Elements of civil tort of bribery

Enbridge Gas Distribution Inc. v. Marinaccio, 2012 ONCA 650, released today, sets out the elements of the civil tort of bribery:


[33] The civil tort of bribery is the payment of a secret commission. In Ruiter Engineering & Construction Ltd. v. 430216 Ontario Ltd. (1989), 67 O.R. (2d) 587 (C.A.), at p. 591, Morden J.A. set out the three elements of a cause of action in bribery:

The term "bribe" has, for the purposes of the civil law, received a wide interpretation. In Industries & General Mortgage Co. v. Lewis, [1949] 2 All E.R. 573 (K.B.D.), Slade J. said at p. 575:

For the purposes of the civil law a bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent. Those three are the only elements necessary to constitute the payment of a secret commission or bribe for civil purposes.

[34] Once all the elements of bribery are established, the court will presume in favour of the principal and against the briber and the agent bribed, that the agent was influenced by the bribe. The presumption is irrebuttable: see Optech Inc. v. Sharma, 2011 ONSC 680, at para. 23. Moreover, the motive of the person making the bribe is irrelevant: see Ruiter Engineering, at p. 591-592; Barry v. Stoney Point Canning Co., [1917] 55 S.C.R. 51, at p. 74.