What is the test for bad faith in public office?

Deschamps J noted that the concept of bad faith is flexible and its contents will vary with the context. Further, she noted that bad faith, unlike misfeance in public office, may not require intentional fault, citing LeBel J in Finney v. Barreau du Québec, 2004 SCC 36 at para 39. At para 25, she summarized the test for bad faith as: Based on this interpretation, the concept of bad faith can encompass not only acts committed deliberately with intent to harm, which corresponds to the classical concept of bad faith, but also acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith. What appears to be an extension of bad faith is, in a way, no more than the admission in evidence of facts that amount to circumstantial evidence of bad faith where a victim is unable to present direct evidence of it.

Further, the law does not recognize an action for negligent breach of statutory duty. A breach of a statutory duty by itself does not constitute negligence: The Queen in Right of Canada v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 SCR 205. As previously noted, the proper remedy for breach of statutory duty by a public authority is judicial review for invalidity. There is no cause of action against a government authority for negligent breach of statutory duty by acting outside or contrary to the law: Holland v Saskatchewan, 2008 SCC 42 at para 8. Regulatory or statutory breaches are not the equivalent of negligence or a trespass.