Jason wrote "(In Ontario, one can now plan an illegal action and have another carry it out and be free for liability apparently)."
Assuming, for argument's sake, that that is a proposition that does logically follow from Agribrands, then those of you whose duty it is to teach law students, in Ontario, to "think like a lawyer" will no doubt remind your students that "a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law
is not always logical at all." Quinn v. Leathem, [1901] A.C. 495 at 506 (H.L.)
Of course, it is another matter entirely if what Agribrands actually decides is that "In Ontario, one can now plan an illegal action and have another carry it out and be free for liability."
On the other hand, the Ontario Court of Appeal currently claims that, tort, the plaintiff can prove factual causation on the balance of probabilities by using a test premised on the assumption that nobody can prove causation on the balance of probabilities and which applies only where the court has found that it is impossible for anybody (or at least the plaintiff) to prove factual causation on the balance of probabilities.
So who knows.
Cognitive dissonance is fun, isn't it?
Cheers,
David
From: Jason Neyers <jneyers@uwo.ca>
To: "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Tuesday, June 28, 2011 1:57:20 PM
Subject: ODG: Eviscerating unlawful means conspiracy in Ontario
Dear Colleagues:
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