Pleading the Tort of Conspiracy

Conspiracy 2

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy.

 

For example, I recently had a situation where the executor attempted to sell the property to a third party for about 2/3 of the fair market price and in effect cheat the beneficiary of the rightful amount of the sale.

It was clear that the executor conspired with the phony purchaser to buy the property and then resell it at it’s fair market value then spit the substantial ill gained  “profit”.

 

Norkum v Fletcher 2017 BCSC 382 involved the requirements of pleading the tort of conspiracy. the plaintiff sought leave of the court to amend his claim that:

The plaintiff  alleged he was deceived by Ms. Fletcher throughout their relationship. He alleged he was induced by Ms. Fletcher to believe that their relationship was exclusive; and that he intended, and understood Ms. Fletcher to have intended, that they would make a life together as a couple.  He further  alleged that he was led to believe by Ms. Fletcher that the two of them would ultimately occupy Lot 9 together, and  that he provided her with expensive gifts, loans, and other forms of support; and, that he caused MAN to hire her as a human resources manager, paying her a salary, in respect of which he seeks to add MAN as a plaintiff.

 

 

18      As a matter of general pleading, R. 3-1(2)(a) clearly states that a notice of civil claim must “set out a concise statement of the material facts giving rise to the claim”.

19      Further, the requirements at common law for the particularization of all material facts said to underlie a claim for conspiracy are as summarized by Saunders J.A. in Watson v. Bank of America Corporation, 2015 BCCA 362[Watson]:

[125] The elements of [the] tort of conspiracy to injure identified in LaFarge [Ltd. v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452]; Can-Dive Services Ltd. v. Pacific Coast Energy Corp. (1993), 96 B.C.L.R. (2d) 156, 26 C.P.C. (3d) 395 (C.A.); and Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, are:

(i) an agreement or concerted action between two or more persons;

(ii) with the predominant purpose of causing injury to the plaintiff; and

(iii) overt acts committed that cause damage to the plaintiff.

 

[126] The standard for pleading a conspiracy is well-recognized as strict. In Can-Dive, Chief Justice McEachern adopted the meticulous judgment of Mr. Justice Esson in Thompson v. Coquitlam (District) (1979), 15 B.C.L.R. 59 at 63 (C.A.):

It is well settled that the gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt acts causing damage.

[127] Chief Justice McEachern added:

[8] Esson J. also cited Bullen, Leake & Jacob’s Precedents of Pleadings, 12th ed. (1975), p. 341. The current edition of Bullen, Leake & Jacob’s Precedents of Pleadings, 13th ed. (1990), states at p. 221-22:

The statement of claim should describe who the several parties to the conspiracy are and their relationship with each other. It should allege the conspiracy between the defendants giving the best particulars it can of the dates when or dates between which the unlawful conspiracy was entered into or continued, and the intent to injure . . . It should state precisely the objects and means of the alleged conspiracy to injure and the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance of the conspiracy, and lastly, the injury and damage occasioned to the plaintiff . . .

[Emphasis added.]

20      Saunders J.A. went on to state:

[132] I agree with the defendants that the import of Can-Dive, based as it is in Thompson and Bullen, Leake & Jacob, extends beyond a stay to the requirements for pleading conspiracy to injure. I also agree that Can-Dive does more than describe an aspirational standard, it addresses the requirements of a valid pleading of conspiracy to injure. The standard, at the end, is the one stated by Chief Justice McEachern: “pleadings alleging conspiracy must be as specific as possible”.

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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