THE EVOLVING TORT OF CONSPIRACY TO RESTRAIN TRADE UNDER CANADIAN COMMON LAW

Abstract

For centuries, the common law doctrine of restraint of trade has prevented legal enforcement of agreements among competitors that courts find unreasonable. Although the concept of reasonableness has continued to evolve, and today in Canada reflects modern insights about the evils of competition-harming cartel practices, Canadian courts have never rejected an 1892 House of Lords decision, Mogul. Steamship, holding that the tort of conspiracy to injure is unavailable in the case of trade restraints absent malice. Seizing upon hopeful language in several recent Supreme Court of Canada decisions suggesting that Canada might take a "different course" than the English courts, the author suggests that a fresh Canadian look at this issue would lead to the application of the tort of conspiracy to cartel practices. The article suggests that the English approach no longer reflects Canadian legal or economic thinking, explains how the tort of conspiracy will fill a valuable gap in the law due to the inability of the Competition Act to proscribe all anticompetitive cartel practices, assuages concerns that expansion of this tort will seriously harm organized labour, and distinguishes the application of the tort of conspiracy to conduct already unenforceable under the doctrine of restraint of trade from more radical proposals for tort expansion that have been rejected by the Supreme Court.