Court File and Parties

Court of Appeal for Ontario Date: 20220705 Docket: M53178 (C61480)

Before: Feldman, Brown and Huscroft JJ.A.

Between: Behrouz Salehi Plaintiff (Appellant/Moving Party)

And: Association of Professional Engineers of Ontario Defendant (Respondent/Responding Party)

Counsel: Behrouz Salehi, acting in person Bernard C. LeBlanc and Natasha S. Danson, for the responding party

Heard: in writing

Reasons for Decision

[1] The moving party was the appellant in an appeal from a decision of Diamond J. of the Superior Court of Justice, which was dismissed by this court on June 3, 2016. His claim was against the responding party for damages for negligence in dealing with his application as a foreign trained engineer to be licensed in Ontario. Although he ultimately obtained his license, he claimed that his application was handled negligently and in bad faith. His action was dismissed by Diamond J. with reasons reported at 2015 ONSC 7271, and this court found there was no basis to allow the appeal: Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438, leave to appeal refused, [2016] S.C.C.A. No. 369.

[2] He now moves to have this court’s decision set aside under r. 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

may make a motion in the proceeding for the relief claimed.

[3] The basis for the motion is facts discovered after the underlying order was made: 1) the transcript of the summary judgment hearing before Diamond J. following which his claim was dismissed; 2) several January 2022 letters from professional engineers commenting on the moving party’s course transcripts; and 3) two independent reports on the Association of Professional Engineers of Ontario (“APEO”) that include information and some comment regarding the APEO’s handling of licensing applications from foreign trained engineers.

[4] The short response to this motion is that this court does not have jurisdiction to entertain a motion to set aside an order that was affirmed on appeal where the motion is based on fraud or newly-discovered facts. Such a motion must be brought before a judge of the Superior Court: R. v. Moura, 172 C.C.C. (3d) 340 (Ont. C.A.), at paras. 24-25; Aristocrat v. Aristocrat (2004), 73 O.R. (3d) 275 (C.A.), at paras. 9-10, leave to appeal to S.C.C. refused (2005), 207 O.A.C. 399 (note); Mehedi v. 2057161 Ontario Inc. (Job Success), 2014 ONCA 604, 123 O.R. (3d) 73, at paras. 15-21.

[5] In Mehedi, Juriansz J.A. explained, at para. 20:

The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.

[6] In this case, an order was made on April 12, 2018 by the Superior Court prohibiting the moving party from bringing any further motions “in this file”. The moving party will therefore need leave of the Superior Court in order to bring a motion to set aside or vary.

[7] The motion is dismissed. No costs are awarded and approval of the form and content of the order is dispensed with.

“K. Feldman J.A.”

“David Brown J.A.”

“Grant Huscroft J.A.”