Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al., (2014) 416 N.B.R.(2d) 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Rothstein, Cromwell, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 22, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 416 N.B.R.(2d) 1 (SCC);2014 SCC 12;[2014] 1 SCR 177;453 NR 273;[2014] SCJ No 12 (QL);366 DLR (4th) 573

Bram Ent. Ltd. v. AI Ent. Ltd. (2014), 416 N.B.R.(2d) 1 (SCC);

    416 R.N.-B.(2e) 1; 1079 A.P.R. 1

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2014] N.B.R.(2d) TBEd. FE.024

Renvoi temp.: [2014] N.B.R.(2d) TBEd. FE.024

A.I. Enterprises Ltd. and Alan Schelew (appellants) v. Bram Enterprises Ltd. and Jamb Enterprises Ltd. (respondents) and Attorney General of British Columbia (intervener)

(34863; 2014 SCC 12; 2014 CSC 12)

Indexed As: Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al.

Répertorié: Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Rothstein, Cromwell, Karakatsanis and Wagner, JJ.

January 31, 2014.

Summary:

Résumé:

A group of family members, through their companies, owned an apartment building. The companies entered a Syndication Agreement which contained a sale mechanism giving 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. The majority (the respondents Bram Enterprises Ltd. and Jamb Enterprises Ltd.) wanted to sell the building, but the appellants (Schelew and his company A.I. Enterprises Ltd.) did not. The respondents gave notice to A.I. under 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. The respondents dealt with four potential purchasers but no sale was completed. The respondents alleged that the sale was thwarted by a series of intentional actions by the appellants. Ultimately, about two years after the first attempts to sell, A.I. bought the building for $2.2 million. The respondents 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.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision with neutral citation 2010 NBQB 245, concluded that the appellants 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 court awarded the respondents damages reflecting the difference between what A.I. paid for the property and what could have been obtained but for the appellants' obstruction. The appellants appealed.

The New Brunswick Court of Appeal, in a decision reported at (2012), 387 N.B.R.(2d) 215; 1001 A.P.R. 215, dismissed the appeal. The court upheld the result at trial, although for significantly different reasons. The acts of the appellants 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, the court held that liability could be imposed on the basis of a "principled exception" to that requirement. The appellants appealed.

The Supreme Court of Canada held that conduct was unlawful for the purposes of the "unlawful means" tort 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 "unlawfulness" requirement was not subject to principled exceptions. The alleged misconduct of the appellants was not unlawful in that sense. Accordingly, they could not be held liable on the basis of the unlawful means tort. However, the trial judge had made strong findings that Schelew breached his fiduciary obligations to the respondent companies of which he was a director. The court held that the trial judge's award should be upheld on that basis. While A.I. was not a fiduciary, Schelew was its sole director and shareholder. A.I. was therefore liable for knowing assistance in the breach of fiduciary duty and knowing receipt of the proceeds of the breach.

Company Law - Topic 4266

Directors - Duties - Breach of fiduciary duty - What constitutes - [See first Torts - Topic 5023 ].

Equity - Topic 3646

Fiduciary or confidential relationships - Breach of fiduciary relationship - By director or officer of company - [See first Torts - Topic 5023 ].

Equity - Topic 3652

Fiduciary or confidential relationships - Breach of fiduciary relationship - Liability of third parties or accessories (incl. doctrines of knowing receipt or assistance) - [See first Torts - Topic 5023 ].

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - A group of family members, through their companies, owned an apartment building - The majority (the two respondent companies) wanted to sell the building, but the appellants (Schelew and his company A.I. Enterprises Ltd.) did not - The respondents dealt with four potential purchasers but no sale was completed - The respondents alleged that the sale was thwarted by a series of intentional actions by the appellants - A.I. Enterprises ultimately bought the building - The respondents claimed that, as a result of the appellants' wrongful conduct, the sale was substantially delayed and was for less money than they could have obtained from a third party purchaser - The trial judge concluded that the appellants 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 trial judge focused on the following acts by the appellants: they instituted arbitration proceedings, registered documents encumbering the property's title and denied third parties access to the building - The trial judge awarded the respondents damages reflecting the difference between what A.I. paid for the property and what could have been obtained but for the appellants' obstruction - The Supreme Court of Canada upheld the trial judge's award, but for different reasons - The court held that conduct was unlawful for the purposes of the "unlawful means" tort 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 appellants was not unlawful in that sense - Accordingly, they could not be held liable to the respondents on the basis of the unlawful means tort - However, the trial judge had made strong findings that Schelew breached his fiduciary obligations to the respondent companies, of which he was a director - The court concluded that the trial judge's award should be upheld on that basis - While A.I. was not a fiduciary, Schelew was its sole director and shareholder - A.I. was therefore liable for knowing assistance in the breach of fiduciary duty and knowing receipt of the proceeds of the breach.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The Supreme Court of Canada discussed the tort of causing loss by unlawful means - The court stated that "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" - See paragraph 2.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The Supreme Court of Canada discussed the scope of liability for the tort of causing loss by unlawful means - The court stated that "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" - Conduct was unlawful for the purpose of this tort 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 court answered "no" to the question of whether the tort was available only if there was no other cause of action available to the plaintiff against the defendant in relation to the alleged misconduct - The court also held that the "unlawfulness" requirement should not be subject to principled exceptions - See paragraphs 5 and 26.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The Supreme Court of Canada stated that "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" - See paragraph 29.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The Supreme Court of Canada concluded that the best rationale for the unlawful means tort was "liability stretching", a rationale that favoured a narrow approach to the unlawful means requirement - The court stated that "There are several possible rationales for the tort but they are mostly variations on two themes ... The first - what I will call the 'intentional harm' rationale - focuses on the fact that harm has been intentionally inflicted. This rationale supports the creation of new tort liabilities in order to reach clearly excessive and unacceptable intentional conduct ... The second, and in my view the preferred rationale, 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. I will call this the 'liability stretching' rationale. The focus of the tort on this understanding is not on enlarging the basis of civil liability, but on allowing those intentionally targeted by already actionable wrongs to sue for the resulting harm. On either rationale, the tort is, at its core, a tort of intention. The main difference is that on the 'intentional harm' rationale, the intention requirement is seen as the main limitation on the potential scope of liability, whereas in the 'liability stretching' rationale, the potential scope of liability is limited by both the intention requirement and the more restrictive definition of the conduct which will support liability" - See paragraphs 36 to 49.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The Supreme Court of Canada stated that "In light of the examination of the jurisprudence in this country and comparable common law jurisdictions, the trend of authority is towards a narrow definition of 'unlawful means'. In addition to being consistent with precedent, this approach is also in my view desirable in principle. Restricting unlawful means to acts that would give rise to civil liability to the third party (or would do so if the third party suffered loss from them) provides a coherent and rational basis for the development of the unlawful means tort. The limitation of unlawful means to actionable civil wrongs provides certainty and predictability in this area of the law, since it does not expand the types of conduct for which a defendant may be held liable but merely adds another plaintiff who may recover if intentionally harmed as a result of that conduct. While details relating to the scope of what is 'actionable' may need to be worked out in the future, the basic contours of liability would be clear ... This approach does not risk 'tortifying' conduct rendered illegal by statute for reasons remote from civil liability ... The narrow definition of 'unlawful means', in short, keeps tort law within its proper bounds. ... I conclude that 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" - See paragraphs 74 to 76.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The appellants urged the court to hold that the unlawful means tort, because it had a gap-filling function, should only be available where the defendant's conduct did not provide the plaintiff with any other cause of action against the defendant - The Supreme Court of Canada did not accept this limitation on the scope of the unlawful means tort - The court stated that "This limitation seems to me to be wrong in principle. 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. Moreover, 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 ... Finally, ... this limitation is premised on an unduly narrow understanding of the 'gap-filling' function of the tort. A gap need not be a void. ... The 'not otherwise actionable' requirement is not consistent with the majority view in OBG and can be awkward to apply in practice. ... Finally, this limitation is not necessary to ensure that the unlawful means tort is kept within its proper bounds. The restrictions on the 'unlawful means' and intention components of the unlawful means tort that I propose mean that it will rarely, if ever, be more advantageous to a plaintiff to plead the unlawful means tort rather than another available cause of action. I would therefore not limit liability for the unlawful means tort to situations in which the defendant's conduct is not otherwise actionable by the plaintiff" - See paragraphs 77 to 81.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The Supreme Court of Canada stated that "for the purposes of the unlawful means tort, the defendant's means are 'unlawful' if they support a civil action for damages or compensation by the third party, or would do so except for the fact that the third party did not suffer any loss as a result of the defendant's acts. There is no requirement that these acts not be otherwise actionable by the plaintiff against the defendant and there are no exceptions to the scope of the liability imposed by this approach. In Lord Hoffmann's reasons in OBG, he added a further requirement to the unlawful means tort, namely that the unlawful means employed must interfere with the third party's freedom to deal with the plaintiff ... Respectfully, I do not find this additional requirement helpful in outlining the proper bounds of the unlawful means tort. This requirement is not supported either by the authorities or by the rationale for imposing liability. Whether the unlawful means interfere with the plaintiff's right to deal with the injured third party or with some other party, the fact that the defendant aims at the plaintiff provides a sufficient nexus between the unlawful means and the interests of the plaintiff to justify imposing liability" - See paragraphs 86 to 87.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - A group of family members, through their companies, owned an apartment building - The majority (the respondents) wanted to sell the building but the appellants (Schelew and his company A.I. Enterprises Ltd.) did not - The respondents dealt with four potential purchasers but no sale was completed - The respondents alleged that the sale was thwarted by a series of intentional actions by the appellants - The trial judge concluded that the appellants had unlawfully and intentionally interfered with the economic relations between the majority owners and the prospective purchasers - The appellants contended that there was no proof that they had appropriate knowledge of the existence of any business relationship between the respondents and prospective purchasers - The Supreme Court of Canada concluded that the unlawful means tort was not available to the respondents in this case for other reasons, so it was not necessary to address this issue - However, the court stated that it did not agree that the existence of a valid business relationship between the plaintiff and the third party and the defendant's knowledge of that relationship were essential elements of the unlawful means tort - The court stated that "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. In this case, it was more than sufficient that the appellants were shown to know that 'various persons were negotiating with the majority of investors' ... for the purchase of the premises and that the allegedly unlawful acts were committed with the intention to cause economic harm to the respondents" - See paragraphs 90 to 93.

Torts - Topic 5024

Interference with economic relations - Elements of liability - Malice or intent to injure - The Supreme Court of Canada discussed the intention requirement for the unlawful means tort - The court stated that "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. Goudge J.A. put this point aptly in Alleslev-Krofchak, where he summarized the House of Lords' discussion in OBG 'intentional interference with economic relations requires that the defendant intend to cause loss to the plaintiff, either as an end in itself or as a means of, for example, enriching himself. If the loss suffered by the plaintiff is merely a foreseeable consequence of the defendant's actions, that is not enough.' In my view, this narrow approach to intention is consistent both with the policy concerns relevant to this area of law as well as the underlying 'liability stretching' rationale for the tort. It is an important safeguard against attaching liability to vigorous but lawful competitive behaviour. Economic harm to a competitor is often a foreseeable consequence of such behaviour. Mere foreseeability of such harm does not meet the requirement for intention in the unlawful means tort" - See paragraphs 94 to 97.

Délits civils - Cote 5023

Atteintes aux relations économiques - Éléments de responsabilité - Usage de moyens illégaux - [Voir Torts - Topic 5023 ].

Délits civils - Cote 5024

Atteintes aux relations économiques - Éléments de responsabilité - Malice ou causer intentionnellement un préjudice - [Voir Torts - Topic 5024 ].

Droits des compagnies - Cote 4266

Administrateurs - Devoirs - Violation du devoir fiduciaire - En quoi consiste - [Voir Company Law - Topic 4266 ].

Equity - Cote 3646

Rapports fiduciaux ou de créance - Violation d'un rapport fiducial - Par un administrateur de compagnie - [Voir Equity - Topic 3646 ].

Equity - Cote 3652

Rapports fiduciaux ou de créance - Violation d'un rapport fiducial - Responsabilité des tiers ou accessoires (y compris doctrines de la réception ou de l'aide complice) - [Voir Equity - Topic 3652 ].

Cases Noticed:

OBG Ltd. et al. v. Allan et al., [2008] 1 A.C. 1; 369 N.R. 66; [2007] UKHL 21, consd. [para. 16].

Tarleton v. M'Gawley (1793), Peake 270; 170 E.R. 153, refd to. [para. 24].

No. 1 Collision Repair & Painting (1982) Ltd. v. Insurance Corp. of British Columbia et al. (2000), 141 B.C.A.C. 1; 231 W.A.C. 1; 2000 BCCA 463, leave to appeal denied, [2001] 1 S.C.R. xv; 269 N.R. 399; 155 B.C.A.C. 320; 254 W.A.C. 320, refd to. [para. 25].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 30].

Mogul Steamship Company v. McGregor, Gow, & Co. (1889), 23 Q.B.D. 598 (C.A.), affd. [1892] A.C. 25 (H.L.), refd to. [para. 31].

Allen v. Flood, [1898] A.C. 1, refd to. [para. 31].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191; 145 D.L.R.(3d) 385, refd to. [para. 42].

Quinn v. Leathem, [1901] A.C. 495, refd to. [para. 43].

Rookes v. Barnard, [1964] A.C. 1129, refd to. [para. 52].

Total Network SL v. United Kingdom (Her Majesty's Revenue and Customs), [2008] 1 A.C. 1174; 385 N.R. 310; [2008] UKHL 19, refd to. [para. 53].

Sanders v. Snell, [1998] HCA 64; 196 C.L.R. 329, refd to. [para. 54].

OBG: Canberra Data Centres Pty Ltd. v. Vibe Constructions (ACT) Pty Ltd., [2010] ACTSC 20; 173 A.C.T.R. 33, refd to. [para. 54].

Hardie Finance Corporation Pty Ltd. v. Ahern (No. 3), [2010] WASC 403, refd to. [para. 54].

Van Camp Chocolates Ltd. v. Aulsebrooks Ltd., [1984] 1 N.Z.L.R. 354 (C.A.), refd to. [para. 55].

Diver v. Loktronic Industries Limited, [2012] NZCA 131, refd to. [para. 55].

International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265, refd to. [para. 59].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 62].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 62].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 62].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 62].

Gagnon v. Foundation Maritime Ltd., [1961] S.C.R. 435, refd to. [para. 63].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 64].

Roman Corp. v. Hudson's Bay Oil and Gas Co., [1973] S.C.R. 820, refd to. [para. 66].

Central Canada Potash Co. et al. v. Saskatchewan, [1979] 1 S.C.R. 42; 23 N.R. 481, refd to. [para. 66].

Agribrands Purina Canada Inc. v. Kasamekas et al. (2011), 278 O.A.C. 363; 106 O.R.(3d) 427; 2011 ONCA 460, refd to. [para. 68].

Gershman v. Manitoba Vegetable Producers' Marketing Board (1976), 69 D.L.R.(3d) 114 (Man. C.A.), refd to. [para. 71].

Conway et al. v. Zinkhofer, [2008] A.R. Uned. 306; 2008 ABCA 392, refd to. [para. 71].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 71].

R.L.T.V. Investments Inc. v. Saskatchewan Telecommunications et al. (2009), 331 Sask.R. 78; 460 W.A.C. 78; 2009 SKCA 83, leave to appeal refused [2010] 1 S.C.R. xiv; 405 N.R. 396, refd to. [para. 71].

Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada et al. (2003), 172 O.A.C. 202; 65 O.R.(3d) 30 (C.A.), refd to. [para. 71].

Torquay Hotel Co., Ltd. v. Cousins, [1969] 1 All E.R. 522, refd to. [para. 71].

Drouillard v. Cogeco Cable Inc. et al. (2007), 223 O.A.C. 350; 86 O.R.(3d) 431; 2007 ONCA 322, refd to. [para. 71].

Conversions by Vantasy Ltd. et al. v. General Motors of Canada Ltd. (2006), 205 Man.R.(2d) 131; 375 W.A.C. 131; 2006 MBCA 69, leave to appeal refused [2007] 1 S.C.R. viii; 366 N.R. 399, refd to. [para. 71].

Correia v. Canac Kitchens et al. (2008), 240 O.A.C. 153; 91 O.R.(3d) 353; 2008 ONCA 506, refd to. [para. 71].

O'Dwyer v. Ontario Racing Commission (2008), 238 O.A.C. 364; 293 D.L.R.(4th) 559; 2008 ONCA 446, refd to. [para. 71].

Alleslev-Krofchak et al. v. Valcom Ltd. et al. (2010), 266 O.A.C. 356; 322 D.L.R.(4th) 193, 2010 ONCA 557, leave to appeal refused, [2011] 1 S.C.R. xi; 421 N.R. 399, refd to. [para. 71].

Barber et al. v. Vrozos et al. (2010), 269 O.A.C. 108; 322 D.L.R.(4th) 577; 2010 ONCA 570, refd to. [para. 71].

Barrette et al. v. St. Lawrence Cement Inc. et al., [2008] 3 S.C.R. 392; 382 N.R. 105; 2008 SCC 64, refd to. [para. 72].

Westcoast Landfill Diversion Corp. v. Cowichan Valley (Regional District) et al., [2009] B.C.T.C. Uned. 53; 55 M.P.L.R.(4th) 208; 2009 BCSC 53, refd to. [para. 77].

0856464 B.C. Ltd. v. TimberWest Forest Corp. et al., [2012] B.C.T.C. Uned. 597; 89 C.B.R.(5th) 235; 2012 BCSC 597, refd to. [para. 77].

Canuck Security Services Ltd. v. Gill et al., [2013] B.C.T.C. Uned. 893; 2013 BCSC 893, refd to. [para. 77].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 78].

Douglas v. Hello! Ltd., [2005] EWCA Civ 595; [2005] 4 All. E.R. 128, refd to. [para. 95].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed. 1993) (loose-leaf updated September 2013, release 47), para. 11.340 [para. 34].

Adell, Bernard, Secondary Picketing after Pepsi-Cola: What's Clear, and What Isn't? (2003), 10 C.L.E.L.J. 135, generally [para. 34].

American Law Institute, Restatement of the Law, Second: Torts 2d. (1989), §767 [para. 56].

Barker, Kit, et al., The Law of Torts in Australia (5th Ed. 2012), p. 291 ff. [para. 54].

Baudouin, Jean-Louis, and Jobin, Pierre-Gabriel, Les obligations (7th Ed. 2013), paras. 156 to 158 [para. 73].

Burns, Peter, Tort Injury to Economic Interests: Some Facets of Legal Response (1980), 58 Can. Bar Rev. 103, pp. 145 to 148 [para. 28].

Burns, Peter T., and Blom, Joost, Economic Interests in Canadian Tort Law (2009), p. 186 [para. 23].

Carty, Hazel, An Analysis of the Economic Torts (2001), pp. 80 to 82 [para. 95]; 103 [para. 23].

Carty, Hazel, An Analysis of the Economic Torts (2nd Ed. 2010), pp. 73 to 78 [para. 28]; 84 [para. 25]; 97, 98 [para. 87]; 102 [para. 36]; 103 [para. 43]; 104 [paras. 37, 40, 43]; 301 [para. 44].

Carty, Hazel, Intentional Violation of Economic Interests: The Limits of Common Law Liability (1988), 104 Law Q. Rev. 250, p. 278 [para. 28].

Carty, Hazel, The Economic Torts and English Law: An Uncertain Future (2006-2007), 95 Ky. L.J. 845, p. 845 [para. 30].

Carty, Hazel, The Economic Torts in the 21st Century (2008), 124 Law Q. Rev. 641, pp. 654 [para. 95]; 658, 659 [para. 94]; 672 [para. 43].

Deakin, Simon, and Randall, John, Rethinking the Economic Torts (2009), 72 Mod. L. Rev. 519, pp. 520 [para. 39]; 545 [para. 75]; 548, 549 [para. 87].

Deakin, Simon, Johnston, Angus, and Markesinis, Basil, Markesinis and Deakin's Tort Law (7th Ed. 2013), pp. 471 [para. 30]; 472 [para. 33]; 473 [paras. 33, 36]; 474 [para. 34].

Eekelaar, John, The Conspiracy Tangle (1990), 106 Law Q. Rev. 223, pp. 225, 226 [para. 43].

Elias, Patrick, and Ewing, Keith, Economic Torts and Labour Law: Old Principles and New Liabilities (1982), 41 Cambridge L.J. 321, generally [para. 34].

Estes, Jerry C., Expanding Horizons in the Law of Torts - Tortious Interference (1974), 23 Drake L. Rev. 341, generally [para. 56].

Fleming's The Law of Torts (10th Ed. 2011), para. 30.120 [para. 31].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (3rd Ed. 2010), pp. 773 to 775 [para. 23].

Kain, Brandon, and Alexander, Anthony, The "Unlawful Means" Element of the Economic Torts: Does a Coherent Approach Lie Beyond Reach?, in Todd L. Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation, 2010 (2010), 33, pp. 135 [para. 94]; 162 [para. 36]; 162 to 174 [para. 37]; 171 [para. 39]; 181, 182 [paras. 87, 95].

Lee, Pey Woan, Causing Loss by Unlawful Means, [2011] S.J.L.S. 330, p. 349 (fn. 115) [para. 75].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (9th Ed. 2011), pp. 447 to 450 [para. 30].

Neyers, J.W., Rights-based justifications for the tort of unlawful interference with economic relations (2008), 28 L.S. 215, generally [para. 23]; pp. 229, 230 [para. 42]; 231 [para. 43]; 232 [paras. 43, 47, 48]; 233 [paras. 36, 43].

Osborne, Philip H., The Law of Torts (4th Ed. 2011), pp. 220 to 233 [para. 37]; 336, 337 [para. 23, 94]; 338 [para. 23].

Perlman, Harvey S., Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine (1982), 49 U. Chi. L. Rev. 61, generally [para. 56].

Podolny, Ronald, The Tort of Intentional Interference with Economic Relations: Is Clarity Out of Reach? (2012), 52 Can. Bus. L.J. 63, pp. 70 [para. 95]; 77, 78 [para. 43]; 79, 80 [para. 94].

Rogers, W.V.H., Winfield and Jolowicz on Tort (18th Ed. 2010), pp. 859, 860 [para. 30].

Sales, Philip, and Stilitz, Daniel, Intentional Infliction of Harm by Unlawful Means (1999), 115 Law Q. Rev. 411, generally [para. 39].

Stevens, Lyn L., Interference With Economic Relations - Some Aspects of the Turmoil in the Intentional Torts (1974), 12 Osgoode Hall L.J. 595, pp. 617 to 619 [para. 28].

Stevens, Robert, Torts and Rights (2007), p. 297 [para. 68].

Waters, Donovan W.M., Gillen, Mark R., and Smith, Lionel D., Waters' Law of Trusts in Canada (4th Ed. 2012), pp. 516 to 523 [para. 105].

Watkins, Larry, Tort Law - Tortious Interference with Business Expectancy - A Trap for the Wary and Unwary Alike (2012), 34 U. Ark. Little Rock L. Rev. 619, generally [para. 56].

Weir, Tony, Economic Torts (1997), pp. 36 to 43 [para. 28].

Counsel:

Avocats:

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.

Solicitors of Record:

McInnes Cooper, Fredericton, New Brunswick, for the appellants;

Stewart McKelvey, Moncton, New Bruns wick; Supreme Advocacy, Ottawa, Ontario, for the respondents;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener.

This appeal was heard on May 22, 2013, before McLachlin, C.J.C., LeBel, Fish, Rothstein, Cromwell, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by Cromwell, J., in both official languages on January 31, 2014.