(Supreme Court of Canada) Respondent, a supplier of lightweight aggregate, ceased business and was awarded damages for the tort of conspiracy to injure after its client, a manufacturer, began using another aggregate to produce its light-weight concrete. The action by appellants, who had earlier pleaded guilty to a charge of conspiring to prevent or unduly lessen competition in the production of cement contrary to s. 32(1) (c) of the Combines Investigation Act, made it impossible for respondent to improve its market position. It was found at trial and on appeal that, while appellants did intend to eliminate competition, they did not deliberately conspire to drive respondent out of business. Both courts also concluded that the tort of conspiracy to injure did not include an intent to injure the plaintiff, as a prerequisite, where the defendants had acted unlawfully to effect the ends of their conspiracy. The appellants appealed that finding and further argued that the ‘wrongful means’ required for the tort of conspiracy could not consist of (1) a breach of s. 32(1) (c) of the Combines Investigation Act, (2) fictitious tenders to third parties or fraud or deceit with respect to such third parties, or (3) injury to the purported right not to be deprived of the benefits flowing from a free and competitive market.
Held: The appeals should be allowed and the cross-appeal dismissed.
The tort of conspiracy exists: (1) if the predominant purpose of defendant’s conduct is to cause plaintiff injury, whether or not defendants’ means were lawful; or (2) where defendants’ conduct is unlawful and directed towards the plaintiff (alone or with others) and in circumstances that the defendants should know that injury to the plaintiff is likely to, and does, result notwithstanding the fact that the predominant purpose of’ defendants’ conduct be not necessary to cause injury to the plaintiff.
Respondent was not entitled to claim for damages under this tort because the necessary intention to injure did not exist here. Appellants discontinued their use of respondent’s product for solid business reasons and not because of any plan calculated to damage it: the unlawful market-sharing agreements were neither directed against nor intended to injure respondent. Further, because respondent tried to share in the benefits accruing to appellants from those agreements it could not validly argue that it had been unlawfully deprived of its right to the benefits of a free market.
Judges:
Laskin CJ and Ritchie, Estey, McIntyre and Wilson JJ
Citations:
1983 CanLII 23 (SCC), [1983] 1 SCR 452, 47 NR 191, 145 DLR (3d) 385, [1983] 6 WWR 385, 21 BLR 254, [1983] CarswellBC 812, [1983] ACS no 33
Links:
Jurisdiction:
Canada
Cited by:
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Lists of cited by and citing cases may be incomplete.
Torts – Other
Updated: 10 September 2022; Ref: scu.659346
