



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. Pichés 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 judges 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 judges 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. Pichés 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 appellants 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 bidders 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 judges analysis. Contrary to
    the appellants 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 appellants
    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 judges
    dismissal of the defamation claim. It was admitted that Mr. Pichés statements
    to the Competition Bureaus investigator were made in circumstances where the
    defence of qualified privilege could be invoked. The appellants attempt to
    show that Mr. Pichés 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 appellants
    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 appellants 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.


