



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 respondents 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 appellants 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 appellants 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.), affd

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
    judges 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."


