Dear Colleagues:

Those of you interested in the economic torts will be interested in the recent decision of the ONCA in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 (http://www.blakes.com/english/legal_updates/litigation/jun_2011/2011ONCA0460.pdf).  

The facts of the case were as follows.  The first defendant, Agribrands Purina Canada Inc., a distributor of livestock feed and pet food, breached its exclusivity agreement with the plaintiffs by surreptitiously selling Purina products into what was supposed to be Raywalt’s (the plaintiff’s) exclusive territory.  It did so with the assistance of one of its other dealers from another territory (the second defendant).  The second defendant, with the knowledge of Agribrands Purina, was on-selling to the third defendant which was a company that had previously been the Purina dealer in Raywalt’s territory

The ONCA found that there was no unlawful means conspiracy on the basis that neither the second or third defendant had actually committed a legal wrong, thereby totally eviscerating unlawful means conspiracy as it has been commonly understood. (In Ontario, one can now plan an illegal action and have another carry it out and be free for liability apparently).

The ONCA also accepted the reasoning from Total Networks that since unlawful means conspiracy and the unlawful means tort shared separate histories they could have different unlawful means. For the conspiracy  the unlawful means had to be “wrong in law, whether actionable at private law or not”. (The trial judge had accepted that unlawful means included any “conduct that the defendant is not at liberty or not authorized to engage in, whether as a result of law, a contract, a convention or an understanding.”)

Cheers,

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