Does The Left Hand Know What The Right Hand Is Doing?

This is the unfortunate tale of two decisions concerning the tort of unlawful interference with economic relations: Barber v. Molson Sport & Entertainment Inc., 2010 ONCA 70 (CanLII) released September 3, 2010, just 10 days after Alleslev-Krofchak v. Valcom Limited, 2010 ONCA 557 (CanLII) was released on August 24. The puzzling problem is that the two panels (which shared a common member) have left up in the air the proper meaning of "by unlawful means," a key element in the test as to this intentional tort. Both these cases were heard in March 2010.

As Sgt. Joe Friday of Dragnet fame said: "The facts, Ma'am — just give me the facts." The appellate courts are not there to retry the case under appeal, but rather to correct for errors of law and misapprehension of material facts. In Barber, the Court of Appeal made a preliminary comment in its analysis:

[43] The trial judge gave lengthy, detailed reasons in which he made a great many factual findings. Having said that, we acknowledge that the trial judge's legal analysis is thin and, in some areas, incorrect. Nevertheless, because of the care he took in making his factual findings and because he made all the requisite findings, we have been able to make the necessary determinations to decide these appeals without the necessity of a new trial.

The tort of unlawful interference with economic relations requires that the plaintiff prove that: (a) the defendant intended to injure the plaintiff; (b) the defendant interfered with the plaintiff's economic interest by illegal or unlawful means; and (c) as a result thereof, the plaintiff suffered economic loss. Judge Cumming, in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 1998 CanLII 14850 (ON SC) gave a more focused breakdown of these requirements:

[61] In my view, and I so find, there is a tort in the Canadian common law which I shall call the "tort of unlawful interference with economic relations." The elements of the tort of "unlawful interference with economic relations" are: (i) the existence of a valid business relationship or business expectancy between the plaintiff and another party; (ii) knowledge by the defendant of that business relationship or expectancy; (iii) intentional interference which induces or causes a termination of that relationship or expectancy; (iv) the interference is by way of unlawful means; (v) the interference by the defendant must be the proximate cause of the termination of the business relationship or expectancy; and (vi) there is a resulting loss to the plaintiff.

I would suggest that Judge Cumming's breakdown of the elements is helpful but needs to be refined in respect of the aspect that it is still tortious if the business relationship or expectancy is...