Dear Colleagues:

Tucked into the courts discussion of good faith and honesty in contract, there is also a short dicussion of the tort of conspiracy.  The court (unwittingly, I assume) has severely neutered the tort of unlawful means conspiracy by relying on a decision of the Ont CA which erroneously held that every member of a conspiracy must commit the unlawful acts for there to be an unlawful means conspiracy (if that is true what does the conspiracy tort add?).  This is what the Supreme Court said at [106]:

     The trial judge dismissed the claim for conspiracy to injure and there is no basis to interfere with that finding. However, the trial judge held the respondents liable for unlawful means conspiracy, with the unlawful means being the breach of contract and inducing breach of contract: para. 326. Because, in light of my conclusions, the only relevant breach of contract in this case is the breach of the duty of honest performance and there was no inducement of breach of contract, the only relevant unlawful means pertained to Can-Am alone and not Mr. Hrynew. Accordingly, there can be no liability for civil conspiracy: see Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, 106 O.R. (3d) 427, at para. 43.

This is what the Ontario CA in Purina said:

[28] What, then, are the requirements for unlawful conduct for the purposes of this tort? Most obviously, it must be unlawful conduct by each conspirator: ... There is no basis for finding an individual liable for unlawful conduct conspiracy if his or her conduct is lawful or, alternatively, if he or she is the only one of those acting in concert to act unlawfully. The tort is designed to catch unlawful conduct done in concert, not to turn lawful conduct into tortious conduct.

[43] In summary, I conclude that only Purina engaged in any unlawful conduct. The other two appellants did not. As a consequence, the finding of unlawful conduct conspiracy and the damages flowing from it must be set aside. The respondents' claim based on civil conspiracy must be dismissed.

The only way to save things, it appears to me, is to say that the SCC has implicitly adopted the Carty/Stevens view that there is in fact no tort of unlawful means conspiracy but only joint tortfeasance. Thus the reason why the claims failed in Bhasin and Purina is that although the acts of breach are attributed to the other conspirators, there can be no liability since they are not under contractual obligations to perform those acts.

Any other thoughts appreciated?

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