When Public Law Meets Private Actions: How to Sue for Abuse of Public Power

Bringing an action against a government actor can be riddled with difficulty.

Immunity provisions frequently shield State conduct from civil actions. 

Where a claim is not carefully crafted, it can easily be dismissed on a preliminary motion as an improper means of seeking to reverse the impugned government decision itself.

Moreover, torts like misfeasance of public office have very specific requirements that must be proved if you are to succeed.

A recent decision of the Supreme Court of Canada, Resler v. Anglin, 2026 SCC 23, sheds light on when and how parties can bring civil actions for public misconduct.

An election gone wrong

As the Court recognized, Resler very much represents the intersection of administrative and public law. It poses the basic question: when can party sue for the abuse of public office?

Resler arose out of a series of decisions by the Chief Electoral Officer of Alberta (the “CEO”) during the 2015 provincial election campaign. 

The plaintiff was running for re-election as a Member of the Legislative Assembly (“MLA”) and ultimately lost his re-election bid.

During and after the election, the CEO:

• Ordered that certain of the plaintiff’s election signs be removed on the basis that they misidentified him and that the sponsorship information listed on the signs was smaller than required; and
• Ordered the plaintiff to pay an administrative penalty for violating the sponsorship requirements (collectively, the “Sign Orders”).
• Appointed an investigator after a member of the public found a list of electors that could be linked to the plaintiff; and
• Imposed an administrative penalty on the plaintiff for taking reasonable steps to protect the electors’ list (the “Electors Orders”).

Both the Sign Orders and the Electors Orders were challenged by way of numerous applications for judicial review and appeals.

The Alberta Court of Appeal ultimately upheld the Sign Orders. 

On judicial review of the Electors Orders, the lower Court had initially been overturned on procedural fairness grounds. The administrative penalty for the Electors Orders was eventually rescinded.

Following all the challenges above, the plaintiff commenced a civil action against the CEO. 

Broadly speaking, the plaintiff alleged that the Sign Orders had no legal foundation and were improper. He also alleged that the CEO had wrongfully targeted him. The plaintiff alleged that the investigations and penalties levied against him after the election were “without reasonable and probable cause”.

As damages, the plaintiff sought $400,000 for loss of chance of being re-elected due to the CEO’s alleged interference in the election, $400,000 for loss of future employment, and $400,000 for damage to his reputation, as well as punitive damages.

The CEO brought a motion to strike the Claim on the basis that it was frivolous, irrelevant, an abuse of process or improper. 

The gist of the CEO’s position was that the Claim required the Court to assess the election’s validity, something it could not do under the governing legislation. The CEO also sought summary judgment to dismiss the claims on the basis that the action lacked merit.

The lower Court struck the plaintiff’s claim in its entirety as an abuse of process. The Alberta Court of Appeal allowed the appeal in part, reinstating the claim with the exception of certain allegations relating to malicious prosecution, which were struck.

On appeal to the Supreme Court of Canada, the majority of the Court dismissed the appeal in its entirety.

In doing so, the Court established a number of key points about the limits of public power and what constitutes a proper claim for alleged government misconduct:

• There is a fundamental difference between judicial review and civil claims

The Court held that the plaintiff’s claim did not constitute a “collateral attack” on the 2015 election results and did not amount to an abuse of process.

The civil action involved a claim by the plaintiff for damages for the CEO’s actions on the basis that the CEO allegedly exercised public powers for improper or ulterior motives, knowing that doing so would likely cause the plaintiff significant harm.

Citing the reasoning of its previous decision Canada (AG) v. TeleZone Inc., 2010 SCC 62, the Court noted that the civil action does not “seek to undo what was done”, but complains about the manner in which the action was done and seeks compensation for the alleged misconduct.

The civil action did not amount to an abuse of process because the judicial review proceedings in the Alberta Courts did not “foreclose [the plaintiff’s] civil claim”:

[The judicial review proceedings] address the CEO guidelines relating to signage whereas the civil claim alleges bad faith conduct on [the CEO’s] part as regards his comments to the press regarding the illegal nature of the signs and his involvement in their destruction or removal … the amended statement of claim does not constitute an abuse of process in the sense of relitigating an issue that has been conclusively determined in a prior proceeding.

…

As determined above, [the plaintiff] does not seek to void the 2015 election. His action is not a collateral attack on the return of the winning candidate, nor is it an improper attempt to circumvent the controverted elections process.

In other words, a judicial review application, which seeks to quash the underlying decision, is a discrete form of legal process from a civil action, which seeks damages for the misuse of public power. 

The two proceedings are argued differently, involve an entirely different legal analysis, and seek different forms of relief.

• Government immunity usually does not apply to bad faith conduct

The Court rejected the argument that the CEO was immune from civil actions under the statutory immunity provision included in Alberta’s Election Act.

Under the relevant provision, proceedings cannot lie against the CEO for anything done “in good faith in the exercise of performance … of a power, duty or function under [the Elections Act”. 

This provision is akin to many other provisions in other acts governing State conduct across Canada.

Accordingly, the Court noted that the legislation “leaves a door open to civil proceedings where bad faith is alleged”. The provision in question granted partial, not complete, immunity to the CEO. 

Because the Elections Act did not provide for absolute immunity, civil claims for bad faith conduct by the CEO were not precluded. The plaintiff was therefore entitled to claim “a personal remedy based on his allegations of bad faith and tortious conduct, the usual remedy for which is damages …”.

• Misfeasance of public office is a tort claim

The plaintiff pleaded the tort of “misfeasance of public office” against the CEO.

Citing academic materials on the tort,^[1] the Court noted that misfeasance of public office “occupied a unique position at the intersection of tort law and administrative law”. But the tort is not an administrative law doctrine.

Misfeasance of public office addresses misconduct by government actors. It “addresses conduct that is uniquely tortious in nature and distinct from an administrative wrong, thus providing an entirely separate remedy”. 

The focus is not on “reassessing the propriety of the administrative decision”. Rather, the tort applies where the public official acts outside the scope of their powers, causing harm or injury to the plaintiff. It addresses abuses of public power.

In this case, the tort pleaded by the plaintiff raised a “reasonable cause of action” and could not be dismissed on a preliminary basis:

The amended statement of claim pleads bad faith, for example, that [the CEO] “exercised public powers for an improper and ulterior motive, knowing that it was likely to cause harm to [the plaintiff]” and that “[the CEO] knew or should have known that he had no power to undertake these actions or he had a subjective and reckless indifference with respect to whether he had the power to undertake these actions”.

Accepting these allegations as true, they met the requisite level of bad faith conduct to amount to a proper pleading of misfeasance of public office.

The warnings of Resler

There are two large themes arising from Resler.

First, the Courts will regard civil actions based on public misconduct as discrete from administrative law proceedings.

The two processes are different and ultimately the remedies are drastically discrete: civil actions seek compensation for government misadventure. They are based on harm that extends outside the scope of a statutory power. Unlike a judicial review, which seeks to undo a decision or compel a State actor to make a decision in a particular way (i.e., in accordance with procedural fairness), civil proceedings generally do not seek to quash the underlying decision. Instead, they demand monetary or injunctive relief for questionable behaviour by public officials.

Second, a civil action for abuse of public power requires evidence of bad faith. The Court in Resler was clearly driven by the allegations of bad faith in allowing the civil claim to continue. Absent the accusation that the CEO was acting for an ulterior or improper motive, it is unlikely that the action would have survived judicial scrutiny.

Accordingly, in commencing an action for an abuse of public power, the lessons of Resler are clear: be sure you have proof of bad faith conduct and be sure you are not simply seeking to overturn the underlying decision.

Marco P. Falco is a Partner in the Litigation & Dispute Resolution Group at Torkin Manes LLP, who practises in public law, appellate and civil litigation and judicial review. You may contact Marco about your matter at mfalco@torkin.com. Please note the firm will have to conduct a conflict search before your matter may be discussed.