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Negligence - Anns/Cooper

Negligence - Indeterminate Liability

Torts - Conspiracy - Unlawful Means

Shah v. LG Chem Ltd. (Ont CA, 2018)

The court here discusses the principle of indeterminate liability in negligence, and the tort of unlawful means conspiracy:
[45] It is helpful to review how the concept of indeterminate liability comes into play in the negligence context. In that context, a court will apply the Anns/Cooper test in assessing whether the defendant owes a duty of care to the plaintiff. At the first stage of the test, the court considers proximity and foreseeability. If the court concludes the defendant owes a prima facie duty of care to the plaintiff, it will go on at the second stage of the test to consider whether residual policy concerns, such as indeterminate liability, negate the imposition of a duty of care. In Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 (CanLII), [2017] 2 S.C.R. 855, at para. 43, the majority described what is meant by indeterminate liability:
Indeterminate liability is liability of a specific character, not of a specific amount. In particular, indeterminate liability should not be confused with significant liability…. Certain activities — like flying commercial aircraft, manufacturing pharmaceutical drugs, or auditing a large corporation — may well give rise to significant liability..… [T]he liability arising from these “high risk” undertakings may only be characterized as “indeterminate” if the scope of such liability is impossible to ascertain (Black’s Law Dictionary (10th ed. 2014), sub verbo “indeterminate”). In other words, liability is truly “indeterminate” if “the accepted sources of law and the accepted methods of working with those sources such as deduction and analogy — are insufficient to resolve the question”…. More specifically, there are three pertinent aspects to so-called “indeterminacy” in these cases: (1) value indeterminacy (“liability in an indeterminate amount”); (2) temporal indeterminacy (“liability . . . for an indeterminate time”); and (3) claimant indeterminacy (“liability . . . to an indeterminate class”)…. [Citations omitted.]
[46] The second stage of the Anns/Cooper test comes down to a “normative” assessment of “whether it would be better, for reasons relating to legal or doctrinal order, or reasons arising from other societal concerns, not to recognize a duty of care in a given case”: Livent, at para. 40. A court may decline to recognize a prima facie duty of care on the basis of indeterminate liability, although indeterminate liability is merely a policy consideration, not a policy veto, and rarely should a concern for indeterminate liability persist if a proper proximity and foreseeability analysis is done at stage one of the Anns/Cooper test: Livent, at paras. 42, 45.

[47] In our view, normative concerns about indeterminate liability do not apply in the context of the statutory claim in this case because, when it comes to a claim under s. 36 for loss or damage resulting from a conspiracy under s. 45 of the Competition Act, the normative concerns have already been taken care of by Parliament. In other words, concerns that might otherwise drive the application of the principle of indeterminate liability disappear in the face of the exacting statutory provisions.

[48] All claims under s. 36 require the plaintiff to establish that he or she “suffered loss or damage as a result of … conduct that is contrary to any provision of Part VI”. He or she may only recover “loss or damage proved to have been suffered” as a result of that conduct.

[49] When the alleged conduct is a conspiracy under s. 45, the plaintiff must start by proving the defendant actually conspired to engage in anti-competitive conduct. The essence of conspiracy under s. 45 is an agreement – a meeting of the minds – to do one of the things enumerated in that provision. Here, the defendants are alleged to have agreed to fix prices, unlawful conduct under the former s. 45(1)(b) and the current s. 45(1)(a). They are also alleged to have agreed to “unduly” lessen competition in the production, manufacture, sale and/or supply of LIBs, unlawful conduct under s. 45(1)(c) of the former provision. This conduct is said to have resulted in increased prices. The pleadings suggest that the defendants directed their conduct at the proposed class (including umbrella purchasers), knowing and intending that the proposed class was likely to be injured.

[50] Although the actus reus under s. 45 changed slightly when the provision was amended, it remained focused on whether the alleged conspirator was part of an agreement and whether that agreement was to do something that is prohibited by virtue of s. 45. The mens rea contained in s. 45 has both subjective and objective components. The subjective component requires that the defendant intend to agree, with knowledge of the terms of that agreement. The objective component requires that the defendant objectively intend to achieve the prohibited end, in this case, increasing the price of LIBs and lessening, unduly, competition: see R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at pp. 659-60; Watson v. Bank of America Corp., 2015 BCCA 362 (CanLII), 79 B.C.L.R. (5th) 1, at paras. 74-76; R. c. Proulx, 2016 QCCA 1425 (CanLII), [2016] Q.J. No. 11393, at para. 20.

[51] The respondents argue that because a plaintiff does not have to prove that an alleged conspirator’s conduct is specifically directed at harming that plaintiff, indeterminate liability remains a concern in the context of the statutory claim. We reject the argument that indeterminate liability should be imported into the interpretation of the provisions for that reason. Even though s. 45 does not require proof that the conspirator was directing his or her actions at a specific plaintiff, it contains significant internal constraints. Section 45 limits the reach of liability to those who, at a minimum, specifically intend to agree upon anti-competitive conduct. When combined with s. 36(1), requiring proof of actual loss or damages arising from the conspiracy, concerns regarding overbroad liability evaporate.


[54] The tort of unlawful means conspiracy requires that:

• the defendants’ conduct was unlawful;

• the defendants’ conduct was directed at the plaintiffs “alone or together with others”;

• the defendants knew that, in the circumstances, injury to the plaintiff was “likely”, or “should have known that injury to the plaintiff would ensue”; and

• actual injury resulted: see Cement LaFarge v. B.C. Lightweight Aggregate, 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452, at pp. 471-472; Pro-Sys, at para. 80.

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