Creppin v. The University of Ottawa et al.

[Indexed as: Creppin v. University of Ottawa]

Ontario Reports

Ontario Superior Court of Justice,

K.B. Phillips J.

10, 2015*

*This judgment was recently brought to the attention of the editors.

Note 2

Fiduciaries -- Universities -- University president suspending entire men's hockey team after learning that sexual assault allegation had been made against two players -- Member of hockey team bringing [page51 ]proposed class action for damages for breach of fiduciary duty -- Claim struck under rule 21.01(1)(b) -- University never undertaking to act only in best interests of students in opposition to institution as whole -- Claim plainly and obviously having no chance of success -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(b).

128 O.R. (3d) 50 | 2015 ONSC 4449

Case Summary

Torts — Misfeasance in public office — University president suspending entire men's hockey team after learning that sexual assault allegation had been made against two players — Member of hockey team bringing proposed class action for damages for misfeasance in public office — Claim struck under rule 21.01(1)(b) — Intentional abuse of power being essential element of tort of misfeasance in public office — Statement of claim not alleging bad faith or dishonesty on part of president — Claim clearly and obviously having no chance of success — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(b).

Torts — Negligence — Duty of care — University president suspending entire men's hockey team after learning that sexual assault allegation had been made against two players — Member of hockey team bringing proposed class action for damages for negligence — Motion to strike claim under rule 21.01(1)(b) dismissed — Duty of care arising out of contractual relationship between university and students — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)(b).

After learning that a sexual assault allegation had been made against two members of the men's varsity hockey team, the defendant R, the president of the defendant university, announced at a nationally televised press conference that the entire team was suspended for the rest of the year. R later held another press conference and announced that the entire next season would be cancelled. One of the members of the hockey team brought a proposed class action for damages for negligence, breach of fiduciary duty and misfeasance in public office. The defendants brought a motion under rule 21.01(1)(b) of the Rules of Civil Procedure to dismiss the action on the basis that the statement of claim disclosed no reasonable cause of action.

Held, the motion should be granted in part.

It was not plain and obvious that the actions taken by the defendants were entirely within the university's broad discretion to manage its academic affairs.

It has been judicially recognized that a duty of care can arise out of the contractual relationship between a university and its students. The defendants exercised considerable power over the future lives of the plaintiffs. That relationship gave rise to a duty of care to get their facts straight before maligning the plaintiffs. Failure to abide by that standard of care could be said to have caused foreseeable harm to the plaintiffs. It was not plain and obvious that the claim in negligence could not succeed.

The university had never undertaken to act only in the best interests of the students in opposition to the institution as a whole. It was plain and obvious that a claim of breach of fiduciary duty could not succeed.

The tort of misfeasance in public office requires an element of bad faith or dishonesty and the tortfeasor must have been aware that his unlawful conduct would cause harm. The tort has a subjective mental element requiring the intentional abuse of power. While the statement of claim characterized R's actions as hasty, unwarranted, arbitrary and unfair, it did not allege that he acted in bad [page52 ]faith or dishonestly. It was plain and obvious that the claim of misfeasance in public office could not succeed.

Young v. Bella, [2006] 1 S.C.R. 108, [2006] S.C.J. No. 2, 2006 SCC 3, 261 D.L.R. (4th) 516, 343 N.R. 360, J.E. 2006-290, 254 Nfld. & P.E.I.R. 26, [2006] R.R.A. 1, 37 C.C.L.T. (3d) 161, 21 C.P.C. (6th) 1, EYB 2006-100404, 145 A.C.W.S. (3d) 343, consd

Other cases referred to

Alberta v. Elder Advocates of Alberta Society, [2011] 2 S.C.R. 261, [2011] S.C.J. No. 24, 2011 SCC 24, 416 N.R. 198, EYB 2011-190431, 2011EXP-1574, J.E. 2011-868, 81 C.C.L.T. (3d) 1, 331 D.L.R. (4th) 257, [2011] 6 W.W.R. 191, 41 Alta. L.R. (5th) 1, 499 A.R. 345, 2 C.P.C. (7th) 1, 201 A.C.W.S. (3d) 344; Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 527, 5 Build. L.R. 1, 4 I.L.R. 21, 243 E.G. 523, [1977] E.G.D. 604 (H.L.); Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] All E.R. Rep. 1, [1932] A.C. 562, 101 L.J.P.C. 119, 147 L.T. 281, 48 T.L.R. 494, 76 Sol. Jo. 396, 37 Com. Cas. 350 (H.L.); Freeman-Maloy v. Marsden (2006), 79 O.R. (3d) 401, [2006] O.J. No. 1228, 267 D.L.R. (4th) 37, 208 O.A.C. 307, 146 A.C.W.S. (3d) 986, 2006 CanLII 9693 (C.A.); Galambos v. Perez, [2009] 3 S.C.R. 247, [2009] S.C.J. No. 48, 2009 SCC 48, 276 B.C.A.C. 272, 312 D.L.R. (4th) 220, [2009] 12 W.W.R. 193, EYB 2009-165240, J.E. 2009-1938, 394 N.R. 209, 70 C.C.L.T. (3d) 167, 182 A.C.W.S. (3d) 488; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [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; Miguna v. Toronto (City) Police Services Board, [2007] O.J. No. 512, 2007 CanLII 3674, 155 A.C.W.S. (3d) 546 (S.C.J.); Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, EYB 2008-133554, J.E. 2008-1083, 55 C.C.L.T. (3d) 36, 293 D.L.R. (4th) 29, 375 N.R. 81, 238 O.A.C. 130, 165 A.C.W.S. (3d) 954; 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

Statutes referred to

Class Proceedings Act, S.O. 1992, c. 6 [as am.]

Criminal Code, R.S.C. 1985, c. C-46 [as am.]

University of Ottawa Act, S.O. 1965, c. 137, s. 4

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01, (1)(b)

Authorities referred to

Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis, 2006)

MOTION to dismiss the plaintiff's claims.

Lawrence Greenspon and Marisa Victor, for plaintiff.

Sally Gomery, for defendants.

[1] K.B. PHILLIPS J.: — This is a motion by the defendants seeking dismissal of the plaintiff's claims on the basis that the [page53 ]statement of claim discloses no reasonable cause of action within the context of rule 21.01(1)(b) of the Rules of Civil Procedure.[^1]

Facts as Set Out in Statement of Claim

[2] Brought under the Class Proceedings Act,[^2] with Mr. Creppin as the lead plaintiff, the statement of claim alleges that on February 2, 2014 allegations were made that a sexual assault had taken place in Thunder Bay and the perpetrators were members of the 2013-2014 University of Ottawa men's varsity hockey team. The night of the alleged assault, the team coach, an employee of the University of Ottawa, was made aware of the sexual assault allegations and of the identities of the two team members involved. Later, when the defendant Allan Rock, president of the University of Ottawa, became aware of the same allegations he therefore knew or ought to have known the identities of the two named team members. Nevertheless, on March 3, 2014, Mr. Rock announced at a nationally televised press conference that the University of Ottawa was suspending the entire team for the rest of the year and linked the suspension to the allegations of sexual assault. This decision and action, ostensibly required to condemn "serious misconduct" is said to have cast a dark shadow of suspicion and guilt over all of the team players regardless of the fact that it was known that only two of them were involved in the alleged sexual assault.

[3] On March 6, 2014, Mr. Rock announced the creation of a task force on respect and equality and linked the formation of the task force to the activities and suspension of the team.

[4] In May 2014, the University of Ottawa conducted a study to determine whether donations had decreased as a result of the hockey scandal.

[5] On June 13, 2014, the University of Ottawa announced that an internal review it had commissioned with respect to the events in Thunder Bay was completed. That internal review has never been released.

[6] On June 25, 2014, Mr. Rock held another press conference where he announced that the entire 2014-2015 men's hockey season would be cancelled and the head coach would be let go. Mr. Rock acknowledged that "the shadow cast by allegations of misconduct has affected all members of this team, some unfairly". Despite this acknowledgment, he further stated that [page54 ]"suspending the team for the rest of the year was the right thing to do".

[7] The University of Ottawa task force on respect and equality scheduled "public consultations" in October 2014. The website for the task force on respect and equality continues to link the creation of the task force to the suspension of the team and "rape culture" on university campuses.

[8] Before leaving the facts, I should make clear that just because they are in the statement of claim does not mean in any ultimate sense that they are accurate, reasonable or fair. In this sort of motion, the plaintiffs' case is taken at face value -- all assertions made in the statement of claim are deemed to be true. Obviously, there are two sides to every story. This motion proceeds on only one side's version of events and its selections and characterizations of potential evidence. As such, the facts outlined above must be understood as uncontradicted assertions made by the plaintiffs, which have not been tested in any meaningful way.

Analysis

[9] Motions under rule 21.01 will only succeed where it is plain and obvious, assuming the facts pled to be true, that the pleading discloses no reasonable cause of action. The approach must be generous and err on the side of permitting novel but arguable claims to proceed. It has been said that the term "plain and obvious" is akin to the criminal standard of beyond reasonable doubt. In other words, the threshold for sustaining a pleading is not a high one.

[10] I will now set out the arguments raised by the moving party:

First, the defendants argue that there is no right to play hockey at a university and that suspension of a hockey team is entirely within the purview of a university president. As such, the discipline meted out to the hockey team here falls under the broad discretion a university has in academic matters and ought not be reviewed by the court. While the treatment of the team may well constitute unfairness, there is no cause of action pertaining to breach of natural justice.

Second, the defendants argue that the plaintiff has not pled sufficient facts to establish negligence.

Third, that the relationship between the university president and the students involved in this case is not one which gives rise to a fiduciary duty from the former to the latter. [page55 ]

Finally, the defendants argue that there is no cause of action in misfeasance in public office against Mr. Rock.

Issue #1 -- Are the actions complained of merely within the university's broad discretion to manage its academic affairs?

[11] I agree that a university president has discretion with respect to whether his institution will have a hockey team. However, I find that characterizing this affair as relating merely to the suspension of the hockey team understates its full pith and substance. The actions undertaken by the defendants could in their full measure be construed as acts of public discipline meted out as a consequence of an allegation of sexual assault, directed at a group of students known to be uninvolved. The punishment was publicly declared to be called for by the president of the university. That is arguably a declaration that those to be on the receiving end of the punishment have done something deserving of it. As pointed out by the plaintiffs, this particular university president is a man of extraordinary legal accomplishment and gravitas whose words would carry significant weight in the court of public opinion.

[12] The defendants' actions represented a public choice to get involved in a matter known to be subject of criminal investigation by the authorities. Arguably, the public assignment of culpability with respect to criminal wrongdoing should be left to those with the skill set and mandate for that function. The choice to publicly engage in a matter in the hands of the proper authorities could be construed as a decision to involve the university in an arena outside the ambit of its private affairs.

[13] I cannot say it is plain and obvious that the actions taken by the defendants were entirely within the university's broad discretion to manage its academic affairs and I decline to strike out any part of the claim on that basis. That broad discretion is not completely openended.

Issue #2 -- Have the plaintiffs pled sufficient facts to establish a claim for negligence?

[14] At the commencement of oral submissions, plaintiffs' counsel abandoned the claim of negligence as against Mr. Rock personally upon receipt of an undertaking from the university that Mr. Rock was at all times acting in his capacity as president and the university is thus vicariously liable for him. [page56 ]

[15] In order to have a cause of action against the university in negligence, the plaintiff must plead sufficient facts showing that

(a) the defendant owed the plaintiffs a duty of care;

(b) the defendant's behaviour breached the standard of care;

(c) the plaintiffs sustained damage; and

(d) the damage was caused, in fact and in law, by the defendant's breach.[^3]

[16] The argument advanced by the defendants is that the university does not owe a duty of care toward athletes concerning the operation of varsity sports programs. This is not a previously recognized relationship where the courts have found the existence of a duty of care and the plaintiff has not pled sufficient facts on which the court could determine that the defendants had a private law duty of care to provide certain programs to its students.

[17] I agree that if the essence of the dispute was just some sort of right to play hockey then this matter would have no place before the courts. However, in my view, characterizing this case as a varsity sports matter involving mere athlete interests is an under-characterization of the full compass of the alleged wrongdoing. The fact that the plaintiffs are athletes is superfluous to their principal relationship to the defendants. First and foremost, they are students.

[18] Students have a variety of interests which sit as a foundation underneath any interest in playing sports. Indeed, the very object of the University of Ottawa, described in its enabling legislation, the University of Ottawa Act (the "Act"),[^4] is "to further . . . the intellectual, spiritual, moral, physical and social development of, as well as a community spirit among its undergraduates, graduates and teaching staff, and to promote the betterment of society". It is fair to say that all students enter into a contract with the university to enhance themselves and their life prospects in a multifaceted sense.

[19] As set out in Mustapha v. Culligan of Canada Ltd., the first question to consider in an action for negligence is whether the defendants owed the plaintiffs a duty of care. The question [page57 ]focuses on the relationship between the parties. It asks whether this relationship is so close that one party may reasonably be said to owe the other a duty to take care not to injure the other: Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562, [1932] All E.R. Rep. 1 (H.L.). Whether such a relationship exists depends on foreseeability, moderated by policy concerns: Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.).

[20] In my view, there is a viable argument that the two-part test set out in Anns would be met here. In the overall context as outlined throughout the statement of claim, the relationship between the university president and the students is arguably one of such proximity that any harm caused to the students by the president's actions would have been reasonably foreseeable. As well, I cannot see any policy consideration at play which could be said to restrict or extinguish the duty.

[21] In any event, categories of relationships that have been judicially recognized and relationships analogous to such pre-established categories need not be tested by the Anns formula: Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis, 2006), at p. 302. This shortcut is applicable here as it has been judicially recognized that a duty of care can arise out of the contractual relationship between a university and its students. The Supreme Court of Canada in Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108, [2006] S.C.J. No. 2, speaks to this, at p. 125 S.C.R.:

In short, in the present case, proximity was not simply grounded in a misguided report to CPS but was rooted in the broader relationship between the professors at Memorial University and their students. The appellant, even as a "distant" student, was a fee paying member of the university community, and this fact created mutual rights and responsibilities. The relationship between the appellant and the University had a contractual foundation, giving rise to duties that sound in both contract and tort: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147.

[22] I find analogous and useful the following discussion in Young v. Bella, on the standard of care arising out of the relationship between university officials and students [at paras. 33-34]:

The standard of care that ought to be exercised by professors toward their students was emphasized in the testimony of Dr. Wayne Ludlow who, during the relevant 1994-1996 period was the Dean of Student Affairs at Memorial University. Dr. Ludlow testified:

The relationship between the professor and the student is a special relationship . . . [I]t is an imbalanced relationship because professor is all-knowing, and I can see now the fear and trembling of the young first-year students when they went to classes, someone in a flowing black robe. So the power balance was evident . . . [page58 ]

Those whose professional responsibilities include the exercise of such power over the careers and future lives of fee-paying students are required to take the necessary care to get their facts straight before taking a potential career-ending action in relation to a student.

[23] In my view, any distinction between the professors in Young v. Bella and the defendants as university leaders are distinctions without difference. In all meaningful respects, the defendants exercised considerable power over the future lives of the plaintiffs who were feepaying students. That relationship gave rise to a duty of care carrying with it a standard of care requiring that the defendants' conduct not create an unreasonable risk of harm. It could be said that the defendants were required to take the necessary care to get their facts straight before maligning the plaintiffs as having been involved in one of the most stigmatizing acts prohibited by the Criminal Code.[^5] Finally, failure to abide by that standard of care could be said to have caused damage both in the immediate and future sense as set out in the pleadings, which harm could be argued to have been foreseeable.

[24] I remind myself of the words of the Court of Appeal for Ontario in Freeman-Maloy v. Marsden (2006), 79 O.R. (3d) 401, [2006] O.J. No. 1228, 2006 CanLII 9693 (C.A.), at para. 18, adopting the decision of the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, at para. 33:

A pleading should only be struck under Rule 21 where it is "plain and obvious" that the claim has no chance of success and novel and unusual claims should be allowed to proceed to trial where they can be tested on a full factual record. "Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect . . . should the relevant portions of a plaintiff's statement of claim be struck out[.]"

[25] I conclude that it is not plain and obvious that the plaintiffs' claim in negligence cannot be made out. I decline to strike that portion of the claim.

Issue #3 --Is it plain and obvious that the defendants cannot be liable for breach of fiduciary duty?

[26] The defendants argue that while it may be that the students were vulnerable vis-à-vis their relationship with the [page59 ]defendants, there was no undertaking that the defendants would ever put the interests of the plaintiffs ahead of their own or those of others.

[27] The law with respect to breach of fiduciary duty is comprehensively set out by the Supreme Court of Canada in Alberta v. Elder Advocates of Alberta Society, [2011] 2 S.C.R. 261, [2011] S.C.J. No. 24, 2011 SCC 24. That case made clear that vulnerability alone is insufficient to support a fiduciary claim. The court cites the decision of Cromwell J. in Galambos v. Perez, [2009] 3 S.C.R. 247, [2009] S.C.J. No. 48, 2009 SCC 48, at para. 67:

An important focus of fiduciary law is the protection of one party against abuse of power by another in certain types of relationships or in particular circumstances. However, to assert that the protection of the vulnerable is the role of fiduciary law puts the matter too broadly. The law seeks to protect the vulnerable in many contexts and through many different doctrines.

[28] Alberta v. Elder Advocates of Alberta Society, at paras. 30-34, goes on to outline a three-stage analysis with respect to when a breach of fiduciary duty can be said to have occurred. I cannot do better than to simply reproduce the relevant passage below:

First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility to act in the best interests of a beneficiary: Galambos, at paras. 66, 71 and 77-78, and Hodgkinson, per La Forest J., at pp. 409-10. As Cromwell J. wrote in Galambos, at para. 75, "what is required in all cases is an undertaking by the fiduciary, express or implied, to act in accordance with the duty of loyalty reposed on him or her."

The existence and character of the undertaking is informed by the norms relating to the particular relationship: Galambos, at para. 77. The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake.

The undertaking may be found in the relationship between the parties, in an imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary's interests. As stated in Galambos, at para. 77:

The fiduciary's undertaking may be the result of the exercise of statutory powers, the express or implied terms of an agreement or, perhaps, simply an undertaking to act in this way. In cases of per se fiduciary relationships, this undertaking will be found in the nature of the category of relationship in issue. The critical point is that in both per se and ad hoc fiduciary relationships, there will be some undertaking on the part of the fiduciary to act with loyalty. [Emphasis in original]

Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them. Fiduciary duties do not exist at large; they are confined to specific relationships between particular parties. Per se, historically recognized, fiduciary relationships exist as a matter of course within [page60 ]the traditional categories of trustee-cestui que trust, executor-beneficiary, solicitor-client, agent-principal, director-corporation, and guardian-ward or parent-child. By contrast, ad hoc fiduciary relationships must be established on a case-by-case basis.

Finally, to establish a fiduciary duty, the claimant must show that the alleged fiduciary's power may affect the legal or substantial practical interests of the beneficiary: Frame, per Wilson J., at p. 142.

(Emphasis added)

[29] I agree that the plaintiffs as fee-paying university students could be said to represent a defined class of persons vulnerable to the control of the defendants as the university's leadership. I also agree that an argument could be made that the plaintiffs have a substantial practical interest that was adversely affected by the defendant's discretion or control. One might credibly suggest that all students have a practical interest in getting through university without being unfairly assigned the stigma which attaches to those to whom violent sexual wrongdoing is attributed.

[30] I cannot agree, however, that the facts as outlined in the statement of claim give rise to any argument involving any agreement, implied or otherwise, that the defendants would forsake all other interests in favour of those of the plaintiffs in relation to what was at stake -- inter alia the interests of the plaintiffs, as well as reputational damage to university writ large, as well as damage to the institution's internal "community spirit" to name just a few.

[31] I return to the University of Ottawa Act. This legislation sets out the nature of the relationship as between the parties. Again , s. 4 reads, in part, as follows:

4. The objects and purposes of the University are,

(b) to further, in accordance with Christian principles, the intellectual, spiritual, moral, physical and social development of, as well as a community spirit among its undergraduates, graduates and teaching staff, and to promote the betterment of society[.]

[32] I take from this that the objects and purposes of the university are to look out for its various constituent elements as a cohesive whole. For instance, the interests of all undergraduates are to be furthered, not just those of any particular cohort. Likewise, as another example, the interests of graduates, presumably with respect to the general reputation of the institution, must also be furthered.

[33] Whatever else can be said about the way the defendants acted here, it cannot be denied that there were multiple interests [page61 ]at play as this matter unfolded. The university and its president were obliged to consider and further them all. Rather than a forsaking by the alleged fiduciary of the interests of all others in favour of the plaintiffs, I find the facts as pleaded lead to no other conclusion than that the defendants had multiple interests to balance simultaneously, which multiple interests were perhaps mutually exclusive. The fact that it would appear that catering to one interest or group of interests infringed upon the interests of the plaintiffs cannot in and of itself amount to breach of fiduciary duty because I find no hint of any undertaking by the university to ever act only in the best interests of the students in opposition to the institution as a whole.

[34] It is plain and obvious that even if the facts as pleaded are true, a claim of breach of fiduciary duty cannot succeed. I strike out that portion of the claim.

Issue #4 -- Is it plain and obvious that the claim for misfeasance in public office cannot succeed?

[35] The defendants argue that it is plain and obvious that no unlawful act was intentionally committed so as to amount to misfeasance in public office.

[36] The easiest way to appreciate the perspective of the plaintiff on this point is to simply reproduce the relevant passage of the statement of claim:

Misfeasance in Public Office

67. The office of President of the University of Ottawa is a statutory office. When Allan Rock suspended the Plaintiff and the Class for misconduct he did so purporting to exercise statutory power governing the conduct of students and student activities.

68. Allan Rock's public statement to the press that "the shadow cast by the allegations of misconduct has affected all members of this team, some unfairly" was an acknowledgment of abuse of statutory power by a statutory officer and misfeasance in public office.

69. Allan Rock's statements to the press acknowledged that his deliberate, unlawful conduct in suspending the Team was unfair. He knew he acted prior to an investigation, without due process and without being sanctioned by policy. Furthermore he was aware that his actions were likely to injure the Plaintiff and the Class.

70. The Plaintiff and the Class claim damages caused by Allan Rock's misfeasance in public office.

[37] In addition to that specific section pertaining to misfeasance in public office, the plaintiff argues that the statement of claim read as a whole discloses a basis to assert that on March 3, 2014, Mr. Rock knowingly communicated information [page62 ]known at that time to be incorrect when he linked the plaintiffs to the allegation of sexual assault while knowing there was no such link. The plaintiffs contend that in so doing, Mr. Rock exhibited bad faith vis-à-vis his communications, which bad faith dealings would have been known by him to be outside the ambit of his statutory powers. Furthermore, the plaintiff argues that Mr. Rock would have known that the misinformation in question would cause unwarranted injury to those he knew were unconnected to the sexual assault his punishment was linked to.

[38] The law with respect to misfeasance in public office is set out in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, [2003] SCC 69, which, at para. 30, outlines the proposition that "the underlying purpose of the tort is to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate unlawful conduct in the exercise of public functions".

[39] The tort requires an element of bad faith or dishonesty and the tortfeasor must have been aware that his unlawful conduct would cause harm. As Iacobucci J. writes, at paras. 28-29:

The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of "bad faith" or "dishonesty". In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.

The requirement that the defendant must have been aware that his or her unlawful conduct would harm the plaintiff further restricts the ambit of the tort. Liability does not attach to each officer who blatantly disregards his or her official duty, but only to a public officer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question. This requirement establishes the required nexus between the parties. Unlawful conduct in the exercise of public functions is a public wrong, but absent some awareness of harm there is no basis on which to conclude that the defendant has breached an obligation that she or he owes to the plaintiff, as an individual. And absent the breach of an obligation that the defendant owes to the plaintiff, there can be no liability in tort.

(Emphasis in original)

[40] I take from the outline above that the tort of misfeasance in public office has a subjective mental element requiring the intentional abuse of power. As an intentional tort it cannot be committed by negligence or inadvertence. "Bad faith" or [page63 ]"dishonesty", presented as equivalent, reflect a degree of deliberate moral turpitude.

[41] In my view, a fair summary of the plaintiff's statement of claim characterization of Mr. Rock's actions relating to misfeasance in public office is that they were hasty, unwarranted, arbitrary and unfair. I take the plaintiff's related argument about the nature of Mr. Rock's communications to be that they were irresponsibly made without due care for their consequences. I agree that those assertions are founded in the pleadings. However, I cannot agree that they amount to the requisite subjective state of mind for the tort of misfeasance in public office.

[42] While I have already found there to be a basis to argue the non-intentional tort of negligence, I cannot agree that the statement of claim gives rise to any claim of bad faith or dishonesty. In addition, on the subject of malice, I find the words of Spence J. in Miguna v. Toronto (City) Police Services Board, [2007] O.J. No. 512, 2007 CanLII 3674 (S.C.J.), at para. 16, applicable here:

In the absence of direct evidence of malice (such as expressly malicious articulations), a court is not to infer malice unless that is the only reasonable inference to be drawn from the facts . . . This rule accords with the common sense notion that an improper motive should not be ascribed to conduct that can be explained otherwise.

[43] As discussed above, pursuant to the obligations of his office as outlined in the University of Ottawa Act, university president Allan Rock had a legitimate and complex task to perform with respect to managing the fallout from the hockey team's road trip to Thunder Bay among a variety of potentially competing constituencies. As also discussed above, it is open to the plaintiffs to argue that Mr. Rock performed that function negligently. However, malice is not the only, or indeed the most reasonable, inference that can be drawn from the fact that Mr. Rock made a decision which had negative consequences to some. I find there is no basis in the pleadings for an argument that Mr. Rock acted in bad faith or dishonestly. In my view, those inferences are simply not available on the facts as pleaded.

[44] It is plain and obvious that the cause of action of misfeasance in public office cannot succeed. I strike that part of the claim.

[45] The parties may submit brief written submissions as to costs within 30 days.

Motion granted in part.

Notes

[^1]: R.R.O. 1990, Reg. 194. [^2]: S.O. 1992, c. 6. [^3]: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 4 S.C.R. 114, [2008] S.C.J. No. 27, at para. 6. [^4]: S.O. 1965, c. 137. [^5]: R.S.C. 1985, c. C-46.

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