A former licensed member (“Padovan”) of the Association of Ontario Land Surveyors (the “Association”) brought an action against the Association claiming damages resulting from disciplinary proceedings instituted against him by the Association. The Association was successful in a motion for summary judgment where the court found that Padovan had not satisfied even the modest preliminary evidentiary burden to establish bias, harassment, malice or mala fides on the part of the Association.

Administrative law – Land Surveyors – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Administrative decisions – No reasonable cause of action – Bias – Evidence

Padovan v. Assn. of Ontario Land Surveyors, [2004] O.J. No. 2921, Ontario Superior Court of Justice, April 7, 2004, Stach J.

Padovan was the subject of disciplinary proceedings by the Association. Prior to these proceedings, an investigation was conducted by the Registrar pursuant to section 30 of the Act. Part of the requirement in the investigation was that Padovan provide 10 of his most recent undeposited plans and other records which as a member of the Association he was required to keep. Ultimately, a finding of professional misconduct and certain sanctions were imposed against Padovan for refusing or neglecting to comply with the requests of the Registrar. This led to the cancellation of his licence by the Association. Padovan did not attend the discipline committee hearing. Approximately three years later, Padovan commenced an action against the Association. Counsel for the Association brought a motion for summary judgment on the basis that there was no genuine issue for trial. Specifically, counsel for the Association argued that Padovan’s action was barred by section 44(1) of the Act, that there was no evidence of harassment, bias, malice or bad faith in the record and that there was no evidence of damages sustained by Padovan.

The court found that the language in the Statement of Claim was vague and imprecise but it was possible to infer from the constellation of allegations that Padovan was alleging bad faith on the part of the Association. Therefore, the court declined to find that the action, as framed, was barred by section 44(1) of the Act. However, the court found that Padovan had presented absolutely no evidence, despite an adjournment of the motion to provide such evidence, to support any of the generalized allegations of bad faith. Counsel for the Association provided excerpts from the Examination for Discovery of Padovan in which he admitted that none of the individuals he was involved with at the Association shared any personal malice or bias toward him. The court also reviewed the record relating to the disciplinary proceedings and found the record supported the proposition that the Association had been patient and even-handed with Padovan.

In the result, the court allowed the Association’s motion for summary judgment and held that Padovan had not satisfied even the most modest evidentiary burden with respect to his allegations of bad faith.

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