Documentation:Torts/Intimidation

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Intimidation
The tort of intimidation is an intentional tort that involves a threat by the defendant which causes the plaintiff to suffer damage.[1] Intimidation is most commonly pled in the context of economic torts, but is not exclusive to business contexts.[1] While the tort has existed within the common law as a standalone tort for over fifty years, it is scarcely litigated and somewhat ambiguous, with little jurisprudence on the tort.[2]

The historical development of the tort of intimidation

Angry Caucasian man in a black hoodie with arms crossed

Origins of the tort of intimidation

Intimidation was recognized as its own tort in the 1964 House of Lords judgment in Rookes v. Barnard.[2][3] The House of Lords stated that intimidation is actionable when the defendant threatens to commit an unlawful act (i.e. commit criminal or tortious acts).[3] Further, the Court recognized that intimidation can manifest in two ways – either by: 1) direct coercion of the plaintiff which causes them to act to their detriment; or 2) coercion of a third party that causes them to act to the plaintiff's detriment.[3]

Canadian tort development

In 1978, the Supreme Court of Canada (SCC) confronted the state the tort of intimidation in Canadian jurisprudence in Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan.[4] The SCC clarified that intimidation does not occur if a contracting party asserts what they reasonably believe to be their contractual right and the injured party follows through on the presumption that this asserted right is legitimate.[5] Further, intimidation does not apply when the threat induced the injured party to follow a course of action which it is their obligation to follow.[5] Finally, the SCC stressed that the tort of intimidation is one of intention, meaning that the defendant must subjectively intend to injure the plaintiff.[6]

More recently, the appellate courts of Manitoba and Ontario have set out the elements of intimidation in Pollock v. The Government of Manitoba and McIlvenna v. 1887401 Ontario Ltd, respectively, as follows:

Elements of intimidation[1][7]
1. [A] threat;
2. [A]n intent to injure;
3. [S]ome act taken or forgone by the plaintiff as a result of the threat;
4. [A]s a result of which the plaintiff suffered damages.

Questionable existence of "three-party" intimidation

In addition to situations where the defendant directly threatens the plaintiff and thereby causes them to act to their detriment, Rookes v. Barnard also recognized that intimidation can apply to threats to a third party that cause that party to act to the plaintiff's detriment.[3][8]

Three cars in a four-stall parking lot all parked between the stalls rather than inside the lines
"Third-party" intimidation involves a chain of events whereby the defendant's unlawful action towards a third party to consequently causes loss to the plaintiff.

However, the existence of this "three-party" variant of intimidation has been scrutinized, perhaps most prominently by Lord Hoffman in the House of Lords judgment OBG Ltd. v. Allan.[8][9] Lord Hoffman, delivering the leading judgement in that case, questioned the legitimacy of "three-party" intimidation as an extension of the tort.[8][9] He stated that the factual scenarios where "three-party" intimidation occurs are already more appropriately covered by another cause of action - the tort of unlawful interference with economic relations (sometimes called the unlawful means tort).[8][9]

Regarding Canada's stance on this issue, there has not been a contemporary case where a claimant has succeeded in making out "three-party" intimidation, nor have Canadian courts directly commented on the issue. However, the Supreme Court of Canada, in Central Canada Potash, positively cited academic commentary that described the tort of intimidation as covering both variants of the tort (direct and "third-party").[10]

Despite Lord Hoffman's argument in OBG Ltd. v. Allan that factual scenarios covered by "three-party" intimidation may be better plead under other causes of action (such as the unlawful means tort or inducing breach of contract), Canadian courts have not addressed this issue.[9][10] One reason for this is perhaps that Lord Hoffman's argument is only applicable to the tort of intimidation being plead in business contexts.[8][9] Contrary to Lord Hoffman's perspective, contemporary intimidation cases within Canadian jurisprudence have involved the tort of intimidation plead in non-business contexts.[1][11][12]

Relation to criminal intimidation

In addition to the tort of intimidation, the Criminal Code of Canada contains a provision for criminal intimidation.[13] Similar to the tort of intimidation, criminal intimidation involves the use of threats.[13] However, unlike the tort, there is no requirement for the intimidation to cause loss.[4][13] The Criminal Code provision for intimidation also set out other behaviours that are not inherently threatening such as hiding tools.[13]

Discussion questions

  • Is Lord Hoffman's criticism of "three-party" intimidation principled or does this extension of the tort have a valid place in the common law?
  • Does intimidation still have a place in business contexts, or has its role been usurped by other causes of action such as inducing breach of contract and the unlawful means tort?
  1. ↑ 1.0 1.1 1.2 1.3 McIlvenna v. 1887401 Ontario Ltd, [2015] ONCA 830 (§10.2.3) at para 23.
  2. ↑ 2.0 2.1 Murphy, John (2014). "Understanding Intimidation". Modern L Rev. 77 (1): 33-34.
  3. ↑ 3.0 3.1 3.2 3.3 Rookes v. Barnard, [1964] UKHL 1 (BAILII).
  4. ↑ 4.0 4.1 Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan, 1978 CanLII 21 (SCC).
  5. ↑ 5.0 5.1 Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan, 1978 CanLII 21 (SCC) at 46–47.
  6. ↑ Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan, 1978 CanLII 21 (SCC) at 47.
  7. ↑ Pollock v. The Government of Manitoba, [2005] MBCA 31 (§10.2.2) at para 11.
  8. ↑ 8.0 8.1 8.2 8.3 8.4 Murphy, John (2014). "Understanding Intimidation". Modern L Rev. 77 (1): 34-35.
  9. ↑ 9.0 9.1 9.2 9.3 9.4 OBG Ltd. v. Allan, [2007] UKHL 21 at para 7.
  10. ↑ 10.0 10.1 Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan, 1978 CanLII 21 (SCC) at 81.
  11. ↑ Pollock v. The Government of Manitoba, [2005] MBCA 31 (§10.2.2).
  12. ↑ Gokey v. Usher, [2023] BCSC 1312 (§10.2.1).
  13. ↑ 13.0 13.1 13.2 13.3 Criminal Code, RSC 1985, c. C-46, s.423(1)
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