Bad faith: Intent to deceive.
A person who intentionally tries to deceive or mislead another in order to gain some advantage.
These words, by an Ontario labour arbitrator in 1992, Re Alcan Wire (26 LAC 4th 93), show the defining "bad faith" has been an elusive pursuit:
"The concept of bad faith is likely not capable of precise calibration and certainly has not been defined in the same way by all adjudicators.
"At its core, bad faith implies malice or ill will. A decision made in bad faith is grounded, not on a rational connection between the circumstances and the outcome, but on antipathy toward the individual for non-rational reasons. Such non-rational reasons may be discriminatory, in the sense that the motivation is a reaction to the individual's race, creed, colour, sex, or ethnic origin. Because of the absence of a rational connection between the outcome and the circumstances, a decision made in bad faith cannot be reasonable. The absence of a rational basis for the decision implies that factors other than those relevant were considered. In that sense, a decision in bad faith is also arbitrary. These comments are not intended to put to rest the debate over the definition of bad faith. Rather, it is to point out that bad faith, which has its core in malice and ill will, at least touches, if not wholly embraces, the related concepts of unreasonableness, discrimination and arbitrariness."
In the United States, in Cannock Chase District Council v. Kelly, 1978 36 P&CR 219, the California Court of Appeal used these words:
"Bad faith, dishonesty-- those, of course, stand by themselves.
"I would stress, for it seems to me that an unfortunate tendency has developed of looseness of language in this respect, that bad faith or, as it is sometimes put, "lack of good faith," means dishonesty, not necessarily for a financial motive, but still dishonesty. It always involves a grave charge."
On the comparison with fraud, which Black’s Law Dictionary equates to "bad faith", there are two important distinctions: fraud does include bad faith but bad faith does not necessarily include fraud and "people go to jail for fraud. They don’t go to jail for bad faith" (Rocking Chair Plaza v Brampton 1988 29 CPC 2d 82).
Canada’s best judicial definition of "bad faith" was that of the Newfoundland Court in Collins v Transport & Allied Worker’s Union (1991) 6 CPC 3d 206 where, in reference to a union’s alleged bad faith, the Court adopted these words:
"Good faith and its opposite, bad faith, imports a subjective state of mind, the former motivated by "honesty of purpose" and the latter by ill-will.
"One Canadian writer, in describing the sparse Ontario labour (law) jurisprudence on the issue of bad faith, has stated that bad faith refers to a subjective state of mind, that is conduct which has been motivated by ill-will, hostility, dishonesty, malice, personal animosity or even "sinister" purposes. Conversely, good faith has been described as honesty of purpose.
"Another writer, summarizing labour relations board jurisprudence in British Columbia and Ontario, lists the following proscribed conduct under the heading "Bad Faith":
- A prior history of dispute, ill-will or personal hostility between the member and the union officials;
- Political revenge;
- Lack of fairness or impartiality;
- Lack of total honesty with the employee (e.g. withholding information);
- Flagrant dishonesty in dealing with the union member (e.g. lying); or
- A sinister motive on the part of the union officials.
"Whether it is good faith or bad faith there is motivation, on the other hand motivation is not a characteristic of negligence, negligence does not import a subjective state of mind as in good or bad faith."
French: mauvaise foi