Thanks to Stephen for posting this decision.

I know the point has been made before but I think that this case
high-lights the difficulty created by treating "unlawful means" as
meaning one thing in "unlawful means conspiracy" and something
different (and narrower) in the "tort of unlawful interference with
economic interests".

In a case like this where the appellant (the defendant at the trial)
seems to be a one man company, which acted through its controller at
all times, the result is that liability in tort may depend on the
purely procedural question of whether the person behind the company is
joined, thus opening up grounds for arguing that there was a
conspiracy between the company and the person who controls it (at
least in this jurisdiction - the law may be different in Canada.)

If that is right, then those who draft pleadings will respond accordingly.

Can the distinction be justified?

Thoughts welcome.

Ger

On 2/5/14, Stephen Pitel <spitel@uwo.ca> wrote:
> 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
>
>
> --
> [image: Western Law]
>
> Professor Stephen G.A. Pitel
> Goodmans LLP Faculty Fellow in Legal Ethics 2013-14
> Faculty of Law, Western University
> (519) 661-2111 ext 88433
>