Introduction
The tort of intimidation, a relatively less explored area of common law, has been recognized and established through a series of judicial decisions. The House of Lords in Rookes v. Barnard (“Rookes“) formally acknowledged the existence of this tort, which has since been accepted as part of the common law in Canada. The purpose of this blog post is to offer a general analysis of the tort of intimidation, its elements, and the defences that may be applicable to it.
I. Recognition of the Tort of Intimidation
Rookes serves as a foundation for the tort of intimidation in common law. The case involved officers of a trade union who threatened their employer, B.O.A.C., with a strike unless they terminated the plaintiff’s employment. The House of Lords held that the defendants could be held liable for the tort of intimidation since their threat led to the plaintiff’s detriment, i.e., the loss of employment.
This decision led to the formal recognition of the tort of intimidation, which consists of two variations: two-party intimidation and three-party intimidation. Both forms involve causing or threatening to cause economic harm or loss to the plaintiff. In a three-party intimidation scenario, the defendant threatens to use unlawful means against a third party, compelling them to act to the plaintiff’s detriment.
Canadian courts, including the Supreme Court of Canada, have also recognized the tort of intimidation as part of their common law. However, successful actions are rare due to the difficulty plaintiffs face in proving the required elements of the tort.
II. Elements of Liability in the Tort of Intimidation
To establish liability for either two-party or three-party intimidation, the plaintiff must prove the following elements:
a) The defendant made a threat;
b) The threat involved an unlawful act;
c) The defendant intended to cause injury to the plaintiff;
d) The person threatened submitted to the threat; and
e) The plaintiff suffered damages as a result.
The underlying rationale of this tort is that it is wrongful for a person to intentionally make unlawful threats that interfere with the freedom of the threatened individual. The threat must be coercive in nature, resembling an ultimatum. Mere abusive language or a threat without a demand will not suffice for the tort.
The threat must involve an unlawful act, such as a criminal, tortious, or statutory breach. The legality of a threat to breach a contract is a contentious issue. In cases of three-party intimidation, Rookes suggests that a threat to breach a contract may be considered unlawful. However, for two-party intimidation, Canadian courts have expressed reluctance in recognizing contractual breaches as unlawful threats, arguing that the threatened party has adequate remedies under contract law.
The defendant must also have the intent to harm the plaintiff. The tort of intimidation can only be committed intentionally, not accidentally or negligently. Furthermore, the tort is only committed if the threat achieves the desired and intended effect. If the threatened individual resists the threat and does not comply, the tort is not committed.
Lastly, the plaintiff must prove that they suffered damages as a result of the defendant’s actions. Damages at large, punitive damages, and injunctive relief may be available to the plaintiff in appropriate circumstances.
III. Justification Defense in the Tort of Intimidation
There have been doubts regarding the existence of a general defence of justification for the tort of intimidation. Some cases suggest that such a defence may be available in limited circumstances, particularly those involving threatened breaches of contract. However, until the Supreme Court of Canada addresses the rationale, scope, and elements of intimidation, the limits of this defence remain uncertain.
The scarcity of case law and the general reluctance of courts to validate unlawful threats suggest that justification is unlikely to play a significant role in the tort of intimidation. Therefore, until further clarification is provided by the courts, the availability and scope of the justification defence remain ambiguous.
Conclusion
The tort of intimidation, with its two distinct forms, has been recognized as part of common law through key judicial decisions such as Rookes. Despite its formal recognition, plaintiffs often face challenges in successfully proving the required elements of the tort, which include establishing the presence of a threat, an unlawful act, intent to cause injury, submission to the threat, and damages suffered.
The question of whether a general defence of justification exists for the tort of intimidation is still open to interpretation. While some limited circumstances may warrant such a defence, the reluctance of courts to validate unlawful threats suggests that justification is unlikely to play a prominent role in the tort of intimidation. As the jurisprudence around the tort of intimidation evolves, we can expect further clarification on the elements, defences, and remedies available to parties in such cases.
Example:
In the case of Burns v. Sohi, the plaintiffs sought damages for business losses, alleging various breaches of contract and torts, including intimidation. The defendant, Sohi, created a Chinese fast food restaurant franchise, and the corporate plaintiff purchased a restaurant, including the franchise rights. After a series of events involving a new franchisee, Sohi began interfering with the new franchisee’s operations and influenced them not to pay franchise fees to the corporate plaintiff. In 2000, Sohi terminated the head lease early, and in 2004, the plaintiffs commenced legal action.
The court dismissed several claims, including intimidation, as there was no evidence linking Sohi to a fire that the individual plaintiff believed he was responsible for, and even if Sohi was involved, there was no evidence that the plaintiff acted in a self-damaging way or damaged a third party as a result of intimidation. Other claims, such as misrepresentation, passing off, deceit, breach of fiduciary duty, unjust enrichment, and conspiracy, were also dismissed due to insufficient evidence or improper pleading. However, the court found that the defendants induced the franchisee to breach their contract with the plaintiffs by making misrepresentations and encouraging default on payments. Furthermore, the defendants breached their contract by unreasonably refusing to execute a written consent to sublease and by terminating the head lease early.
The court held Sohi personally liable for damages, as he acted maliciously and went beyond legitimate commercial competition. The plaintiffs were awarded $33,500 in damages for the breaches of contract and $100,000 for inducement to breach contract.
On the specific issue of intimidation, while the tort of intimidation was not specifically pleaded, the court considered it as the plaintiffs alleged that Mr. Sohi coerced the Favuzzis. The tort of intimidation occurs when an individual acts in a way that is damaging to their own interests or the interests of another due to coercion by the defendant’s express or implied threats. Liability arises from a threat of an unlawful act or acts, and the tort is made out when the threatened party complies with the threat.
In this case, the individual plaintiff testified that in June 2000, his car was encircled by an accelerant and set on fire, believing Mr. Sohi was responsible as he said there would be trouble if the plaintiff sued. However, there was insufficient evidence to link Mr. Sohi to the fire, and even if he was involved, there was no evidence that the plaintiff acted in a self-damaging way or damaged a third party as a result of intimidation. The plaintiff started the lawsuit four years later, so it could not be said that he failed to sue due to the implied threat.
The court concluded that the tort of intimidation was not made out and dismissed the claim for damages related to it.
