A.I. Enterprises Ltd. v. Bram Enterprises Ltd.

A.I. Enterprises Ltd. v. Bram Enterprises Ltd.
Collection
Supreme Court Judgments
Date
2014-01-31
Neutral citation
2014 SCC 12
Report
[2014] 1 SCR 177
Case number
34863
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Rothstein, Marshall; Cromwell, Thomas Albert; Karakatsanis, Andromache; Wagner, Richard
On appeal from
New Brunswick
Subjects
Torts
Notes
SCC Case Information: 34863
Decision Content
SUPREME COURT OF CANADA
Citation: A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177
Date: 20140131
Docket: 34863
Between:
A.I. Enterprises Ltd. and Alan Schelew
Appellants
and
Bram Enterprises Ltd. and Jamb Enterprises Ltd.
Respondents
- and -
Attorney General of British Columbia
Intervener
Coram: McLachlin C.J. and LeBel, Fish, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 106)
Cromwell J. (McLachlin C.J. and LeBel, Fish, Rothstein, Karakatsanis and Wagner JJ. concurring)
A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177
A.I. Enterprises Ltd. and
Alan Schelew Appellants
v.
Bram Enterprises Ltd. and
Jamb Enterprises Ltd. Respondents
and
Attorney General of British Columbia Intervener
Indexed as: A.I. Enterprises Ltd. v. Bram Enterprises Ltd.
2014 SCC 12
File No.: 34863.
2013: May 22; 2014: January 31.
Present: McLachlin C.J. and LeBel, Fish, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for new brunswick
Torts — Intentional torts — Unlawful interference with economic relations — Scope of liability — Minority owner of apartment building and its director interfering with attempts by majority owners to sell building to third parties — Whether minority owner and its director liable in tort for unlawful interference with economic relations.
Fiduciary duty — Breach by director — Minority owner of apartment building and its director interfering with attempts by majority owners to sell building to third parties — Whether director liable for breach of fiduciary duty.
Joyce, a corporation, owned an apartment building in Moncton, New Brunswick. Corporate entities Bram and Jamb together owned a majority of Joyce while a minority interest was held by corporation A.I., whose owner and sole director was A. A syndication agreement between Joyce, Bram, Jamb and A.I. contained a sale mechanism giving a majority of investors the right to sell the building subject to a right of first refusal of any dissenting investor to purchase it at a professionally appraised value. In 2000, Bram and Jamb wanted to sell the property but A.I. and A did not. Notice was given to A.I. under the syndication agreement and the building was appraised at $2.2 million. A.I. did not purchase the property and thus it was listed for sale. While the property was listed, A.I. and A attempted to invoke the arbitration process under the syndication agreement, filed encumbrances against the property, and denied entry to the property to prospective buyers. Potential sales to third party purchasers failed, and A.I. ultimately bought the building for the appraised value of $2.2 million.
Subsequently, Bram and Jamb brought an action against A.I. and A claiming that, as a result of A.I. and A’s wrongful conduct, the sale had been substantially delayed and was for less money than they could have obtained from a third party purchaser. The trial judge found that A.I. and A’s conduct amounted to interference by unlawful means and awarded damages reflecting the difference between the sale price paid by A.I. and the price that could have been obtained from a third party. The Court of Appeal dismissed A.I. and A’s appeal. Although the court found that the acts of A.I. and A did not meet the requirements for liability under the unlawful means tort, it held that liability could be imposed on the basis of a principled exception.
Held: The appeal should be dismissed.
The tort of unlawful interference with economic relations has also been referred to as “interference with a trade or business by unlawful means”, “intentional interference with economic relations”, “causing loss by unlawful means” or simply as the “unlawful means” tort. The unlawful means tort is an intentional tort which creates a type of “parasitic” liability in a three-party situation: it allows a plaintiff to sue a defendant for economic loss resulting from the defendant’s unlawful act against a third party. Liability to the plaintiff is based on (or parasitic upon) the defendant’s unlawful act against the third party. The two core components of the unlawful means tort are that the defendant must use unlawful means and that the defendant must intend to harm the plaintiff through the use of the unlawful means.
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 unlawfulness requirement is not subject to principled exceptions. Providing trial judges with room to deal with cases that do not fall within the scope of the tort’s liability simply confers an unstructured judicial discretion to do what appears to the particular judge to be just in the particular circumstances. Allowing for exceptions without clearly outlining the principles to guide the development of the law invites the danger of ad hoc decisions tailored to achieve a vision of commercial morality — precisely the danger which the “unlawful means” requirement is meant to avoid.
Mere foreseeability of economic harm does not meet the requirement for intention in the unlawful means tort. The defendant must have the intention to cause economic harm to the plaintiff as an end in itself or the intention to cause economic harm to the plaintiff because it is a necessary means of achieving an end that serves some ulterior motive. It is the intentional targeting of the plaintiff by the defendant that justifies stretching the defendant’s liability so as to afford the plaintiff a cause of action. It is not sufficient that the harm to the plaintiff be an incidental consequence of the defendant’s conduct, even where the defendant realizes that it is extremely likely that harm to the plaintiff may result. Such incidental economic harm is an accepted part of market competition.
The existence of a valid business relationship between the plaintiff and the third party and the defendant’s knowledge of that relationship are not elements of the unlawful means tort. The focus of this tort is unlawful conduct that intentionally harms the plaintiff’s economic interests. There need be no contract or even other formal dealings between the plaintiff and the third party so long as the defendant’s conduct is unlawful and it intentionally harms the plaintiff’s economic interests.
The tort of unlawful means is available even if there is another cause of action available to the plaintiff against the defendant in relation to the alleged misconduct. The gist of the tort is the targeting of the plaintiff by the defendant through the instrumentality of unlawful acts against a third party. It is that conduct by the defendant which gives rise to liability quite apart from conduct that may be otherwise actionable by the plaintiff. General principles of tort liability accept concurrent liability and overlapping causes of action for distinct wrongs suffered by the plaintiff in respect of the same incident.
In this case, the Court of Appeal concluded that there was no wrong that would be actionable by the third party (the prospective purchasers) against A.I. and A. Accordingly, A.I. and A cannot be found liable to Bram and Jamb on the basis of the unlawful means tort; however, the trial judge made strong findings that A breached his fiduciary obligations as a director of the family companies and the trial judge’s award should be upheld on that basis. While A.I. was not a fiduciary, A was its sole director and shareholder and it is therefore liable for knowing assistance in the breach of fiduciary duty and knowing receipt of proceeds of the breach.
Cases Cited
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Statutes and Regulations Cited
Civil Code of Québec, S.Q. 1991, c. 64, arts. 6, 7.
Trade Disputes Act, 1906 (U.K.), 6 Edw. 7, c. 47.
Authors Cited
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APPEAL from a judgment of the New Brunswick Court of Appeal (Robertson, Bell and Green JJ.A.), 2012 NBCA 33, 387 N.B.R. (2d) 215, 350 D.L.R. (4th) 601, 96 C.C.L.T. (3d) 1, 2 B.L.R. (5th) 171, [2012] N.B.J. No. 116 (QL), 2012 CarswellNB 194, affirming a decision of Dionne J., 2010 NBQB 245, July 22, 2010. Appeal dismissed.
Richard J. Scott, Q.C., for the appellants.
Charles A. LeBlond, Q.C., and Marie‑France Major, for the respondents.
J. Gareth Morley and Christina Drake, for the intervener.
The judgment of the Court was delivered by
Cromwell J. —
I. Overview
[1] A group of family members, through their companies, owned an apartment building. The majority of them wanted to sell it, but one of them did not. He took a series of actions to thwart the sale. The result was that the ultimate sale price was nearly $400,000 less than it otherwise might have been. When the majority sued to recover this loss, the main question was whether the dissenting family member and his company were liable for what the trial judge referred to as the tort of unlawful interference with economic relations.
[2] While this tort is far from new, its scope is unsettled and needs clarification. There is not even any generally accepted nomenclature for the tort. It is variously referred to as “unlawful interference with economic relations”, “interference with a trade or business by unlawful means”, “intentional interference with economic relations”, or simply “causing loss by unlawful means”. I will refer to it by either the latter name or simply as the “unlawful means” tort.
[3] The uncertainty surrounding the unlawful means tort is reflected in the different approaches taken by the trial judge and the Court of Appeal in this case. The trial judge found the dissenting family member and his company liable. They had, he concluded, unlawfully and intentionally interfered with the economic relations between the majority owners and the prospective purchasers. Their conduct qualified as unlawful because it lacked any legal justification. The New Brunswick Court of Appeal upheld this result, although for significantly different reasons. The acts of the dissenting family member and his company did not meet the general requirement that they be unlawful because they did not provide any basis for a civil suit by the prospective purchasers. However, liability could be imposed on the basis of a “principled exception” to this requirement.
[4] Before us, the main issue concerns the scope of liability for this tort and, in particular, what the unlawfulness requirement means. If the tort does not apply to these facts, we must also decide whether liability may be imposed on the basis of the breach of fiduciary duty of the dissenting family member as a director of the majority corporations.
[5] In summary, the issues and my conclusions are these:
A. What is the scope of liability for the tort of causing loss by unlawful means?
In light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability, the tort should be kept within narrow bounds. It will be available in three‑party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff. (Other torts remain relevant in two-party situations, such as, for example, the tort of intimidation.)
(1) What sorts of conduct are considered “unlawful” for the purposes of this tort?
Conduct is unlawful if it would be actionable by the third party or would have been actionable if the third party had suffered loss as a result of it. The alleged misconduct of the defendants in this case was not unlawful in this sense and therefore they cannot be held liable on the basis of the unlawful means tort.
(2) Is the tort available only if there is no other cause of action available to the plaintiff against the defendant in relation to the alleged misconduct?
In my view the answer to this question is no.
(3) Should the “unlawfulness” requirement be subject to principled exceptions?
The answer to this question is also no in my view.
(4) Application to this case
The appellants cannot be found liable to the respondents on the basis of the unlawful means tort.
(5) Did the Court of Appeal err in finding that the defendants had the required knowledge for the unlawful means tort?
My answer to this question is also no.
B. If the unlawful means tort is not available, are the appellants otherwise liable?
The trial judge made strong findings that the dissenting family member breached his fiduciary obligations as a director of the family companies and the trial judge’s award should be upheld on that basis.
[6] I would therefore dismiss the appeal with costs.
[7] In order to sort out the scope of liability for causing loss by unlawful means, we must delve deeply into the rationale of the tort and its place in the larger scheme of tort liability for causing economic harm. But first, I will briefly summarize the facts and judicial history giving rise to the appeal.
II. Facts and Judicial History
A. Facts
[8] Joyce Avenue Apartments Ltd. owned an apartment building in Moncton, New Brunswick. Joyce was owned by Lillian Schelew and her four sons, Jeffrey, Michael, Bernard and Alan, through corporate entities. The respondents, Bram Enterprises Ltd. and Jamb Enterprises Ltd., each owned 40 percent of Joyce. The four Schelew brothers owned equal numbers of common shares and were directors of both corporations while Lillian held voting preferred shares in Bram. The remaining 20 percent interest in Joyce was held by the appellant A.I. Enterprises Ltd., whose owner and sole director was the appellant Alan Schelew. A.I. (effectively Alan) managed the building for a fee.
[9] Joyce, as owner of the building, and Bram, Jamb and A.I., as the investors, entered into a syndication agreement. The agreement contained a sale mechanism which gave a majority of the investors the right to sell the building subject to a right of first refusal of any dissenting investor to purchase it at a professionally appraised value. Once the appraisal was obtained, the investors wishing to sell were deemed to have made an irrevocable offer of sale in that amount to the dissenting investor. The offer would remain open for 15 days: Syndication Agreement, s. 9.02.
[10] The trouble started in the year 2000. The respondents, Bram and Jamb (in effect all of the family members except Alan Schelew), wanted to sell the property but the appellants, A.I. and Alan Schelew, did not. The respondents gave notice to A.I. under s. 9.02 of the Syndication Agreement and the building was appraised at $2.2 million. A.I. did not accept the deemed offer within the prescribed time and the property was listed for sale. Over the next 16 months, the respondents dealt with four potential purchasers but no sale was completed. The respondents allege that the sale was thwarted by a series of intentional actions by the appellants, which form the basis of the claim against them for causing loss by unlawful means. Ultimately, about two years after the first attempts to sell, A.I. bought the building for the appraised value of $2.2 million.
[11] The respondents then sued the appellants. They claimed that, as a result of the appellants’ wrongful conduct, the sale had been substantially delayed and was for less money than they could have obtained from a third party purchaser. While the respondents’ statement of claim did not spell out the legal bases for the claim, the pre- and post-trial briefs alleged that the appellants breached their obligations arising under the Syndication Agreement, that Alan Schelew had breached his fiduciary duty as a director of Bram and Jamb by putting his interests ahead of those of the companies and that the appellants had unlawfully interfered with economic relations.
B. Judicial History and the Parties’ Positions on Appeal
(1) Court of Queen’s Bench of New Brunswick, 2010 NBQB 245, July 22, 2010 (Dionne J.)
[12] Dionne J. at trial found that the appellants’ conduct amounted to interference by unlawful means and awarded damages reflecting the difference between what A.I. paid and what could have been obtained but for the appellants’ obstruction.
[13] The trial judge focused on four of the appellants’ acts: they misused the arbitration provisions of the Syndication Agreement as a means of stalling the sale of the Joyce property; they advanced legally groundless defences for a “Notice of its first right of refusal” which they had filed against the Joyce property; they subsequently filed an equally baseless certificate of pending litigation against the property; finally, they denied entry to the Joyce property to prospective buyers. These acts had the effect of “complicating, delaying, impeding and ultimately and for all intents and purposes completely obstructing and preventing” the respondents’ efforts to sell the property to third parties: para. 282.
[14] All of this conduct was unlawful in the trial judge’s view because it lacked any legal basis or justification. He found that Alan Schelew’s conduct in obstructing the sale also breached his fiduciary obligations as director of Bram and Jamb and that A.I. had breached its obligations towards Bram and Jamb under the Syndication Agreement.
[15] The trial judge rejected the appellants’ submission that the harm to Bram and Jamb was merely an incidental effect of the pursuit of their legitimate business interests. Rather, he found that the appellants “possessed actual intent to do whatever they could to pursue the interest of A I Enterprises and that they were well aware that their actions would cause harm to Jam[b] & Bram”: para. 287. He concluded that but for the actions of the appellants, the respondents would have sold the Joyce property in 2001 for $2.58 million, an amount which was $380,000 more than the respondents received on the sale to A.I. in 2002. Factoring in the real estate commission and pre-judgment interest, he fixed total damages at $183,061 for each plaintiff, plus costs.
(2) New Brunswick Court of Appeal, 2012 NBCA 33, 387 N.B.R. (2d) 215 (Robertson J.A., Bell and Green JJ.A. Concurring)
[16] At trial, neither party drew the attention of the court to the decision of the House of Lords in OBG Ltd. v. Allan, [2007] UKHL 21, [2008] 1 A.C. 1, a decision which extensively examined the proper scope of the economic torts in general and of the unlawful means tort in particular. The decision was, however, placed before the Court of Appeal and, speaking through Robertson J.A., the court carefully and fully examined the law in light of it and subsequent developments. While the court took a considerably different view of the unlawful means tort than had the trial judge, it nonetheless dismissed the appeal.
[17] The Court of Appeal noted that the unlawful means tort has been “in a state of flux” (para. 18) and that two opposing views on the proper scope of the unlawful means component have stemmed from the OBG decision. Lord Hoffmann, who was in the majority on this point, adopted a narrow definition of “unlawful means” whereby only breaches of the civil law such as a tort or breach of contract would suffice. The unlawful conduct would need to be actionable by the party against which it was directed in order to give rise to liability: see OBG, at para. 49. Lord Nicholls of Birkenhead advocated a broader view, according to which “unlawful means” included “common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence, and so on”: OBG, at paras. 150 and 155.
[18] The Court of Appeal preferred Lord Hoffmann’s narrow definition. The conduct of the appellants, while lacking any legal justification, did not amount to a wrong actionable by the prospective purchasers. However, the Court of Appeal allowed for principled exceptions to mitigate the rigidity of the narrow rule. The court crafted an exception, which covered this case, in the following terms:
In my view, the intentional erection of self-help legal barriers, some of which are enforceable through statutory processes not subject to prior judicial authorization, in circumstances where those barriers rest on rights fabricated with arguments of sand, warrants redress under the tort of unlawful means (akin to the tort of abuse of legal process). [para. 9]
[19] A.I. and Alan Schelew appeal from that decision.
(3) Parties’ Positions
[20] Before this Court, the parties take diametrically opposed views of the scope of the unlawful means tort.
[21] The appellants urge us to adopt the position taken by a majority of the House of Lords, speaking through Lord Hoffmann in OBG, at para. 49: “unlawful” means actionable by the third party (or that the act would be actionable but for the fact that it did not cause the third party any loss). This approach may be described as the narrow view: it is premised on the tort having a limited sphere of operation so that only actionable civil wrongs against the third party provide a basis for allowing the intended victim to sue. The appellants also urge us to hold that the tort is only available to the plaintiff if the defendant’s conduct causing the injury does not give rise to another cause of action by the plaintiff against the defendant.
[22] The respondents, on the other hand, urge us to adopt one of two alternative positions, both of which stake out a broader role for the tort. The primary submission is that “unlawful means” is defined by a “broad bright-line rule” that an act is unlawful if there exists a legal proceeding through which its legitimacy can be successfully challenged. Alternatively, the respondents submit that we should adopt Lord Hoffmann’s narrow formulation but hold, as did the Court of Appeal, that it is subject to principled exceptions.
III. Analysis
A. What Is the Scope of Liability for the Tort of Causing Loss by Unlawful Means?
(1) What Sorts of Conduct Are Considered “Unlawful” for the Purposes of This Tort?
[23] The unlawful means tort creates a type of “parasitic” liability in a three-party situation: it allows a plaintiff to sue a defendant for economic loss resulting from the defendant’s unlawful act against a third party. Liability to the plaintiff is based on (or parasitic upon) the defendant’s unlawful act against the third party. While the elements of the tort have been described in a number of ways, its core captures the intentional infliction of economic injury on C (the plaintiff) by A (the defendant)’s use of unlawful means against B (the third party): see H. Carty, An Analysis of the Economic Torts (2001), at p. 103; J. W. Neyers, “Rights-based justifications for the tort of unlawful interference with economic relations” (2008), 28 L.S. 215; G. H. L. Fridman, The Law of Torts in Canada (3rd ed. 2010), at pp. 773-75; P. H. Osborne, The Law of Torts (4th ed. 2011), at pp. 336-38; P. T. Burns and J. Blom, Economic Interests in Canadian Tort Law (2009), at p. 186. There is no dispute here that this is an intentional tort; the focus of the dispute in this case is on the unlawful means element.
[24] An old case will serve as an example. The defendant, the master of a trading ship, fired its cannons at a canoe that was attempting to trade with its competitor, the plaintiffs’ trading ship, in order to prevent it from doing so. The defendant was held liable, Lord Kenyon being of the opinion that these facts supported an action: Tarleton v. M’Gawley (1793), Peake 270, 170 E.R. 153. The plaintiffs were able to recover damages for the economic injury resulting from the defendant’s wrongful conduct toward third parties (the occupants of the canoe) which had been committed with the intention of inflicting economic injury on the plaintiffs.
[25] The question of what sort of conduct constitutes the necessary unlawful means is important. It has been described as the most important question concerning this tort: OBG, at para. 45, per Lord Hoffmann; H. Carty, An Analysis of the Economic Torts (2nd ed. 2010), at p. 84. Giving the concept of “unlawful means” a “sound, economically relevant and judicially supported interpretation” is “[t]he key to keeping the economic torts in harmony with contemporary legal values”: No. 1 Collision Repair & Painting (1982) Ltd. v. Insurance Corp. of British Columbia, 2000 BCCA 463, 80 B.C.L.R. (3d) 62, at para. 19, per Lambert J.A., dissenting, leave to appeal refused, [2001] 1 S.C.R. xv.
[26] The scope of the unlawful means tort depends on the answers to three questions. First, does the unlawful conduct have to be actionable by the person at whom it is immediately directed? In my view, the conduct must be an actionable civil wrong or conduct that would be actionable if it had caused loss to the person at whom it was directed. Second, is there a requirement that the unlawful means not be otherwise actionable by the plaintiff? I propose to answer this question “no”. Third, should the definition of “unlawful means” be subject to principled exceptions? I would also answer this question in the negative. While the approach outlined by these answers leaves only a narrow scope for liability, my view is that it is most consistent with the history and rationale of the tort as well as with its place in the modern scheme of liability for causing economic harm.
[27] I will turn first to my understanding of these broader concerns and a review of the relevant law before returning to the reasons for my conclusions.
(a) The Economic Torts and the Common Law
[28] I will not dwell on the unfortunate state of the common law in relation to the unlawful means tort. As I noted earlier, there is not even consensus about what it ought to be called. One leading scholar simply observed that “[t]he economic torts [of which the unlawful means tort is one] are in a mess”: H. Carty, “Intentional Violation of Economic Interests: The Limits of Common Law Liability” (1988), 104 Law Q. Rev. 250, at p. 278. Careful review of the development of the unlawful means tort reveals confusion, overlap and inconsistency: see, e.g., Carty, An Analysis of the Economic Torts (2nd ed.), at pp. 73-78; P. Burns, “Tort Injury to Economic Interests: Some Facets of Legal Response” (1980), 58 Can. Bar Rev. 103, at pp. 145-48; T. Weir, Economic Torts (1997), at pp. 36-43; L. L. Stevens, “Interference With Economic Relations — Some Aspects of the Turmoil in the Intentional Torts” (1974), 12 Osgoode Hall L.J. 595, at pp. 617-19. At its core, however, the tort has two key ingredients: intention and unlawfulness. The gist of the tort is the intentional infliction of economic harm by unlawful means.
[29] The scope of the unlawful means tort 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 for the unlawful means tort: 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.
[30] Potential liability for the unlawful means tort often arises when there are contingent economic interests at stake, such as legitimate business expectations. Such interests, however, are at the margins of the traditional concerns of tort law. The first point, therefore, is that tort law has traditionally accorded less protection to purely economic interests than to physical integrity and property rights. As this Court stated in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, “[t]he law has never recognized a sweeping right to protection from economic harm”: para. 72. The unlawful means tort should not be viewed as providing that sort of “sweeping protection”: see, e.g., S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law (7th ed. 2013), at p. 471; H. Carty, “The Economic Torts and English Law: An Uncertain Future” (2006-2007), 95 Ky. L.J. 845, at p. 845; A. M. Linden and B. Feldthusen, Canadian Tort Law (9th ed. 2011), at pp. 447-50; W. V. H. Rogers, Winfield and Jolowicz on Tort (18th ed. 2010), at pp. 859-60.
[31] Second, the common law has traditionally been reluctant to develop rules about fair competition: OBG, at para. 56, per Lord Hoffmann. The common law in general, and tort law in particular, have been astute to assure “some elbow-room [many would say much elbow-room] for the aggressive pursuit of self-interest”: C. Sappideen and P. Vines, eds., Fleming’s The Law of Torts (10th ed. 2011), at para. 30.120. As Bowen L.J. put it in Mogul Steamship Company v. McGregor, Gow, & Co. (1889), 23 Q.B.D. 598 (C.A.), at p. 614, aff’d [1892] A.C. 25 (H.L.), there can be no liability for a person who has “done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade”. The same sentiment comes through in Lord Davey’s speech in Allen v. Flood, [1898] A.C. 1, at p. 173: “The right which a man has to pursue his trade or calling is qualified by the equal right of others to do the same and compete with him, though to his damage.” More recently, Lord Nicholls acknowledged the common law’s respect for competition in OBG where he wrote:
Competition between businesses regularly involves each business taking steps to promote itself at the expense of the other. . . . Far from prohibiting such conduct, the common law seeks to encourage and protect it. The common law recognises the economic advantages of competition. [para. 142]
[32] This reluctance is directly relevant in this case. The trial judge found that the appellants intended to do “whatever they could to pursue the interest of A I Enterprises and . . . were well aware that their actions would cause harm to Jam[b] & Bram”: trial reasons, at para. 287. Although he went on to find that the harm caused was not incidental to the pursuit by the defendants of their legitimate self-interest, this same conclusion could apply to a great deal of legitimate competitive activity in the marketplace. That, it seems to me, suggests the need for a limited role for the unlawful means tort.
[33] A third point also favours a limited role for this tort. The common law in the Anglo-Canadian tradition has generally promoted legal certainty for commercial affairs. That certainty is easily put in jeopardy by adopting vague legal standards based on “commercial morality” or by imposing liability for malicious conduct alone: see Deakin, Johnston and Markesinis, at pp. 472-73. The majority in Allen, for example, reject