1. Is there municipal liability when an Order is withdrawn?
O.B.O.A. - A.M.T.S.
October 7, 2015
Lorne Farr, Counsel, MAH LSB
The views expressed in this paper are the views of the author and do not necessarily represent the views of the Ministry of Municipal Affairs and Housing, and are intended to convey general information, rather than legal advice, about the matters discussed herein.

2. Issue
Norquay Developments Limited v. The City of Woodstock (2015) Superior Court of Justice
If an order is withdrawn by a municipality can the municipality be sued for negligence or misfeasance of office?

3. Facts
The Fire Protection and Prevention Act, 1997 authorizes the OFM to issue a Technical Guideline to provide information to municipalities respect fire protection services and other matters

4. Facts cont.
The municipal fire prevention officer inspects an apartment building and believes the building's fire alarm system does not comply with the OFM Technical Guidelines for system audibility
The Inspector issues an Inspection Report followed by an Order requiring compliance with the Guidelines
The Order is appealed to Fire Marshal and to Fire Safety Commission

5. Facts cont.
Order is withdrawn by the municipality prior to the Fire Safety Commission hearing Building owner sues the Inspector and the municipality for negligence in issuing the Order and for misfeasance in public office (a different kind of Tort)

6. Negligence
The Court finds the Defendants owed the building owners a duty of care. The FFPA protects the individual fire officials from personal liability if they acted in good faith Court finds the Inspector and the municipality were acting in good faith when the orders were issued Good faith means “acting reasonably and not capriciously and with appropriate fairness openness and regard for the rights of the affected parties.

7. Negligence
Inspector was not negligent in not seeking a legal opinion before issuing the Order Inspector were not negligent for issuing the Order or for relying on the OFM Guidelines.

8. Misfeasance in Office
This Tort require more proof than just acting negligently Category A public officer’s conduct was intended to injure a person Category B public officer has knowledge that he lacks the power to an act and that the act will likely injure the plaintiff Element of bad faith in both categories

9. Misfeasance in Office Requires proof that:
The defendant was a public officer who knew he or she did not have the statutory authority used and
Intended to cause harm to the Plaintiff or was reckless
Caused harm to the Plaintiff

10. Misfeasance in Office
Courts have held the test for the officer’s knowledge or awareness of the illegal conduct can be met by tests of subjective recklessness or acting wilfully blind that the conduct was legal

11. Decision No evidence the inspector intended to harm the Plaintiff
Was the inspector reckless in making the Order?
Mere error in interpretation of the FPPA does not constitute misfeasance
Officer believed he had the authority to issue the Order, acted in good faith and did not act recklessly

12. Decision
“The tort is not made out in every decision made by a public officer where there is some doubt that the decision is correct” Inspector and municipality not liable for the tort of misfeasance of office