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Torts - Lawsuit Itself Is Not a Tort

. Globe POS Systems v. Visual Information Products Inc.

In Globe POS Systems v. Visual Information Products Inc. (Div Court, 2022) the Divisional Court makes the interesting point that the act of commencing a civil proceeding cannot be, in itself, be a constituent element of tort:
[7] The Associate Justice notes as follows at para. 12 of the Decision:
At the hearing of the motion counsel for Globe confirmed that the counterclaim asserts two causes of action: 1) intentional interference with economic relations (now known as the unlawful means tort); and 2) inducing breach of contract.
[8] The Associate Justice quoted leading authority from the Supreme Court of Canada on the elements of the “unlawful means tort” (paras. 13 and 14 of the Decision). As held by Cromwell J., “for conduct to constitute “unlawful means” for this tort, the conduct must give rise to a civil cause of action by the third party or would do so if the third party had suffered loss as a result of that conduct” (A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, para. 76, quoted in the Decision, para. 14).

[9] The “third party” in the context of this appeal is Rossi. The alleged “unlawful means” is Visual’s bringing a lawsuit against Rossi. As held by the Associate Justice, “[i]t is beyond clear that this proposed pleading is not legally tenable…. Issuing a civil claim is not an unlawful act, and it cannot give rise to civil liability.” I agree.
[10] The Associate Justice quoted leading authority from the Court of Appeal for the test for the tort of inducing breach of contract and then correctly stated as follows (Decision, paras. 17 and 18, following Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, para. 26):
If Globe is able to make out these four elements [the test for inducing breach of contract], the action may nonetheless fail if the defence of justification is available.
[11] The Associate Justice then found that “[i]t is a tenet of our legal system that any person may issue a civil action to seek redress of their rights.” On this basis, the Associate Justice concluded, “Visual is certain to be able to make out the defence of justification” (Decision, para. 19). Again, I agree.

[12] On the basis on which the motion was argued before the Associate Justice, she was correct in dismissing the motion. The claims of intentional interference with economic relations (the “unlawful means” tort) and inducing breach of contract are not tenable in law.


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Last modified: 07-02-23
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