F. Intentional interference with economic interests

There are a number of nominate torts collectively referred to as economic torts or business torts that deal, primarily, with the intentional interference with economic interests. The law of torts has exhibited a great deal of caution in this area. A free market economy invites spirited and robust competition and intentionally causing economic harm to rivals is in most circumstances perfectly legitimate. Tort law has, therefore, defined wrongful business activities quite narrowly. A tort remedy is available only for serious misconduct that disrupts the efficient operation of the marketplace. The nominate torts fall into two categories, those that deal with deceptive market practices such as deceit, injurious falsehood, passing-off, and misappropriation of personality, and a more amorphous group that deals with improper market practices. The latter group includes conspiracy, intimidation, inducement to breach a contract, and a nascent general tort of intentional interference with economic interests by unlawful means. These torts focus on the illegitimacy of combined coercion, competition by unlawful means, and the deliberate interference with contractual rights. [Note 147: The role of tort law as a regulator of free market practices has diminished with the increase in legislative and administrative controls. Federal and provincial legislation complements tort law in the areas of competition, copyright, patents and trademarks (federal), and corporations, securities, labour relations, business practices, and consumer protection (provincial).]

1) Deceptive Practices

Tort law provides significant protection against deceptive practices in the marketplace. This is supported by a number of policy factors, including ideas of fundamental fairness, a judicial antipathy to those who have secured an unjust enrichment at the expense of another by deception, and the goal of promoting an efficient marketplace. At the heart of the torts of deceit, injurious falsehood, passing-off, and misappropriation of personality is the simple moral proposition that you must not advance your business interests by lying. You must not lie about the nature or quality of the property or services that you offer to customers (deceit); you must not lie disparagingly about the business or trade of others (injurious falsehood); you must not lie that the goods or services that you are selling are those of another (passing-off); and you must not lie that your goods or services are endorsed or used by an identified person (misappropriation of personality). In spite of the centrality of the general concept of honesty in business dealings and the protection of both competitors and consumers from falsehood, each tort has its own rules and boundaries. This is explained in part by the historical development of the torts and in part by the fact that only deceit deals with lies that are directed at the plaintiff. In the other torts the plaintiff is harmed by lies directed at third persons.

a) Deceit

Deceit is established whenever a person has made a fraudulent statement that intentionally causes another person to rely on it to her detriment. [Note 148: Pasley v. Freeman (1789), 3 Term. Rep. 51, 100 E.R. 450 (K.B.).] Most of the cases deal with economic loss arising from fraudulently induced contracts but deceit is not restricted to those losses and may extend to property damage and personal injury. There are four essential elements to an action in deceit: misrepresentation, fraud, reliance, and damage.

A misrepresentation may be made verbally, in writing, or by conduct. The misrepresentation must normally be one of past or present fact. Statements of opinion, law and prediction, and vague and boastful sales commendations ("puffs" ) are not normally sufficient because the representation must be one on which a reasonable person would rely.

As a general rule, there must be some positive statement or conduct although half-truths, active concealment, and the failure to correct an honest misrepresentation that is later found to be untrue may also be sufficient. [Note 149: See Klar, above note 8 at 491. ] There is no liability for a failure to disclose facts within one's possession unless there are special circumstances such as a fiduciary relationship between the parties or where the vendor of land knows of serious latent defects in the property which are not easily discoverable by the purchaser and are such as to make the property dangerous or uninhabitable. [Note 150: See J. Irvine, "Annotation to Sevidal v. Chopra" (1987), 41 C.C.L.T. 181; and Klar, above note 8 at 494.]

The misrepresentation must be made fraudulently. The meaning of fraud was authoritatively decided in the House of Lords decision in Derry v. Peek. [Note 151: (1889), 14 App. Cas. 337 (H.L.).] In that case, the directors of a tramway company issued a prospectus representing that their company had legislative permission to use steam power. In fact, the right to use steam power was conditional on the consent of the Board of Trade, which the directors mistakenly assumed was a mere formality. The board did not give its consent and the company ultimately went into liquidation. The plaintiff, who bought shares on the strength of the prospectus, sought to recover his losses. The Court held that the misrepresentation was not made fraudulently. Fraud requires proof of dishonesty. It is satisfied by proof either that the defendant knew that the statement was untrue (a lie) or that the defendant made the statement recklessly, not knowing if the statement was true or false and, therefore, without a belief in its truth. Since the directors had an honest though mistaken belief in the truth of the statement, they could not be held liable in deceit.

The defendant must intend that the plaintiff will rely on the fraudulent misrepresentation and the plaintiff must in fact rely on it. The requirement that the defendant intends that the plaintiff will rely on the misrepresentation addresses the problem of potentially indeterminate liability in deceit. [Note 152: The leading case on this point is Peek v. Gurney (1873), L.R. 6 H.L. 377.] It does not require the statement to be made to the plaintiff but it does require proof that the defendant either desired the plaintiff to rely on it or there was a substantial certainty that he would rely on it in the manner that caused the damage. The requirement of actual reliance addresses the need for causation between the fraudulent misrepresentation and the loss. There can be no liability where the plaintiff knows that the representation is untrue or decides to rely, not on the representation, but on his own inquiries or judgment.

The plaintiff must prove actual damage caused by reliance on the fraudulent misrepresentation. Damages are awarded to put the plaintiff in the position he would have been in if the misrepresentation had not been made, not to place him in the position he would have been in if the representation was true. There is some doubt about whether the rule of remoteness of damage in deceit is reasonable foreseeability or directness. Since moral turpitude is central to deceit, the wider rule of direct consequences would seem to be appropriate. [Note 153: See Doyle v. Olby (Ironmongers) Ltd., [1969] 2 Q.B. 158 (C.A.); and Irvine, above note 150.]

Deceit has always been a difficult tort to prove because of its central element of dishonesty. Courts are reluctant to make a finding of serious moral guilt in the absence of compelling evidence. Moreover, care must be taken in alleging fraud because an unsubstantiated allegation of fraud may lead a court to impose a higher award of costs against the unsuccessful plaintiff.

The difficulty in proving fraud and the relatively narrow scope of the tort prompted legal initiatives in the course of the twentieth century which have lessened the need for plaintiffs to rely on deceit. In tort law, liability for false statements has been expanded by recognition of liability for negligent misrepresentations under Hedley Byrne. [Note 154: 1 Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.).] In the law of contract, pre-contractual statements, whether they are fraudulent, negligent, or innocent, are more likely now to be construed as contractual warranties, the breach of which triggers damages designed to put the plaintiff in the position she would have been in if the statement had been true. Furthermore, most provinces have consumer protection and business practices legislation that provide a wide range of remedies for false representations made in the course of consumer transactions.

b) Injurious Falsehood

Injurious falsehood grew out of slander of title and slander of goods to provide a more general protection against certain false statements that injure another in his trade or business. [Note 155: Fleming, above note 138 at 778.] Slander of title is made out where a defendant makes false statements that a person does not own his land, thereby preventing that person from leasing or selling it. Slander of goods developed by analogy to protect against false statements in respect of both the ownership and the quality of the plaintiff's goods. Eventually, the tort of injurious falsehood emerged to protect against a broad range of false statements which are disparaging of the plaintiff's trade, business, or property in a way that leads other persons not to deal with him. The essential elements of injurious falsehood are: a false statement made of or concerning the plaintiff's business, trade, or property, publication of that statement to a third person, malice, and actual pecuniary loss. Justification is a defence to the action.

The plaintiff must prove a false statement was made of, or concerning, the plaintiff's trade, business, or property. Unlike defamation, which protects a person's reputation, injurious falsehood protects a person's business and commercial interests. [Note 156: Nevertheless, there is a substantial overlap between the two torts because an attack on a person's business may reflect poorly on his character. It is normally advantageous to frame an action in defamation because the falsity of the statement is presumed, damage is presumed, and there is no need to prove malice.] The false statement may be about the quality of the plaintiff's products or services, the competence of his employees, the ownership of property, or the scope, nature, location, legality, viability, or existence of the plaintiff's business operation.

There must be proof that the disparaging statement was made to a third person. The gist of injurious falsehood is that the plaintiff is damaged by the impact of the false statements on his current or future customers. The plaintiff will not be able to establish that his losses were caused by the defendant's statements in the absence of proof that third parties were aware of them.

The false statement must be made maliciously. There is some uncertainty as to the meaning of malice in this context. There is no difficulty with statements that the defendant knows are untrue and are made with spite, ill will, and the intention to damage the plaintiff. The problem is in determining the minimal content of the term. It is probably sufficient that the defendant knew that the statement was false or was reckless as to whether the statement was true or false. In such circumstances, neither the lack of a bad motive nor the lack of an actual intent to damage the plaintiff will protect the defendant. [Note 157: Manitoba Free Press Co. v. Nagy (1907), 39 S.C.R. 340.]

Damage to the plaintiff's trade, business, or property interests is required. Evidence of broken contracts or the loss of long-term customers is clearly sufficient. Greater difficulty is presented where there is only a general decline of revenues in a business that has a casual and transient customer base. In that situation, the plaintiff must show clearly that the losses were caused by the defendant's statements and not by extraneous business contingencies.

The defence of justification is available to the defendant but the requirement of malice limits its scope so severely that it is hard to imagine where it could be invoked successfully.

There are many injurious statements that cause injury to trade or business which are not protected by injurious falsehood. There is no liability on a defendant who makes false factual claims about his own goods or services with the intention of drawing customers away from the plaintiff, and a wide latitude is also given to extravagant and boastful "puffing" by defendants about their own goods and services and their superiority to the competition. A defendant may also make disparaging statements about a competitor's products which are true, regardless of his motive.

c) Passing-Off

Passing-off protects the goodwill of the plaintiff's business from misrepresentations made by the defendant that his goods or services are those of the plaintiff. This classic definition of passing-off has been extended incrementally in recent years but it continues to identify the three traditional components of the passing-off action: the existence of goodwill in the plaintiff, a misrepresentation made to the public, and actual or threatened damage caused by the diversion of customers or injury to the plaintiff's reputation. [Note 158: See Ciba-Geigy Canada Ltd. v. Apotex Inc., [1992] 3 S.C.R. 120 for a useful discussion of the principles of passing-off.]

Passing-off protects the plaintiff's proprietary interest in the goodwill of his business. Goodwill is the power to attract customers and to retain the loyalty of existing customers. It is acquired by quality goods or services which are identified by their distinctive name or mark. The name or mark may include any symbols, logos, images, packaging, design artwork, or other trade insignia which are, in the public's mind, distinctive of, and associated with, the plaintiff's products. Descriptive words may qualify where they have become exclusively associated with the plaintiff's product and have thereby achieved a technical secondary meaning.

The gravamen of the passing-off action is a misrepresentation by the defendant that damages the plaintiff's goodwill. The classic case is that of a trader who uses the plaintiff's name, mark, or other trade insignia to mislead consumers that his goods are those of the plaintiff. This is known as a source misrepresentation. A maker of a new cola drink may not, for example, market it as "Pepsi." [Note 159: Passing-off is known as the law of unregistered trade marks. The registration system under the Trade-marks Act, R.S.C. 1985, c. T-13, complements the tort of passing-off and offers certain advantages. See D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (Concord, Ont.: Irwin Law, 1997) at 177-79. Passing-off still remains important where there is no statutory protection or a mark has not been registered.] Most source misrepresentations are, however, more subtle. They seek to create an illusion by use of other trade indicia of the plaintiff's products that the defendant's goods and services are those of the plaintiff. The defendant usually intends to deceive consumers but it is sufficient that the misrepresentation is likely to cause confusion in the mind of the typical casual customer who is not prone to make close inspections of products. The misrepresentation must also be material in the sense that it led customers to make purchases that they would not otherwise have made.

Passing-off now extends beyond source misrepresentations to a wide range of misrepresentations that damage the plaintiff's goodwill. Passing-off applies where the defendant has misrepresented the plaintiff's goods as being of a higher quality than that assigned to them by the plaintiff. [Note 160: Spalding & Bros. v. A.W. Gamage Ltd. (1915), 113 L.T. 198 (H.L.).] It applies where the defendant falsely claims some connection to the plaintiff, which damages the plaintiff's goodwill. It also extends to reverse passing-off where the defendant claims that the plaintiff's goods or services are his. The most significant extension of passing-off, however, is to quality misrepresentations where the defendant falsely claims that his product has a quality which is uniquely associated with that of the plaintiff or a class of plaintiffs. Protection has been given to geographic place names where the producers in that area have a reputation for a distinctive quality product. It is not, therefore, permissible to market Spanish champagne. [Note 161: Bollinger v. Costa Brava Wine Co. (1959), [1960] Ch. 262. There is, however, no liability if there is no confusion among consumers: see Institut national des appellations d'origine des vins & eaux-de-vie v. Andres Wines Ltd. (1991), 74 O.R. (2d) 203 (C.A.). (Canadian Champagne). ] Consumers will not be confused about the source of the product but they may be deceived that it is as good as the real thing from France and the goodwill of the producers of champagne may be damaged. Protection has also been given to the Dutch producers of Advocaat, [Note 162: ErvenWarnink BV v. J. Townend & Sons (Hull) Ltd., [1979] A.C. 731 (H.L.).] a high-quality alcoholic beverage with a reputation for quality ingredients. The defendant was restrained from marketing an inferior product under the name English Advocaat. In general, these extensions of passing-off remain faithful to the classic model of the tort, namely, a misrepresentation causing damage to the plaintiff's goodwill.

The third element of passing-off is actual or threatened damage to the plaintiff's goodwill caused by diverting customers or injuring the plaintiff's business reputation. Actual damage is remedied by an award of damages and/or an injunction. Threatened damage is sufficient to warrant an injunction if the plaintiff stands to suffer irreparable damage in the absence of intervention.

Although the primary role of passing-off is to protect the plaintiff's goodwill, other factors exercise some influence in borderline cases. In particular, courts are alert to the tendency of the tort to support monopolistic practices, the power of the tort to protect consumers from bogus goods and services, and the interest of consumers in price competition and a wide selection of goods and services. [Note 163: J.C. MacInnis, "Commercial Morality and Passing-Off: A Model for a Modern Tort" (1998) 30 Can. Bus. L.J. 415. ] These factors played a role in the Supreme Court's decision in Consumers Distributing Co. v. Seiko Time Canada Ltd. [Note 164: [1984] 1 S.C.R. 583.] Seiko watches are manufactured in Japan and are marketed under a system of authorized distributors and dealers that must comply with a particular marketing strategy, including specifications as to packaging, information, international product guarantees, and after-sales service. The plaintiff was the authorized distributor of Seiko watches in Canada. The defendant lawfully secured a supply of Seiko watches from an unofficial source outside Canada and marketed them independently. The plaintiff sought to exclude this competition by bringing an action in passing-off. It is important to note that, when the action reached the Supreme Court on appeal, the defendant was in compliance with an injunction directing it to give notice to the public that it was not an authorized dealer and that the plaintiff's international guarantee did not apply to sales by the defendant. The appeal focused on the defendant's failure to comply with a second injunction that prohibited the defendant from selling or advertising Seiko watches anywhere in Canada. The Supreme Court held that, in light of the defendant's compliance with the first injunction, there was no longer any confusion in respect of the source or quality of the plaintiff's product. It therefore allowed the defendant's appeal in respect of the second injunction. In the Court's view, the defendant may have taken advantage of the goodwill of the Seiko name and of the demand for its product but, given the compliance with the first injunction, there was no misrepresentation to the public, an essential element of the tort. The defendant had merely marketed the watches in a different way. The Court was reluctant to permit a manufacturer to secure a monopoly over the distribution and selling of its product by adopting a particular marketing strategy. It was also in the consumers'interest to be able to choose between buying only the watch at a lower price and buying the whole package at a higher price.

The extension of passing-off to quality misrepresentations and the abandonment of the requirement that the litigants must share a common field of commercial activity have opened up further avenues of development. Two areas that test the limits of passing-off are the protection of character merchandising and protection of businesses from dilution misrepresentations. There has been difficulty in satisfying the traditional requirements of passing-off in both these areas. Unauthorized character merchandising arises where a trader uses the plaintiff's cartoon figure or fictional movie or television character to sell products or services. [Note 165: The use of a person's real name or persona is protected by the tort of misappropriation of personality.] The requisite misrepresentation is that the defendant is licensed to use the character. There may, however, be difficulty in showing damage to the plaintiff's goodwill. [Note 166: H. Carty, "Character Merchandising and the Limits of Passing-Off" (1993) 13 Legal Stud. 289.] The tort may also apply to dilution misrepresentations where a producer of a famous high-quality product such as Pentax or Cartier objects to any use of its name even though there is no actual or potential damage to their goodwill (Pentax Shoes). The business is, in fact, objecting to the misappropriation of the plaintiff's name or mark itself in a way that may diminish its exclusivity and cachet. [Note 167: H. Carty, "Dilution and Passing-Off: Cause for Concern" (1996) 112 L.Q. Rev. 632.] An extension of passing off into these areas suggests an evolution of the tort from one that protects the plaintiff's goodwill to one that prevents the misappropriation of a character or a name.

d) Misappropriation of Personality

Misappropriation of personality, which was first recognized by the courts of Ontario, [Note 168: Krouse v. Chrysler Canada Ltd. (1974), 1 O.R. (2d) 225 (C.A.); Athans v. Canadian Adventure Camps Ltd. (1977), 17 O.R. (2d) 425 (H.C.J.).] protects the right of a person to control the use of her name and likeness for commercial purposes. The tort provides a remedy for both ordinary persons and public figures but it applies most frequently where a defendant seeks to promote her goods or services by deceiving the public that a public figure or celebrity endorses or uses them. The tort may incidentally protect consumers from deceptive practices but its primary function is to protect the plaintiff's goodwill in her name and personality.

The requirements of the tort are the intentional use of the plaintiff's name or likeness or other recognizable aspect of her personality such as her voice or visual image, the unauthorized use of same to promote the defendant's commercial interests, and damage. Damages are normally assessed on the fair market value of the use of the plaintiff's name or likeness. This is commonly referred to as the "lost user fee." Injunctive relief is also available. Furthermore, unlike defamation, the cause of action survives the death of the celebrity to the advantage of the deceased's estate.

It has been recognized that this tort must balance the plaintiff's interest in protecting a valuable proprietary asset arising from her notoriety and the public interest in freedom of expression and freedom of information. Consequently, the tort does not protect a person from being the subject of some journalistic, biographical, or informational publication that, broadly speaking, is in the public interest. [Note 169: See the trial judgment in Gould Estate v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (Gen. Div.), aff'd on other grounds (1998), 39 O.R. (3d) 545 (C.A.).] The primary purpose of the tort is to protect the plaintiff's right to publicity by preventing the unauthorized commercial exploitation of the plaintiff's personality. [Note 170: Horton v. Tim Donut Ltd. (1997), 45 B.L.R. (2d) 7, aff'd (1997), 104 O.A.C. 234 (C.A.).]

A tort of misappropriation of personality is also found in the Privacy Acts of British Columbia, Manitoba, Saskatchewan, and Newfoundland. The general thrust of the statutory language is similar to that of the common law tort. However, the statutory cause of action does not survive the death of the person and, during her lifetime, it is actionable without proof of damage. The assignment of this tort to privacy legislation indicates that the tort, in fact, protects two interests, a commercial interest in the exploitation of one's name or likeness and a privacy interest in not having one's name or likeness used for commercial purposes. The common law tort emphasizes the first interest and the Privacy Acts emphasize the second. Both, however, are probably couched in sufficiently general terms to provide a remedy in either situation.

2) Improper Market Practices

In tort law, the limits to proper market practices are drawn by the nominate torts of conspiracy, intimidation, inducement to breach a contract, and the intentional interference with economic interests by unlawful means. The scope and development of these torts have been profoundly influenced by the landmark 1898 House of Lords decision in Allen v. Flood. [Note 171: [1898] A.C. 1 (H.L.) [Allen].] In that case, the defendant trade union official threatened to call employees out on a lawful strike unless their employer lawfully dismissed the plaintiff. The employer complied with this threat and the plaintiff sued the defendant. The jury found that the defendant's action was malicious, being motivated purely to punish the plaintiff for some past anti-union conduct of which the defendant disapproved. The case provided the Court with an opportunity to establish some general principle of liability for the unjustified infliction of economic harm, such as one imposing liability for the intentional infliction of economic loss without justification, [Note 172: There was some early authority favouring such a tort: see Keeble v. Hickeringill (1707), 11 East. 574n, 103 E.R. 1127 (K.B.). It found fertile soil only in the United States, where it evolved into the prima facie tort doctrine based on the intentional interference with economic interests without justification. See Tuttle v. Buck, 119 N.W. 946 (Minn. 1909).] for the malicious infliction of economic loss, for the infliction of economic loss through unfair market practices, or for causing loss by abuse of the right to participate or compete in the marketplace. Instead, the Court chose to give free rein to the zealous pursuit of self-interest in the marketplace and held that, in the absence of one of the established economic torts, no liability could be imposed merely because the economic loss was caused intentionally, maliciously, or unfairly. Since the defendant in Allen had not committed any nominate economic tort and had not used any other illegal means, he was not liable. No degree of bad faith, malicious conduct, or unfairness could make conduct that was lawful in itself, unlawful. More than any other case, Allen impeded the development of a coherent and principled approach to improper market practices. As a consequence of Allen, the courts, throughout most of the twentieth century, focused largely on defining the scope of the discrete economic torts without the guidance or active pursuit of any coherent general principle.

a) Conspiracy

The tort of conspiracy deals with situations where two or more persons have entered into and acted upon an agreement to cause economic loss to another person. There are two branches of conspiracy: conspiracy to damage the plaintiff by lawful means (simple conspiracy), and conspiracy to damage the plaintiff by unlawful means. [Note 173: A useful discussion of conspiracy is found in P. Burns, "Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest" (1982) 16 U.B.C. L. Rev. 229.]

i) Simple Conspiracy

Simple conspiracy arises where two or more persons agree to use lawful means for the predominant purpose of causing economic loss to the plaintiff. The agreement may be express or implied, formal or informal, contractual or non-contractual, but it must show an intention to act together in a planned, concerted action to damage the plaintiff. The tort is complete on proof of damage. It is not easy to reconcile this tort with the decision in Allen because conduct that, according to Allen, would not be actionable if undertaken by a single entity, is rendered wrongful by the mere fact of combination and an illegitimate motive. This "magic of combination" is probably consistent with an intuitive sense of fair play. Harsh competition, one on one, is acceptable, but to act in concert to the detriment of a single person is often unfair. This rationale does not always apply in the modern marketplace because single entities such as multinational corporations may exercise much greater economic power than many smaller entities in combination. Nevertheless, the tort is too well entrenched to be affected by the loss of its early raison d'être.

The central element of liability in simple conspiracy is proof that the defendants' predominant purpose was to injure the plaintiff rather than to promote their own legitimate interests. A liberal interpretation of predominant purpose has allowed the courts to give free rein to most competitive practices and great latitude to the activities of organized labour. This pattern was set in two landmark House of Lords cases: Mogul Steamship Co. v. McGregor Gow & Co. [Note 174: [1892] A.C. 25 (H.L.).] and Crofter Hand Woven Harris Tweed Co. v. Veitch. [Note 175: [1942] A.C. 435 (H.L.).] In the Mogul case, the defendant was a cartel of shipping companies that enjoyed a monopoly over the carriage of tea between China and England. They forced the plaintiff, a rival shipper, out of business by a variety of legal, but unfair, trade practices such as boycotting agents who did business with the plaintiff and predatory pricing. The Court held the defendant was not liable in conspiracy because the predominant purpose of the agreed action was not to injure the plaintiff but to advance their own economic interests. Initially, the courts were less generous in their assessment of the purpose of the activities of organized labour but this was reversed in the Crofter decision. It dealt with the production of tweed cloth on the Isle of Lewis. The plaintiff mill owners had secured a competitive advantage over traditional businesses by importing yarn from the mainland rather than relying on the local crofters. The defendants, who were officials of a union to which the local crofters and stevedores belonged, imposed a total embargo on the import of yarn and brought the plaintiffs' production to a halt. No unlawful means were used. The Court held that there was no actionable conspiracy because the defendants were pursuing their own economic interests and their predominant purpose was to protect the livelihood of the union members, not to injure the plaintiffs.

The result of these two decisions is that the tort of simple conspiracy has made no substantial inroads upon either the principle or the spirit of Allen. The courts have shown no great enthusiasm for using the tort to police the fairness of business or labour practices. It is only in cases of spiteful, vengeful, or vindictive conduct where the predominant purpose is to injure the plaintiff that liability will be imposed. This kind of meanspirited and ruthless exercise of power to inflict harm is not common. It has, consequently, been left to legislatures to control monopolistic market practices. The Canadian Competition Act, [Note 176: R.S.C. 1985, c. C-34.] for example, prohibits conspiracies designed to lessen competition unduly. Most industrial action does not amount to a simple conspiracy because its predominant purpose is to improve the working conditions of union members. Some provinces have gone further and have legislated immunities for concerted action in a trade dispute where the acts, if done by a single person, would not be actionable. [Note 177: See, for example, Saskatchewan The Trade Union Act, R.S.S. 1978 c. T-17, s. 28: "An act done by two or more members of a trade union, if done in contemplation or furtherance of a trade dispute, shall not be actionable unless the act would be actionable if done without any agreement or combination."]

Simple conspiracy may be alleged by corporations when groups of private citizens organize boycotts, informational pickets, or demonstrations to exert economic pressure on them to change their conduct or policies in respect of the environment, labour practices, or some other social issue. [Note 178: Litigation brought by corporations to combat this kind of damaging political action are commonly known as SLAPP suits (Strategic Law Suits Against Public Participation). These lawsuits are not usually based solely on simple conspiracy. They commonly allege other business torts and other tortious and illegal acts. The suits place a significant financial and emotional burden on political activists. See C. Tollefson, "Strategic Lawsuits and Environmental Politics: Daishowa Inc. v. Friends of the Lubicon" (1996) 31 J. Can. Stud. 119.] The intriguing aspect of these cases is that the defendants are not normally acting in their own self-interest. They are acting in what they perceive to be the public interest and are asserting their right of free speech to influence corporate activity. The issue arose in Daishowa Inc. v. Friends of the Lubicon. [Note 179: (1998), 39 O.R. (3d) 620 (Gen. Div.).] The defendant, Friends of the Lubicon, was a political action group that organized a consumer boycott of the plaintiff's paper products in protest of the plaintiff's logging operations on lands in Alberta claimed by the Lubicon Cree. Members of the group approached the customers of the plaintiff and requested their cooperation in refusing to purchase the plaintiff's products. If the customer refused, an informational picket was set up outside the customer's place of business to enlist the support of their patrons and to put pressure on the customers of the plaintiff. The Friends of the Lubicon were successful and the plaintiff lost many customers. The plaintiff sought an injunction against their conduct on the basis of a number of business torts, including simple conspiracy. The Court held that simple conspiracy was not established because the predominant purpose of the defendant's conduct was not to injure the plaintiff but to focus attention on an important public issue and to provide support for the Lubicon Cree. The absence of self-interest was not sufficient to warrant the imposition of liability.