Sufficient Allegations Required: Involves the Necessity to Plead Particulars of Bad Faith Behaviour

[40]  The action also names two individual Defendants.  One of the Defendants is identified in the Notice of Zoning Contravention as the employee who conducted the inspection of the Plaintiff’s brother’s property which resulted in the City issuing the Notice of Zoning Contravention.  No specific facts are pleaded in the Statement of Claim about that Defendant’s conduct.  The second individual Defendant is not identified in the Notice of Zoning Contravention or discussed in the Statement of Claim itself.  It is not clear what specific allegations, if any, are being made about either individual Defendant, or what material facts are being pleaded about either individual Defendant’s conduct.  This approach to pleading is deficient.

[41]  Its deficiency is even greater having regard to the immunity provision in section 448(1) of the Municipal Act, 2001, S.O. 2001, c. 25.  That provision shields municipal employees from civil liability where they are acting in good faith.  It provides:

448(1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.

[42]  The effect of this provision is to require a pleading against a public employee to plead that the employee acted outside of the scope of their authority or in bad faith.  If these are not pleaded, the immunity afforded to the employee under section 448(1) prevails, and no cause of action lies against them.

[43]  The Statement of Claim does not allege that either individual Defendant acted in bad faith or outside of their duties or authorities as City employees.  As noted above, it says nothing at all about either individual Defendant, except to the extent that the Notice of Zoning Contravention identifies one of the individual Defendants as having conducted a property inspection.

[44]  The courts have struck claims against municipal employees, without leave to amend, based on section 448(1).  They have done so in the specific context of by-law enforcement, which is the conduct at issue here.  In one such case, the court held that there were “no allegations” that the defendant municipal employee “did anything in her personal capacity or in any way acted outside of the broad immunity conferred by statute upon public employees acting in the good faith performance of their duties” (McDonald, at para. 31).

[45]  I find that the same principles apply here.  The Statement of Claim does not plead that either of the individual Defendants acted in bad faith.  Indeed, it makes no specific allegations about either of the individual Defendants.  Even if one reads the Statement of Claim as advancing all of its allegations against all of the Defendants, it would still fall short of adequately pleading bad faith.  It pleads that the Defendants acted “without just cause” and “improperly, prejudicially, and illegally coercing and aligning with a family member against the Plaintiff”.  These are not allegations of bad faith.  They do not address the individual Defendants’ motivations or state of mind.  Even if they were found to be allegations of bad faith, they would be bald allegations, unsupported by any pleaded facts.  There is accordingly no basis for an exception to the immunity afforded to the individual Defendants under the Municipal Act.

[46]  I therefore find that the Statement of Claim does not disclose any reasonable cause of action against the individual Defendants.