Hunt v. T & N plc et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.
• Citation: (1990), 117 N.R. 321 (SCC),[1990] 2 SCR 959,1990 CanLII 90 (SCC),74 DLR (4th) 321,[1990] 6 WWR 385,49 BCLR (2d) 273,117 NR 321,4 CCLT (2d) 1,[1990] CarswellBC 216,JE 90-1436,[1990] NBJ No 93 (QL),[1990] SCJ No 93 (QL),[1990] ACS no 93,23 ACWS (3d) 101,43 CPC (2d) 105
• Court: Supreme Court (Canada)
• Date: 04 October 1990

Hunt v. T&N plc (1990), 117 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Carey-Canada Inc., formerly known as Carey-Canadian Mines Ltd., National Gypsum Co., Atlas Turner Inc., Asbestos Corporation Limited, Bell Asbestos Mines Limited and Lac d'Amiante du Québec Ltée, formerly known as Lake Asbestos Company Ltd. v. George Ernest Hunt and T & N plc and Flintkote Mines Limited Flintkote Mines Limited, National Gypsum Co., Atlas Turner Inc., Asbestos Corporation Limited, Bell Asbestos Mines Limited and Lac d'Amiante du Québec Ltée, formerly known as Lake Asbestos Company Ltd. George Ernest Hunt and T & N plc and Carey Canada Inc., formerly known as Carey-Canadian Mines Ltd.

(21508, 21536)

Indexed As: Hunt v. T & N plc et al.

Supreme Court of Canada

Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.

October 4, 1990.

Summary:

Until 1967 George Hunt was employed as an electrician in a shipyard. His employment brought him in contact with asbestos. Hunt contracted mesothelioma. He submitted that the disease was the consequence of his prolonged contact with asbestos. Hunt claimed that the defendants were aware of the dangers posed by asbestos as a health risk since 1934. The defendants were involved with the mining of asbestos and the manufacture of asbestos products in the period between 1940 and 1967. Hunt sued some of the defendants for negligence. Hunt sued all of the defendants for conspiracy to injure by withholding or concealing information regarding the health risk. The action against Carey Canada Inc. was based on conspiracy to injure alone. Carey Canada applied to have the action against it struck out on the ground that it failed to disclose a reasonable cause of action. Carey Canada submitted that the tort of conspiracy required both an intention by the defendant to injure the plaintiff and subsequent direct damage. Furthermore, the tort of conspiracy was not applicable to personal injury cases.

The British Columbia Supreme Court, Trial Division, in a decision by Hollinrake, J., allowed the application and struck out the action against Carey Canada. Hunt appealed.

The British Columbia Court of Appeal, in a decision reported at paragraphs 58 to 74 below, allowed the appeal. Carey Canada appealed.

The Supreme Court of Canada dismissed the appeal.

Practice - Topic 2230

Pleadings - Striking out pleadings - General - Failure to disclose a cause of action - The plaintiff sued the defendant for the tort of conspiracy on the ground that the defendant conspired with others to conceal information concerning the health risks posed by asbestos - The defendant applied to have the statement of claim struck out on the ground it failed to disclose a reasonable cause of action - The defendant submitted that the tort could only be used in commercial law situations - Also, there was no intent on the part of the defendants to harm the plaintiff - The Supreme Court of Canada declined to strike out the statement of claim - See paragraphs 43 to 52.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose cause of action - The plaintiff sued some of the defendants for negligence - The plaintiff included additional defendants in regard to a claim based on conspiracy to injure by concealing the medical risks of asbestos - The defendant applied to have the conspiracy component of the statement of claim struck out on the ground that conspiracy could not be pleaded when a nominate tort was also claimed for the same action - The Supreme Court of Canada declined to strike the statement of claim - See paragraphs 53 to 55.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - The Supreme Court of Canada considered an application to strike part of a statement of claim because it failed to disclose a reasonable cause of action - The court stated that assuming the facts in the statement of claim can be proved, the pleadings should not be struck unless it is plain and obvious that the statement of claim discloses no reasonable cause of action - Furthermore, "[n]either the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his" case - See paragraph 33.

Torts - Topic 5086

Interference with economic relations - Conspiracy - Conspiracy to injure - The Supreme Court of Canada reviewed the current state of the tort of conspiracy to injure where the plaintiff suffers actual damage - The court observed that an action will lie when the defendants' predominant purpose is to injure the plaintiff, whether the means used were lawful or unlawful - Also, where the means employed were unlawful and the conduct is directed towards the plaintiff, an action will lie provided the defendants should have known that injury to the plaintiff was likely - Therefore, a constructive intent as opposed to a predominant purpose, on the part of the defendants, will support an action for conspiracy when the damage results from the use of unlawful means by the defendants - See paragraph 42.

Torts - Topic 5703

Conspiracy - Elements - [See Torts - Topic 5086].

Cases Noticed:

Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452; 47 N.R. 191, consd. [paras. 9, 40, 68].

Metropolitan Bank Ltd. v. Pooley, [1881-1885] All E.R. 949 (H.L.), refd to. [para. 13].

Republic of Peru v. Peruvian Guano Co. (1887), 36 Ch. D. 489, refd to. [para. 14].

Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd., [1899] 1 Q.B. 86 (C.A.), refd to. [para. 16].

Attorney General of the Duchy of Lancaster v. London and North Western Railway Co., [1892] 3 Ch. 274 (C.A.), refd to. [para. 17].

Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.), refd to. [para. 18].

Evans v. Barclays Bank and Galloway, [1924] W.N. 97 (C.A.), refd to. [para. 18].

Kemsley v. Foot, [1951] 1 T.L.R. 197 (C.A.), refd to. [para. 18].

Nagle v. Feilden, [1966] 2 Q.B. 633 (C.A.), refd to. [para. 18].

Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094 (C.A.), refd to. [para. 19].

Ross v. Scottish Union and National Insurance Co. (1920), 47 O.L.R. 308 (C.A.), consd. [para. 23].

R. ex rel. Tolfree v. Clark, [1943] O.R. 501 (C.A.), consd. [para. 25].

Gilbert Surgical Supply Co. v. F.W. Horner Ltd., [1960] O.W.N. 289 (C.A.), refd to. [para. 26].

Minnes v. Minnes (1962), 39 W.W.R.(N.S.) 112 (B.C.C.A.), consd. [paras. 28, 67].

McNaughton and McNaughton v. Baker (1988), 25 B.C.L.R.(2d) 17 (C.A.), refd to. [para. 28].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Attorney General of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304, appld. [para. 30].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, consd. [para. 31].

Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279; 105 N.R. 228; 65 Man.R.(2d) 182, refd to. [para. 32].

Metall und Rohstoff A.G. v. Donaldson, Lufkin and Jenrette Inc., [1989] 3 W.L.R. 563, refd to. [paras. 35, 39].

Lonrho Ltd. v. Shell Petroleum Co. (No. 2), [1982] A.C. 173, not folld. [para. 36].

Mogul Steamship Co. v. McGregor, Gow & Co. (1889), 23 Q.B.D. 598, refd to. [para. 37].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40, dist. [para. 46].

Donoghue v. Stevenson, [1932] A.C. 562, refd to. [para. 71].

Statutes Noticed:

British Columbia Rules of Court - see Rules of Court (B.C.).

Business Concerns Records Act, R.S.Q. 1977, c. D-12, generally [para. 51].

Rules of Civil Procedure (Ont.), rule 21.01(1), rule 21.01(2) [para. 11]; rule 124 [para. 23].

Rules of Court (B.C.), rule 19(24)(a) [paras. 5, 65].

Rules of the Supreme Court, 1883 (Eng.), Order 25, rule 4 [para. 14].

Rules of the Supreme Court, 1962 (Eng.), Order 18, rule 19(1) [para. 19].

Supreme Court of Judicature Act, 1873 (Eng.), generally [para. 12].

Authors and Works Noticed:

Baker, An Introduction to English Legal History (2nd Ed.), p. 69 [para. 14].

Burns, Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest (1982), 16 U.B.C. L. Rev. 229, p. 254 [para. 48].

Fridman, G.H.L., The Law of Torts in Canada, vol. 2, pp. 265-266 [para. 43].

Halsbury's Laws of England (4th Ed.), vol. 36, para. 2, note 7, para. 35, note 5 [para. 14].

McLachlin and Taylor, British Columbia Practice (2nd Ed.), vol. 1, pp. 19-71 [para. 12].

Milsom, Historical Foundations of the Common Law (2nd Ed.), p. 72 [para. 14].

Counsel:

Jack Giles, Q.C., and Robert McDonell, for Carey Canada Inc.;

D.M.M. Goldie, Q.C., for Lac d'Amiante du Québec Ltée;

Marvyn Koenigsberg, for National Gypsum Co.;

David Martin and Michael P. Maryn, for Atlas Turner Inc., Asbestos Corporation Limited and Bell Asbestos Mines Limited;

James A. Macaulay and K.N. Affleck, for T & N plc;

Robert Ward and S.E. Fraser, for Flintkote Mines Limited;

J.J. Camp, Q.C., and P.G. Foy, for George Ernest Hunt.

Solicitors of Record:

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for Carey Canada Inc.;

Davis & Co., Vancouver, British Columbia, for Lac d'Amiante du Québec Ltée;

Koenigsberg & Russell, Vancouver, British Columbia for National Gypsum Co.;

Douglas, Symes & Brissenden, Vancouver, British Columbia, for Atlas Turner Inc., Asbestos Corporation Limited and Bell Asbestos Mines Limited;

Macaulay & Company, Vancouver, British Columbia, for T & N plc;

Edwards, Kenny & Bray, Vancouver, British Columbia, for Flintkote Mines Limited;

Ladner Downs, Vancouver, British Columbia, for George Ernest Hunt.

This appeal was heard on February 22, 1990 before, Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ., of the Supreme Court of Canada.

The following judgment of the Supreme Court of Canada was delivered in both official languages, by Wilson, J., on October 4, 1990.