Stop Shooting Cannonballs at my Customers’ Canoe! Welcome Clarification on the “Unlawful Means” Tort from the Supreme Court of Canada
by Lisa A. Peters with assistance from Craig Ferris
On January 31, 2014, the Supreme Court of Canada released its decision in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12. This is an important commercial decision as it clarifies and narrows the scope of the tort of unlawful interference in economic relations. Canadian businesses will also welcome the Court's reference to commercial certainty as one of the principal reasons to clarify and limit the scope of this tort.
As the Court noted, the tort goes by various names, including “causing loss by unlawful means”, “intentional interference with economic relations” and “interference with a trade or business by unlawful means.” Consistent with the decision, this article will use the short form “unlawful means tort.”
The Tort is Only Available in Three-Party Situations
One of the components of the unlawful means tort that surprises or confuses students or the uninitiated is its triangular nature, or what Mr. Justice Cromwell describes the tort’s creation of “parasitic” liability in a three-party situation. It is only where a defendant engages in an unlawful act that could give rise to civil liability to a third party, and that conduct is intended to cause harm to the plaintiff, that the tort arises. I have always used the example of a defendant illegally blockading a supplier’s warehouse with the intention of causing economic harm to a plaintiff who relies on that warehouse for supply of goods as an illustration of how the tort may be committed.
The example plucked from historical case law by the Supreme Court is a better (and more graphic) illustration. In Tarleton v. M’Gawley (1793), Peake 270, 170 E.R. 153, the defendant, the defendant, the master of a trading ship, fired cannons at a canoe of the coast of Cameroon that was attempting to trade with the ship’s competitor, seeking to deter the canoe’s occupants from trading with
that competitor. The plaintiff ship owners recovered damages for the economic injury resulting from the defendant’s wrongful conduct towards third parties (i.e., the hapless canoe occupants, one of whom apparently was killed), which was intended by the defendant to cause economic harm to the plaintiffs.