80 Consumers’ Gas submits that because it was acting pursuant to a disposition of law that was valid at the time — the Board orders — they should be exempt from liability by virtue of the de facto doctrine. This argument cannot succeed. Consumers’ Gas is not a government official acting under colour of authority. While the respondent points to the Board orders as justification for its actions, this does not bring the respondent into the purview of the de facto doctrine because the case law does not support extending the doctrine’s application beyond the acts of government officials. The underlying purpose of the doctrine is to preserve law and order and the authority of the government. These interests are not at stake in the instant litigation. As a result, Consumers’ Gas cannot rely on the de facto doctrine to resist the plaintiff’s claim.
81 Furthermore, the de facto doctrine attaches to government and its officials in order to protect and maintain the rule of law and the authority of government. An extension of the doctrine to a private corporation that is simply regulated by a government authority is not supported by the case law and in my view does not further the underlying purpose of the doctrine. In Reference re Manitoba Language Rights, 1985 CanLII 33 (S.C.C.), [1985] 1 S.C.R. 721, this Court held, at p. 756, that:
There is only one true condition precedent to the application of the doctrine: the de facto officer must occupy his or her office under colour of authority.
84 This view finds further support in the following passage from the judgment (at p. 755):
That the foundation of the principle is the more fundamental principle of the rule of law is clearly stated by Constantineau in the following passage (at pp. 5-6):
Again, the doctrine is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the order and quiet of all civil administration. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to challenge the authority of and refuse obedience to the government of the state and the numerous functionaries through whom it exercises its various powers, or refuse to recognize municipal bodies and their officers, on the ground of irregular existence or defective titles, insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy.
The underlying purpose of the doctrine is to preserve law and order and the authority of the government. These interests are not at stake in the instant litigation. In sum, I find no merit in Consumers’ Gas’s argument that the de facto doctrine shields it from liability and as a result this doctrine should not be a bar to the appellant’s recovery.
