What is the test for an intentional tort?

New Brunswick, Canada


The following excerpt is from SAR Petroleum et al. v. Peace Hills Trust Company, 2010 NBCA 22 (CanLII):

One of the tort’s purposes is to protect contractual rights by placing limits on the ability of persons to pursue their economic self-interests in a competitive marketplace without regard to the contractual rights of others. The tort was never intended to provide a convenient legal tool for circumventing the doctrine of “privity” in cases involving a web of interlocking commercial relationships. Hence, in cases where both the plaintiff and the defendant are contractually tied to a third party, under distinct and separate contracts, and the defendant, acting in furtherance of its contractual rights, adopts a course of conduct which forces the third party to breach its contract with the plaintiff, the defendant is not liable simply because it knew a breach would follow. This remains true even if the defendant misconstrued its contractual rights. So long as the defendant acted in good faith, liability will not attach. Negligent conduct is not actionable in cases involving an intentional tort. Above all, mere knowledge that a breach would follow is insufficient to meet the threshold test of intention. In addition, the breach must have been a “desired end”. This means that the breach must be an end in itself or a means to an end. Malice or ill-will towards the plaintiff qualifies as an end in itself. The pursuit of a benefit or economic advantage over and above the preservation of existing contractual rights qualifies as a means to an end. Such a goal reeks of “opportunism” as was true in Lumley v. Gye. Otherwise, and as a general rule, the defendant cannot be accused of opportunistic behaviour if its actions were intended to protect its competing contractual or property rights.

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