SOME RECENT DECISIONS ON THE ELEMENT OF UNLAWFULNESS IN INTENTIONAL TORTS

Abstract

Some recent decisions of the Ontario Court of Appeal have changed the legal landscape with respect to the economic torts. The Court now construes the element of unlawfulness in the economic torts more narrowly than it did previously, thus making the economic torts less available to a plaintiff. The Court’s analysis brings to the fore the concept of a directly actionable wrong. If a wrong is directly actionable, then it cannot serve as the unlawful element in the torts of conspiracy and intentional interference with contractual relations, thus making these torts less available to a plaintiff. The result of the recent decisions is that the criteria for finding that a defendant has committed an economic tort are more stringent, and that some of the older jurisprudence must be treated with caution. The Court’s approach attempts to follow the contours of the recent decisions of the House of Lords. While the outline is relatively clear, the detailed development has yet to be worked out.