By All Unlawful Means? An Inquiry into the Scope of the Unlawful Means Tort

The nature, rationale, and scope of the tort of unlawful interference with economic relations, or ‘unlawful means’ for short, was recently clarified by the Supreme Court of Canada in the AI Enterprises v Bram Enterprises ruling. Justice Cromwell, writing for a unanimous Court, held that the definition of ‘unlawful means’ required to establish liability must be interpreted narrowly. Potentially tortious acts are therefore only unlawful if they are actionable by the third party or if they would have been actionable had they caused the third party a loss. Especially given its turbulent history, Justice Cromwell’s main concern throughout his opinion is to ensure the certainty and predictability of the tort’s application. In this respect, his approach is laudable. The author argues, however, that Justice Cromwell’s interpretation of the term ‘unlawful’ is simply too narrow and may have the effect of restricting otherwise valid plaintiff claims against defendants who have acted immorally, outrageously, and excessively. Instead of Justice Cromwell’s approach, the author proposes a broader interpretation that acts as an effective mechanism to capture malicious behaviour that might otherwise be non-actionable under the narrow definition. Importantly, it does so in a manner that maintains a high level of certainty and predictability in its application