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Simon Shields, Lawyer

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Bad Faith

Salehi v. Association of Professional Engineers of Ontario (Ont CA, 2016)

In this case the Court of Appeal briefly characterized the intention requirement of 'bad faith' as it sometimes occurs in provisions limiting the liability of the Crown, Crown agents, and other statutory entities:
[8] In Finney v. Barreau du Québec, 2004 SCC 36 (CanLII), [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 (CanLII), 94 M.P.L.R. (4th) 320, at para. 16; and Burns v. Johnston, 2003 CanLII 44408 (ON SC), 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 (CanLII); and Deep v. Massel, 2007 CanLII 27969 (ON SC), 2007 CanLII 27969 (Ont S.C.), aff’d 2008 ONCA 4 (CanLII).

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