Conspiracy


As stated in Alford v. Canada, 1997 CanLII 868 at paragraph 37, there are two types of actionable conspiracy in Canada:

  1. Where the predominant purpose of the defendants’ conduct is to injure the plaintiffs, whether the means used by the defendants are lawful or unlawful; and

  2. Where the defendants conduct is unlawful and is directed towards the plaintiffs (alone or together with others) and the defendant should have known that injury to the plaintiffs is likely to and does result.

In the first form, the conspiracy is where two or more persons combine for the predominate purpose of causing injury to another.  In this form of conspiracy, the unlawfulness is in the purpose of the scheme; accordingly, lawful acts become unlawful due to the intent to cause unjust injury to another person.  This form of conspiracy remains somewhat controversial as acting in efforts to improve one's own interests, is generally legitimate.   

In the second form, being the tort of conspiracy to injure by unlawful means, oftentimes the bringing of a conspiracy legal action can be redundant and unnecessary such as in circumstances where the unlawful means exercised by the conspirators was in itself tortious.  In such circumstances, upon proving the tortious unlawful means, known as a 'nominate tort', proving the elements of conspiracy often becomes unnecessary; yet in some circumstances, pleading conspiracy, and seeking to prove same, may be a worthy task.  In this respect, the Supreme Court of Canada refused to strike claims for conspiracy where other torts were pleaded; see: Hunt v. Carey Canada Inc.[1990] 2 S.C.R. 959.


Required Elements 

The elements of each type of conspiracy were well described in Dale v. Toronto Real Estate Board, 2012 ONSC 512 as:

[48]   There are two types of civil conspiracy.  First, there is a conspiracy where the predominant purpose of the defendants is to cause injury to the plaintiffs, regardless of whether the means employed are lawful or unlawful.  Second, there is a conspiracy where the conduct of the defendants is unlawful, is directed toward the plaintiff alone, and the defendants should have known that, in the circumstances, injury to the plaintiff was likely to result. 

[49]   More particularly, the elements of “predominant purpose conspiracy” require the plaintiff to establish that: (1) the defendants acted in combination, that is, in concert, by agreement or common design; (2) the predominant purpose of the defendants was to intentionally harm the plaintiff; and (3) the defendants' conduct caused harm to the plaintiff.  The elements of “unlawful means conspiracy” require the plaintiff to establish that: (1) the defendants acted in combination, again that is, in concert, by agreement or common design; (2) the defendants committed some unlawful act such as a crime, a tort, or breached some statute; (3) the defendants conduct was directed towards the plaintiffs; (4) the defendants knew or ought to have known that injury to the plaintiffs was likely to occur from their unlawful act; and (5) the defendants' unlawful conduct in furtherance of their conspiracy caused harm to the plaintiff.

The above cases, seeking to clarify the principles of tortious civil conspiracy follow the Supreme Court viewpoints expressed in the case of Cement LaFarge v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452 wherein the two types were articulated as:

The law concerning the tort of conspiracy is far from clear with respect to conduct of the defendants which is itself unlawful. The tort of conspiracy to injure is complete, as we have seen from Lonrho, supra, and the included reference to Crofter Hand Woven Harris Tweed Co. v. Veitch, [1942] A.C. 435, where the predominant purpose of the conspiracy is to injure the plaintiff and damage in fact results. Thus the concerted action to give effect to the intent completes the tort, and if an unlawful object is necessary (assuming damages have been suffered by the plaintiff), it is but the object to injure the plaintiff. As Lord Cave said in Sorrell v. Smith, [1925] A.C. 700, at p. 712:

A combination of two or more persons wilfully to injure a man in his trade is unlawful and, if it results in damage to him, is actionable. 

The conspiracy to commit an unlawful act in the criminal law is, in this respect, differently structured. The question which must now be considered is whether the scope of the tort of conspiracy in this country extends beyond situations in which the defendants' predominant purpose is to cause injury to the plaintiff, and includes cases in which this intention to injure is absent but the conduct of the defendants is by itself unlawful, and in fact causes damage to the plaintiff. The causative problems common to the second and third submissions of the appellants will be discussed mainly in connection with the latter. Statements made in a number of English cases decided prior to Lonrho, supra, appeared to endorse this latter aspect of the tort and led the learned author of Salmond on Torts, supra, at p. 379 to conclude:

A second form of actionable conspiracy exists when two or more combine to injure a third person by unlawful means—e.g. the commission of a crime or tort, or the infringement of a guaranteed constitutional right . . . . In such a case it is irrelevant that the object of the conspirators in using those means may be legitimate. Combinations of this kind must be contrasted with what might be called "Quinn v. Leathem conspiracies," where the means are legitimate but the object is not. . . . Hence a conspiracy may be actionable if either the end or the means, or both, are unlawful.

Lord Diplock declined to accept this analysis, however, observing in his judgment in Lonrho, supra, at pp. 189 and 464, that:

... in none of the judgments in decided cases in civil actions for damages for conspiracy does it appear that the mind of the author of the judgment was directed to a case where the damage-causing acts although neither done for the purpose of injuring the plaintiff nor actionable at his suit if they had been done by one person alone, were nevertheless a contravention of some penal law.

As a result, Lord Diplock concluded that the House of Lords had an "unfettered choice" in defining the scope of the tort of conspiracy, and elected to limit the civil action to acts done in combination for the predominant purpose of injuring the interests of the plaintiff. 


Jointly Liable 

An important consideration in any conspiracy action involves the doctrine of joint liability.  This is especially important where certain conspirators may be better financially positioned to pay compensation as a joint tortfeasor despite merely watching from the sidelines while the wrongful acts being performed by other conspirators.  In this respect, the law treats each conspirator as jointly liable regardless the level of involvement in the actual wrongs, even if the wrongs performed in furtherance of the conspiracy were unbeknownst to all conspirators; so long as any conspirators act wrongfully towards the purpose of the conspiracy, all conspirators remain as jointly liable as joint tortfeasors.  This principle was described well in Bains v. Hofs, 1992 CanLII 264 at page 9:

In The Law of Torts, 7th ed. (The Law Book Company Ltd.,) c. 11, p. 229, Fleming discusses the concept of joint tortfeasors:

"A tort is imputed to several persons as joint tortfeasors in three instances, viz. agency, vicarious liability, and concerted action...The critical element of the third is that those participating in the commission of the tort must have acted in furtherance of a common design. There must be 'concerted action to a common end', not merely 'a coincidence of separate acts which by their conjoined effect cause damage' (The Koursk (1924) P. 140 at 156). Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, though it is probably not necessary that they should realise that they are committing a tort.  All persons acting in pursuance of a common end, being thus identified with each other, are accordingly responsible for the entire result and so it was laid down in 1612 that 'all coming to do an unlawful act, and of one party, the act is the act of all the same party being present' (Heydon's Case, 77 E.R. 1150 at 1151)."

It is the question of concerted action that arises in the case at bar.  On this issue, the learned author continues on to say at p. 230:

"While the requisite degree of participation has not been precisely defined in modern decisions, there is a cogent support both in principle and ancient authority for the suggestion that it may well correspond with the description attached by the criminal law to principles in the first and second degree.  This would include, besides the actual perpetrator, anyone who 'aids and abets', whether or not he actively intervenes.  Knowingly assisting, encouraging or merely being present as a conspirator at the commission of the wrong would suffice."

Thus, one who knowingly assists or encourages another to commit a tort, or one who is merely present as a conspirator in the wrong that is done, is, in law, a joint tortfeasor.