Unlawful interference with economic interests has long been relegated to the “developing torts” chapter of Klar, et al. The Supreme Court of Canada's decision in A.I. Enterprises Ltd. v. Bram Enterprises Ltd. may entitle it to headline its own chapter, but will also keep it in development for now.

An early and vivid example of this tort is found in Tarleton v. McGawley. The ship Othello fired on local traders, driving them away from the competing ship Bannister. The Othello's owner proved liable to compensate the Bannister's for this use of force against a third party.

In A.I. Enterprises, Cromwell J. refers to the “confusion, overlap and inconsistency” plaguing the economic torts. [para. 28] Indeed, unlawful interference has been conflated with inducement of breach of contract [Verchere v. Greenpeace Canada, 2004 BCCA 242, para. 28]. A.I. Enterprises separates these two frequent companions.

Simply put, unlawful interference consists of economic harm intentionally inflicted by unlawful means. [para. 28] The critical elements are therefore intention and unlawful means.

Cromwell J. interprets the tort’s scope by reviewing its rationale. [para. 36] Some argue that it represents the law’s drive to compensate victims of intentional harm, here protecting market competition from cheaters. Others suggest that it is an extension of the right to sue from the victim of a wrongful act to a third party targeted by that act.

Cromwell J. stands with the latter. The “intentional harm” approach, he concludes, would lead to a broad definition of unlawfulness. [para. 42] Many otherwise tolerable acts could become tortious. He also rejects the market protection principle because it would extend compensation to negligent acts, broadening the tort beyond the intentional.

The “extension of right” approach, Cromwell J. reasons, reins in the tort's reach. Unlawful interference expands “the range of persons who may sue for harm intentionally caused by existing actionable wrongs.” [para. 45] On this account, it represents a parallel in tort law to the modern extension of privity in contract.

Unlawful means, then, are acts which, “under common law principles... give rise to a civil action by the third party.” [para. 45] “Actionable” has a special meaning here. It includes wrongdoing that would be actionable if the victim had suffered damage. Query here what role waiver of tort and disgorgement might play.

Further questions arise. Do “civil actions” include proceedings under rights legislation, or are those excluded as statutory? Cromwell J. proposes that a breach of statute can constitute “unlawful means” if actionable as in Saskatchewan Wheat Pool. But that case subsumes breaches of statute in negligence – is that consistent with the element of “intention”?

Cromwell J. likely accepts any inconsistency because this “intention” is in the targeting of the plaintiff, and not in the underlying wrongdoing. [para. 95] The extension of right depends on the court imposing consequences on the defendant’s intention to impact a third party – paralleling, again, the extension of privity.

Reckless indifference and foreseeability are not enough. Incidental harm is an acceptable consequence of competition. The defendant must intend to cause harm either as an end in itself, or for some ulterior motive. [para. 95] The line between the latter category and foreseeability is grey, for now.

The court refused to restrict the tort to cases where the plaintiff and third party have an existing relationship. [para. 93] This gives it a far broader scope than inducement of breach of contract. The possibilities opened by this alone are enough to fill a new chapter in the economic torts.