Can a Business Sue For Loss of An Opportunity Due to Intimidating Threats?

When a Person Is Threatened With a Risk of Injury That Warns to Do Something, or Avoid Doing Something, and the Person Succumbs to Fear of the Threat By Abiding By the Threat and a Loss Occurs As a Result, Such Constitutes as the Tort of Intimidation.

A Helpful Guide For How to Understand What Conduct Constitutes As Tortious Intimidation

Lawsuit Document Involving Intimidation Issues The business world is often a nasty place with cutthroat conduct occurring at almost every turn; however, it is when figurative cutthroat conduct becomes threats of literal cutthroat conduct or threats of other form of injury or harm as a means to achieve influence and control over the conduct of others.

The Law

The tort of intimidation is an intentional tort, usually occurring within a business situation; however, without need of a business situation, and which involves a threat to injure as the means to pressure and control the conduct of another person and resulting in harm to that person.  These elements of the tort of intimidation were well summarized within Eks v. Tadeu, 2019 ONSC 3745, McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, and The Score Television Network Ltd. v. Winner International Inc., 2007 ONCA 424 wherein such cases it was said:

[141]  I would add that the tort of intimidation, while recognised in law, is essentially a business tort (see Kelleher v. Langille-Westhaver, 2016 NSSC 200 at para. 33) and consists of (a) a threat by one person to use unlawful means – such as violence, or a tort or a breach of contract – so as to compel another to obey his or her wishes; and (b) the person so threatened must comply with the demand rather than risk the threat being carried into execution:  Roth v. Roth (1991), 1991 CanLII 7220 (ON SC), 4 O.R. (3d) 740 (Gen. Div.) at para. 22.

[23]  The tort of intimidation consists of the following elements: (a) a threat; (b) an intent to injure; (c) some act taken or forgone by the plaintiff as a result of the threat; (d) as a result of which the plaintiff suffered damages: Score Television Network Ltd. v. Winner International Inc., 2007 ONCA 424, [2007] O.J. No. 2246, at para. 1; see also Central Canada Potash Co. v. Saskatchewan, 1978 CanLII 21 (SCC), [1979] 1 S.C.R. 42. Although the pleading of intimidation is most frequently seen in the context of economic torts, the business context is not an essential element of the tort.

[1]  We see no error on the part of Siegel J. in striking out the allegations in the statement of claim regarding the tort of intimidation as disclosing no reasonable cause of action pursuant to s. 21.  The elements of that tort, in our view, are properly identified as including not only 1) a threat and 2) intent to injure but also, 3) some act taken or forgone as a result of the threat and 4) as a result of which the plaintiff suffered damages: See Roehl v. Houlahan (1990), 1990 CanLII 6781 (ON CA), 75 O.R. (2d) 482 (C.A.); Canada Potash Co. Ltd. v. Government of Saskatchewan, 1978 CanLII 21 (SCC), [1979] 1 S.C.R. 42.

[2]  The plaintiff pleaded neither the third nor the fourth elements, but pleaded only that there was the threat and an intent to injure.  The tort is that of intimidation, not threatening.  In our view, it is plain and obvious that a threat in the air which has no effect and did not cause damage is not actionable.

Interestingly and notable, the element of threat to cause injury must be directed towards the plaintiff rather than a third party person; and accordingly, if the defendant gains influence over the plaintiff by using a threat directed towards a third party, and the plaintiff yields to that threat due to fear of harm to the third party, the tort of intimidation appears as inapplicable.  This requirement that the threat be aimed directly at the plaintiff was stated in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 5017 where it was said:

[129]  The tort of intimidation requires that A threatens B that A will commit an act or use unlawful means as against B, as a result of which B does or refrains from doing some act which B is entitled to do, thereby causing damage to B or to C.  “The tort is one of intention and the plaintiff, whether it be B or C, must be a person whom A intended to injure” (Central Canada Potash Co. v. Saskatchewan, 1978 CanLII 21 (SCC), [1979] 1 S.C.R. 42, at para. 71, citing Clerk & Lindsell on Torts, 14th ed., p. 414 at para. 802).

Damages

Another key point of interest is the requirement that the plaintiff prove damages as a required element to the tort of intimidation.  This requirement is stated by the Court of Appeal in both the McIlvenna and The Score cases as above and wherein both state that there is a burden requiring proof that the plaintiff, "suffered damages".  On review of both McIlvenna and The Score, among other cases, it appears that the proof of "suffered damages" burden is a requirement to prove actual pecuniary damages; however, such appears to contradict the views expressed by the Court of Appeal in Grand Financial Management Inc. v. Solemio Transportation Inc.2016 ONCA 175 (a case on the tort of intentional interference in economic relations, among other things) where the Court of Appeal confirmed that an at-large damages award,  which is essentially a best guess, may be awarded when intentional tortious conduct is directed at a business.  Specifically, the Court of Appeal said:

[82]  Damages at large may be awarded in cases of intentional torts, and to corporations in such circumstances where there has been injury to the corporation’s reputation and associated economic loss: see Uni-Jet Industrial Pipe Ltd. v. Canada (A.G.) (2001), 2001 MBCA 40 (CanLII), 198 D.L.R. (4th) 577 (Man. C.A.), at paras. 66-72Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499, 266 O.A.C. 17, at para. 37PSC Industrial Canada Inc. v. Ontario (Ministry of the Environment) (2005), 2004 CanLII 15482 (ON SC), 48 B.L.R. (3d) 58 (Ont. S.C.), at paras. 60-62, rev’d in part on other grounds (2005), 2005 CanLII 27657 (ON CA), 258 D.L.R. (4th) 320 (Ont. C.A.); and Alleslev-Krofchak v. Valcom Ltd., 2009 CanLII 30446 (ON SC), at para. 361, aff’d 2010 ONCA 557, 322 D.L.R. (4th) 193.

[83]  Unlike pecuniary damages, such damages are not capable of being precisely measured and are more a matter of impression: Uni-Jet, at para. 72; and Foschia, at para. 37.  As Kroft J.A. explained in Uni-Jet, at para. 72:

[D]amages at large are a matter of impression; they must include the consideration of a host of circumstances involving both the particular plaintiff and the particular defendant, and they are likely to be unique in each case.

[84]  In Howard v. Madill, 2010 BCSC 525, at para. 89, Bruce J. summarized the principles relating to the assessment of damages at large, as canvassed in Uni-Jet:

An accurate summary of the law with respect to the assessment of damages at large, and the circumstances in which such an award may be made, is contained in Uni-Jet at paras. 66 to 73. I summarize these principles as follows:

1.  Damages other than for pecuniary loss are "damages at large" and generally include compensation for loss of reputation, injured feelings, bad or good conduct by either party, or punishment.

2.  Damages at large are compensatory for loss that can be foreseen but cannot be readily quantified.

3.  Damages at large are a matter of discretion for the trial judge and are more a "matter of impression and not addition."

4.  Where damages at large are imposed for intentional torts, the assessment of damages provides an opportunity to condemn flagrant abuses of the legal process.

[85]  I too would adopt this summary.

[86]  Damages at large for intentional torts include damages for loss of reputation, but are not limited to that type of loss. As the authorities above demonstrate, they include as well damages reflecting the court’s condemnation of flagrant abuses of the legal process. Generally speaking, they are compensatory for loss that can be foreseen, but not readily quantified. The trial judge applied these factors.

[87]  As a result of Grand Financial’s unlawful conduct, Solemio lost its major client; Arnold Bros., representing 60 per cent of its business, abruptly ended its dealings with Solemio. Solemio’s trucks were literally stopped in their tracks and their loads transferred to other trucks. Solemio lost the business of other customers as well. In addition, its bank account was emptied and frozen, thus creating obvious liquidity problems, including the inability to make payments for trucks, utilities, insurance, salaries, and other bills. These events amply supported the trial judge’s findings that Grand Financial’s conduct contributed to Solemio’s liquidity problems, as well as its loss of reputation, and engaged the court’s concern for abuse of the legal process.

[88]  What of the amount of the damages at large award, then?

[89]  It is not readily apparent how the trial judge arrived at the amount of $175,000, although at one point Mr. Ullah testified that he had received about $200,000 from Arnold Bros. minus an amount of $25,000 that he “left there”, perhaps referring to the same sum of money that Grand Financial later allowed Arnold Bros. to pay to Solemio. As noted above, however, damages at large are “a matter of impression” and are not something that can be precisely measured.  It is difficult for an appellate court to say that the assessment is plainly erroneous in such circumstances: see Stephen M. Waddams, The Law of Damages, loose-leaf (2015-Rel. 24), 2nd ed. (Toronto: Canada Law Book, 2015), at para. 13.470. While I may not have arrived at the amount of $175,000, I cannot say that the trial judge erred in principle in doing so. He properly took into account all of the relevant factors in arriving at his conclusion..

Accordingly, it does seem that where an an intentional tort is committed and where there appers some degree of resulting harm, the courts are to allow for an at-large award rather than requiring the plaintiff to prove a precise quantification of the pecuniary loss suffered and indeed the court should use a "best guess" approach.  The "best guess" approach was described in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 where it was said:

[64]  The quantification of damages occasioned by a proven loss is often a difficult task.  In many cases, while loss is established, the evidence affords little support for a precise or reliable assessment of damages arising from the loss.  For this reason, as Finlayson J.A. noted in Goldfarb, at para. 75, a trial judge confronted with a meagre evidentiary record on damages may be required to resort to educated “guess work”.

Summary Comment

The tort of intimidation requires 1) a threat, 2) an intent to injure, 3) an act taken or forgone as a result of the threat, and 4) an actual loss suffered by the plaintiff.  Notable is that the threat must be directed at the person who is subsequently the plaintiff in the legal action.  Also notable is that the requirement to show that an actual loss was suffered may be without a need to prove the precise loss suffered whereas losses for intentional torts are often subjected to a "best guess" at-large award.


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