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The "Unlawful Means" Element of the Economic Torts: Does a Coherent Approach Lie Beyond Reach?

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The THE "UNLAWFUL MEANS" ELEMENT OF THE ECONOMIC TORTS: DOES A COHERENT APPROACH LIE BEYOND REACH? Brandon Kain and Anthony' Alexander* The key to keeping the economic torts in harmony with contemporary legal values without overruling Allen v. Flood . is to give a sound, economically rele- vant and judicially supported interpretation to the concept of unlawful means. 1 He'll cheat without scruple, who can without fear.2 I. INTRODUCTION 1. Overview The intentional economic torts are one of the last great frontiers in the Cana- dian law of ohligations.3 Once relegated almost exclusively to the field of labour Brandon Kain is an associate and Anthony Alexander is a partner in the litigation department of McCarthy Tetrault LLP, where both focus on legal research. Mr. Kain is called to the Alberta, British Columbia and Ontario bars and Mr. Alexander to the Ontario bar. The authors wish to thank Kyle Kirkup and Dustin Gumpinger, students- at-law, for their assistance. 1 No. I Collision Repair & Painting (1982) Ltd. v. Insurance Corp. of British Columbia (2000), 80 B.C.L.R. (3d) 62,119 (C.A.), per Lambert J.A. (dissenting); leave to appeal to S.C.C. refused, [20001 S.C.C.A. No. 488. 2 Benjamin Franklin, Poor Richard's Almanack (1732-1758). 3 As discussed below, the law has traditionally identified the "core" intentional economic torts as: (1) conspiracy; (2) unlawful interference with economic interests; (3) inducing breach of contract; and (4) intimidation. There is a prolific secondary literature on these torts, much of which is catalogued by Anthony M. Dugdale et al, eds., Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006) at 1492. For extensive scholarly treatments of the torts from an Anglo-Canadian perspective, see: I.M. Christie, The Liability of Strikers in the Law of Tort: A Comparative Study of the Law in England and Canada (Kingston, Ont.: Queen's University, Industrial Relations Centre, 1967); J.D. Heydon, Economic Torts, 2" ed. (London: Sweet & Maxwell, 1978); Tony Weir, Economic Torts (Oxford: Clarendon Press, 1997); Hazel Carty, An Analysis of the Eco- nomic Torts (Oxford: Oxford University Press, 2001); and Peter T. Burni and Joost Blom, Economic Interests in Canadian Tort Law (Markham, Ont„: LexisNexis Canada 34 ANNUAL REVIEW OF CIVIL LITIGATION disputes, they are now a staple of commercial litigation. However, despite having roots which date to the thirteenth century, the law surrounding these torts is com- plex, frequently unsettled and generally underdeveloped.4 The prominence of these causes of action is not surprising. The torts have long been applied in a way that offers unique opportunities to courts and litigants alike. They have enabled the recovery of pure economic loss outside the citadel of privity of contract, and without the doctrinal restrictions imposed on claims framed in neg- ligence. They have also brought with them several procedural advantages, includ- ing broader discovery rights, and an increased opportunity for punitive damages. Finally, and perhaps most fundamentally, they have been amenable to judicial ma- nipulation, with their innate malleability facilitating a just outcome in individual cases. The flexibility inherent in these causes of action arises, in large part, from their amorphous nature. In this respect, the most intriguing and historically uncer- tain aspect of the economic torts is the common requirement that a defendant use "unlawful means"5 to injure the plaintiff. This "unlawful means element" is not a mere idiosyncrasy. Instead, it is one of the basic features that distinguishes the Anglo-Canadian law of torts from the gov- erning principles in several American and civilian jurisdictions. In contrast to large portions of the United States, our tradition has not recognized the so-called "prima facie tort" of intentional and unjustified interference with economic interests.6 Inc., 2009). A 2010 edition of Hazel Carty's book is forthcoming, but remained unpub- lished as of the date of this paper. 4 See: Tardif v. McGrath (2002), 635 A.P.R. 362,138 and 40 (N.S.C.A.); leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 261; Revenue and Customs Commissioners v. Total Network SL, [2008] 1 A.C. 1174,1216 (H.L.), per Lord Neuberger of Abbot- sbury; and Hazel Carty, An Analysis of the Economic Torts (Oxford: Oxford University Press, 2001) at 15. 5 The phrase "unlawful means" in this context is often used interchangeably with several other phrases, such as "illegal means", "unlawful conduct", "illegal acts", etc. For the purposes of this article, we have used the phrase "unlawful means" in a manner which includes all such synonymous terminology. 6 See: Canada Cement LaFarge v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452 at 469 and 471; Sanders v. Snell (1998), 196 C.L.R. 329,132 (H.C.A.); No. I Collision Repair & Painting (1982) Ltd. v. Insurance Corp. of British Columbia (2000), 80 B.C.L.R. (3d) 62, 112-16 (C.A.), per Lambert J.A. (dissenting); leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 488; OBG v. Allan, [2008] 1 A.C. 1,114 and 145 (H.L.) and O'Dwyer v. Ontario Racing Commission (2008), 293 D.L.R. (4th) 559,157 (Ont. C.A.) (although the situation is different where the defendant causes injury to the plaintiff's person: see Wilkinson v. Downton, [1897] 2 Q.B. 57 at 58-59 (Q.B.D.)). This is so despite some suggestions in favour of adopting the prima facie tort (also known as the tort of "abuse of rights"): see, e.g. J.D. Heydon, Economic Torts, 2nd ed. (London: Sweet & Maxwell, 1978) at 123-132 and 138; R.V.F. Heuston R.A. Buckley, Salmond and Heuston on the Law of Torts, 215t ed. (London: Sweet & Maxwell, 1996) at 345-. 346; and Peter T. Burns and Joost Blom, Economic Interests in. Canadian Tort Law (Markham, Ont.: LexisNexis Canada Inc., 2009) at 197-205. For a discussion of the prima facie tort doctrine in the United States, see: Kenneth J. Vandevelde, "A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort" (1990) 19 THE "UNLAWFUL MEANS" ELEMENT OF THE ECONOMIC TORTS 35 Rather, since the seminal ruling in Allen v. Flood,? Anglo-Canadian law has gener- ally limited recovery for intentional economic injury to cases where the defendant acts (or threatens to act) unlawfully, conspires with another party, or violates (or induces the violation of) not merely the plaintiff's economic interests but also its legal rights.8 Notwithstanding its unquestioned importance, it has been over thirty years since the unlawful means element of the intentional economic torts was last ad- dressed by the Supreme Court of Canada.9 As a result, the unlawful means element remains a source of confusion.10 The Canadian judiciary has failed to develop a consistent or principled approach to the unlawful means criterion that rationalizes its function across each of the economic torts. Fundamental issues, such as the rela- tionship between unlawful means, and the parallel requirement of "unlawful con- duct" in the context of tortious abuse of public office, remain unexplored. 1 The same is true of the doctrinal relationship between the unlawful means element of the intentional economic torts, and the restrictions imposed on the recovery of "pure economic loss" in negligence.I2 Hofstra L. Rev. 447; Kenneth J. Vandevelde, "The Modern Prima Facie Tort Doctrine" (1991) 79 Ky. L.J. 519; and American Law Institute, Restatement (Second) of Torts (St. Paul, Minn.: American Law Institute Publishers, 1979) at §766-768 and (particularly) 870. At §870, the Restatement. indicates that "[o]ne who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor's conduct does not come within a traditional category of tort liabil- ity". The Supreme Court of the United States recently affirmed this principle from the Restatement in Bridge v. Phoenix Bond & Indemnity Co., 128 S.Ct. 2131 , 2143 (2008). See also Tony Weir, Economic Torts (Oxford: Clarendon Press, 1997) at 45-77 (where comparable doctrines are explored in France and Germany). 7 [1898] A.C. 1 (H.L.) [Allen]. The rejection of the prima facie tort doctrine in Allen was recently replayed when the Supreme Court of Canada rejected the per se actionability of secondary picketing: see R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156,152 and 72. 8 This statement does not hold true in respect of public authorities, however. Pursuant to the tort of abuse of public office, any conduct by a single public authority taken with the specific intent of inflicting economic harm upon the plaintiff is per se actionable. 9 The last case in which the Supreme Court substantively considered the unlawful means element in relation to the economic torts (specifically, the tort of intimidation) was Central Canada Potash Co. v. Saskatchewan, [1979] 1 S.C.R. 42. 10 As noted in W.V.H. Rogers, Winfield & Jolowicz on Tort, 17th ed. (London: Sweet & Maxwell, 2006) at 826, "unlawful means ... has played the leading role in the devel- opment of the modern law on economic torts .. but the question of definition has tended to be passed over in many case with little analysis and many of them have been striking-out applications". See O'Dwyer v. Ontario (Racing Commission) (2008), 293 D.L.R. (4th) 559,156, n4 (Ont. C.A.). 12 See No. I Collision Repair & Painting (1982) Ltd.
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