In the recent decision Mughal v. Bama Inc., 2020 ONCA 704 (CanLII), the Court of Appeal upheld a lower court decision in an action alleging civil conspiracy, among other things. The underlying action involved a plaintiff seeking the return of his investment in a corporation.
On appeal, it was alleged that the trial judge applied the wrong legal test for and misapprehended the evidence to find commission of the tort of conspiracy to injure.
The appellate court concluded that the trial judge applied the correct test for establishing civil conspiracy to injure as follows:
- Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or,
- Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result in loss to the plaintiff.
The court notes that it is not necessary that the predominant purpose of the defendant’s conduct be to cause injury to the plaintiff. Rather, the defendant must have constructive intent (which is derived from the fact that the defendant should have known that injury to the plaintiff would ensue) and the plaintiff must have suffered damages thereby.
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