In Elliot v. Canadian Broadcasting Corporation, both defamation and conspiracy, based on the defamation, were pleaded. Montgomery J. struck the claim in defamation. He held at page pages 398-399, “If the plaintiffs’ claim for defamation cannot be sustained, neither can the conspiracy because there was no unlawful means.” Accordingly, he struck the claim in conspiracy. While not the basis for his decision, he purported to distinguish Hunt v. Carey Canada on the basis that in that case the unlawful means differed from the tort, and stated that the doctrine of merger would also have resulted in the conspiracy claim failing: the defendants had planned to do something and they had done it, thereby allegedly committing the tort of defamation. The issue on appeal was whether the claim in defamation should have been struck. The merger argument was not addressed.
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