Reach Gives Way To Stretch: Top Court Clarifies The Tort Of Unlawful Interference

In nature, those creatures that are elusive - to the point that we doubt their very existence - often go by more than one name. We have, for example, "Big Foot" and "Sasquatch"; "Yeti" and "The Abominable Snowman". In law, evolving (if not altogether "elusive") concepts may also go by a variety of names. The tort of unlawful interference is a good example: it is also known as "interference with a trade or business by unlawful means", "intentional interference with economic relations", "causing loss by unlawful means", or simply, "unlawful means". Where a legal concept is in a state of flux, the variety in nomenclature is understandable - the Supreme Court of Canada may not yet have had the chance to settle the law (or the name) once and for all.

In A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 (http://canlii.ca/t/g2wn4), the Supreme Court of Canada weighed in on the substance (and the name) of the tort of unlawful interference with economic relations. The decision is of particular importance to Ontario litigators since it represents a break from Ontario jurisprudence both old and new.

Canoes and cannon balls

The tort of unlawful interference occurs where a defendant employs unlawful means against a third party so as to intentionally inflict economic injury on the plaintiff. A classic (and visceral) example of the tort can be found in the case of Tarleton v. M'Gawley (1793), Peake 270, 170 E.R. 153 (K.B.), where the defendant, the master of a trading ship, fired a cannon at the occupants of a canoe (the third party), in order to prevent those occupants from trading with the defendant's competitor (the plaintiff).

The evolution of "unlawful means" in Ontario

The Court of Appeal's decision in Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada, 172 OAC 202 (http://canlii.ca/t/6x2h), was one of Ontario's first appellate level cases on unlawful interference. The elements of the tort, as set out in Reach, remain good law to this day. These elements are the following: a) the intentional infliction of economic injury on the plaintiff by b) using unlawful means as against a third party, which c) causes economic loss to the plaintiff.

In Reach, the Court of Appeal had to decide between two competing views as to what constitutes "unlawful means", one broad, the other narrow. The Court ultimately adopted the broad view and held that "unlawful means" was an act that the defendant was "not at liberty to commit".

Perhaps...