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. Berry v. Pulley

In Berry v. Pulley (Ont CA, 2015) 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.
. Tran v University of Western Ontario

In Tran v. University of Western Ontario (Ont CA, 2015) the Court of Appeal commented as follows on some of the constituent elements of the tort of conspiracy, and their pleading requirements:
[21] In Normart, at p. 104, this court held that a statement of claim alleging conspiracy should:
[D]escribe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.
[22] If read generously, some facts supporting these elements may be identified in the statement of claim. However, an agreement to conspire, its objects and the overt acts of each of the individual respondents have not all been pled.
. Shah v. LG Chem Ltd.

In Shah v. LG Chem Ltd. (Ont CA, 2018) the Court of Appeal discusses the tort of unlawful means conspiracy:
[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.
. McHale v. Lewis

In McHale v. Lewis (Ont CA, 2018) the Court of Appeal sets out the 'merger' doctrine for the tort of conspiracy:
[12] I also do not accept the argument on appeal that leave to amend was properly refused in application of the “merger doctrine.”

[13] This principle holds that where two or more persons conspire to commit a tort, and the tort is committed, the allegation of conspiracy adds nothing to the claim. A plaintiff is not entitled to be compensated twice for the same harm where the damages from both the conspiracy and the tort are the same: Jevco Insurance Co. v. Pacific Assessment Centre Inc., 2015 ONSC 7751 (CanLII), 128 O.R. (3d) 518 (Div. Ct.).


[21] I agree with the observations of Molloy J. in Jevco:
[52] Accordingly, in my view, the law supports permitting the conspiracy claim to be pleaded along with other nominate torts and applying the doctrine of merger only at the end of the trial when it is known if the plaintiff has been fully successful on the nominate torts and whether there is anything added by the conspiracy claim. Further, in the interests of paring down out-of-control interlocutory proceedings and introducing consistency in the law, as a practical matter it is preferable not to resolve these types of claims at the pleadings stage.

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