Judgments fail to differentiate between two types of conspiracy

Two recent judgments from the British Columbia Supreme Court demonstrate a failure on the part of the court to properly differentiate between the two types of conspiracy. This failure seems to stem from a reference to older judgments which do not clearly delineate the two types. For instance, the seminal case of Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452, states:

…the law of torts does recognize a claim against them in combination as the tort of conspiracy if:

(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,

(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In the recent case of Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, at para. 73, the Supreme Court of Canada confirms two distinct types of actionable conspiracy: “predominant purpose conspiracy” and “unlawful means conspiracy”. For “predominant purpose conspiracy,” the means need not be unlawful, because if their object is to injure the plaintiff, the lawful acts performed in conspiracy become unlawful (Pro-Sys, at para. 74). For "unlawful act conspiracy", the plaintiff need not show that the predominant purpose of the defendants is to injure the plaintiff, only that the likelihood of injury to the plaintiff should have been foreseen by the defendants.

In McLean v. Law Society of British Columbia, 2015 BCSC 1431, the plaintiff clearly pleaded both types of conspiracy as “Injurious Conspiracy” and “Unlawful Conspiracy” (at para 42). However, at para. 57, the judge conflates both types of conspiracy, implying that both “unlawful means” and “predominant purpose to injure” are required to prove conspiracy. This error had no effect on the result, as the judge determined that the defendants’ application to strike the claims against the personal defendants should be dismissed as premature (at para. 64).

In Kamloops-Cariboo Regional Immigrants Society v. Herman, 2015 BCSC 886, at para. 160, the judge states that there are two types of conspiracy: “the first involves an ‘unlawful objective’ – namely to injure the plaintiff – and the second involves a ‘wrongful act’ – namely the use of unlawful means.” However, in the very next paragraph, the judge uses an unlawful act conspiracy case to conclude that “[t]he tort of conspiracy to injure cannot be made out if one of the conspirators is acting unlawfully, whereas the others are acting lawfully.” This statement is clearly wrong. Later in the judgment, the judge applies the law correctly, by going on to determine if one of the defendants could be liable because she had an intent to injure after finding that she did not act unlawfully (at paras. 167-169).

In order to avoid confusion, it is advisable to clearly differentiate between the two types of conspiracy, and clearly draw the court’s attention to the differing elements required to establish each type.