Court File and Parties

COURT FILE NO.: 208/00

DATE: 20030228

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, J. MACDONALD AND SWINTON JJ.

B E T W E E N:

JOHN M. WATSON

Plaintiff (Appellant)

• and -

L. GRANT BOUNDY, ERIC W. SMYTHE and ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO

Defendants (Respondents)

Eric P. Polten, for the Appellant

John J. Abdo, for the Respondents

HEARD: February 28, 2003

Oral Reasons for Judgment

J. MACDONALD J.: (Orally)

1The appellant appeals the dismissal of his action. The appellant is a professional engineer and a member of the respondent, the Association of Professional Engineers of Ontario.

2The respondents, Smythe and Boundy are employees of the Association. In 1993, Smythe received a complaint respecting an engineering report prepared by the appellant in 1989 on his son's behalf, in support of an application for a building permit to restore an old home in King Township. Smythe gathered information, consulted with an independent structural engineer respecting the appellant's work and concluded that grounds for a complaint were established. Boundy signed the complaint after considering the information gathered by Smythe, also concluding that grounds for a complaint were established.

3Subsequently, the Association's Complaints Committee reviewed the complaint, pursuant to s.24(1) of the Professional Engineers Act, R.S.O. 1990, c.P.28. The Committee had the benefit of submissions from the appellant, as s.24(1) provides. It found that the complaint was frivolous and vexatious. The proceeding against the appellant ended at that point.

4The appellant sued the respondents for damages for malicious prosecution, abuse of process and breach of statutory duty. Section 45(1) of the Professional Engineers Act states:

"No action or other proceeding for damages shall be instituted against the Association, a committee of the Association or a member of the Association or committee of the Association, or an officer, employee, agent or appointee of the Association for any act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a regulation or a by-law, or for any neglect or default in the performance or exercise in good faith of such duty or power."

5The trial Judge held that the respondents, Smythe and Boundy acted in good faith. She dismissed the action on that basis. In addition, she went on and made findings in respect of the three causes of action upon which the appellant based his action.

6In our opinion, even if the appellant is correct that the phrase "good faith" as it appears in s.45(1) of the Act should be interpreted in a manner consistent with the meaning given to the concept of malice in Nelles v. The Queen (1989), 60 D.L.R. (4th) 609 (S.C.C.) and in Oniel v. Metropolitan Toronto Police Force (2001), 195 D.L.R. (4th) 59 (Ont. C.A.), about which we express no opinion, the trial Judge did not err in her findings that both Smythe and Boundy:

(a) were acting bona fide in the performance of their duties as employees of the Association, in the performance of the Association's duties and exercise of its powers under the Act;

(b) had an honest belief that there was legitimate cause to complain that the appellant's report fell short of the accepted standard of professional practice;

(c) based that belief on reasonable and probable grounds.

There is evidence to support these conclusions.

7Since the trial Judge was justified in coming to these conclusions and therefore in dismissing the action on the basis of s.45(1) of the Act, we do not need to address the alternative findings in respect of the causes of action. We refrain from expressing conclusions respecting this aspect of the trial Judge's reasons.

8Underlying many of the appellant's submissions is the complaint that the Association refused to disclose the identity of the complainant and of the independent structural engineer at any time in the process. Boland J. upheld the refusal to disclose these matters in a motion before trial and the trial Judge followed that decision. Given the wording of s.38(2) of the Act, we see no error here nor any denial of natural justice.

9As well, the appellant complains that the process was flawed in that the written complaint was made before there was consultation with him. Section 24(1) of the Act sets out a procedure for the notification of the member of the Association. It requires that he or she be given at least two weeks to consider and respond to a written complaint before the Complaints Committee considers the complaint. Given that provision, there is no error in the procedure followed here.

10The appellant also raises issues respecting the jury notice. There were in fact two discreet aspects to the jury notice issue. Firstly, there was a motion by the appellant to extend the time for delivery of a jury notice. Secondly, there was a motion by the respondents to strike out the jury notice, if the time were to be extended.

11Rule 47.01 provides that the time for delivery of a jury notice is before the close of pleadings. Here the jury notice was served and filed with the Court approximately five months after the close of pleadings. Consequently, the jury notice was delivered beyond the time stipulated in Rule 47.01. The appellant did not move to extend the time for delivery of the jury notice until the opening of trial, almost three years after the close of pleadings.

12Under Rule 3.02(1) the trial Judge was empowered to extend the time on such terms as are just. The trial Judge considered whether the respondents were prejudiced by an order extending the time. She referred to the respondent's decisions respecting documentary discovery which were based on the action being a non-jury action.

13While we do not agree with the trial Judge's Reasons respecting the burden of proving prejudice, or respecting the respondents' silence either having misled the appellant or excused the delay, these errors have not occasioned substantial wrong or a miscarriage of justice to the appellant. In our opinion, in exercising her discretion, the trial Judge was not clearly wrong in refusing to extend the time for delivery of the jury notice based on the egregious length of time before the appellant sought this order and also upon the prejudice to the respondent. Consequently, there was properly no jury notice before the Court to strike out, and there is no need for us to consider the trial Judge's alternative reasons for striking it out, if the time for delivering it were extended.

14I turn now to the issue of costs. Having heard the submissions of counsel, we grant leave to appeal the award of costs on a solicitor and client basis against the appellant and we grant leave to appeal the amount in which such costs were fixed.

15We are all of the view that the trial Judge made a palpable and overriding error in awarding costs on a solicitor and client basis to the respondents against the appellant, in the circumstances of this case. The trial Judge erred in finding that during the trial, the appellant expanded his allegations to assert that the actions of the individual respondents were a fraud upon the complaints process. We have reviewed the relevant evidence at trial and are of the view that none of it amounts to an assertion of fraud. Much of this evidence was not part of the appellant's case. It was drawn out of the appellant in cross-examination.

16The trial Judge was correct that costs on a solicitor and client basis may be awarded when there are allegations of improper conduct which is seriously prejudicial to the character or reputation of a party. However, those circumstances do not exist herein. None of the allegations of malice or other wrongful conduct on the part of the respondents is seriously prejudicial to their character or reputation. There is no doubt that these allegations are as distasteful to them as they are unfounded. However, in professional discipline matters, those responsible for the discipline process should be taken as capable of withstanding the level of allegation herein. The allegations in issue are all consistent with the appellant's assertions of actionable wrong, for example, malicious prosecution or bad faith conduct within the meaning of s.45(1) of the Act.

17In our view, the trial Judge also erred in holding that the appellant's determined conduct, in an effort to vindicate his reputation through this law suit, is a proper basis for an award of costs against him on a solicitor and client basis. The appellant had no recourse other than this litigation. Its lack of merit properly attracts costs on a party-and-party basis. There is no basis shown here for higher costs.

18Having heard submissions respecting trial costs and having been requested to fix those costs, we find that the proper starting point is the trial Judge's determination that costs on a solicitor and client basis were properly fixed in the amount of $80,000 fees and $4,000 disbursements. We fix the trial costs to which the respondents are entitled from the appellant at $45,000 fees and $3,500 disbursements.

THEN J.

J. MACDONALD J.

SWINTON J.

Date of Reasons for Judgment: February 28, 2003

Date of Release: March 7, 2003

COURT FILE NO.: 208/00

DATE: 20030228

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT