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Torts - Conspiracy

Damages - Loss of Chance

Berry v. Pulley (Ont CA, 2015)

In this case the Court of Appeal distinguished two categories of the tort of conspiracy in Canadian law:
[35] Canadian courts recognize two types of actionable conspiracy: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 (CanLII), [2013] 3 S.C.R. 477, at para. 73. The first is predominant purpose conspiracy, also known as conspiracy to injure. This appeal involves the second type, which is known as unlawful means or unlawful act conspiracy.

[36] As outlined in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 (CanLII), 106 O.R. (3d) 427, at para. 26, a plaintiff must establish the following five elements to succeed on a claim of unlawful act conspiracy:
1) The defendants acted in combination, that is, in concert, by agreement or with a common design;

2) The defendants’ conduct was unlawful;

3) The defendants’ conduct was directed towards the plaintiff;

4) The defendants should have known that, in the circumstances, injury to the plaintiff was likely to result; and

5) The defendants’ conduct caused injury to the plaintiff.
The court continued to outline the approach to be taken when assessing damages for 'loss of chance':
The loss of chance doctrine

[70] A two-step framework applies when a plaintiff alleges injury consisting of the loss of the chance to achieve a benefit or avoid a loss. Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688 (C.A.), at para. 73, outlines the four criteria the plaintiff must meet at the first step:
First, the plaintiff must establish on the balance of probabilities that but for the defendant’s wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss. Second, the plaintiff must show that the chance lost was sufficiently real and significant to rise above mere speculation. Third, the plaintiff must demonstrate that the outcome, that is, whether the plaintiff would have avoided the loss or made the gain, depended on someone or something other than the plaintiff himself or herself. Fourth, the plaintiff must show that the lost chance had some practical value. [Citations omitted.]
[71] As Doherty J.A. noted in Folland, at para. 74, the second criterion is “somewhat nebulous. There is no bright line between a real chance and a speculative chance. An empirical review of the case law suggests that chances assessed at less than 15 percent are seldom viewed as real chances.” This de minimis threshold has also been described as requiring the plaintiff to prove she had “some reasonable probability” of realizing “an advantage of some real substantial monetary value”: Kinkel v. Hyman, 1939 CanLII 7 (SCC), [1939] S.C.R. 364, at p. 383; see also Eastwalsh Homes Ltd. v. Anatal Developments Ltd. (1993), 1993 CanLII 3431 (ON CA), 12 O.R. (3d) 675 (C.A.), at pp. 689-90, leave to appeal refused, [1993] S.C.C.A. No. 225.

[72] If these four criteria are met, the court proceeds to the second step and will award damages equal to the probability of securing the lost benefit (or avoiding the loss) multiplied by the value of the lost benefit (or the loss sustained): see Wong v. 407527 Ontario Ltd. (1999), 1999 CanLII 3788 (ON CA), 179 D.L.R. (4th) 38 (Ont. C.A.), at para. 27.
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