McGill Law Journal ~ Revue de droit de McGill
RONCARELLI V. DUPLESSIS AND DAMAGES FOR
ABUSE OF POWER: FOR WHAT DID IT STAND IN 1959
AND FOR WHAT DOES IT STAND IN 2009?
David Mullan*
Today, Roncarelli v. Duplessis is most
celebrated for the contributions that Justice
Rands judgment in particular made to a rule of
lawbased conception of the exercise of discre-
tionary power. However, from a contemporary
perspective, the Supreme Court of Canadas de-
cision was seen not only as another significant
judicial reining in of the Duplessis governments
treatment of Jehovahs Witnesses, but also as
an important development in the law governing
governmental liability for abuse of power.
In this paper, the author explores the lat-
ter dimension of the judgment with a view to
establishing the grounds on which the Court
found Duplessis personally liable in damages to
Roncarelli, and the extent to which it tran-
scended the particular provision on which liabil-
ity was based (article 1053 of the Civil Code of
Lower Canada) and had application at common
law. He also evaluates the subsequent impact of
this aspect of the judgment. How have later
courts read the judgments articulation of the
principles of delictual liability, and what are the
current principles on which the liability of state
actors for abuse of power are based? Here too,
the author concludes that the current state of
the law is closer to that espoused by Justice
Rand than the bases on which the other mem-
bers of the majority predicated liability.
De nos jours, le jugement Roncarelli c.
Duplessis, et celui du juge Rand en particulier,
est surtout reconnu pour sa contribution une
conception de lexercice du pouvoir discrtion-
naire base sur la primaut du droit. Toutefois,
dun point de vue contemporain, la dcision de
la Cour suprme du Canada constitue non seule-
ment un moyen judiciaire de contrer le traite-
ment rserv aux Tmoins de Jhovah par le
gouvernement Duplessis, mais aussi un dve-
loppement important du droit sur la responsabi-
lit gouvernementale envers les abus de pou-
voir.
Dans cet essai, lauteur explore cette der-
nire dimension du jugement afin dtablir les
motifs pour lesquels la Cour a tenu Duplessis
personnellement responsable des dommages oc-
casionns Roncarelli. Lauteur examine aussi
dans quelle mesure la Cour a transcend
larticle sur lequel reposait la responsabilit
(larticle 1053 du Code civil du Bas Canada) et
qui tait galement applicable en common law.
De plus, lauteur value limpact subsquent de
cet aspect du jugement. Comment les cours ul-
trieures ont-elles interprt la formulation,
dans le jugement, des principes de responsabili-
t dlictuelle ? Sur quels principes la responsa-
bilit des acteurs tatiques envers les abus de
pouvoir est-elle actuellement base ? Ici encore,
lauteur conclut que ltat actuel du droit se rap-
proche plus de la vision pouse par le juge Rand
pour fonder la responsabilit que de celle des au-
tres juges ayant rendu lopinion majoritaire.
* Professor Emeritus, Faculty of Law, Queens University. This paper owed much to dis-
cussion and comments at the symposium on Roncarelli v. Duplessis. I have also been in-
fluenced in finalizing this paper by Mark Aronsons contribution to this Special Issue,
as well as exchanges with him.
Citation: (2010) 55 McGill L.J. 587 ~ Rfrence : (2010) 55 R.D. McGill 587
David Mullan 2010
588 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I. What Did Roncarelli Decide on the Issue of Article 1053
Liability?
II.
Situating Roncarelli within 1959 Case Law on the Liability
of Public Office Holders
A. Common Law
B. Article 1053 of the Civil Code of Lower Canada
III.
Roncarelli through 2009 Eyes
Conclusion
589
591
600
600
603
604
610
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 589
In the perspective of history, Roncarelli v. Du-
plessis may be looked upon as a milestone chiefly
in the interpretation of art. 1053 C.C.
Claude-Armand Sheppard1
Introduction
In contemporary public law writing, Roncarelli v. Duplessis2 presides
over modern Canadian administrative law theory, principally through the
judgment of Justice Rand, as a liberal, rights-based decision (unusual for
its time) that gathered its normative force from underlying constitutional
principles. The case concerned the protection of civil and political free-
doms on which the formal constitution was based. Seen through the lens
of the Reference Re Secession of Quebec3 and its identification of the four
underlying principles of the Canadian constitution, Roncarelli represents
a spectacular affirmation of the rule of law (in various guises) as well as
the protection of minorities.
In this paper, it is not my mission to call into question this current
characterization of the decision in general and especially the judgment by
which Roncarelli is most remembered. Indeed, it is a tribute to Justice
Rand that his identification of the criteria by reference to which Prime
Minister Duplessiss actions (and those of Liquor Commissioner Archam-
bault) were to be judged has survived the test of time and massive evolu-
tion in the principles of Canadian judicial review of administrative action.
Yet it also should not be surprising to find examples of judgments the sa-
gacity and profundity of which become apparent long after their release.
The modern sense of the importance of the decision does not detract
from those features that made it a historic landmark decision in Canadian
public law from the day that it was released on 27 January 1959. First
and foremost, as litigation, it is a poignant story of persistence in the face
of seemingly insuperable obstacles. It is the ultimate triumph of citizens
over unbridled government power exercised at the highest level: it is the
operation of Diceyan principles in the best sense. In terms of the judicial
review canon of its day, it represented a law teachers dream example of
the principle that discretionary decisions based on irrelevant factors (or,
as Mark Aronson puts it, considerations that are not functionally rele-
vant to the regulatory scheme)4, taken for improper purposes, and dic-
tated by an official without statutory authority were amenable to judicial
1 Claude-Armand Sheppard, Roncarelli v. Duplessis: Article 1053 C.C. Revolutionized
(1960) 6 McGill L.J. 75 at 97, reprinted in (2010) 55 McGill L.J. v.
2 [1959] 1 S.C.R. 121, 16 D.L.R. (2d) 689 [Roncarelli cited to S.C.R.].
3 [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385.
4 Mark Aronson, Some Australian Reflections on Roncarelli v. Duplessis (2010) 55
McGill L.J. 615 at 621.
590 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
review, but made possible only by reason of Maurice Duplessiss willing-
ness to be frank about his role in the series of events that led to the can-
cellation of Frank Roncarellis liquor licence.5 It also reveals a majority of
the Supreme Court of Canada that was not going to be distracted by
overly technical arguments about the reach of notice and liability restric-
tions from confronting the merits of the claim that Roncarelli was advanc-
ing against the prime minister of Quebec. In short, the decision contains a
lot of good statutory interpretation in the sense of purpose-driven,
rights-informed readings of relevant provisions.6 Perhaps most impor-
tantly, as suggested by the extract above from Claude-Armand Sheppards
contemporary assessment of the judgment, Roncarelli constituted a
precedent that established new principles of delictual liability for abuse of
public power.
It is on this last feature that I will focus my attention in this essay.
For what proposition does Roncarelli stand on the extent to which statu-
tory authorities are accountable in damages for actions that are amenable
to judicial review? Why did Claude-Armand Sheppard regard the case as
a groundbreaking decision on the scope of article 1053 of the Civil Code of
Lower Canada? What relevance, if any, did it have to common law tort li-
ability in similar settings? How have courts applied or extended Ron-
carelli subsequently? What represents the current law governing the li-
ability of statutory authorities for action or inaction that gives rise to an
application for judicial review? Is the current law compatible with the ap-
proach taken in Roncarelli, and to what extent does it represent an ap-
5 Notwithstanding Rand J.s position on the rights of those who operated a business un-
der licence from the state, and notwithstanding the lack of procedural rights accorded
to Roncarelli at the time of the licence revocation, it is not in any real sense a leading
authority on the applicability of the rules of natural justice or procedural fairness. Rand
J. himself did not discuss this issue at any length beyond stating that the Liquor Com-
mission was an administrative tribunal which, in certain respects, is to act in a judicial
manner (Roncarelli, supra note 2 at 141). Of the other members of the majority, Abbott
J. said nothing but Martland J. (with whom Locke and Kerwin JJ. concurred) expressed
the opinion that, on the basis of Nakkuda Ali v. Jayaratne ((1950), [1951] A.C. 66 at 81,
10 C.R. 421 (P.C.)), it was doubtful that Roncarelli had any claim to natural justice be-
fore the Liquor Commission revoked his licence (Roncarelli, supra note 2 at 156). In dis-
sent, Cartwright J. was of the same view (ibid. at 168). Taschereau and Fauteux JJ. did
not address this point. Interestingly, in the Quebec Court of Appeal, Rinfret J., the only
judge who would have found Duplessis liable, included a failure to give some sort of a
hearing as among the factors giving rise to the prime ministers liability: Duplessis v.
Roncarelli, [1956] B.R. 447 at para. 374 (C.A.) [Roncarelli (C.A.)]. Bissonnette J. ad-
dressed the issue of whether the Liquor Commission was obliged to give a hearing and
answered this in the negative (ibid. at para. 42). Casey J. agreed with him on this point
(ibid. at para. 80).
6 But see Robert Leckey, Complexifying Roncarellis Rule of Law (2010) 55 McGill L.J.
721. Leckey develops a strong argument against the way in which the majority disposed
of the defence based on the failure to give notice of intention to commence the proceed-
ings as required under art. 88 C.C.P.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 591
propriate set of principles for imposing civil liability for wrongdoing on
statutory and prerogative authorities?
The examination will, however, be limited by the particular context of
Roncarelli. More particularly, I do not want to engage in a detailed as-
sessment of the principles on which public authorities are held account-
able in negligence.7 My concern is principally the ultra vires exercise of
discretionary power by statutory and prerogative authorities and espe-
cially high-level functionaries such as the prime minister of Quebec and
the chairman of the Quebec Liquor Commission.8
I. What Did Roncarelli Decide on the Issue of Article 1053 Liability?
I suppose it might be possible to distill the holding on liability into the
following proposition: acting in his personal capacity, Duplessis wronged
Roncarelli and caused him damage for which Duplessis was found liable.
However, this begs a number of questions. Why was Duplessis held to be
acting in a personal rather than an official capacity? Aside from enabling
the majority to circumvent a statutory provision as to notice, was this an
otherwise essential ingredient in the imposition of liability? What pre-
cisely was the wrong committed by Duplessis? Was it a wrong that de-
pended on proof of bad faith or malice, or was it much more broadly based,
depending simply on proof of Duplessiss arrogation of a power that he did
not at law possess or the exercise of power for a wrongful purpose? Was it
a wrong that existed beyond the confines of article 1053 of the Civil Code
of Lower Canada (C.C.L.C.) or did it depend on the particular language of
that provision and its associated jurisprudence?
The reality is that it is difficult to construct support from the various
judgments in Roncarelli for any particular theory or principles governing
the liability of public officials in damages for acting in excess of power. On
this issue at least, it is a decision of the sort that still sometimes surfaces
today. In it, there are multiple judgments dealing with a critical issue in
such differing ways that there is in reality no majority holding or ratio.9
7 As Aronson points out, however, there are indications that some courts see the exis-
tence of a duty of care as a component of the tort of misfeasance in public office (supra
note 4 at 635ff.). He references Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3
S.C.R. 263 at para. 29, 233 D.L.R. (4th) 193 [Odhavji].
8 In this paper, I will also eschew any discussion of the fascinating question of the level of
damages appropriate in cases such as this, where the ultimate impact of the abuse of
power or misfeasance in public office is the loss of a business, though in the context of a
regulatory regime, where there was no ongoing entitlement to an annual renewal of a
liquor licence. Suffice it to say that, on this point, the majority of the Supreme Court of
Canada did not really have a developed and consistent theory of the principles govern-
ing the award and measurement of damages.
9 See e.g. Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, 122 D.L.R.
(4th) 129.
592 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Indeed, an examination of the various judgments of the lower courts in
this case does little to clarify the situation.
In finding Duplessis liable, the trial judge Justice Mackinnon held
that the provision with respect to notice did not apply because Duplessis
had no authority to interfere with the administration of the liquor licens-
ing statute.10 He was therefore not acting in the exercise of his functions.
However, thereafter, it was not at all clear that this was also a sufficient
basis for a finding of wrong under article 1053 C.C.L.C. That may have
been predicated not just on Archambault having acted on the direction of
Duplessis, who, in so directing, was acting outside of his official capacity,
but also on the basis that Archambault was not entitled to cancel Ron-
carellis licence for the reasons used.11 This raises three questions: Ab-
sent the notice provision, would it have been sufficient to establish that,
irrespective of the propriety of the reasons for revocation, liability flowed
from the fact that Duplessis was acting without authority in dictating a
course of action to Archambault? Alternatively, would it have been suffi-
cient for Roncarelli to have established that, as a result of Duplessiss in-
tervention, Archambault had revoked his licence for improper reasons?
Or, were both considerations (i.e., a lack of authority and improper rea-
sons) necessary conditions for the imposition of liability on Duplessis?
The answers to these questions are not to be found elsewhere in the
trial judgment. Indeed, Justice Mackinnons discussion of the case law
and academic writing refers to both acting for improper purposes and act-
ing without authority, without any discussion of whether they are both
necessary components of the wrong or whether either will do. What is,
however, significant is that neither his conclusion nor the authorities dis-
cussed in any way predicated liability on a finding of malice or bad faith.
The only reference to blameworthiness comes in a couple of citations to
the effect that those in public office must not be negligent but must rather
exercise due diligence in ensuring that they act within their powers.
The Quebec Court of Appeals judgment was no more helpful. Four of
the five judges allowed the appeal on the basis that Justice Mackinnon
had erred in fact in holding that Archambault acted on the direction of
Duplessis.12 Of the four, Justices Bissonnette and Casey said little or
nothing about the question of liability in the event that Duplessis had in
fact given the order. Certainly, Justice Bissonnette was of the view that
Duplessis had no authority to give such an order but did not go on to con-
sider the legal consequences of any such finding.13 Rather, Justice Bisson-
10 Roncarelli v. Duplessis, [1952] 1 D.L.R. 680 (Qc. Sup. Ct.).
11 Ibid. at 700.
12 Roncarelli (C.A.), supra note 5.
13 Ibid. at 453.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 593
nette believed that the trial judge had erred in holding that Duplessis had
made such an order. Justice Casey largely confined his judgment to the
factual issue of whether Duplessis had in fact ordered Archambault to re-
voke the licence.
Justice Pratte, after citing a range of authorities, accepted that Du-
plessis did not have a blanket exemption from personal liability on the ba-
sis that he was a minister of the Crown. If Duplessis a commis, par abus
de pouvoir ou autrement, une faute qui a caus prjudice au dfendeur, il a
engag sa responsabilit personnelle.14
He went on to hold that there was simply no basis for any such per-
sonal responsibility. The evidence did not establish that Archambault had
acted on the direction of Duplessis, and Duplessiss subsequent remarks
about the situation did not give rise to an independent cause of action
against him in defamation. That aside, the judgment does not address
with any specificity the question of whether Duplessis would have been li-
able had he dictated Archambaults course of action either generally or for
the reasons given by Duplessis and Archambault. Indeed, Justice Pratte
specifically left undecided whether those reasons were consonant with the
objects and purposes of the discretion to revoke licences conferred by the
Alcoholic Liquor Act,15 the liquor licensing legislation.
Justice Martineau accepted the same general principles that Justice
Pratte identified with respect to the personal liability of Crown servants,
including ministers. He did, however, elaborate that for there to be
personal liability, il faudrait quil y ait un lment de ngligence ces
erreurs pour en faire des quasi-dlits.16
Later, he addressed the obligations of good faith that both Archam-
bault and Duplessis owed in carrying out their responsibilities.17 In this
instance, he saw no basis for questioning the good faith of either. Return-
ing to the question of negligence, Justice Martineau indicated that even if
Archambault had revoked Roncarellis licence under orders from Du-
plessis, it would still be necessary to ask whether Duplessiss actions were
reasonable given the place, time, and circumstances.18 He then finessed
the argument that faute arose merely by reason of the fact that Du-
plessis did not have any authority in the liquor licensing process.19 It had
not been proven that Duplessis had dictated the outcome and the only
remaining question was whether Duplessis had acted improperly or been
14 Ibid. at 462.
15 R.S.Q. 1941, c. 255.
16 Roncarelli (C.A.), supra note 5 at 481.
17 Ibid. at 482.
18 Ibid. at 493.
19 Ibid. at 494-95.
594 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
negligent in not advising Archambault that he should not proceed on the
proposed grounds. For Justice Martineau, this argument failed on the ba-
sis that if, as Roncarelli contended, Duplessis had no responsibilities with
respect to the withdrawal of liquor licences, he could not be faulted for
failing to advise Archambault that he was about to act improperly.20
The only dissent was that of Justice Rinfret. He rejected the argument
that the decision at first instance should be reversed on evidential
grounds. He also affirmed Justice Mackinnons position that it was an
abuse of discretion for Archambault to act under dictation from Duplessis
and, in any event, to cancel the licence for the given reasons. Later, he
appeared willing to concede that Duplessis as Attorney General or prime
minister might have had some residual or exceptional authority over the
liquor licensing process. However, even assuming that such an authority
existed, it did not justify intervention in this case.21
Focusing on the basis for liability, Justice Rinfret first noted that he
had no doubt that Duplessis had good intentions.22 However, that did not
immunize him from liability. He was personally liable for actions per-
formed in his official capacity, and not just where there was malice or bad
faith but also dlit. He elaborated on the concept of delict in this context
by reference to common law authority. Quoting Halsbury, he asserted
that liability could arise not just where a public officer transgresses the
substantive law or infringes the legal rights of others, but, more gener-
ally, where a public officer does something without the backing of positive
law.23 Public officials, as opposed to private individuals, do not have au-
thority to do anything in their public capacity that the law does not per-
mit. They can do only that which is positively permitted. He then referred
to Diceys conception of vires as the foundation for the courts interven-
tiona conception that included not just powers exercised in excess of
statutory authorization, but also actions taken for a wrong purpose.24
Ultimately, Justice Rinfret concluded that Duplessis was liable per-
sonally on a number of bases: exercising a discretion that was not his, act-
ing on the basis of facts that were insufficient to support the conclusion he
reached (i.e., Roncarellis status as a Jehovahs Witness), failing to give
Roncarelli a chance to defend himself, and acting without colour of right
20 Ibid. at 495.
21 Ibid. at 511.
22 Ibid. at 515-18.
23 See Halsburys Laws of England, 2d ed. (London, U.K.: Butterworths, 1931) vol. 6 at
389, n. 435, cited in Roncarelli (C.A.), supra note 5 at 516.
24 Ibid. See A.V. Dicey, Introduction to the Study of the Law of the Constitution, 9th ed.
(London, U.K.: Macmillan, 1939) at 193. To the extent that I refer in this paper to the
deployment of or reliance on Diceys writings, I pass no judgment on whether that de-
ployment or reliance was justified on a fair reading of Diceys theories.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 595
and not by virtue of the powers of his office.25 These grounds also took
Duplessis outside the protection of the notice provision in article 88 C.C.P.
As with Justice Mackinnon, it is unclear whether it is the combination
of grounds that gives rise to the cause of action under article 1053
C.C.L.C. However, given Justice Rinfrets elaboration of the law discussed
above, my sense is that it can be said with reasonable confidence that any
one of these grounds would have sufficed to found liability. If true, this
represents a very broadly based theory of personal liability on the part of
public officials and it seems to be one that is not constrained by any no-
tions of personal culpability such as malice, bad faith, or even negligence.
This contrasts with the judgment of Justice Martineau, who would not
countenance liability without proof of fault in the form of either negli-
gence or bad faith.
At the Supreme Court of Canada, the judgment of Justices Martland
and Locke, with Chief Justice Kerwin concurring on all relevant points,
concluded that the cancellation was the result of an order by Duplessis.
The question of liability was posed as the following: whether the respon-
dents acts were justifiable as having been done in good faith in the exer-
cise of his official function as Attorney-General and Prime Minister of the
Province of Quebec.26
Nonetheless, in what follows, the judgment nowhere explicitly articu-
lates what constitutes a lack of good faith in a context such as this. Ad-
dressing this point, Justice Martland simply holds that Duplessis had no
role in relation to the Liquor Commission other than the giving of advice.
He was therefore not acting in any of his official powers when ordering
the cancellation. This begs the question of whether acting without power
in this sense constitutes bad faith. Justice Martland then indicates that,
even if acting independently, Archambault had no basis for acting for the
reasons advanced, and, in any event, Archambault acted improperly in
responding to the orders of Duplessis. How this relates to Duplessiss li-
ability is not made clear, save to the extent that it reinforces the earlier
conclusion that Duplessis was acting without any semblance of authority.
Justice Martland again returns to this theme of a total absence of au-
thority in addressing the impact of article 88 C.C.P. In so doing, he does
pay limited attention to Duplessiss knowledge and intentions in consider-
ing whether article 88 might be triggered because Duplessis apparently
… thought it is was his right and duty to act as he did.27 In the face of a
total absence of authority and nothing on which Duplessis could found
this belief, it was not an answer to the accusations against him.
25 Roncarelli (C.A.), supra note 5 at 518.
26 Roncarelli, supra note 2 at 153.
27 Ibid. at 158.
596 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
In short, for the three judges who signed on to this theory of liability
(Justices Martin and Locke, and Chief Justice Kerwin), notwithstanding
the presence of the term good faith as an entry point to the discussion,
the basis for liability was simply the exercise of powers that in law Du-
plessis did not possess. Moreover, this basis for liability took him outside
the protection of article 88 C.C.P., notwithstanding what he might have
believed, given that there was no basis in fact or law for such a belief.
Justice Abbott also predicated his judgment on the absence of author-
ity but, in the context of both liability and the reach of the notice provi-
sion, article 88 C.C.P., he proceeded on a somewhat different basis than
Justice Martland did. For Justice Abbott, irrespective of Duplessiss belief
that he was acting in the best interests of the Quebec populace, he must
have known that in none of his various capacities did he have the legal
authority to act as he did. He was bound to know that he was acting
without such authority,28 and liability under article 1053 C.C.L.C. flowed
from this. In terms of article 88 C.C.P., in a case such as this, a public offi-
cer was not acting in the exercise of his functions so long as he did not
have reasonable ground for believing that such act was within his legal
authority to perform.29 This obviously implies that Justice Abbott saw
Duplessiss state of mind as relevant to both liability and the application
of article 88 C.C.P., though perhaps with a subtle difference between
them. While in the case of liability the finding was based on imputed or
assumed subjective knowledge, for the avoidance of article 88s notice pro-
vision, the inquiry was based on what was reasonably or objectively
deemed to be known.
Justice Rand, in a judgment delivered on behalf of himself and Justice
Judson, took quite a different tack. He had no doubt that Duplessis had
acted in bad faith in ordering Archambault to cancel the licence on the
grounds advanced. In his famous statement, bad faith was present when a
public officer acted for the purposes of punishing a person for exercising
an unchallengeable right [and] arbitrarily and illegally attempting to di-
vest a citizen of an incident of his civil status.30 Duplessiss involvement
went so far beyond his justifiable capacity in relation to the Liquor Com-
mission (i.e., giving advice) as to make it his personal act. Not only did
this provide a basis for legal liability but it also disabled Duplessis from
relying on article 88 C.C.P. There was no colour of propriety in his ac-
tions.31 They were quite beyond the scope of any function or duty commit-
28 Ibid. at 185.
29 Ibid. at 186 [reference omitted].
30 Ibid. at 143.
31 Ibid. at 144.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 597
ted to him.32 Consequently, his actions were taken in a private capacity,
irrespective of the fact that he used the influence of his office in dictating
a course of action to Archambault.
Justice Rand adopted a narrower conception of liability than that
adopted by Justice Martland, or indeed by Justice Mackinnon at first in-
stance or Justice Rinfret in dissent in the Quebec Court of Appeal. It was
liability based on malice, which Justice Rand defined as simply acting for
a reason and purpose knowingly foreign to the administration, to which
was added here the element of intentional punishment by what was vir-
tually vocation outlawry.33
Today, courts describe this as the targeted malice limb of misfeasance
in public office.34 Nonetheless, in light of continuing definitional problems
with what constitutes malice, highlighted later in this paper,35 it is sig-
nificant that Justice Rand was somewhat ambivalent about the state-of-
mind component of the delict or tort. His ambivalence is apparent from
Justice Rands response to the argument that, whatever his errors of law,
Duplessis had acted in good faith in intervening in the affairs of the Liq-
uor Commission. Here, Justice Rands response reflected an objective
standard by which the prime ministers conduct was to be judged. Irre-
spective of Duplessiss beliefs, if they did not spring from a rational ap-
preciation of the intent and purpose of the legislation,36 they were not
justifiable or properly advanced as a defence to a malice-based form of li-
ability.
Indeed, Justice Rands reluctance to be definitive as to the scope of the
wrong is reinforced by his refusal to deal with the argument that, even if
Archambault had been justified in cancelling Roncarellis licence on the
grounds advanced, Duplessis would have still been liable for acting with-
32 Ibid. This interpretation of art. 88 C.C.P. raises the issue of whether the majority
judgments leave any room for the operation of that provision in the case of the art. 1053
C.C.L.C. liability of public officials. To the extent that, for Rand J., there appears to be a
coincidence of the incidents of the delict and the basis for the avoidance of art. 88, the
two may have collapsed into one. To the extent that Martland J. appears to envisage a
role for art. 88 C.C.P. where there was some basis for the belief that illegal or ultra vires
conduct was permitted, his broader version of the reach of art. 1053 C.C.L.C. does leave
some room for art. 88 C.C.P. For Abbott J., one of the components of the wrong appears
to be that Duplessis must have known that he had no authority to do what he was do-
ing. In terms of his conception of the reach of art. 88 C.C.P., it is difficult to envisage a
situation where the public official knew or must have known that she did not have au-
thority but nevertheless had a reasonable ground for believing that she had authority.
For more discussion on this issue, see Leckey, supra note 6 at 726.
33 Roncarelli, supra note 2 at 141.
34 See e.g. Alberta (Minister of Infrastructure) v. Nilsson, 2002 ABCA 283, 320 A.R. 88 at
para. 116, 220 D.L.R. (4th) 474 [Nilsson].
35 See Part III, below.
36 Roncarelli, supra note 2 at 143.
598 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
out authority in bringing about the cancellation. He explicitly left for an-
other day the argument put by F.R. Scott on behalf of Roncarelli, whether
Roncarelli was entitled to the continuance of that enjoyment … free from
the influence of third persons on that body for the purpose only of injuring
the privilege holder.37
In the emphasized portion of that quotation, however, Justice Rand
adds a qualification to the proposition advanced by Scott. Phrased in that
manner, the issue is not whether liability can flow simply from usurping a
power and dictating a course of action to the person who in law possesses
that power, but rather whether a public official can be liable if, with an in-
tention to harm, he or she is instrumental in causing another public offi-
cial to take action against a private citizen. So posed, the question is
whether the rule in Allen v. Flood,38 holding that the common law did not
recognize such a wrong when the parties were private citizens, also ap-
plied when the person whose conduct being impugned was a public offi-
cial.39 The question that this characterization of the issue poses is whether
Justice Rand is, by implication, indicating that the only possibility for li-
ability in such instances is where the usurpation of authority and influ-
ence is accompanied by an intention to injure, and that he is not about to
decide even that question in this context.
In dissent, Justice Cartwright rejected the argument that the grounds
on which Archambault or Duplessis had acted were ultra vires. The basis
on which Archambault had exercised his power to cancel the licence was
not illegal. He had unfettered discretion and held an honest belief that
cancellation was the right thing to do. Parroting Justice Bissonnette of
the Quebec Court of Appeal, Justice Cartwright indicated there was no
basis on which to hold Duplessis liable, particularly as there was no evi-
dence that he had coerced an unwilling Archambault. He therefore did not
need to consider the reach of article 88 C.C.P.
The remaining dissenting judges, however, decided the case on the ba-
sis of article 88 C.C.P. According to Justice Taschereau, Duplessis did not
lose the protection of article 88 simply because he may have made a mis-
take in exercising his advice and law enforcement role as Attorney Gen-
eral. Justice Fauteux took the position that article 88s notice requirement
did not become inoperative simply because a public officer was acting in
abuse of power, without jurisdiction, in violation of the law, or in bad
faith. Notice still had to be given.
37 Ibid. [emphasis added].
38 (1897), [1898] A.C. 1, 14 T.L.R. 125 (H.L.).
39 Mark Aronson (supra note 4) deals with this aspect of the tortious liability of public au-
thorities both at the time of Roncarelli and in its subsequent evolution.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 599
Unlike Justice Taschereau, Justice Fauteux did express himself on the
issue of whether there would have been liability under article 1053 of the
Civil Code of Lower Canada, absent article 88 of the Code of Civil Proce-
dure. For Justice Fauteux, Duplessis, while not acting in bad faith or ma-
liciously, had arrogated to himself a power that he did not have at law by
directing Archambault to cancel Roncarellis licence. In simply acting ille-
gally, Duplessis had brought himself within the reach of article 1053
C.C.L.C. To this extent, Justice Fauteux adopts the same principle of li-
ability under article 1053 C.C.L.C. as apparently espoused by Justices
Martland, Kerwin, and Locke. However, that still does not amount to a
majority on this issue. The only way in which it would be possible to con-
struct such a majority would be if there was any sense emerging from
Justice Cartwrights judgment that Duplessis would have been liable if
the basis for cancellation of the licence had been illegal.
In fact, there is an argument to be made that Justice Cartwright did
accept that principle. If he did not believe that acting for an improper
purpose or contrary to the Alcoholic Liquor Act40 would have attracted li-
ability, why did he take such pains to argue that Archambault had not
abused his statutory discretion? He also specifically distinguished the
Australian case of James v. Cowan in which, according to Justice Cart-
wright, a public authority had been held liable for wrongful taking of the
plaintiffs goods simply on the basis that it was relying on an ultra vires
order.41 Here in Roncarelli, the order was not ultra vires.
If that analysis is correct, then there may have been a majority ratio
in Roncarelli to the effect that where a public authority acts illegally or
ultra vires and causes financial loss to the affected person, absent statu-
tory protection in various forms, that action constitutes faute and attracts
liability under article 1053 C.C.L.C. As a precondition to liability, there is
no need to prove malice, bad faith, absence of an honest or reasonable be-
lief as to the existence of the power asserted, or even negligence or reck-
lessness. Nevertheless, Justice Cartwright would have had it otherwise
were the power in question judicial or quasi-judicial. Under either com-
mon or civil law, on the strength of McGillivray v. Kimber,42 there is seem-
40 Supra note 14.
41 James v. Cowan, [1932] A.C. 542, 48 T.L.R. 564 (P.C. on appeal from H.C.A.), cited in
Roncarelli, supra note 2 at 170.
42 (1915), [1916] 52 S.C.R. 146, 26 D.L.R. 164 [McGillivray cited to S.C.R.]. This was a case
in which the members of the pilotage authority were found liable for their conduct in
withdrawing the plaintiffs pilots licence. However, for the majority of the Court, a fail-
ure to plead that they were acting in a quasi-judicial capacity or that they were acting
outside their quasi-judicial capacity was sufficient to prevent the defendants from argu-
ing at the Supreme Court of Canada that they were immune from liability absent proof
of malice or bad faith. In contrast, the minority would have dismissed the claim for
damages on that very basis.
600 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ingly no liability for illegality absent proof of fraud, collusion, or mal-
ice.43
In his 1960 case comment, Claude-Armand Sheppard characterizes
the ratio of this aspect of the judgment somewhat differently and more
narrowly.44 Liability under article 1053 came into play when a public offi-
cer engaged in a particular form of illegal conductthe usurpation of au-
thority to force another public officer to do something that that second of-
ficer could have done perfectly legally on her own initiative.45 Even so, he
saw this conception of the reach of article 1053 in public law matters as
potentially the milestone that history would view Roncarelli as having
created.46
II. Situating Roncarelli within 1959 Case Law on the Liability of Public
Office Holders
A. Common Law
Given the extent to which the anglophone judges, both majority and
minority, used common law authorities interchangeably in the course of
justifying their conceptions of the proper scope of the liability of public of-
ficers, there is a basis for the claim that they at least thought that they
were writing a judgment that would apply outside of Quebec, though the
source of liability in this instance was article 1053 C.C.L.C.
However, even accepting this, there was no consensus among the ma-
jority or Justice Cartwright (of the non-Quebec judges) in dissent as to
what precisely was the basis of liability. Certainly, Justice Abbott refer-
enced Dicey and the proposition that public officials were liable in their
personal capacity for every act done without legal justification and in
43 Halsburys Laws of England, 2d ed. (London, U.K.: Butterworths, 1931) vol. 26 at 284-
85, cited in Roncarelli, supra note 2 at 169.
44 Sheppard, supra note 1. For other contemporaneous commentary, see Edward
McWhinney, Case Comment on Roncarelli v. Duplessis (S.C.C.), (1959) 37 Can. Bar
Rev. 503. This was also a comment on Lamb v. Benoit ([1959] S.C.R. 321, 17 D.L.R. (2d)
369), another of the Supreme Court of Canadas Jehovahs Witnesses decisions, this
time imposing liability on the Provincial Police of Quebec for false arrest and malicious
prosecution.
45 Sheppard, supra note 1 at 95-96.
46 Ibid. at 97. Writing some five years later, W.I.C. Binnie (now Binnie J. of the Supreme
Court of Canada) described Roncarelli as an example of the maxim that hard cases
make bad law, even as interpreted by Sheppard and not creating civil liability for all
forms of public official illegality or ultra vires conduct: W.I.C. Binnie, Attitudes toward
State Liability in Tort: A Comparative Study (1964) 22 U.T. Fac. L. Rev. 88 at 105. (I
am grateful to my colleague and contributor to the symposium, Mark Walters, for draw-
ing my attention to this article.)
excess of their lawful authority.47 However, Justice Rand (with whom
Justice Judson concurred) was far more guarded, declining to answer the
question of whether there would have been liability had the Liquor Com-
mission acted for proper purposes but under dictation from Duplessis as
usurper of authority, to use Sheppards terminology. His finding of liabil-
ity was integrally connected with his discernment of bad faith and im-
proper purpose, with bad faith perhaps defined expansively to include the
irrational conception of the scope of ones power. Moreover, Justice Mart-
land (with Chief Justice Kerwin and Justice Locke concurring), while de-
fining the critical issue in terms of good faith, did not thereafter return
to any consideration of the components of good faith but instead focused
on the legality of Duplessiss actions. Meanwhile, Justice Cartwright (in
dissent) also seemed to base his finding on his conception that the actions
of the Liquor Commission (and Duplessis) were intra vires.
How does this match up against existing common law authorities on
the liability of public officers? First, even on the judgments own terms, it
is clear that contemporary common law principles did not impose liability
for all instances of illegal or ultra vires action. As the Supreme Court of
Canada itself had made clear in McGillivray, where a statutory authority
was discharging a judicial or quasi-judicial function, there was no liability
in the absence of fraud, collusion, or malice.48 Also, while it is accurate to
assert, as did Justice Cartwright, that in the Australian appeal of James
v. Cowan, the Judicial Committee of the Privy Council imposed liability
on the basis of simple illegality, that illegality was nonetheless tied into
two known torts that did not depend upon proof of malice, bad faith, or an
improper purpose.49 There, the minister had made an ultra vires order for
the seizure of fruit. That order directly led to trespass and wrongful sei-
zure by the officials executing the decision on behalf of the minister. As
such, it was consistent with what leading writers characterized as the
common law position at that time: In the absence of statutory immunity,
every individual is liable for the commission of wrongful acts and for such
omissions of duty as give rise to actions in tort at common law or for
breach of statutory duty.50
Viewed as a common law case, Roncarelli can be seen as consistent
with James v. Cowan. The intervention of Prime Minister Duplessis led to
a wrongful seizure of goods for which he was held liable. However, there
are problems with that analysis. There seems little doubt that the Court
would have held the prime minister liable even if there had been no police
47 Dicey, supra note 24 at 193, cited in Roncarelli, supra note 2 at 184.
48 See McGillivray, supra note 42 and accompanying text.
49 See James v. Cowan, supra note 41.
50 E.C.S. Wade & G. Godfrey Phillips, Constitutional Law, 4th ed. (London, U.K.: Long-
mans, 1950) at 300 [emphasis added], cited in Sheppard, supra note 1 at 96.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 601
602 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
raid and no seizure, but simply an order to revoke the licence without
more. Thus, the majority judges describe the wrong committed not as an
ultra vires order to cancel a licence and to follow that cancellation up with
a police raid and seizure of liquor, but simply as an ultra vires order to
cancel a licence, although Duplessis was held responsible in damages for
the value of the goods seized.
The deployment of Dicey and Halsbury notwithstanding, there is little
reason to accept the proposition that, if Roncarelli holds that public offi-
cial liability flows simply from illegality, the judgment reflected existing
common law principles. E.C.S. Wade, in his case comment on the first in-
stance decision that appeared in the Canadian Bar Review,51 sought to
explain the decision from a common law perspective on a narrower basis,
albeit ambivalently. In order to establish tortious liability at common law,
it was necessary to establish not just illegality but also bad faith.52 Wade
continued:
In the present case the malice of the defendant would appear to con-
sist in the existence of his improper motive, that is, one which the
law does not allow or sanction. He acted intentionally in ordering the
revocation of the permit; he knew, or ought to have known, that he
had no power in law so to order.53
Indeed, whatever the situation in 1959, by 1971 it was clearly estab-
lished that Canadian common law did not countenance the existence of
the principle that illegality itself was sufficient to trigger liability. Deliver-
ing the judgment of the Supreme Court of Canada in Welbridge Holdings
Ltd. v. Greater Winnipeg (a case of municipal liability),54 Justice Laskin,
as he then was, quoting the American legal academic K.C. Davis, stated
that [i]nvalidity is not the test of fault and it should not be the test of li-
ability.55
If mere invalidity did not necessarily lead to liability, and the essence
of the wrong here was the order to cancel the licence and not the seizure
that came out of that order, what precisely was the common law tort for
which Duplessis would have been liable had these events occurred in a
common law province? It is on this point, of course, that in subsequent ju-
51 E.C.S. Wade, Case Comment on Roncarelli v. Duplessis (Sup. Ct.), (1951) 29 Can. Bar
Rev. 665.
52 Ibid. at 666, 670.
53 Ibid. at 671.
54 (1970), [1971] S.C.R. 957, 22 D.L.R. (3d) 470 [Welbridge cited to S.C.R.]. This principle
was also held to be part of Quebec public law even under art. 1457 C.C.Q., the successor
to art. 1053 C.C.L.C. See Enterprises Sibeca v. Frelighsburg (Municipality of), 2004 SCC
61, [2004] 3 S.C.R. 304 at para. 20, 243 D.L.R. (4th) 513, Deschamps J. [Enterprises Si-
beca].
55 Kenneth Culp Davis, Administrative Law Treatise (St. Paul, Minn.: West, 1958) vol. 3
at 487, 25.12, cited in Welbridge, supra note 54 at 969.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 603
risprudence the judgment of Justice Rand (with Justice Judson concur-
ring) came to be treated as though it had majority support.
B. Article 1053 of the Civil Code of Lower Canada
While it is feasible to construct from the outcome in Roncarelli a the-
ory of public law liability at common law that is consistent with the
weight of both contemporary authority and subsequent evolution in the
jurisprudence, the question still remains whether such a reading of Ron-
carelli is consistent with the existing Quebec law of that time.
While there is no doubt that article 1053 C.C.L.C. hinges on proof of
faute, as early as 1935 Carl Goldenberg described faute for these pur-
poses in expansive terms: A positive act constitutes a faute when it is
the doing of an act prohibited by law.56
However, Sheppard is skeptical of the reach of this assertion, at least
in terms of public law liability. Indeed, like Wade commenting on the trial
judgment, Sheppard, in an attempt to reconcile liability based on article
1053 C.C.L.C. and the common law status of Quebec public law, speaks of
the need to develop article 1053 jurisprudence where gaps exist by refer-
ence to our public law of English origin.57 Interestingly, the principle of
English public law that he then went on to identify was that every act
not specifically authorized is prohibited,58 itself a broad reading of
Goldenberg as extending beyond acts specifically prohibited by law, rather
than any sense of a theory of liability based on conduct that resulted in a
known tort, including the bad faith exercise of public power. For article
1053 C.C.L.C., that proposition became: [A]nyone causing damages is li-
able unless authorized by law to inflict them.59 This then logically led
Sheppard to the conclusion that, irrespective of the failure of the Supreme
Court of Canada to deal decisively with the relevant principles of liability
under article 1053 C.C.L.C., Duplessis would have been liable even if he
had ordered the Commission to exercise its discretion in a manner which
by itself would have been lawful and would not have constituted a fault on
the part of the latter.60
56 Carl Goldenberg, The Law of Delicts Under the Civil Code of Quebec (Montreal: Wilson
& Lafleur, 1935) at 11, cited in Sheppard, supra note 1 at 93.
57 Ibid. at 93.
58 Ibid. [emphasis added]. In other words, a prohibition arising by virtue of statutory in-
terpretation (such as taking account of an irrelevant factor) is just as much a prohibi-
tion for these purposes as a statutory provision that explicitly forbids certain actions.
59 Ibid. at 96.
60 Ibid.
604 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
For Sheppard, this was the most significant, though controversial,
contribution of this memorable case to our law.61 However, to the extent
that he treats this proposition as following from the even broader proposi-
tion that liability flowed from the doing of a prohibited or illegal act, the
outcome is seemingly consistent with the private law thrust of article
1053 C.C.L.C. identified by Goldenberg in 1935. More importantly, it is a
much broader basis for public law liability than existed under contempo-
rary common law, at least as explained by the commentators. It is only in
the earlier propositions of Dicey and Halsbury, cited at various points in
Roncarelli, that one can see any equation between that position and a
theory of the common law liability of public officials.
III. Roncarelli through 2009 Eyes
Given the dramatic nature of the facts in Roncarelli and the difficulty
of establishing the truth in similar or analogous circumstances, it is not
surprising that there is a dearth of Canadian case law examining the lim-
its of the liability of public officers for illegal action, at least outside the
domain of wrongful arrest and imprisonment, and the wrongful seizure of
property.
Over ten years passed before the Supreme Court of Canada itself cited
Roncarelli for the first time. It is interesting to note that in Canada (Con-
seil des Ports Nationaux) v. Langelier in 1969, Justice Martland, deliver-
ing the judgment of the Court, referred to Diceys conception of the re-
sponsibility in damages of public officials who act outside their authority,
noting Justice Abbotts approval of this principle in Roncarelli.62 However,
as identified already, less than a year later in Welbridge, Justice Laskin
pronounced that invalidity was not the test of liability.63 In the course of
that judgment, only passing reference was made to Roncarelli. In 1973s
Roman Corp. v. Hudsons Bay Oil and Gas,64 the Supreme Court of Can-
ada again faced a situation in which the plaintiff was, inter alia, relying
directly on Roncarelli as a basis for a claim against the prime minister
and one of his cabinet ministers. Here too, Justice Martland spoke for the
Court. In the last substantive paragraph of his judgment, he described li-
ability in Roncarelli as based on the finding that Duplessis had acted
without legal justification and for a wrongful purpose.65 However, in
what may be a more telling statement, he went on to distinguish Ron-
carelli on the basis that the defendants in this instance, as Ministers of
61 Ibid. at 97.
62 (1968), [1969] S.C.R. 60 at 65, 2 D.L.R. (3d) 81.
63 Welbridge, supra note 54.
64 [1973] S.C.R. 820, 36 D.L.R. (3d) 413 [Roman Corp. cited to S.C.R.].
65 Ibid. at 831.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 605
the Crown, were acting in the performance of their public duties in enun-
ciating, in good faith, Government policy.66 Earlier, Justice Martland had
also stated that there was no evidence that that policy had been adopted
with a view to injuring the appellants.67
The foregoing suggests that bad faith or an intent to injure may be a
necessary component of Roncarelli liability, at least at Canadian common
law. Indeed, the notion that mere illegality was insufficient became even
clearer in the first common law application of Roncarelli to establish li-
ability, Gershman v. Manitoba (Vegetable Producers Marketing Board).68
Delivering the judgment of the Manitoba Court of Appeal sustaining a
finding of liability against the Manitoba Wheat Board, Justice OSullivan
clearly regarded bad faith as an essential component of Roncarelli liabil-
ity, the principles of which he stated were applicable throughout Canada.
He cited with approval the trial judges description of liability as founded
on a glaring abuse of power.69 This was a flagrant abuse of public power
aimed at the respondent.70 He then characterized the wrong in this case
not as simply acting without legal justification and for a wrongful pur-
pose,71 but as having caused knowingly substantial damage to the plain-
tiff.72 This act did not represent good faith in the exercise of the wheat
boards official powers.73 Subsequently, he twice formulated the wrong in
somewhat different terms but, in each, there was an element of conduct
beyond merely acting illegally. It was tortious for the wheat board to use
its authority for the purpose either of driving the Gershman family out of
business or of punishing the plaintiff for his representations.74 Finally,
Justice OSullivan spoke of the wheat board acting not in the execution of
its public duty but for purposes and by means outside the scope of the
statute from which it derived its powers.75
However, as the judgment of Justice OSullivan and the analysis
above illustrates, even conceding that the cause of action demands proof
of bad faith, there remained serious uncertainty as to what actually con-
66 Ibid.
67 Ibid. at 830.
68 (1976), 69 D.L.R. (3d) 114, [1976] 4 W.W.R. 406 (Man. C.A.) [Gershman cited to D.L.R.].
69 Ibid. at 123, citing Gershman v. Manitoba (Vegetable Producers Marketing Board)
(1975), 65 D.L.R. (3d) 181 at 191, [1976] 2 W.W.R. 432.
70 Gershman, supra note 68 at 123.
71 Ibid., discussing Roman Corp., supra note 64, Martland J.
72 Gershman, supra note 68 at 124.
73 Ibid.
74 Ibid. at 125.
75 Ibid.
606 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
stituted bad faith for these purposes.76 At its broadest, it could mean sim-
ply acting improperly or for a wrongful purpose without more. In other
words, knowledge of illegality, aside from the deliberateness of the ac-
tions, formed no part of the wrong. In this form, of course, there is little or
no discernible difference between it and liability simply arising out of ille-
gality or ultra vires action. At the other extreme would be a form of liabil-
ity based not just on knowledge of illegality or an impermissible purpose,
but a wilful intention to harm the target. In between would be a range of
other possibilities such as Justice Rands position that an irrational but
apparently honest belief on the part of a public officer in the legality of
what he or she was doing would not be a defence.
Nonetheless, it is clear from Roman Corp. and Gershman that the de-
velopment of Canadian common law in this domain, mirroring that of
other Commonwealth jurisdictions, was focused primarily on the content
of bad faith and malice in some form or another. The concept of liability
flowing from illegality, attributed to Dicey and apparently favoured by
some of the judges in Roncarelli, was no longer part of the mix.
At common law, the culmination of this evolution came seven years
ago in the judgment of the Supreme Court of Canada in Odhavji, where a
claim was brought against the Toronto police for what was by this time
commonly described as the tort of misfeasance in public office.77 After an
examination of relevant Canadian and Commonwealth authorities, Jus-
tice Iacobucci, delivering the judgment of the Court, summarized the
principles of liability as based on two components: i) deliberate unlawful
conduct in the exercise of public functions; and ii) awareness that the con-
duct is unlawful and likely to injure the plaintiff.78
Along the path to these conclusions, Justice Iacobucci made it clear
that proof of an unlawful exercise of a statutory or prerogative power was
not a necessary component of the tort.79 However, the purpose of this ap-
proach was to include usurpations of power within the ambit of the tort,
like that in Roncarelli itself,80 and also situations involving omissions or
failures to actin other words, involving illegality in a broader sense.81
Usefully, he also made the point that this description of the components of
the tort embraces each of what are sometimes treated as two different
categories. He wrote, Category A involves conduct that is specifically in-
76 For similar views on the fluidity of the concept of malice, see Aronson, supra note 4 at
627ff.
77 Odhavji, supra note 7.
78 Ibid. at para 32.
79 Ibid. at para. 17.
80 Ibid. at para. 19.
81 Ibid. at para. 21.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 607
tended to injure a person or class of persons. Category B involves a public
officer who acts with the knowledge both that she or he has no power to
do the act complained of and the act is likely to injure the plaintiff.82
According to Justice Iacobucci, there is no difference in principle be-
tween Category A and Category B. Rather, in Category A, both elements
of the tort are established by proof of the fact of a specific intention to in-
jure. [A] public officer does not have the authority to exercise his or her
powers for an improper purpose, such as deliberately harming a member
of the public.83
However, in terms of both Roncarelli and other authorities, there are
problems with Odhavji. More specifically, Justice Iacobucci finds the prin-
ciples he articulates to be consistent with the finding in Roncarelli, a case
in which the defendant intentionally exceeded his powers for the express
purpose of interfering with a citizens economic interests.84 It is worth
recollecting that, in Roncarelli, Justice Martland, writing for three mem-
bers of the majority, rejected the argument that Duplessis should not be
liable because he believed he possessed the authority to do what he did.
For those three judges, whatever Duplessiss subjective belief in the scope
of his powers, it was no answer to the issue of liability, and only relevant
to a defence based on article 88 C.C.P. and lack of notice to the extent that
there was some basis in fact or law for that belief. Even Justice Rand de-
fined targeted malice in terms that included irrational belief on the part
of the public officer in the legality of what was done. It was only Justice
Abbott who seemingly based liability on the fact that Duplessis must have
known that he had no legal authority to do what he did. What is clear is
that there was certainly not a majority in Roncarelli supporting the
proposition that intention (in the sense of knowingly acting illegally) was
a component of the tort.
The same is true of the leading English decision in the field,85 as in-
terpreted and applied by the British Columbia Court of Appeal prior to
Odhavji.86 Reckless indifference87 to the legality of the actions suffices
82 Ibid. at para. 22.
83 Ibid. at para. 23.
84 Ibid. at para. 30 [emphasis changed by author].
85 See Three Rivers District Council v. Bank of England (No. 3), [2001] UKHL 16, [2000] 2
W.L.R. 1220, [2001] 2 All E.R. 513 [Three Rivers cited to W.L.R.].
86 See Powder Mountain Resorts Ltd. v. British Columbia, 2001 BCCA 619, 159 B.C.A.C.
14, 94 B.C.L.R. (3d) 14 [Powder Mountain]. See also Nilsson, supra note 34.
87 Ibid. at para. 7, Newbury J.A., citing Three Rivers, supra note 85 at 1231, Lord Steyn.
There is subsequent Ontario authority that assumes that Iacobucci J., by citing both
Three Rivers and Powder Mountain, accepted bad faith to include recklessness as to
whether the conduct was illegal. See e.g. Foschia v. Conseil des coles de Langue
Franaise du Centre-Est, 2009 ONCA 499, 178 A.C.W.S. (3d) 143 at para. 24.
608 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
under Category B. Given that Justice Iacobucci in Odhavji referred to
both the leading English authority and Justice Newburys judgment in
the British Columbia Court of Appeal on this point without critical com-
ment,88 the question becomes whether Justice Iacobuccis ultimate sense
that knowledge of illegality is a component of the tort includes reckless
disregard or indifference within the realm of knowledge.
In fact, under Quebec civil law, bad faith encompasses not just delib-
erate wrongdoing but also recklessness. Under article 1457 of the Civil
Code of Qubec (C.C.Q., the successor to article 1053 C.C.L.C.), the Su-
preme Court of Canada has held that, as far as public authorities are con-
cerned, liability is engaged on the basis of bad faith, including serious
carelessness or recklessness.89 According to Justice LeBel in Finney,
recklessness implies a fundamental breakdown of the orderly exer-
cise of authority, to the point that absence of good faith can be de-
duced and bad faith presumed. The act, in terms of how it is per-
formed, is then inexplicable and incomprehensible, to the point that
it can be regarded as an actual abuse of power, having regard to the
purposes for which it is meant to be exercised.90
Interestingly, in terms of how the Court now regards Roncarelli, this
statement follows a description of Roncarelli as an authority for the
proposition that intentional fault amounts to bad faith.91 Before elaborat-
ing (as quoted above), Justice LeBel states that bad faith must neverthe-
less encompass more than that before elaborating as quoted. Subse-
quently, in Enterprises Sibeca, Justice Deschamps cites Justice LeBels
statements before formulating the concept of bad faith slightly differently.
Bad faith includes
acts that are so markedly inconsistent with the relevant legislative
context that a court cannot reasonably conclude that they were per-
formed in good faith. What appears to be an extension of bad faith is,
in a way, no more than an admission in evidence of facts that
amount to circumstantial evidence of bad faith where the victim is
unable to present direct evidence of it.92
The question then becomes whether this broader concept of bad faith
for the purposes of article 1457 C.C.Q. is also applicable at common law.
After referring to Welbridge (a common law case) for the proposition that,
absent proof of bad faith, courts do not impose liability on the policy-
88 Odhavji, supra note 7 at para. 25.
89 Finney v. Barreau du Qubec, 2004 SCC 36, [2004] 2 S.C.R. 17 at para. 39, 240 D.L.R.
(4th) 410 [Finney].
90 Ibid.
91 Ibid.
92 Enterprises Sibeca, supra note 54 at para. 26.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 609
making processes of municipalities,93 Justice Deschamps confines herself
to civil law authorities in teasing out the content of bad faith. It is note-
worthy that Finney is discussed but not Odhavji. In Finney, Justice LeBel
derives his sense of bad faith exclusively from civil law authorities with-
out reference to Odhavji. Nonetheless, it is arguable that at least on this
point the principles of liability are the same for Canadian common law ju-
risdictions as for Quebec.
Under the 1991 Civil Code of Qubec, article 1376 provides: The rules
set forth in this Book apply to the State and its bodies, and to all other le-
gal persons established in the public interest, subject to any other rules of
law which may be applicable to them.94 According to Justice Deschamps
in Enterprises Sibeca, the qualification to article 1376 means that [w]hen
a public law rule is identified and determined to be applicable, it must be
incorporated into the law of civil liability.95
In this context, Justice Deschamps identifies an applicable and rele-
vant public law principle: municipalities acting in a legislative or policy-
making capacity have immunity from liability, absent proof of bad faith.
The content of that principle has to be defined by reference not to normal
civil law principles, but to relevant public law standards. Her subsequent
discussion of the content of bad faith continues to take place in that con-
text. Given that the public law of Quebec remains the common law, save
the qualification in article 1376 C.C.Q.,96 the Supreme Court of Canadas
conception of bad faith should apply to both Quebec and the common law
provinces. The uncertainty left by Justice Iacobuccis judgment in Odhavji
93 Ibid. at para. 20.
94 Art. 1376 C.C.Q. [emphasis added].
95 Enterprises Sibeca, supra note 54 at para. 18.
96 In Sainte-Anne-de-Bellevue (Ville de) c. Papachronis (2007 QCCA 770, [2007] R.R.A. 549
at paras. 22-23), the Quebec Court of Appeal endorsed Deschamps J.s position in En-
terprises Sibeca holding that liability of municipalities was governed by common public
law principles when they act in a legislative or regulatory capacity. However, with re-
spect to operational matters, there was no applicable or relevant common public law
principle and art. 1457 C.C.Q. governed the issue of liability. As far as legislative and
regulatory action was concerned, this meant that there could be liability only on proof of
bad faith or where the exercise of power was irrational. See Saint-Hilarion
(Municipalit de) c. 3104-9364 Qubec inc., 2009 QCCA 2375 at para. 55. With respect
to operational decisions, the principal criterion for finding of fault is whether a reasona-
bly prudent person placed in the same position would have acted in the same manner
(ibid. at para. 59), and a municipality cannot avoid liability by establishing that it or its
agents acted in good faith (ibid. at para. 61). All of this, however, begs the question of
whether there is an identifiable and applicable public law rule in the case of ministers
of the Crown and other high-level public officials exercising or purporting to exercise
power at an operational level, or whether the test for liability in such matters remains
that of art. 1457 C.C.Q. On municipal liability, see also Joly c. Salabery-de-Valleyfield
(Ville de), 2007 QCCA 1608 at paras. 29-33. See generally Denis Lemieux, Le rle du
Code civil du Qubec en droit administratif (2005) 18 Can. J. Admin. L. & Prac. 119.
610 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
is resolved in favour of bad faith extending at least to recklessness as to
the legality of a purported exercise of statutory or prerogative power.
It should be noted that Justice LeBels discussion of bad faith in
Finney takes place in the context not of establishing the components of li-
ability, but of giving meaning to a limitation of liability provision in the
relevant legislation. On the issue of whether proof of bad faith is a neces-
sary component of liability under article 1457 C.C.Q., Justice LeBel states
that illegality is not necessarily synonymous with civil fault, or a source
of delictual liability.97 He continues:
[T]he rules of civil liability that are applicable to the actions of the
Barreau are the general rules set out in art. 1457 CCQ, with the
changes that reflect the nature of the faults that are required in or-
der to establish liability that is limited by the partial or qualified
immunity granted by s. 193 of the Professional Code.98
Does this suggest that article 1457 liability does not always require
proof of bad faith, although it does not produce liability on all occasions on
which a public officer acts illegally? Enterprises Sibeca does not necessar-
ily resolve this question in that the issue of liability in that case arose in
the very particular context of the legislative and policy-making functions
of a municipality, not public officials generally.
Conclusion
While there is no doubt that Roncarelli was a landmark decision on
the delictual liability of public office holders, discerning what it actually
decided on that point is a highly problematic exercise. There is a case to
be made that, at least for the purposes of article 1053 C.C.L.C., a majority
of the judges in the Supreme Court of Canada (as well as possibly Justice
Mackinnon at first instance and Justice Rinfret in dissent in the Quebec
Court of Appeal) proceeded from the premise that liability arose simply by
virtue of the fact that Duplessis acted illegally. What particular form or
conception of illegality produced that outcome is, however, uncertain. Was
it the fact that Duplessis usurped a power that he did not have and
caused Archambault to cancel Roncarellis licence? Or was it because he
not only arrogated to himself that power but also caused Archambault to
exercise it for improper reasons?
Claude-Armand Sheppard argued that it was the former and that, in
doing so, the Court established a new principle of delictual liability under
article 1053. Any such form of delictual liability in which faute depended
simply on proof of illegality closely paralleled the position that some of the
judgments attributed to Dicey and Halsbury. Public office holders were
97 Finney, supra note 89 at para. 31 [reference omitted].
98 Ibid. at para. 40 [emphasis added].
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 611
personally responsible for their illegal or ultra vires actions. However,
such an assertion was certainly not reflective of the predominant common
law position in 1959. Where the consequence of an illegal or ultra vires ac-
tion was a known tort, such as wrongful imprisonment or wrongful sei-
zure of property where fault was not otherwise a component of the tort, li-
ability might flow automatically. In other contexts, such as the liability of
judicial or quasi-judicial bodies, proof of bad faith or malice was of the es-
sence in the cause of action. In other contexts, it was negligence.
Subsequently, in both common and civil law, the conception of general
responsibility for illegalities did not take hold, and neither did the broader
interpretations of the holding in Roncarelli. Rather, what happened is
that, for the most part, the judgment that really came to matter was that
of Justice Rand (Justice Judson concurring). The ratio was commonly
seen as one to the effect that where a public officer acts in bad faith (per-
haps including the intentional exercise of an authority that he or she does
not possess and for which there is no rational basis for belief in that au-
thority), liability will flow both at common law and under the Civil Code
of Qubec. At common law, this was one example of the emerging tort of
misfeasance in public office or abuse of public power, a tort that was fault-
based but required proof of fault at a higher level than that of mere negli-
gence.
Thereafter, the debates in the case law centred on what counted as
bad faith for these purposesa debate that now seems to have been re-
solved in favour of the inclusion of recklessness with respect to the legal-
ity of the power being exercised, but which may also include a sense of
constructive bad faith whenever a power is exercised in a way that is
markedly inconsistent with the relevant legislative context and pur-
pose.99 This comes perilously close to the way in which Wade elaborated
the ratio of the judgment of Justice Mackinnon at first instance, and of
Justice Rand of the Supreme Court of Canada in Roncarelli. Malice or bad
faith includes for these purposes situations where a public officer knew,
or ought to have known that he or she had no power to make the order
that he or she did,100 in the sense of both subject-matter jurisdiction and
animating purposes.
As far as the personal liability of public officers is concerned, whether
or not they are protected by an exemption from liability, there is certainly
a case for predicating liability on the existence of some form of fault or ab-
sence of good faith. Whether the state itself should also enjoy this degree
of protection is, of course, another question. At least since the judgment of
Justice Laskin for the Supreme Court of Canada in Welbridge, the general
99 See supra note 92 and accompanying text.
100 See supra note 53 and accompanying text.
612 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
principle of government liability law in Canada has been that adopted by
the Supreme Court of the United States in Dalehite v. United States.101
Government entities should not be subject to liability simply on the basis
of injury-causing illegalities. To impose the added threat of private dam-
age suits102 to the normal remedies of judicial review would not be in the
public interest. In particular, it would create an incentive for governments
to pay too little heed to broader public interests and make policy exercise
discretion in a defensive liability-avoidance manner.
What we learn from Roncarelli is that there were once strong voices in
favour of a much more broadly based conception of liability that would ex-
tend general responsibility in damages for illegal conduct to public offi-
cials in their personal capacity. There are all sorts of situations where
even today the exercise of discretionary power is subject to negligence or
even no-fault liability. As exemplified by Hill v. Hamilton-Wentworth Re-
gional Police Services Board,103 the Supreme Court of Canada continues to
try to work out when negligence liability should be imposed on the exer-
cise of discretionary powersin that instance, on the investigation of
crime and the apprehension of criminals.
As professionalism in public life is receiving increased attention, there
are clearly questions as to whether the Supreme Court of Canada, follow-
ing other Commonwealth jurisdictions, has chosen the correct path in see-
ing Roncarelli as a foundation for an overarching tort or delict of misfea-
sance in public office or abuse of power that is based on bad faith or mal-
ice, as opposed to one based on negligence, or simple illegality. After all,
within such a broader framework, it would still be possible to enact statu-
tory limitations and immunities where they are thought desirable.
However, in the absence of any great push to re-examine that ques-
tion,104 Roncarelli, as interpreted through a 2009 lens, does serve as a
101 346 U.S. 15, 73 S. Ct. 956 (1953) [cited to U.S.].
102 Ibid. at 59.
103 2007 SCC 41, [2007] 3 S.C.R. 129, 285 D.L.R. (4th) 620.
104 It is, however, interesting that there are elements of this debate in the current uncer-
tainty about the principles of liability for constitutional torts, and, indeed, instances
where courts have imposed that form of liability on the basis of a breach of an individ-
uals Charter right, causation, and foreseeability of damage without proof of malice. For
discussion, see Lisa J. Mrozinksi, Monetary Remedies for Administrative Law Error
(2009) 22 Can. J. Admin. L. & Prac. 133 at 163-73; David Stratas, Damages as a Rem-
edy Against Administrative Authorities: An Area Needing Clarification (Paper pre-
sented at the Canadian Institute for the Administration of Justice Annual Conference,
Taking Rights Seriously, Ottawa, 30 September2 October 2009) (on file with the au-
thor). Subsequently, in Vancouver (City of) v. Ward (2010 SCC 27), the Supreme Court
of Canada held that proof of malice or bad faith, or indeed negligence, was not a general
requirement of liability for violation of Charter rights. For references to Australian hos-
tility to the whole enterprise of constitutional torts, see Aronson, supra note 4 at n. 79
and accompanying text.
RONCARELLI V. DUPLESSIS AND DAMAGES FOR ABUSE OF POWER 613
graphic example of both the common law and civil laws condemnation of
bad faith or malice on the part of public officialsa condemnation that ex-
tends not only to recognition of the overarching tort of misfeasance in pub-
lic office, but also to the restrictive reading of statutory provisions immu-
nizing public officials from liability for their actions or inactions.
