A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12

http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/13445/index.do

From the headnote:

In order for conduct to constitute “unlawful means” for this tort, the conduct must give rise to a civil cause of action by the third party or would do so if the third party had suffered loss as a result of that conduct.  The unlawful means tort should be kept within narrow bounds.  Its scope should be understood in the context of the broad outlines of tort law’s approach to regulating economic and competitive activity.  Several aspects of that approach support adopting a narrow scope: the common law accords less protection to purely economic interests; it is reluctant to develop rules to enforce fair competition; it is concerned not to undermine certainty in commercial affairs; and the history of the common law shows that tort liability, if unduly expanded, may undermine fundamental rights.  The rationale underlying the unlawful means tort is the “liability stretching” rationale, which focuses on extending an existing right to sue from the immediate victim of the unlawful act to another party whom the defendant intended to target with the unlawful conduct.  It extends civil liability without creating new actionable wrongs, thereby closing a perceived liability gap where the wrongdoer’s acts in relation to a third party, which are in breach of established legal obligations to that third party, intentionally target the injured plaintiff.  This rationale of the tort supports a narrow definition of “unlawful means”:  the tort does not seek to create new actionable wrongs but simply to expand the range of persons who may sue for harm intentionally caused by existing actionable wrongs to a third party.  Thus, criminal offences and breaches of statute will not be per se actionable under the unlawful means tort, but the tort will be available if, under common law principles, those acts also give rise to a civil action by the third party and interfered with the plaintiff’s economic activity.  This approach avoids “tortifying” the criminal and regulatory law by imposing civil liability where there would otherwise not be any.

The decision refers to academic work by several members of this list, including its fearless leader...

Stephen