Documentation:Torts/Conspiracy

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Index
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Conspiracy
The tort of conspiracy involves two or more defendants planning together to engage in conduct that causes loss to the plaintiff.[1] There are two variants of this tort, one being the intentional infliction of harm on the plaintiff, and another being the infliction of harm on the plaintiff through unlawful conduct that would foreseeably cause loss to the plaintiff.[2] The latter unlawful conduct category adopts a broader conception of the "unlawful conduct" element compared to the unlawful means tort.[3] Unlike criminal conspiracy, the tort of conspiracy is actionable only when the plaintiff has suffered damage as a result of the defendants' conspiracy efforts.[4]

The two variants of the conspiracy tort

The Supreme Court of Canada in the leading case of Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. stated that, although tort law does not permit an action against an individual defendant merely for causing damage to a plaintiff, an action may lie in the tort of conspiracy in either of two circumstances:[2][5]

(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or, (2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

Conspiracy to injure

Elements of conspiracy to injure[6]
1. [A]n agreement between two or more persons;
2. [C]oncerted action taken pursuant to the agreement;
3. [E]vidence that the conspirators intended to cause damage to the plaintiff;
4. [A]ctual damage suffered by the plaintiff.

This variant of civil conspiracy applies when the conspirators caused the plaintiff injury and causing said injury was the primary purpose of their mutual agreement.[7]

Agreement

The agreement between defendants to injure the plaintiff need not be contractual, and may be established directly or by inference, to support an action under the tort of conspiracy.[8]

Intended to cause damage to the plaintiff

Under this variant of the conspiracy tort, a claimant must prove that the defendants' actions were undertaken for the primary purpose of injuring the plaintiff.[7] Highly competitive commercial activity for a profit-making purpose, which is otherwise lawful, will not be actionable under either variant of the tort of conspiracy.[9]

Actual damage suffered by the plaintiff

The British Columbia Court of Appeal in XY, LLC v. Zhu stated that the conspirators must be causally related to the loss or damage to the plaintiff in order for civil conspiracy to be made out.[10]

However, the Court clarified that causation does not require the plaintiff to change its position or rely on the defendant's misconduct to their detriment, as is the case for an action in fraud.[11] The Supreme Court of Canada in Canada Cement LaFarge took no issue with the plaintiff claiming damage by way of the loss of the "benefits of a free market" as a result of the defendants' conspiracy to drive them out of business.[12] All that is required is that the plaintiff has suffered actual damage as a result of the conspiracy.[10]

Unlawful conduct conspiracy

The elements of what may be called unlawful conduct conspiracy are largely the same as conspiracy to injure, with the principled differences described below.[6]

Elements of unlawful conduct conspiracy[6][13]
1. [A]n agreement between two or more persons;
2. [C]oncerted action taken pursuant to the agreement;
3. [T]he conduct is unlawful;
4. [T]he conspirators knew or ought to have know that their action would injure the plaintiff (i.e., constructive intent);
5. [A]ctual damage suffered by the plaintiff.
Concerted action

The Ontario Court of Appeal in Agribrands Purina Canada Inc. v. Kasamekas stated that civil conspiracy cannot be established if only one conspirator acts unlawfully.[14] The Court stated that, for the purposes of this variant of the conspiracy tort, each conspirator must engage in some unlawful conduct.[15]

Regarding the scope of liability for each defendant, the British Columbia Court of Appeal in Golden Capital Securities Limited v. Rempel stated that:[16]

A person who conspires with others to commit unlawful acts may be liable for the consequences even though some of the acts are instigated by a single conspirator. But a person's liability for the acts of other conspirators requires proof that the person knew or should have known that such acts were a probable consequence of carrying out the common objective.

Thus, co-conspirators will be held liable for the damage caused to the plaintiff by each other's actions provided they engaged in unlawful conduct themselves and the acts committed by their co-conspirator were a probable consequence of carrying out the conspiracy.[15][16]

In the news
How Cyber Mobs and Trolls Have Ruined the Internet—and Destroyed Lives
Caucasian man in a white shirt sitting in a chair using a desktop computer with a rainbow design on the screen.
This Newsweek article explains the modern phenomenon of cyber mobs and details the devastating impact they have had on victims.[17]

In his article, "Cybermobs, Civil Conspiracy, and tort Liability", Winhkong Hua suggests that the tort of civil conspiracy may provide an effective means for victims of cyber mobs to seek redress.[18]

Unlawful conduct

The case law on what is required to establish the "unlawful act" element of this variant of civil conspiracy is quite spare in Canada.[19] The Ontario Court of Appeal in Agribrands Purina Canada Inc. rejected the notion that the jurisprudence on unlawful interference with economic interests can supply the definition for the unlawful conduct element under this variant of the conspiracy tort.[20] The Court explained that adopting such a standard would ignore the fact that each tort has evolved separately within the common law and thus each have different conceptions of what type of unlawful conduct is sufficient.[20]

Under the unlawful conduct variant of conspiracy, any conduct that amounts to a wrong in law, whether actionable under tort law or not, will be sufficient to satisfy the "unlawful conduct" element.[21] This includes criminal conduct, breaches of contract, and statutory breaches.[3]

As such, the unlawful conduct element under the conspiracy tort is considerably broader in scope compared to the unlawful means tort, for which only conduct towards a third party otherwise actionable under tort law will be sufficient to satisfy the "unlawful means" element.[3]

Injury is likely to result (constructive intent)

The Supreme Court of Canada in Canada Cement LaFarge Ltd rejected the notion that intent to injure was not required for unlawful act conspiracy.[22] Estey J, speaking for the Court, stated that constructive intent is required – meaning that the conspirators must know or should have known that injury to the plaintiff would be a probable consequence of their, or their co-conspirator's, unlawful actions.[23] Defendants will also be held liable for the actions of their co-conspirators provided that such acts were a probable consequence of carrying out the common objective.[16]

Contrasting civil conspiracy with criminal conspiracy

The Criminal Code contains provisions prescribing a crime of conspiracy.[24] The Supreme Court of Canada in Canada Cement LaFarge cited the House of Lords decision in Lonrho Ltd. v. Shell Petroleum Co. to describe the difference between civil conspiracy compared to criminal conspiracy, quoting the following passage of Lord Diplock:[4]

Regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement.

Discussion questions

  • What are the two types of civil conspiracy recognised in Canadian common law? What constitutes an “unlawful act” sufficient to ground a claim in the second type of civil conspiracy?
  • What are the implications of holding a defendant liable for damage caused by the unlawful acts of a co-conspirator?
  • Does civil conspiracy cover instances where a mutual plan incidentally harms a claimant?
  • What is the primary difference distinguishing civil conspiracy from criminal conspiracy as stated in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd.?[4]


  1. ↑ Le Soleil Hospitality Inc. v. Louie, 2010 BCSC 1183 at para 343.
  2. ↑ 2.0 2.1 XY, LLC v. Zhu, 2013 BCCA 352 (§10.8.1) at para 43, citing Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC) at 471–472.
  3. ↑ 3.0 3.1 3.2 Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para 37.
  4. ↑ 4.0 4.1 4.2 Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC) at 465–466, citing Lonrho Ltd. v. Shell Petroleum Co., [1982] AC 173 at 188 and 463.
  5. ↑ Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para 24, citing Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC) at 471–472.
  6. ↑ 6.0 6.1 6.2 Le Soleil Hospitality Inc. v. Louie, 2010 BCSC 1183 at para 341, citing Can-Dive Services Ltd. v. Pacific Coast Energy Corp., 1993 CanLII 6870 (BCCA) at para 5.
  7. ↑ 7.0 7.1 Le Soleil Hospitality Inc. v. Louie, 2010 BCSC 1183 at para 342.
  8. ↑ Le Soleil Hospitality Inc. v. Louie, 2010 BCSC 1183 at para 343, citing Golden Capital Securities Ltd. v. Rempel, 2004 BCCA 565 at para 47.
  9. ↑ Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para 38.
  10. ↑ 10.0 10.1 XY, LLC v. Zhu, 2013 BCCA 352 (§10.8.1) at para 46.
  11. ↑ XY, LLC v. Zhu, 2013 BCCA 352 (§10.8.1) at para 47, citing Le Soleil Hospitality Inc. v. Louie, 2010 BCSC 1183.
  12. ↑ XY, LLC v. Zhu, 2013 BCCA 352 (§10.8.1) at para 46, citing Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC).
  13. ↑ Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para 26.
  14. ↑ Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para 27.
  15. ↑ 15.0 15.1 Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para 28, citing Bank of Montreal v. Tortora, 2010 BCCA 139.
  16. ↑ 16.0 16.1 16.2 Golden Capital Securities Ltd. v. Rempel, 2004 BCCA 565 at para 74.
  17. ↑ Citron, Danielle Keats (19 Sep 2014). "How Cyber Mobs and Trolls Have Ruined the Internet—and Destroyed Lives". Newsweek.
  18. ↑ Hua, Winhkong (2017). "Cybermobs, Civil Conspiracy, and tort Liability". Fordham Urban LJ. 44 (4): 1217–1266.
  19. ↑ XY, LLC v. Zhu, 2013 BCCA 352 (§10.8.1) at para 49.
  20. ↑ 20.0 20.1 Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at paras 34–36.
  21. ↑ Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para 38.
  22. ↑ Golden Capital Securities Ltd. v. Rempel, 2004 BCCA 565 at para 53, citing Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC) at 469–471.
  23. ↑ Golden Capital Securities Ltd. v. Rempel, 2004 BCCA 565 at para 54, citing Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC) at 469–471.
  24. ↑ Criminal Code, RSC 1985, c. C-46, s.465(1).
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