Dear Colleagues:

Those of you interested in the economic torts will be interested in the recent decision of the Ontario Court of Appeal in Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557 (http://www.ontariocourts.on.ca/decisions/2010/august/2010ONCA0557.pdf).  In that case the court held (at para. 60) that in order to qualify as unlawful means for the intentional interference with economic relations tort:  "the defendant’s actions (i) cannot be actionable directly by the plaintiff and (ii) must be directed at a third party, which then becomes the vehicle through which harm is caused to the plaintiff."  

Though the court added at [63]:

"I would say that there may be aspects of the concept of “unlawful means” yet to be fully defined. In particular, the extent of actionability by the  third party, or whether, as Lord Hoffmann suggests, this requirement is subject to any qualifications, need not be fully defined in this case. The unlawful means relied on by the third party - defamation, conspiracy and breach of contract - are all clearly actionable under private law."

The court implicitly over-ruled its previous decision in Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada (2003), 65 O.R. (3d) 30 which had held that unlawful means were everything that one is not at liberty to commit and that therefore the tort could also be committed in a two-party situation. As the court stated at [57]:  

"this court has now opted for the Lord Hoffmann side of the debate. It did so expressly in Correia  (v. Canac Kitchens (2008), 91 O.R. (3d) 353), relying on his statement of the elements of the tort, his definition of the tort, and his rationale for it, namely, to provide otherwise unavailable recovery for harm intentionally inflicted by unlawful means through the instrumentality of a third party."

The court did not mention or deal with the Supreme Court of Canada's decision in Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265 which has generally been regarded as standing for the proposition that breaches of statutes could count as unlawful means in a two-party situation  I therefore doubt that this is the last Canadian word on the subject.

Sincerely,

-- 
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435