Tuesday, June 8, 2010


Misfeasance in Public Office

St. Elizabeth Home Society v. Hamilton (City), [2010] O.J. No.1515 (C.A.)

This was an Appeal by the St. Elizabeth Home Society of the dismissal of its action against the City of Hamilton and the Regional Municipality of Hamilton Wentworth.

St. Elizabeth Home Society operated a retirement home in Hamilton. In early 1994, the City received letters alleging substandard care of residents at the home. These letters prompted a review of the Society’s practices by an independent consultant, who delivered a report in December 2004 strongly criticizing the health care practices and management style of the operators of the home. Shortly after the report was issued, the Municipality issued an Order to Comply against the Society alleging that it had violated a Municipal by-law with respect to admission of residents, nursing care, reports and records, and food. A City counselor leaked the Order to Comply to local newspapers, which in turn published many sensational stories about the home.

The primary issue in this appeal was whether the judge erred in dismissing the claim with respect to misfeasance in public office.

The trial judge held that there was no intention by Municipal employees to act beyond their powers and abuse their authority, there was no evidence that the defendants were aware their conduct was unlawful and likely to harm the plaintiff, and there was no knowledge by any of the defendants that the issuance of the Order to Comply would do anything other than benefit the plaintiff in improving health care to the residents. Their intent was not to harm the home but to assist it in its operation. The Court of Appeal confirmed the trial judge's decision.

In addition, the Court of Appeal held that the appeal with respect to negligence must fail because neither Municipality owed a duty of care to the Society; their duty was a public law duty to the residents of the home, not to the operator.


This case is useful in those defending Municipal and public authorities claims, in that it confirms that the duty is to the public at large, as well as the elements of misfeasance in public office.

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