COURT OF APPEAL FOR ONTARIO

CITATION: Facchini v. Canada (Attorney General), 2020 ONCA 454

DATE: 20200710

DOCKET: C67191

Rouleau, Hoy and Hourigan JJ.A.

BETWEEN

Louis Facchini carrying on business under the firm name and style of “First Porter Consultancy”

Plaintiff (Appellant)

and

The Attorney General of Canada and Paul Piche

Defendants (Respondents)

William Sammon, Kellie Stewart and Amanda Estabrooks, for the appellant

Elizabeth Richards, Mathew Johnson and Jennifer Bond, for the respondents

Heard: July 2, 2020 by video conference

On appeal from the judgment of Justice Pierre E. Roger of the Superior Court of Justice dated July 2, 2019.

REASONS FOR DECISION

A. OVerview

[1] The appellant appeals from the dismissal of his action in negligence, negligent misrepresentation and defamation. For the following reasons, we dismiss his appeal.

B. Background

[2] The appellant was a consultant for a third party, Corporate Research Group (“CRG”), which provided real property services to Public Works and Government Services Canada (“PWGSC”).

[3] In 2007, PWGSC issued a request for standing offers for the provision of real property advisory services. Standing offers entitle successful bidders to a right of first refusal on certain government contracts. Potential bidders asked questions concerning the bidding to which PWGSC provided answers through an online portal. Included in those answers was a statement that consultants could appear on more than one bid and that a bidder could appear as a consultant on other bids.

[4] The appellant and CRG each submitted bids. Their bids, however, contained identical sections and other content similarities. Standing offers were awarded to both CRG and the appellant.

[5] In 2008, PWGSC began an investigation into the relationship between an assistant deputy minister and the principal of CRG. During this investigation, an investigator, concerned about similarities between the bids of CRG and the appellant on the 2007 request for standing offers, decided to refer the matter to Competition Bureau Canada (the “Competition Bureau”). The Competition Bureau began an investigation in 2009.

[6] Respondent Paul Piché, a contract manager in the real property branch of PWGSC, was interviewed in the course of that investigation. Mr. Piché reviewed the technical bids for the first time and concluded there was little apparent competition between the bids. As a result of the investigation, CRG was charged and pleaded guilty to bid-rigging. The appellant was charged with bid-rigging and fraud but the charges were later stayed at the request of the Crown. The allegations against the appellant and CRG were described in a 2011 Globe and Mail article.

[7] The appellant commenced an action against the respondents alleging negligent misrepresentation, negligence, and defamation, and seeking approximately $2,000,000 in damages.

[8] The trial judge dismissed the action. On the issue of negligence and negligent misrepresentation, he held that the appellant failed to prove the respondents owed him a duty of care. He also held that even if a duty of care existed, the claim would nonetheless fail as the appellant did not demonstrate that the respondents’ answers were inaccurate, untrue or misleading. The answers were responsive and did not breach the standard of care of a reasonable contract manager.

[9] The trial judge also rejected the defamation cause of action, finding that there was no evidence of malice that would defeat Mr. Piché’s defense of qualified privilege. The trial judge also rejected the claim of “breach of duty of good faith” on the basis that it was not pleaded.

[10] Finally, the trial judge found that in the event he was wrong on liability, the appellant failed to prove any damage as a result of the alleged negligence and negligent misrepresentation and he would have limited damages to a maximum of $35,000 for defamation.

C. Analysis

[11] In this court, the appellant argues that each aspect of the trial judge’s decision is wrong. We do not agree.

(1) Negligence and Negligent Misrepresentation

[12] The appellant argues that the trial judge erred in finding that the respondents’ answers were not wrong and misleading. He further argues that the trial judge erred in his duty of care analysis and in his assessment of damages. We do not reach the issues of duty of care and damages, however, because the trial judge’s findings of fact, with which we do not interfere, are fatal to the negligence and negligent misrepresentation claims.

[13] The trial judge found that Mr. Piché’s answers given to the questions posed by the bidders were for the purpose of assisting the bidders to prepare responsive bids. The responses were true, accurate and responsive and did not breach the standard of care. The trial judge also found that the answers given by Mr. Piché to the Competition Bureau's investigator met the standard of care of a reasonably competent contract manager and had little impact on the Competition Bureau's decision to lay charges against the appellant.

[14] These findings are well supported on the record. We do not accept the appellant’s contention that the trial judge erred in finding that the answers “did not say or infer that a competitor (albeit also a sub-consultant) could draft the technical portion of a bidder’s bid.” Nothing in the answers suggest this, nor that in preparing their bids bidders were not required to comply with the Competition Act, R.S.C. 1985, c. C-34.

[15] The appellant has not pointed to any palpable and overriding error or error of law in the trial judge’s analysis. Contrary to the appellant’s submission, the fact that the trial judge did not refer to some parts of the evidence that may support a different conclusion does not in and of itself constitute palpable and overriding error. A trial judge does not have to refer to each and every piece of evidence in reaching a conclusion: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20.

[16] These findings are fatal to the appellant’s claim in negligence and negligent misrepresentation. As a result, these grounds of appeal fail.

(2) Defamation

[17] We also see no error in the trial judge’s dismissal of the defamation claim. It was admitted that Mr. Piché’s statements to the Competition Bureau’s investigator were made in circumstances where the defence of qualified privilege could be invoked. The appellant’s attempt to show that Mr. Piché’s statements were made with malice, which would defeat the defence, was rejected by the trial judge.

[18] The claim of malice was not grounded in fact and was properly rejected. The trial judge correctly noted that malice refers to dishonesty or the use of the privileged occasion for an improper purpose, and that it is not limited to spite or ill-will: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, 424 D.L.R. (4th) 514, at para. 33. He also noted that it depended on the circumstances of the case and reviewed in detail the relevant circumstances here. Ultimately, he remained unconvinced that these circumstances made out malice, and accepted the evidence of Mr. Piché that he harboured no ill will towards the plaintiff and answered the questions because it was his job and for no other reason. This is a finding of fact and is entitled to deference. The appellant has failed to establish a palpable and overriding error.

(3) Duty of Good Faith

[19] Finally, we see no basis for the appellant’s claim that the respondents breached their contractual duty of good faith. The appellant argues that the trial judge erred in finding that this claim was not pleaded. In his submission, allegations in the statement of claim putting dishonesty and improper purpose in issue were sufficient to argue this claim.

[20] As submitted by the respondents, this claim was neither pleaded nor proven. This is not a case like Bhasin v. Hrynew where, in the context of a claim in contract, the allegations in the statement of claim clearly put in issue questions of improper purpose and dishonesty: 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 19. The appellant did not plead that the respondents breached a contract, nor that they failed in the performance of their contractual obligations. Rather, the allegations of dishonesty pleaded related only to the extracontractual claims discussed above. Nor is this a case like Martel Building Ltd. v. Canada, where a duty to treat bidders fairly and equally in the tendering process was at issue: 2000 SCC 60, [2000] 2 S.C.R. 860, at para. 88. There is no allegation in the statement of claim that the appellant’s bid was not fairly considered. We agree with the trial judge that in the context of the pleadings there was no basis to advance the argument that the respondents had breached a duty of good faith. The ground of appeal must therefore fail.

D. Conclusion

[21] For these reasons, we dismiss the appeal. We award the respondents costs in the amount of $25,000 inclusive of disbursements and applicable taxes.

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”

“C.W. Hourigan J.A.”