THE NEED FOR A ‘STANDING’ RULE IN MISFEASANCE IN A PUBLIC OFFICE

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Abstract:

This paper examines recent trends in the tort of misfeasance in a public office. Historically considered an ‘exceptional’ tort, misfeasance has been considerably watered down in recent decades. The author argues that the weakening of misfeasance is largely due to the elimination of a ‘standing’ rule, ie, a rule that limits the tort to claimants whose legal rights have been infringed by the defendants' actions. After briefly describing the theory of standing in tort law, the paper surveys those elements of the misfeasance tort that historically limited standing, and how they have been eroded in recent jurisprudence. It then uses the Supreme Court of Canada's decision in Odhavji Estate v Woodhouse to discuss the implications of that erosion, and advocates a restoration of standing rules to maintain the coherence of misfeasance within the doctrinal structure of tort law.

Document Type: Research Article

Publication date: January 1, 2007

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