COURT OF APPEAL FOR ONTARIO

CITATION: Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438

DATE: 20160603

DOCKET: C61480

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

Behrouz Salehi

Plaintiff (Appellant)

and

Association of Professional Engineers of Ontario

Defendant (Respondent)

Behrouz Salehi, acting in person

Bernard LeBlanc and Natasha Danson, for the respondent

Heard: May 20, 2016

On appeal from the order of Justice James F. Diamond of the Superior Court of Justice, dated November 26, 2015, with reasons reported at 2015 ONSC 7271.

ENDORSEMENT

[1] The appellant, Behrouz Salehi, appeals from the decision of the motion judge that granted the respondent’s motion for summary judgment and dismissed his action for negligence.

[2] The appellant worked as a gas engineer in Iran for many years before moving to Canada in 1997. In 2006, he formally applied to the Association of Professional Engineers of Ontario (“the APEO”), the sole licensing and regulatory body for professional engineers in the province, for a license to practise engineering. After a lengthy application process, which involved the appellant enrolling in a “bridging” program and rewriting the licensing exams several times, the APEO ultimately approved the appellant’s license on June 14, 2013.

[3] Several months after he successfully obtained his license, the appellant brought the within action against the APEO, alleging negligence and bad faith in the processing and approval of his application.

[4] The APEO brought a motion to strike the claim as disclosing no reasonable cause of action or, alternatively, as having been improperly pleaded. On June 24, 2014, Myers J. struck the claim on the basis that it did not properly plead the necessary elements of the cause of action, but he granted the appellant leave to amend the statement of claim. Following amendment of the claim, the APEO moved for summary judgment.

[5] The motion judge held that there was no genuine issue requiring a trial and dismissed the action. He determined that the APEO did not owe a prima facie duty of care to the appellant or if it did, that duty of care would be negated by residual policy considerations.

[6] In the alternative, the motion judge held that if the APEO owed the appellant a duty of care, the appellant would nevertheless have to demonstrate that the APEO acted in bad faith in processing his application, because s. 45(1) of the Professional Engineers Act, R.S.O. 1990, c. P.28, provides statutory immunity to the APEO for the good faith performance of its duties:

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.

[7] The motion judge found that the record did not establish any bad faith on the part of the APEO in processing the appellant’s license application.

[8] In Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 39, the Supreme Court held that bad faith conduct includes not only intentional fault, but also serious carelessness or recklessness amounting to a “fundamental breakdown of the orderly exercise of authority” or “an actual abuse of power”.

[9] The party claiming bad faith must provide specific allegations of it. For example, he or she must allege conduct founded upon fraud or oppression, or an improper purpose or motive, such as an intention to mislead or deceive or to deliberately cause harm: see e.g. Sampogna v. Smithies, 2012 ONSC 610, 94 M.P.L.R. (4th) 320, at para. 16; and Burns v. Johnston, 2003 CanLII 44408 (Ont. S.C.), at paras. 29-34. A mere error or omission is not evidence of bad faith: Burns v. Johnston, at para. 32. See also Toronto Sun Wah Trading Inc. v. Canada (Canadian Food Inspection Agency), 2014 ONCA 803; and Deep v. Massel, 2007 CanLII 27969 (Ont S.C.), aff’d 2008 ONCA 4.

[10] We agree with the motion judge that none of the acts the appellant complains of can be said to constitute bad faith. There was no evidence of malice or intent to harm on the part of the APEO, nor was there a fundamental breakdown in the orderly exercise of its authority or any abuse of power.

[11] In dismissing the appeal on this basis, we make no comment on the motion judge’s analysis of whether the APEO owes a duty of care to the appellant. That issue was not fully argued before us, and it is unnecessary to address it for the purposes of this appeal. However, if the APEO owed the appellant any duty of care, in light of s. 45(1) of the Act, the absence of bad faith in this case is determinative of the result.

[12] Accordingly, the appeal is dismissed with costs fixed at $10,000 inclusive of disbursements and HST.

“K. Feldman J.A.”

“Paul Rouleau J.A.”

"Grant Huscroft J.A."