This morning the Supreme Court of Canada recognized a new tort: the tort of misfeasance in public office. We, the robed, forget that most people haven't got a clue what a tort is: a civil wrong. You sue people for hitting you, wrecking your stuff, industrial negligence in making stuff - those are all torts.  If the police carry the case - it is crime.  Both can run side-by-side in the courts.  

This new tort is on the intentional side as opposed to negligence - you have to have the sufficient mental state, a detemination to do what is alleged. The test is stated in the headnote to the ruling in Odhavji Estate v. Woodhouse 2003 SCC 69:

The failure of a public officer to perform a statutory duty can constitute misfeasance in a public office. Misfeasance is not limited to unlawful exercises of statutory or prerogative powers. It is an intentional tort distinguished by (1) deliberate, unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is unlawful and likely to injure the plaintiff.

When does this arise? The Court at paragraph 28 makes a very interesting statement:

As a matter of policy, I do not believe that it is necessary to place any further restrictions on the ambit of the tort. 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.

Wow. So there is now personal liability for being a wildcard in a public office. It will be very interesting to follow the use of this test in the future.  Read the whole case.