B.C. Court Of Appeal Declines To Recognize New Tort Of "Blacklisting"

• Published date: 21 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor and Connor Bildfell

In FORCOMP Forestry Consulting Ltd. v. British Columbia,¹ the B.C. Court of Appeal declined to recognize a new tort of "blacklisting". The Court of Appeal held that the proposed tort would not "reflect an incremental development to an existing body of law", and therefore the plaintiffs' claim for "blacklisting" should be struck as having no reasonable chance of success.² The decision reminds litigants that although courts may recognize a new common law cause of action, they may do so only if the new cause of action would reflect an incremental development of the law. Otherwise, the claim will be struck at the pleadings stage.

Facts

The plaintiffs ' a forestry consulting company and its principal, Mr. Watts ' sued British Columbia and several Ministry of Forests, Lands, Natural Resource Operations and Rural Development employees for conspiracy, misfeasance in public office, breach of the plaintiffs' s. 2(b) Charter rights to freedom of expression, and the proposed tort of "blacklisting". The plaintiffs alleged that Mr. Watts had pointed out errors in the Ministry's data management and analysis, which embarrassed the defendants and caused them to resent him. The plaintiffs also alleged that, in retaliation, the defendants conspired to deprive the plaintiffs of contracts and professional opportunities, committed misfeasance in public office, breached the plaintiffs' freedom of expression, and "blacklisted" the appellants from provincial contracts ' all with the intention of harming the plaintiffs.

B.C. Supreme Court's Decision

The B.C. Supreme Court granted the defendants' application to strike the plaintiffs' claim in its entirety. The court held that the plaintiffs had not pleaded the material facts needed to establish conspiracy or misfeasance in public office, the plaintiffs' Charter claim did not amount to a legitimate cause of action, and the plaintiffs' claim for "blacklisting" was bound to fail. Accordingly, the court struck the plaintiffs' claim in its entirety, without leave to amend.

B.C. Court of Appeal's Decision

The B.C. Court of Appeal allowed the plaintiffs' appeal in part. The Court of Appeal disagreed with the lower court's conclusion that the plaintiffs had not pleaded the material facts needed to establish conspiracy or misfeasance in public office, and that the plaintiffs' Charter claim did not amount to a legitimate cause of action. The Court of Appeal agreed, however, that the plaintiffs' claim for "blacklisting" was bound to fail.

The...