In FORCOMP Forestry Consulting Ltd. v. British Columbia,1 the B.C. Court of Appeal declined to recognize a new tort of "blacklisting". The Court of Appeal held that the proposed tort would not "reflect an incremental development to an existing body of law", and therefore the plaintiffs' claim for "blacklisting" should be struck as having no reasonable chance of success.2 The decision reminds litigants that although courts may recognize a new common law cause of action, they may do so only if the new cause of action would reflect an incremental development of the law. Otherwise, the claim will be struck at the pleadings stage.

Facts

The plaintiffs — a forestry consulting company and its principal, Mr. Watts — sued British Columbia and several Ministry of Forests, Lands, Natural Resource Operations and Rural Development employees for conspiracy, misfeasance in public office, breach of the plaintiffs' s. 2(b) Charter rights to freedom of expression, and the proposed tort of "blacklisting". The plaintiffs alleged that Mr. Watts had pointed out errors in the Ministry's data management and analysis, which embarrassed the defendants and caused them to resent him. The plaintiffs also alleged that, in retaliation, the defendants conspired to deprive the plaintiffs of contracts and professional opportunities, committed misfeasance in public office, breached the plaintiffs' freedom of expression, and "blacklisted" the appellants from provincial contracts — all with the intention of harming the plaintiffs.

B.C. Supreme Court's Decision

The B.C. Supreme Court granted the defendants' application to strike the plaintiffs' claim in its entirety. The court held that the plaintiffs had not pleaded the material facts needed to establish conspiracy or misfeasance in public office, the plaintiffs' Charter claim did not amount to a legitimate cause of action, and the plaintiffs' claim for "blacklisting" was bound to fail. Accordingly, the court struck the plaintiffs' claim in its entirety, without leave to amend.

B.C. Court of Appeal's Decision

The B.C. Court of Appeal allowed the plaintiffs' appeal in part. The Court of Appeal disagreed with the lower court's conclusion that the plaintiffs had not pleaded the material facts needed to establish conspiracy or misfeasance in public office, and that the plaintiffs' Charter claim did not amount to a legitimate cause of action. The Court of Appeal agreed, however, that the plaintiffs' claim for "blacklisting" was bound to fail.

The Court of Appeal noted that although no Canadian court had recognized a tort of "blacklisting", novelty alone is not enough to strike a claim. Rather, "[t]he court must ... ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial".3 Although courts ought to be "cautious" in striking a novel claim at the pleadings stage, "[t]his does not mean that fanciful claims, or claims based on wishful thinking, should proceed to trial".4

Applying these principles, the Court of Appeal considered whether recognizing a new tort of "blacklisting" would "reflect an incremental development to an existing body of law".5 In concluding that it would not, the Court of Appeal noted the absence of any academic or other commentary supporting a new tort of "blacklisting", and the absence of any tort of "blacklisting" in other common law jurisdictions. In the result, the Court of Appeal upheld the lower court's decision to strike the plaintiffs' claim for "blacklisting" as having no reasonable chance of success.

Takeaways

Novelty alone is not enough to strike a claim. A court may recognize a new common law cause of action, but only if it would reflect an incremental development of the law. In deciding whether this test is met, the court may consider whether there is any academic or other commentary supporting the proposed cause of action, and whether the proposed cause of action has been recognized in other common law jurisdictions. If the proposed cause of action would not reflect an incremental development of the law, the claim will be struck at the pleadings stage.

The Court of Appeal's decision reflects a recent trend in Canadian appellate jurisprudence emphasizing the importance of incrementalism — the idea that courts should develop the common law in small steps, not big leaps.6 This conservative, restrained approach to judicial decision making promotes stability, certainty, and predictability in the law.

Footnotes

1. 2021 BCCA 465 [FORCOMP].

2. FORCOMP, at para. 60.

3. FORCOMP, at para. 55, quoting R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 21.

4. FORCOMP, at para. 57, quoting Levy v. British Columbia (Crime Victim Assistance Program), 2018 BCCA 36, at para. 32.

5. FORCOMP, at para. 60.

6. See, e.g., Bhasin v. Hrynew, 2014 SCC 71, at para. 40; Nevsun Resources Ltd. v. Araya, 2020 SCC 5, at paras. 148, 225-27, 246, 256, 262, per Brown and Rowe JJ. (dissenting in part); Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at paras. 19, 35; Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, at para. 86; Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, at para. 44.

To view the original article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.