and Disclosure package and the Subcommittee Report.

[26] By order dated May 29, 2007, Roy J. of the Superior Court of Justice granted the respondents' motion in part. He struck the appellants' claims as against the individual respondents except for the Subcommittee Members and dismissed the motion in all other respects.

[27] In so doing, the motion judge held that (1) the Commission was a necessary party to the appellants' action and its inclusion as a named party defendant was consistent with the applicable statutes and jurisprudence; (2) the court had jurisdiction over the subject matter of the action since part of the relief claimed was "outside the mandate of the Divisional Court" on a judicial review application and was consistent with the provisions of s. 8 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the "JRPA"); (3) the necessary prerequisites for the application of res judicata or abuse of process had not been made out; (4) the appellants' pleading "failed to provide the circumstances, particulars or facts" against 14 of the 19 individual respondents "which would allow the trier of fact to properly infer intention or malicious conduct" against them; and (5) in respect of the Subcommittee Members, it would "be up to the trier of fact to determine whether the allegations and particulars support malice".

[28] On appeal by the respondents from the motion judge's order, the Divisional Court ruled that the Commission is not a suable entity and that the appropriate remedy against the Commission for an aggrieved party is an application for judicial review.

[29] The Divisional Court also held that the appellants' pleading against the individual respondents had to be struck on two grounds. First, given the appellants' reliance on the tort of misfeasance in public office, the Divisional Court concluded that the motion judge had erred by deferring to the trial judge on the question of the adequacy of the appellants' pleas of bad faith or malice. In the Divisional Court's opinion, the motion judge was obliged to analyze the sufficiency of the appellants' pleading to determine if it was capable of supporting the appellants' assertions of bad faith and malice by the Subcommittee Members.

[30] The Divisional Court therefore examined the appellants' statement of claim and ruled, essentially, that it failed to conform to the rules of pleading and to disclose a reasonable cause of action against the Subcommittee Members [at para. 51]:

In this case, the only substantial facts pleaded by the Respondents [against the Subcommittee Members] are assumptions and speculations about the motivations underlying the conduct of the [Subcommittee Members]. It is not sufficient to state legal conclusions or the Respondent's belief in the motives of the individual Appellants. Such statements are no more than bald assertions of bad faith or malice, and do not meet the high threshold required for pleadings of bad faith or malice.

[31] Second, in the Divisional Court's view, the appellants' pleading against the Subcommittee Members also had to be struck in light of the immunity from suit provision set out in s. 31(1) of the Act. In material part, s. 31(1) states:

31(1) No action or other proceeding for damages shall be instituted against . . . a member of . . . the [Commission], or anyone acting under their authority . . . for any act done in good faith in the execution or intended execution of any power or duty under this Act or the regulations or for any alleged neglect or default in the execution in good faith of that power or duty.

[32] As the Crown was sued in its representative capacity, the appellants properly acknowledged before the Divisional Court that if their claims against the Subcommittee Members fell, their claims against the Crown were similarly unsustainable.

[33] In the result, by order dated June 11, 2009, the Divisional Court allowed the respondents' appeal from the motion judge's decision, dismissed the appellants' action against the Commission and struck the statement of claim as against the Subcommittee Members and the Crown.

[34] The appellants appeal, with leave, to this court.

III. Analysis

(1) Is the Commission liable to suit for declaratory and injunctive relief?

(i) The test for suability of statutory bodies

[35] The appellants argue that on the facts pleaded, an action for declaratory and injunctive relief lies against the Commission in respect of claims based on the Commission's alleged unlawful exercise of its statutory powers.

[36] The respondents acknowledge that some statutory administrative bodies are suable. However, they rely on Westlake v. Ontario, [1971] 3 O.R. 533, [1971] O.J. No. 1925 (H.C.J.), affd [1972] 2 O.R. 605, [1972] O.J. No. 1767 (C.A.), affd (1973), 33 D.L.R. (3d) 256 (S.C.C.) to argue that the Commission is a non-corporate statutory entity that does not have the legal capacity to be sued. Consequently, the respondents submit, the Divisional Court correctly dismissed the appellants' action against the Commission.

[37] Westlake involved a suit by aggrieved securities holders against the Ontario Securities Commission and others for damages for alleged breach of trust, breach of contract, deceit, common law negligence and negligence in failing to perform statutory duties. The action was attacked on the ground that the Ontario Securities Commission was not an entity that could be sued for damages.

[38] In Westlake (H.C.J.), at pp. 534-35 and 538 O.R., Houlden J. of the High Court of Justice examined the liability to suit of statutory entities falling within six categories: (1) bodies corporate which are not expressly declared to be suable but which, by virtue of s. 26 of the Interpretation Act, R.S.O. 1960, c. 191, [^1] may sue and be sued unless the applicable incorporating statute otherwise provides; (2) bodies corporate which are expressly declared to be suable; (3) bodies corporate which are expressly declared not to be suable; (4) non-corporate bodies which are, by the terms of the statute creating them, expressly liable to suit; (5) non-corporate bodies which are not by the terms of the statute incorporating them expressly liable to suit but which are by necessary implication liable to be sued in an action for damages; and (6) non-corporate bodies which are not by the terms of the statute incorporating them or by necessary implication liable to be sued in an action for damages, but who are legal entities in that their actions may be reviewed in proceedings brought against them by way of the extraordinary remedies of certiorari, mandamus and prohibition.

[39] Citing the holding of this court in Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, [1952] O.R. 366, [1952] O.J. No. 439, [1952] 3 D.L.R. 162 (C.A.) that the Ontario Labour Relations Board was not a suable entity, Houlden J. held in Westlake (H.C.J.), at p. 539 O.R., that the Ontario Securities Commission was an entity coming within the sixth category of statutory entities above-described. Consequently, while its actions were subject to judicial review in proceedings involving the prerogative writs, it could not be sued for damages in a civil action. Houlden J.'s decision to dismiss the action on this basis was upheld unanimously both by this court and by the Supreme Court of Canada.

[40] In Hollinger, Roach J.A. explained why the Ontario Labour Relations Board did not fit into any of the available categories of suable entities, and therefore could not be liable to an action for declaratory and injunctive relief. His comments, at paras. 12-15, are instructive:

Plainly, [the Board] is not an individual. There are individuals who are members of the Board but the Board itself is a single entity. Plainly, too, the members of the Board are not partners or persons carrying on business in a name other than their own. Neither is the defendant a corporation. The statute creating it, most significantly, does not declare it to be a corporation. There are Boards which are the creatures of the legislature, some of which, by the statutes creating them, are corporations, and some of which are not. For example, the Workmen's Compensation Board, by the statute creating it, is a body corporate; the Ontario Municipal Board is not.

There are cases in which it has been held that, notwithstanding the fact that the Act creating a body did not expressly declare it to be a body corporate, that body, as a necessary intendment from the enactment creating it, was liable to be sued and had capacity to sue. . . .

Clearly, there is nothing in The Labour Relations Act, 1948, c. 51 [sic], which created this defendant, supporting any such implication. Indeed, there are provisions in it which deny such an implication. In particular, s. 5 of the Act . . . provides that: "Subject to such right of appeal as may be provided by the regulations, the orders, decisions and rulings of the Board shall be final and shall not be questioned or reviewed nor shall any proceeding before the Board be removed, nor shall the Board be restrained by injunction, prohibition, mandamus, quo warranto, certiorari or otherwise by any court, but the Board may, if it considers it advisable to do so, reconsider any decision or order made by it and may vary or revoke any such decision or order."

The whole scheme and purpose of the Act is to deal with certain phases of the employer-employee relationship. The Board does not carry on any business. Its function is primarily administrative and it has been given power to exercise certain functions of a judicial nature. There is nothing the Act remotely suggesting that it was intended by the Legislature that the Board should have the capacity either to sue or to be sued.

(ii) Application of the Westlake test

[41] In this case, the Divisional Court held that the motion judge, by finding that the Commission was a necessary party to the appellants' action, implicitly accepted that the Commission was a suable entity "without performing the necessary analysis to determine its status at law". I agree. In so doing, the motion judge erred.

[42] The Divisional Court then expressly considered the Westlake test for the determination of a statutory entity's liability to suit and concluded that the Commission, like the Ontario Securities Commission in Westlake, falls within that category of non-corporate statutory entities that are subject to proceedings brought against them by way of the extraordinary remedies, but that cannot be sued in an action. For the following reasons, I again agree.

[43] There is no dispute that the Commission is a non-corporate entity and that it is not expressly liable to suit by the terms of the Act.

[44] Nor, in my opinion, does the Act contain any indication of a legislative intent that legal capacity to be sued should be inferred in respect of the Commission. Indeed, the provisions of the Act relating to the Commission significantly undercut this suggestion. As the Divisional Court observed, at para. 22 of its reasons, the narrow statutory powers and duties assigned to the Commission under s. 28(4) of the Act, above-quoted, do not include the power to contract, to acquire or hold property, or to engage in commercial activity or otherwise conduct business. Such powers, if assigned to the Commission by the legislature, would support the conclusion that the Commission has the capacity to sue and to be sued: Hollinger; Westlake. It follows that the absence of such statutory powers strongly favours the opposite conclusion.

[45] Similarly, s. 31(1) of the Act does not contemplate a right to sue the Commission. Section 31(1) applies to members of the Commission or anyone acting under their authority. It provides those persons with immunity from a claim for damages absent a showing of bad faith. It has no application to the Commission itself or even to claims against members of the Commission that do not involve a claim for damages.

[46] Thus, under the Westlake analytical framework, the Commission is not liable to suit for damages.

(iii) Declaratory and injunctive relief

[47] The appellants argue, however, that Westlake has no application in this case as it involved a suit for damages against a statutory entity rather than claims for declaratory and injunctive relief, as sought in this case against the Commission. They submit that so long as they do not claim damages against the Commission, declaratory and injunctive relief may be sought against it by way of action. They further contend that even where, as here, part of the relief claimed against the Commission implicates relief afforded by the prerogative writs, the common law right of action for declaratory relief remains available. I would not give effect to these arguments.

[48] In Smith v. New Brunswick (Human Rights Commission), [1997] N.B.J. No. 29, 143 D.L.R. (4th) 251 (C.A.), leave to appeal to S.C.C. dismissed [1997] S.C.C.A. No. 169, the New Brunswick Court of Appeal considered the viability of an action against the New Brunswick Human Rights Commission in which damages as well as declaratory, Canadian Charter of Rights and Freedoms and other relief were sought. Writing for a unanimous court, Bastarache J.A., as he then was, applied Westlake, observing that it "has been followed consistently" (at p. 254 D.L.R.). He concluded that the Human Rights Commission, as a statutory body exercising quasi-judicial functions, was "clearly not a suable entity" (at p. 257 D.L.R.) and stated, at pp. 256-57 D.L.R.:

[C]ounsel for the Commission drew a distinction between claims seeking civil remedies against the Commission, and claims that are aimed at reviewing the decisions of the Commission because it acted without jurisdiction or lost jurisdiction because of the manner in which it acted. This raises the question of the appropriateness of striking out the portion of the Statement of Claim whereby Mr. Smith seeks a declaration that the affirmative action program instituted by the University of New Brunswick, and approved by the Commission, is of no force and effect, and that the Commission's decisions dismissing his complaints are of no force and effect. Stated differently, the question is whether Mr. Smith can avoid the application of Rule 69 of the Rules of Court [^2] by asking for a declaration in the context of an action. I agree with the position taken by Jones and de Villars who have addressed this question at pp. 555-56 of their above-mentioned book [Principles of Administrative Law, 2nd ed. (Toronto: Carswell, 1994)].

Given the flexible nature of the declaration, there are few limitations on its availability. When proceedings for a declaration are brought by way of action, the statutory body must have sufficient legal personality to be sued in its own right. For example, in B. v. Department of Manpower and Immigration, Commissioners of Inquiry, (1975) 60 D.L.R. (3d) 339 (Fed. T.D.), the Federal Court held that a declaration is not available against a federal board or tribunal unless its enabling legislation expressly states that it is a suable entity. Therefore a declaratory judgment is not available against such a delegate although it may be amenable to certiorari or prohibition. It is also generally agreed that a declaration is not available to correct an error of law or fact committed within a tribunal's jurisdiction. A declaration of invalidity cannot be granted by the court (unless any error was found to be patently unreasonable). In such an event, the only effective remedy would be certiorari which enables the court to quash the decision of the tribunal when it is established that the tribunal exceeded its jurisdiction or erred in law within its jurisdiction. Nor, it appears, could the Court grant a declaration as to the applicant's rights in such a situation as the tribunal has made an ostensibly binding decision. [^3] (Emphasis added)

[49] The New Brunswick Court of Appeal therefore dismissed the plaintiff's action in its entirety, including his claims for declaratory relief. In my view, the reasoning in Smith is apposite in this case.

[50] I also note that Hollinger involved an action for declaratory and injunctive relief as against the Ontario Labour Relations Board, rather than an action for damages. Nonetheless, as the Board was not a suable entity, this court held that the action could not proceed.

[51] In my view, the appellants urge an unduly restrictive interpretation of Westlake. Nothing in Westlake suggests that the liability to suit of non-corporate statutory entities is augmented where declaratory or injunctive relief in the nature of certiorari, mandamus or prohibition is claimed. On the contrary, Westlake holds, at p. 538 O.R. (H.C.J.), that the fact that the actions or proceedings of a statutory entity are subject to review by way of the extraordinary remedies does not mean that the same entity is legally capable of being sued in an action for damages.

[52] And, as the respondents point out, Westlake does not say that an action for the extraordinary remedies of certiorari, mandamus or prohibition may be brought against non-corporate statutory entities. Rather, it contemplates "proceedings" for such remedies. Nor does Westlake stand for the proposition that where review of the conduct of a non-corporate statutory entity is available by way of an application for judicial review, an action for declaratory or injunctive relief against the same entity is also available. Indeed, in my view, Westlake suggests to the contrary.

[53] In the early 1970s, legislative reform of judicial review was introduced in Ontario under the JRPA. Under s. 2(1) of the JRPA, public and private law remedies -- with the exception of damages -- are integrated under a single form of proceeding in respect of any exercise of statutory power. [^4] Section 2(1) states:

2(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[54] The Divisional Court in this case was alive to the different types of relief sought by the appellants against the various respondents. For example, at para. 24 of its reasons, it observed that the relief claimed against the Commission excluded damages but included the extraordinary remedy of prohibition. In fact, the relief claimed includes a prohibitory injunction, which is similar in effect to the writ of prohibition. The Divisional Court concluded that relief in the nature of prohibition must be sought against the Commission by way of judicial review, rather than by way of action. I agree. This conclusion is entirely consistent with Westlake and Smith.

[55] As well, under s. 7 of the JRPA, an application for an order in the nature of mandamus, prohibition or certiorari is deemed to be an application for judicial review and "shall be made, treated and disposed of as if it were an application for judicial review". I note that the appellants were unable to point to any authority in which prohibition was sought against a statutory entity by way of action rather than judicial review.

[56] Historically, private law remedies were seen as distinct from the prerogative remedies when they were sought to be invoked concerning the exercise of powers subject to public law. As Jones and de Villars comment in Principles of Administrative Law, 5th ed., supra, at p. 640:

Certiorari and prohibition are now used exclusively to control the exercise of statutory authority and are confined to the public law field. They play no part in private law . . . On the other hand, a person may sometimes seek one of the private law remedies . . . in the context of an illegal governmental action, instead of obtaining certiorari or prohibition. (Footnotes omitted; emphasis added)

[57] Later in the same text at pp. 755-57, Jones and de Villars emphasize that the use of the private law remedy of a declaration as a supervisory remedy in public law -- a relatively recent development -- is an alternative form of proceeding to an application for certiorari or prohibition.

[58] With the advent of the JRPA, however, the adaptation of declaratory and injunctive relief as public law remedies was entrenched by statute. Thus, under s. 2(1) of the JRPA, above-quoted, the court is empowered in the exercise of its discretion to grant such relief on a judicial review application.

[59] In this case, as I have said, the appellants seek both declaratory and injunctive relief against the Commission. They argue that the common law right of action for such relief was not abrogated by the JRPA and, further, that the jurisdiction of the Superior Court of Justice under the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA") to grant declaratory relief extends to the acts or omissions of both the Crown and statutory bodies like the Commission.

[60] There is no dispute that under the PACA, declaratory, although not injunctive, relief is available in a proceeding against the Crown in respect of the rights of the parties. Further, the Ontario Superior Court's jurisdiction pursuant to ss. 11(2) and 97 of the CJA [^5] to make "binding declarations of right" and to exercise the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario is beyond controversy.

[61] But this does not mean that the Superior Court's jurisdiction to grant declaratory relief can be invoked in an action against a defendant that does not have the legal capacity to be sued in its own right.

[62] There is authority for the proposition that the JRPA does not preclude an action for a declaration in relation to the exercise of a statutory power: see, for example, Campbell Soup Co. v. Ontario (Farm Products Marketing Board) (1975), 10 O.R. (2d) 405, [1975] O.J. No. 2501 (H.C.J.), at para. 115, affd (1977), 16 O.R. (2d) 256, 77 D.L.R.(3d) 725 (C.A.). Indeed, as the motion judge noted in this case, s. 8 of the JRPA, which authorizes the summary disposition of an action for a declaration or injunction as if it were an application for judicial review in certain circumstances, recognizes that such an action may be brought: Campbell Soup, at para. 115. Furthermore, s. 2(1) of the JRPA does not say that the grant of a declaration or an injunction in respect of administrative action may only be obtained pursuant to the JRPA.

[63] Yet nothing in Campbell Soup or the JRPA derogates from the central principle that suability is a prerequisite to the court's jurisdiction to entertain the claims advanced by a plaintiff against a defendant. As the New Brunswick Court of Appeal said in Smith, at p. 256 D.L.R., in the context of Charter claims, "[I]n all cases, the Court must have jurisdiction over the party being sued before it can deal with the claim being made. The test in Westlake is applicable to determine this issue."

[64] The same point is made by J.M. Evans and D.J.M. Brown in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998), at 1:8200, note 470: "[A]n injunction may not issue against a tribunal or other administrative body eo nomine [by or in that name] that is not a suable entity." The authors elaborate, at 4:2400:

Unless they are incorporated or their constitutive statute provides otherwise expressly or by implication, independent administrative agencies are not legal entities. However, as with other unincorporated entities, there are legislative provisions enabling them to be made respondents in those jurisdictions where the law of judicial review has been reformed. For example, Ontario's [JRPA] provides that for the purpose of an application for judicial review in relation to the exercise or non-exercise of a statutory power, "the person who is authorized to exercise the power may be a party" [s. 9(2) of the JRPA], and

any two or more persons who, acting together, may exercise a statutory power, whether styled a board or commission or by any other collective title, shall be deemed to be a person under such collective title [s. 9(3) of the JRPA]. (Footnotes omitted)

[65] The appellants rely especially on Bingo Enterprises Ltd. v. Manitoba (Lotteries and Gaming Licensing Board), [1983] M.J. No. 57, 23 Man. R. (2d) 33 (C.A.) and Seaway Trust Co. v. Ontario (1983), 41 O.R. (2d) 501, [1983] O.J. No. 2211 (Div. Ct.), revd (1983), 41 O.R. (2d) 532, [1983] O.J. No. 2210 (C.A.), leave to appeal refused [1983] S.C.C.A. No. 127, 52 N.R. 235, to contend that the Commission is liable to suit for declaratory and injunctive relief notwithstanding the provisions of the JRPA.

[66] These cases do not assist the appellants. In Bingo Enterprises, the court relied on Westlake to strike a statement of claim in which damages and injunctive relief were sought against a non-corporate statutory entity on the ground that the entity in question lacked suable status. However, the court held that an originating notice of motion, in which declaratory relief was claimed against the same entity, was an acceptable alternative to a claim for mandamus. Thus, while the court recognized that declaratory relief could be sought against the relevant entity, recovery of that relief by way of action was not permitted and an originating notice was held to be the appropriate procedure.

[67] As to the decision of this court in Seaway Trust, that case involved an application by the Attorney General of Ontario and others to quash two applications for judicial review regarding the validity of legislation enacted by the Government of Ontario that permitted the seizure and control of a trust company's property, without a hearing, in certain circumstances. Both applications sought declaratory and injunctive relief, including Charter-based relief and, in one application, damages were sought for property wrongfully seized. The Attorney argued that the applications as constituted sought relief available by way of action and not available by way of application to the Divisional Court. In other words, unlike this case, the Attorney sought to compel an action and to prevent judicial review.

[68] A majority of the Divisional Court in Seaway Trust dismissed the Attorney's application. However, in dissent, Craig J. held that the Attorney's application should be granted and the judicial review applications quashed since all the relief claimed could be sought in an action, whereas part of the relief -- for example, the determination of liability and the assessment of damages -- was not available in the Divisional Court. In Craig J.'s opinion, in these circumstances, it was inappropriate to allow the judicial review applicants to "split their cases and dispose of the issues piecemeal" (at p. 532 O.R.).

[69] An appeal to this court was allowed, essentially for the reasons of Craig J.: (1983), (C.A.), supra. However, in allowing the appeal, this court emphasized, at p. 533 O.R., the "highly unusual", indeed "unique", factual circumstances of the case and further commented, "[A] wide variety of diverse and compelling interests are involved . . . an extensive review of evidence will be required before a conclusion can be reached regarding the validity of the impugned legislation. Findings of fact based upon assessments of credibility will have to be made." All these compelling factors favoured resort to trial, rather than to the judicial review process.

[70] Given its "highly unusual" and "unique" facts, I do not regard Seaway Trust as establishing any general principle that relief otherwise available on judicial review may be sought alternatively by way of action. Nor, in my view, should Seaway Trust be viewed as a precedent for such a principle in circumstances where the relief claimed against one defendant is within the jurisdiction of the Divisional Court, while some or all the relief claimed against other defendants is not. More importantly, the named respondents in the judicial review applications at issue in Seaway Trust and, thus, the proposed defendants in the action urged by the Attorney in that case, were all suable entities. As a result, unlike this case, no question regarding the court's jurisdiction over the person of the respondents or proposed defendants arose in Seaway Trust.

[71] I note that the other Ontario authorities relied on by the appellants involve either corporate or non-corporate defendants who meet the Westlake test for suability, including the Crown, or applications under s. 8 of the JRPA. [^6]

(iv) Additional considerations

[72] Two final considerations deserve mention. First, as I have indicated, the respondents' motion for an order dismissing the action as against the Commission was brought in part under rule 21.01(3)(b). That rule permits a defendant to move before a judge to have an action stayed or dismissed summarily on the ground that the defendant does not have the legal capacity to be sued. Rule 21.01(3)(b) thus envisages that an action cannot be brought against a non-suable entity regardless of the claims advanced and the relief sought.

[73] Second, neither before this court nor in the proceedings below did the respondents challenge the action on the basis that it was a collateral attack on the Commission's announced intention to amend the Authorizations. Presumably this is because (1) the appellants do not seek a money remedy against the Commission; (2) the Authorizations had not been amended prior to the commencement of the litigation between the parties; and (3) this court has held that a collateral attack argument is a defence and does not go to jurisdiction: TeleZone Inc. v. Canada (Attorney General) (2008), 94 O.R. (3d) 19, [2008] O.J. No. 5291, 303 D.L.R. (4th) 626 (C.A.), at paras. 97 and 111, leave to appeal granted [2009] S.C.C.A. No. 77.

[74] However, in their pleading, the appellants seek a declaration concerning the legal validity of various resolutions made by the Commission in connection with the Authorizations. They also seek a declaration regarding the Commission's authority to proceed against the Authorizations. The appellants' factum on appeal states that, "As against the Commission, the action seeks . . . declaratory relief quashing resolutions of the [Commission] on grounds that it exceeded its jurisdiction and acted in breach of an agreement and for improper purposes." Thus, the appellants attack certain "decisions" of the Commission -- the identified Commission resolutions -- as well as the lawfulness of the proposed amendments to the Authorizations.

[75] This is not a collateral attack case in the sense of a challenge to a decision through subsequent independent proceedings. Rather, the attack on the Commission's resolutions and authority is made in a proceeding whose specific object is to disturb the administrative decisions at issue: see TeleZone Inc., at paras. 97-98 and 111. That said, from a generalized perspective, the principles regulating collateral attack on an administrative decision support the conclusion that the appellants should pursue their challenge to the Commission's actions by way of the available alternative procedure afforded by the JRPA. Under that procedure, the appellants are free to pursue all the categories of relief sought against the Commission -- damages not being claimed -- and to obtain a remedy that is responsive to the claims advanced.

[76] I conclude that none of the categories of relief claimed against the Commission may be pursued in an action where, as here, the named defendant is a non-suable entity. Under the principles established in Hollinger, Westlake and Smith, the Commission is such an entity. I am therefore satisfied that the appellants' action against the Commission was properly dismissed.

(v) Alternative procedures

[77] The appellants, however, argue that two alternative procedures are available for the pursuit of their claims against the Commission. They submit that if the Commission is not a suable entity in its own right for the purpose of obtaining declaratory and injunctive relief, the relief sought against the Commission may be obtained against the Crown, which is already a named defendant in the appellants' action. In the further alternative, they argue that if the Crown is not directly answerable for the Commission's actions, the Divisional Court erred by failing to consider and permit the addition of the Attorney General for Ontario as a party defendant in substitution for the Commission in accordance with Dyson v. Attorney-General, [1911] 1 K.B. 410 (Eng. & Wales C.A.) (the "Dyson procedure").

[78] I would not accede to these arguments in this case. Before the Divisional Court, the appellants acknowledged that pursuant to s. 5(2) and 5(4) of the PACA, [^7] if the individual respondents are not liable for the matters alleged against them, the Crown is similarly not liable. I agree. As I will explain later in these reasons, it is my opinion that the appellants' statement of claim does not disclose a reasonable cause of action against the Subcommittee Members. It is not alleged that the motion judge erred by striking the statement of claim against the remaining 14 individual respondents. Accordingly, the appellants' action as framed cannot proceed as against the Crown.

[79] Further, it is inappropriate in this case to permit the appellants to now resort to the Dyson procedure. We were informed that in neither proceeding below did the appellants seek to amend their pleading to add the Attorney General for Ontario as a defendant. Rather, they invoke the Dyson procedure for the first time on this appeal. Importantly, the appellants have pointed to no case in which the Dyson procedure has been employed absent a challenge to the validity or applicability of legislation. No challenge of this kind is brought in this case.

[80] Accordingly, I would dismiss the appeal in respect of the appellants' claims against the Commission.

(2) Does the appellants' statement of claim disclose a reasonable cause of action against the subcommittee members?

[81] It remains to be considered whether the Divisional Court erred by striking the appellants' statement of claim against the Subcommittee Members and the Crown. I make the following comments at the outset.

(i) Tort of misfeasance in public office

[82] First, all the appellants' pleas against the Subcommittee Members relate to their alleged failure to execute their duties properly and in good faith as members of the Commission. They invoke, therefore, the tort of misfeasance in public office. The constituent elements of this tort are well-established. In the leading case of Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, at paras. 22-23, Iacobucci J., writing for a unanimous court, described these elements as follows:

What then are the essential ingredients of the tort, at least insofar as it is necessary to determine the issues that arise on the pleadings in this case? In Three Rivers, the House