ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-492401
DATE: 20151126

BETWEEN:

BEHROUZ SALEHI
Plaintiff

– and –

ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO
Defendant

Self-represented and acting in person

Bernard C. LeBlanc and
Natasha S. Danson, for the Defendant

HEARD: November 20, 2015

REASONS FOR DECISION

Diamond j.:

Overview

[1] The defendant Association of Professional Engineers of Ontario (“PEO”) is the sole licensing and regulating body for all professional engineers in the province of Ontario.

[2] Although it took several years to obtain his professional license from PEO, the plaintiff has been licensed to practice engineering within Ontario since June 14, 2013.

[3] On November 7, 2013, (a few months after obtaining his professional license), the plaintiff commenced this proceeding against PEO seeking “financial and emotional damages” resulting from PEO’s alleged negligence in processing and approving the plaintiff’s application for a professional engineering license.

[4] In the spring of 2014, PEO brought a motion to strike out the plaintiff’s claim under Rule 21.01(1)(b) of the Rules of Civil Procedure on the basis that it did not disclose any reasonable cause of action. By endorsement released on June 24, 2014, Justice Myers struck out the plaintiff’s claim on the alternative basis that it did not properly plead the necessary elements of the plaintiff’s cause(s) of the action. Justice Myers held that after reading the plaintiff’s claim as liberally as possible, it was not plain and obvious that the cause(s) of action raised therein could not succeed.

[5] In accordance with that endorsement, in late July 2014 the plaintiff delivered his Fresh As Amended Statement of Claim to cure the defects found by Justice Myers. After delivering its Statement of Defence, PEO now brings this motion for summary judgment seeking an order dismissing the plaintiff’s claim on the basis that there are no genuine issues requiring a trial.

What is PEO?

[6] PEO is a creature of statute (the Professional Engineers Act, R.S.O. 1990, c. P.28) and processes all applications for a license to practice as an engineer in Ontario. Under the regulations of the Professional Engineers Act, PEO has created a Licensing Guide and Application for License (“the Guide”) which all applicants can review to ensure they understand and comply with the terms of PEO’s license application process.

[7] There are three essential stages to that application process:

a) an applicant must meet PEO’s academic requirements,

b) an applicant must then pass PEO’s Professional Practice Exam (the “PPE”) consisting of two components: ethics and law, and

c) PEO then conducts a work experience assessment which an applicant must successfully complete before a professional license is granted.

[8] Engineers who are educated and trained in a foreign country may apply for a license with PEO. For the first stage of the application process (PEO’s academic requirements), an applicant must have a Bachelor of Engineering Degree from a program approved by the Canadian Engineering Accreditation Board (“CEAB”), or equivalent engineering educational qualifications. If an applicant does not have a Bachelor Engineering Degree from a CEAB approved program, PEO will refer the application to its Academic Requirements Committee (“the ARC”) which will then assess the applicant’s academic transcripts from non-CEA approved programs and determine which technical exams the applicant may need to write and pass to meet PEO’s academic requirements.

[9] Pursuant to regulation 941, there are three possible outcomes after an ARC assessment:

a) an applicant does not meet the minimum academic requirements and is thus ruled ineligible to continue in the licensing process;

b) there are no apparent gaps in an applicant’s academic record and the applicant’s academic knowledge is equivalent to that gained from a CEAB approved program; or

c) there are apparent gaps in an applicant’s academic record which the applicant may address by submitting and passing certain technical exams set and approved by PEO.

[10] As set out in PEO’s Guide, an applicant may be assigned one of the following technical examination programs:

a) the confirmatory examination program (3 technical examinations and 1 complimentary studies examination, all designed to give the applicant an opportunity to confirm that the content of his/her engineering studies is equivalent to the comparable CEAB approved engineering program),

b) the Phase I examination program (at least 4 examinations in the Basic Studies category, to be completed before the applicant is assigned additional discipline-specific and complimentary studies examinations), and

c) the specific examination program (an applicant whose qualifications are judged to fall between a technology diploma and an engineering degree may be assigned up to 18 examinations that would include basic, technical and complimentary examinations).

[11] Where an applicant has significant prior engineering experience, but is ordered by the ARC to complete technical exams, the applicant may be referred to the Experience Requirement Committee (the “ERC”) which will further assess the applicant (including the possibility of a formal interview) in order to make recommendations to the ARC as to whether to waive or modify any of the assigned technical exams. The ERC’s recommendations are based upon the applicant’s knowledge and application of fundamental engineering principles relevant to the assigned technical exams.

[12] If an applicant disagrees with any decision throughout PEO’s application process, he/she can elect not to complete the process and request a hearing before the Registration Committee, a specialized tribunal operating at arm’s length from PEO. A decision of the Registration Committee may then be appealed to the Ontario Divisional Court pursuant to section 31 of the Professional Engineers Act.

[13] Finally, in addition to requesting a hearing before the Registration Committee, section 31 of the Professional Engineers Act provides for an appeal of any decision of the Registration Committee to the Ontario Divisional Court.

The plaintiff applies

[14] In 1997, the plaintiff immigrated to Canada from Iran. While residing in Iran, the plaintiff was employed as a gas engineer for many years.

[15] It is the plaintiff’s evidence that in or around September 1997, and approximately one year later in the fall of 1998, he attended PEO’s office and spoke to individuals who were seated at the “front desk”. Those individuals advised the plaintiff that PEO did not have any gas engineering disciplines, and he would thus need to apply through another discipline to obtain his engineering license.

[16] It was not until August 25, 2006 that the plaintiff submitted a formal application for a professional engineering license with PEO. He never submitted any formal application in 1997-1998. However, his Fresh As Amended Statement of Claim seeks damages for alleged acts and omissions on the part of PEO going back as far as 1997. For the purposes of determining the presence of genuine issues for trial, I find that the time period for assessing PEO’s alleged acts and omissions only commenced once the plaintiff submitted his formal application.

[17] Of note, the plaintiff relies upon a Canadian Council of Professional Engineers (“CCPE”) form which he completed on July 20, 1995 as part of his immigration application to Canada. On that form, which was apparently “approved” by CCPE, the plaintiff listed his Bachelor of Science Degree in gas engineering obtained in 1976 from the Abadan Institute of Technology in Iran. This form does not bind PEO. As it was created as part of the plaintiff’s immigration application, it predates his arrival in Canada. In addition, the following words are printed above the plaintiff’s signature (emphasis in bold):

“I fully understand that this informal assessment of my academic qualifications is undertaken solely for immigration purposes. I acknowledge that a favourable response to this assessment in no way assures my eventual acceptance as a professional engineer or certified engineering or applied science technologist or technician in any province or territory of Canada. I acknowledge that on arrival to Canada, I must formally apply to the appropriate engineering or applied science technology association and read all of their admission requirements, including examinations, in order to be registered as a professional engineer, or certified as a technologist or technician.”

[18] By signing this form, the plaintiff understood (or was deemed to understand) that even if CCPE granted its approval as part of the immigration application, the plaintiff was still required to formally apply to PEO and meet all of their admission requirements before being granted his professional license.

Gas engineering

[19] I have reviewed the plaintiff’s application. It does not require the plaintiff to specify a specific discipline in which the license ought to be approved or granted. In the section described as “Academic Background”, the plaintiff specified obtaining his “B.Sc. Engineering in the gas discipline” in 1976 from the Abadan Institute of Technology in Iran.

[20] It is PEO’s evidence that it has never recognized an academic syllabus for “gas engineering” under which an applicant’s academic background can be assessed. While gas engineering might be considered a specialization under one of three other disciplines (petroleum engineering, chemical engineering or oil and gas engineering), PEO does not recognize gas engineering as a separate program.

[21] In response, the plaintiff’s evidence is that gas engineering is indeed a recognized discipline in Canada. I agree with PEO that the documents relied upon by the plaintiff confirm the presence of occupations in Canada relating to gas engineering, but not disciplines. The plaintiff did not produce any expert evidence in response to PEO’s motion for summary judgment which countered or sought to disprove PEO’s position.

The application process

[22] After submitting his application, in response to PEO’s request the plaintiff forwarded additional relevant, supporting documentation. On January 26, 2007, the ARC met to review the plaintiff’s academic record. Unfortunately, the evidence relating to the ARC’s decision, and the “reasons” supporting that decision, is quite sparse. PEO has produced a document entitled “Assessment Decision” attached with two pre-printed ARC reports. These reports are essentially “checklists” showing that the ARC reviewed the plaintiff’s application and supporting documentation, and determined whether his academic background met or matched the necessary qualifications for both the petroleum engineering program and the chemical engineering program.

[23] While the Assessment Decision notes “query ran on petroleum”, there are more checkmarks in the chemical engineering checklist, as the ARC apparently found that the plaintiff’s academic background satisfied more of the requirements for the chemical engineering program.

[24] The ARC assigned the plaintiff to its specific examination program, and not the confirmatory examination program. The applicant was assigned to take the “Chem A5” and “Chem A6” exams, and was referred to the ERC for an interview. No further particulars are provided in the Assessment Decision as to the rationale upon which the ARC based its assessment and/or decision.

[25] It can be reasonably inferred that the plaintiff was not assigned to the confirmatory examination program due to the ARC determining that the plaintiff’s academic background was not similar enough to a CEAB approved engineering program. However, this does not necessarily explain why the assigned technical exams were geared towards a chemical engineering program - although fulfilling the specific examination program ironically mandated the applicant to complete fewer exams (2) than the confirmatory examination program (4).

[26] As stated, the ARC referred the plaintiff to the ARC for an interview so that it could make recommendations as to whether any components of the specific examination program could be waived or modified. The ARC delivered a letter dated February 14, 2007 to the plaintiff confirming its recommendation that the plaintiff be referred to the ERC and the possibility of that interview. That letter outlined the balance of the steps in the licensing process (i.e., the PPE and the work experience assessment), and gave the plaintiff the opportunity to commence the specific examination program even though his file had been referred to the ARC, and that if he passed the two technical exams before the interview was conducted, an ERC assessment would no longer be required. The technical exams are offered by the PEO in May and December of each year, and the plaintiff could have written them as early as May 2007.

The ERC interview

[27] The plaintiff opted not to write the technical exams prior to the interview. The ERC conducted the interview on September 13, 2007. The plaintiff takes issue with the qualifications of the two ERC panel members, neither of whom had the minimum 10 years’ professional experience which the plaintiff submits was a PEO requirement. However, from my review of the record, the PEO’s guidelines state that it is “preferable” that ERC panel members have at least 10 years’ professional experience (i.e. it is not mandatory).

[28] In any event, after the interview the ERC concluded that the plaintiff was not able to demonstrate a possession of the requisite knowledge and application of fundamental engineering principles relevant to the specific examination program. The plaintiff complains that his interview started approximately two hours late, and that the panel members asked him questions which were beyond his engineering experience. As well, the plaintiff takes issue with the panel members’ answers to various questions posed by him, and their general overall attitude. Apart from unsubstantiated allegations in the plaintiff’s affidavit, I have no further evidence on this issue.

The plaintiff completes stage one

[29] The plaintiff asked for another opportunity to be interviewed by the ERC. Such an opportunity was not an option offered by PEO. Accordingly, in order to continue with the license application process, the plaintiff needed to complete the two technical exams.

[30] The plaintiff believed that, at that time, he did not possess the necessary knowledge and understanding to successfully complete those technical exams. As a result, he enrolled in the Internationally Educated Engineers Qualification Bridging Program at Ryerson University, which was a program developed in collaboration with PEO as another way for engineers educated in foreign countries (and lacking CEAB approved program accreditations) to meet the PEO academic requirements without having to submit to the specific technical exams. In other words, the plaintiff took advantage of an alternative “fourth option” offered through PEO and Ryerson University.

[31] The plaintiff successfully completed the Bridging Program by the 2009 winter semester. By mid-October 2009, PEO confirmed the plaintiff’s completion of the academic requirements (stage one)

The PPE

[32] To complete the second stage of the licensing process, an applicant must pass the PPE within two academic years of being eligible to write it (i.e., after satisfying the academic requirements). As stated, the PPE consists of two components: ethics and law. An applicant must pass both components with at least a 50% grade. If an applicant fails one component, they need only re-write the component that he/she failed.

[33] The PPE is offered by PEO three times a year (April, August and December). The plaintiff was originally scheduled to write the PPE in December 2009 and paid the required fee. Unfortunately, he fell ill and was unable to write the PPE at that time.

[34] His first official attempt at completing the PPE was in April 2010. The plaintiff failed both the ethics and law components.

[35] Technically, an applicant requires permission from PEO to re-write the PPE. The plaintiff sought and was granted permission by PEO in June 2010 to re-write the PPE as long as he did so before the end of April 2011.

[36] In August 2010, the plaintiff re-wrote the PPE. While he passed the law component, he failed the ethics component. He asked PEO for permission to re-write the ethics component. PEO granted him permission as long as the plaintiff did so before the end of August 2011.

[37] The plaintiff re-wrote the ethics component in December 2010, and failed it for a third time. He then requested permission to re-write the PPE’s ethics component for a fourth time. PEO granted him permission to do so one last time, but he needed to complete it by the end of December 2013.

[38] The plaintiff was apparently convinced that he should have passed the ethics component, and availed himself of an option offered by the PEO to have his December 2010 PPE re-read by a PEO examiner. Unfortunately, when an applicant opts to have his PPE re-read, he/she cannot sit to write the next PPE until the examiner completes his re-reading of the PPE.

[39] On April 15, 2011, the PEO examiner confirmed that the plaintiff did fail the ethics component of the December 2010 PPE. The PEO examiner provided the plaintiff with additional feedback with a view to assisting him to prepare for writing the PPE for a fourth time.

[40] The plaintiff was displeased with the re-reading process, and PEO credited the plaintiff with the costs associated with the re-reading process.

[41] The plaintiff finally wrote the PPE for a fourth in April 2012 and passed the ethics component.

[42] In cross-examination, the plaintiff gave evidence that he effectively passed the PPE when he completed the Bridging Program as there was a law and ethics component to that program in which he obtained a C+ grade. I reject this submission for several reasons. The PPE is a different examination prepared and administered by PEO. To the extent that the Bridging Program law and ethics course was similar to the PPE (and there is no evidence, expert or otherwise, on this issue), I query why the plaintiff would not have passed the PPE, or perhaps even obtained a C+ grade.

[43] On the record before me, there is little doubt that PPE could not have done much more to assist the plaintiff with the second stage of the licensing process.

Work Experience Assessment

[44] PEO delivered a letter dated June 19, 2012 to the plaintiff confirming that he (finally) passed the PPE. In that letter, PEO outlined the third stage of the licensing process, namely the plaintiff demonstrating that he had obtained at least 48 months of verifiable and acceptable engineering experience. The plaintiff would need to prepare an updated Experience Record summarizing his professional experience.

[45] The plaintiff was apparently quite upset with this request, as he believed that the material he submitted with his application already demonstrated such experience. The plaintiff delivered a series of e-mails to PEO between June – November 2012 in which the plaintiff voiced his concerns, while PEO maintained its request for a formal, updated Experience Record rather than the resume-type document the plaintiff suggested. The updated Experience Record was finally delivered to PEO by the plaintiff on December 9, 2012.

[46] As part and parcel of its evaluation of the plaintiff’s work experience, PEO contacted the plaintiff’s references. By letter dated March 5, 2013, PEO advised the plaintiff that it found apparent discrepancies in reviewing his work experience and invited the plaintiff to attend a further interview with the ERC so that he could hopefully resolve those apparent discrepancies. PEO submits this is a routine step in the third stage of the licensing process.

[47] In response, the plaintiff sent a further set of e-mails into PEO in late March 2013 asking why his work experience prior to August 1997 (i.e. in Iran) was not recognized. In response, PEO advised that as a general rule, only work experience required by an applicant after his/her completion of the exam program will be considered. I note that even though the plaintiff did not submit his formal application to PEO until August 25, 2006, PEO used a start date of August 1997 (when he arrived in Canada) for the purpose of assessing his work experience.

[48] In his submissions, the plaintiff characterized PEO’s April 9, 2013 e-mail as demonstrating bad faith, as PEO’s refusal to assign 1976 as his work experience start date was evidence of “further discrimination” against him. I have reviewed PEO’s August 9, 2003 e-mail in detail. I find the contents of that correspondence to be both professional and informative. Near the conclusion of the e-mail, PEO stated as follows:

“While I can appreciate your frustration at the time required for the licensing process, considerable time was required for you to complete the academic courses at Ryerson and the Professional Practice Exam.

Since it is the mandate of Professional Engineers Ontario to regulate the practice of Professional Engineering in order that the public interest is served and protected, it is imperative that we ensure that our members meet all the requirements of the profession. We take this responsibility seriously and I strongly resent your implication that this process is a ‘game’ to us.”

[49] This excerpt was in direct response to the plaintiff previously suggesting to PEO that the processing of his application for a was, indeed, “a game for PEO”. I do not agree with the plaintiff’s submission that the contents of the April 19, 2013 e-mail amount to any evidence of bad faith on the part of PEO.

[50] The plaintiff attended his ERC interview on May 22, 2013. After obtaining additional information from the plaintiff, the ERC panel concluded that his experience did meet the necessary requirements. As such, the plaintiff’s application for a professional license was approved by PEO on June 14, 2013.

Summary Judgment

[51] Rule 20.04(2)(a) of the Rules of Civil Procedure now provides that the Court shall grant summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”. As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.

[52] In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada established a road map in terms of how a motions judge should approach a motion for summary judgment. The Court must first determine whether there is a genuine issue requiring a trial based only upon the evidence filed with the Court and without using the new fact finding powers set out in the 2010 amendments. Summary judgment will thus be available if there is sufficient evidence to justly and fairly adjudicate the dispute, with the motion being an affordable, timely and proportionate procedure.

[53] If the Court finds the presence of a genuine issue requiring a trial, the motions judge must then determine if the need for a trial can be avoided by using the new, enhanced powers under Rules 20.04(2.1) and (2.2).

[54] It is important to remember that the applicable evidentiary principles developed under the previous incarnation of Rule 20.04 continue to apply. The motions judge must still take a “hard look” at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its “best foot forward” and submit cogent and compelling evidence to support or oppose the relief sought. A moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial. It is the moving party’s obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.

[55] In my view, summary judgment is a just and proportionate outcome for the parties. On the record before me, I am confident that I can find the necessary facts and apply the relevant law to the evidence, and that it is in the interests of expedient, affordable and proportionate justice to proceed as such.

Does PEO owe the plaintiff a duty of care?

[56] The plaintiff’s claim is based in negligence. The first element of that cause of action requires this Court to find that PEO owed the plaintiff a duty of care.

[57] The two-part test for determining whether a duty of care exists between parties is well established. In Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] S.C.J. No. 77, the Supreme Court of Canada relied upon the House of Lords’ decision in Anns v. Merton London Bureau Council, [1978] A.C. 728 (H.L.), and summarized the test as follows:

(a) Do the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care?

(b) If a prima facie duty of care has been established, are there residual policy considerations which justify denying liability?

[58] At the first stage of the test, the starting point is for the Court to determine whether there are precedent cases which establish a similar duty of care. If there are no such precedent cases, then the Court is to consider whether a new duty of care ought to be recognized. In particular, the Supreme Court of Canada stated in Edwards:

“Mere foreseeability is not enough to establish a prima facie duty of care. The plaintiff must also show proximity – that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances. Factors giving rise to proximity must be grounded in the governing statute where there is one, as in the present case.”

[59] There are many legal precedents which hold that regulators do not typically owe a duty of care to private individuals. When Justice Myers dismissed PEO’s motion to strike the plaintiff’s claim, he found that it was not plain and obvious that the plaintiff could not establish that he and PEO were in a relationship with sufficient proximity to potentially establish a duty of care owed by PEO to the plaintiff. Justice Myers reviewed several legal precedents, including the decision of Justice Penny in Boldt v. Law Society of Upper Canada 2010 ONSC 3568 (S.C.J.), and found that none of those cases precluded a regulator from ever being found to be in a relationship for sufficient proximity with a member of its regulated class so as to attract a duty of care.

[60] There is no doubt that PEO is under a duty to provide registration practices that are transparent, objective, impartial and fair. This duty is in fact codified in section 6 of the Fair Access to Regulated Professions Act, 2006 S.O. 2006 c.31 (which pursuant to Schedule 1 thereto applies to PEO). I agree with Justice Myers’ conclusion that while a breach of that statutory duty does not create a cause of action, it may be considered as evidence of a breach of a duty of care, should that duty of care exist at law.

[61] It is important to bear in mind that the Professional Engineers Act contains the following provision.

“45(1) 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, the performance or intended performance of a duty or in the exercise or intended exercise of a power of this Act, a regulation or a by-law, for any neglect or default in the performance or exercise in good faith of such duty or power.”

[62] PEO referred me to the decision of Justice Faieta in Singh-Boutilier v. Ontario College of Social Workers and Social Service Workers 2015 ONSC 5297 (S.C.J.). In that case, Justice Faieta considered the provisions of the Social Work and Social Service Work Act, 1998, S.O. 1998 c.31 (which contained a statutory immunity clause almost identical to section 45(1) of the Professional Engineers Act). In striking out the Statement of Claim before him, Justice Faieta held as follows:

“In asking that these allegations be struck, the College relies on Rogers v. Faught, 2002 19268 (ON CA), [2002] O.J. No. 1451 at paras. 21-22. However, that decision standards (sic) for the principle ‘…that statutory regulators owe no private law duty of care to individual members of the public who deal with the organizations or individuals whose conduct is overseen by the regulators. Rather, where the governance mandate of such regulators is required to be discharged in the public interest, the duties of the regulators are owed to the public as whole.’

In my view, Rogers does not answer the question of whether a statutory regulator owes a duty of care to the regulated member rather that (sic) to the public.

While there may be sufficient proximity between the College and the plaintiff given that she is a member of the College, it is my view that the statutory immunity afforded by Section 49 of the SWSSA for good faith performance of duties and powers under the SWSSA indicates that the Legislature did not intend to create a duty relationship between the College members, and therefore this policy consideration is sufficient to preclude the imposition of a duty of care on the College.”

[63] In applying the test set out by the Supreme Court of Canada in Edwards, I find that there are no legal precedents which serve to impose a similar duty of care upon the members of a regulatory body. Accordingly, the question is whether a new duty of care ought to be recognized in the circumstances of this case. As stated above, the factors giving rise to the existence of the sufficient proximity must be grounded in the Professional Engineers Act.

[64] On the facts of this case, I do not find any legislative intent within the Professional Engineers Act to expressly or by implication impose a private law duty of care on PEO. The Professional Engineers Act is geared for the regulation of its members and protection of the public as a whole. As held by the Supreme Court of Canada in Edwards, decisions made by PEO require “the exercise of legislatively delegated discretion and involve pursuing a myriad of objectives consisting with the public rather than private law duties.”

[65] The Professional Engineers Act contains various internal and external appeal routes in the event an applicant is dissatisfied with the licensing process, or decisions made by PEO or its committees. As held by Justice Goldstein in the unreported decision of Ross v. Her Majesty the Queen in Right of Ontario (CV-09-378482, August 15, 2012), the plaintiff never sought a mandamus order or some other prerogative remedy compelling PEO to comply with its statutory obligations.

[66] I therefore find that no prima facie duty of care exists between PEO and the plaintiff on the facts of this case. However, even if such prima facie duty of care did exist, the provisions of section 45(1) are instructive of the Legislature’s intent and I agree with Justice Faieta’s conclusion that such a duty of care would have been negated by residual policy considerations.

[67] Accordingly, I do not find the presence of a genuine issue requiring a trial with respect to the plaintiff’s claim against PEO in negligence, and this action is dismissed.

No bad faith conduct

[68] In the event I am incorrect and a private duty of care existed between PEO and the plaintiff, the provisions of section 45(1) of the Professional Engineers Act significantly limit the availability and application of any such duty of care unless the plaintiff was able to show that PEO exercised its discretion, made its decisions, or performed its obligations, in bad faith. In other words, such a duty of care would be limited to the plaintiff proving on a balance of probabilities that PEO acted in bad faith. While there is no recognized separate cause of action for “bad faith conduct”, if the plaintiff could establish the existence of the duty of care, that duty must be informed by the good faith discharge of PEO’s obligations.

[69] As stated by Justice Faieta in Singh-Boutilier, bad faith conduct is very difficult to establish, as it requires an intention to mislead or deceive, or a decision to refuse to fulfill a duty that is motivated by ill-will.

[70] On the record before me, I do not find the presence of bad faith conduct on the part of PEO. The plaintiff may have been dissatisfied with the decisions of the ARC, the ERC and the PEO. The plaintiff submitted that PEO discriminated against him due to its refusal to assign him the Confirmatory Examination Program with a gas engineering discipline.

[71] While I, and likely PEO, would have preferred that the ARC’s decision provide further particulars as to why it chose to focus the plaintiff’s exams towards a chemical engineering discipline, the ARC’s decision (made in the fall of 2007) does not amount to bad faith conduct.

[72] Accordingly, for the reasons given herein PEO’s motion is granted and the plaintiff’s claim is dismissed.

Costs

[73] I would urge the parties to resolve the costs of this motion and the action. If such efforts prove unsuccessful, PEO may serve and file written costs submissions (totaling no more than 4 pages including a Costs Outline) within 10 business days of the release of this decision. The plaintiff shall thereafter serve and file his responding costs submissions (also totaling no more than 4 pages including a Costs Outline) within 10 business days of the receipt of PEO’s costs submissions.

Diamond J.

Released: November 26, 2015

COURT FILE NO.: CV-13-492401
DATE: 20151126

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

BEHROUZ SALEHI
Plaintiff

– and –

ASSOCIATION OF PROFESSIONAL ENGINEERS OF ONTARIO
Defendant

REASONS FOR DECISION

Diamond J.

Released: November 26, 2015