Court of Appeal Splits on Legality of Immunizing Government Misfeasance
Overview
On Friday August 28, the Ontario Court of Appeal released its decision in Minotar v HMK Ontario. The issue is whether government can bar the Superior Court from adjudicating a claim of misfeasance in office by passing immunity legislation extinguishing a specific action before the court. The court split. The majority and dissent present starkly different visions of the tort of misfeasance in office, the role and content of section 96 of the Constitution Act, 1867, the principles that animate the rule of law as an organizing premise of our constitutional order and the limits recently placed by the Supreme Court on the government’s exercise of power in Democracy Watch. Hopefully, the Supreme Court will provide guidance on this important issue, made more pressing by Ontario’s “routine practice of inserting such absolute immunity provisions” (para 107) to insulate public officials from accountability for misfeasance and bad faith conduct. LOLG acted for the appellant. The decision can be found here.
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