With the right set of facts, the tort of intentional interference with economic relations may afford a plaintiff with a cause of action where no other option exists.

A.I. Enterprises Ltd. v. Bram Enterprises Ltd (“Bram”), a 2014 decision of the Supreme Court of Canada, is the leading case and has provided clear guidance on the constituent elements of the tort. The defining nature of the tort is that the plaintiff suffers damages because the defendant commits an unlawful act, not against the plaintiff, but against a third party with whom the plaintiff has an economic relationship.

An unlawful act is one that supports a civil action for damages or compensation by a third party, or would do so except for the fact that the third party did not suffer any loss as result of defendant’s acts. In other words, the conduct must be an actionable civil wrong.

Economic harm is defined at paragraph 96 of Bram where Justice Cromwell cites Goudge J.A in Alleslev-Krofchak, in which Justice Goudge summarized the House of Lords’ discussion in OBG Ltd: “…intentional interference with economic relations requires that the defendant intends to cause loss to the plaintiff, either as an end in itself or as a means of, for example, enriching himself. If the loss suffered by the plaintiff is merely a foreseeable consequence of the defendant’s actions, that is not enough.“

Perhaps the most interesting element of the tort is what constitutes economic relations. In Bram at paragraph 31, Justice Cromwell states: “There need be no contract or even other formal dealings between the plaintiff and the third party so long as the defendant’s conduct is unlawful and it intentionally harms the plaintiff’s economic interests.”

It is not inconceivable that a claim for damages founded on this tort could be advanced in the estates context although such an attempt failed in Dryden v. Dryden (“Dryden”), a 2011 decision of the Ontario Superior Court of Justice. In this case, the Plaintiff was not a beneficiary under his uncle’s will. The Plaintiff alleged (among a myriad of other suspect causes of action) that he was “disadvantaged with respect to family inheritance as result of the father’s domineering conduct”, but he did not plead facts to support a business relationship with his father. The Court stated that “being disinherited from family wealth does not constitute interference in business relations or livelihood.”

The reality in Dryden was that the cause of action was just not properly pleaded: the plaintiff improperly directed his claim against the defendant estate but failed to allege, as is required, that a third party (the proper target of the claim) interfered with and caused the plaintiff to suffer damages in the form of a “disinheritance.” Whether the cause of action would thereafter have succeeded is questionable but, properly drafted, it likely would have survived a motion to strike.

Thanks for reading,

David Morgan Smith and Sara Racicot