Civil tort of conspiracy

Today’s Court of Appeal decision in Keeton v. The Bank of Nova Scotia, 2009 ONCA 662 cites the unanimous Supreme Court in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. [1983] 1 S.C.R. 452, and sets out the elements of both branches of the tort of conspiracy in the following terms:

Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, 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 situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.