Executive Summary: Key Legal and Evidentiary Issues

• Whether the City’s actions amounted to misfeasance in public office or wrongful interference with contractual relations, resulting in the plaintiff’s loss of income.

• The process and justification for the City’s contract administrator banning the plaintiff from providing services, including lack of investigation or opportunity for response.

• The trial judge’s finding that the City’s conduct did not meet the legal requirements for either tort, particularly regarding intent to harm.

• The appellate court’s review of whether the trial judge applied the correct legal standards for intention and misfeasance in public office.

• The contractual relationship between the plaintiff, Schultz Transfer Ltd., and the City, and the City’s rights under those contracts.

• Dismissal of the appeal, with the court affirming the City’s conduct was not actionable and awarding costs to the City.

Facts of the case

The plaintiff, Daniel Polischuk, is a long-time heavy machine operator who contracted his services exclusively to Schultz Transfer Ltd. Since 1999, Schultz Transfer’s sole source of work was contracts with the City of Winnipeg’s Water Division and Wastewater Division. As a result, all or virtually all of the plaintiff’s income originated from the City. There were no contracts directly between the plaintiff and the City.

The contracts between Schultz Transfer and the City permitted the relevant contract administrator to suspend or remove a machine operator for reasons related to attitude, performance, or misconduct. The contracts also permitted the City to insist that Schultz Transfer not hire a subcontractor to whom the City reasonably objected. The two City employees most relevant to this case were Abe Wiebe, contract administrator, and Tim Evinger, a supervisor in the Water Division.

The events leading to the plaintiff’s removal occurred in two periods: March-April 2017 and November 2017. There was no evidence of complaints or deficiencies in the plaintiff’s work, abilities, or conduct leading up to 2017. The trial judge found the plaintiff had been a highly regarded, reliable, and skilled equipment operator for the City.

In March-April 2017, incidents included an alleged failure by the plaintiff to wear proper safety gear and rudeness to a foreman, which the plaintiff denied. The incident was documented but not reported to Schultz Transfer or the plaintiff. There were also unsubstantiated allegations of offensive comments and a misunderstanding among crew members, which the trial judge described as “petty.” Schultz Transfer learned that a City employee was resentful of the plaintiff and might fabricate complaints, but no action was taken by Evinger to address this. Wiebe met with Evinger and decided to ban the plaintiff from working for the Water Division, based on Evinger’s account and request, without further investigation. The decision was communicated to Schultz Transfer without warning or opportunity to address the concerns, and the plaintiff was not afforded an opportunity to provide his version of the events. The trial judge found the allegations were meritless.

In November 2017, allegations arose that the plaintiff attempted to steal clean mud from a site shared with the Water Division. Evinger circulated these allegations among senior City employees and called for the dismissal of the plaintiff and Schultz Transfer. Evinger also objected to the plaintiff talking with other employees in a shared building and threatened to call the police. Shortly after, Wiebe banned the plaintiff from performing any work for the City, based on the attempted theft allegation and earlier incidents, again without real input from Schultz Transfer or the plaintiff. The trial judge found these allegations were without merit and that Wiebe’s decision-making lacked independence and objectivity. Neither the March-April 2017 nor the November 2017 bans were reasonable based on anything the plaintiff did.

The trial judge made several findings: Wiebe was acting in a private law capacity as administrator of a commercial contract, not as a public officer; the City’s actions could amount to an unlawful act against Schultz Transfer; the plaintiff suffered economic harm; Wiebe did not act in bad faith, dishonestly, or with ill will; Wiebe thought he was acting properly and for good reason; Wiebe did not know enough about the plaintiff’s work habits to know the bans would eliminate his income; and Wiebe did not intend to cause the plaintiff economic harm, which was incidental to his decisions.

The plaintiff argued that the City’s conduct amounted to misfeasance in public office and wrongful interference with contractual relations. The trial judge concluded the plaintiff failed to establish the requisite elements of these torts.

Discussion of policy terms and contractual clauses

The contracts between Schultz Transfer and the City allowed the contract administrator to suspend or remove a machine operator for reasons related to attitude, performance, or misconduct, and permitted the City to object to subcontractors. These clauses were central to the City’s position and were referenced in the trial and appellate decisions.

Trial decision and findings

The trial judge found that, despite procedural deficiencies and expressing disapproval of how the plaintiff was treated, the elements required to establish misfeasance in public office and wrongful interference with contractual relations were not met. Wiebe was found to have acted in a private law capacity, not in bad faith, and without the intention to harm the plaintiff. The harm suffered was incidental, not targeted.

Appeal and appellate court analysis

On appeal, the plaintiff argued that the trial judge misapplied the law regarding intention and failed to consider whether Wiebe’s actions were motivated by an ulterior motive or constituted bad faith. The appellate court reviewed the legal standards, including Supreme Court of Canada authority, and found that the trial judge had correctly articulated and applied the law. The appellate court emphasized that actionable intention requires “aiming at” or “targeting” the plaintiff, not merely causing foreseeable harm.

The appellate court also upheld the trial judge’s conclusion that Wiebe was not acting in a public officer capacity when administering the contract and did not knowingly engage in unlawful conduct likely to harm the plaintiff. The court reiterated that misfeasance in public office is a narrow, intentional tort and that maladministration or negligence is insufficient.

Ruling and outcome

The Court of Appeal dismissed the plaintiff’s appeal in its entirety. The City of Winnipeg was declared the successful party and was entitled to costs in accordance with the Court of Appeal tariff. No specific monetary amount was stated for the costs or monetary award.