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