Case information

Civil procedure — Pleadings — Striking out claims — Torts — Intentional torts — Novel torts —Should Canadian law recognize the tort of blacklisting — Have Courts of Appeal in Canada failed to keep up to date by not recognizing blacklisting contractors in unique fields as a nominate tort in Canadian law — Is it correct to say that there is no existing body of law from which to develop the common law — Is there no readily apparent example of blacklisting for courts to follow — When and how should Canadian courts recognize novel torts — Under what circumstances can Canadian courts make an incremental development to the common law — To what extent is a body of academic or other commentary that advocates or supports the recognition of a novel tort required — When should incrementalism yield to the competing value of access to justice.

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The applicants brought claims against the respondents for misfeasance in public office, conspiracy, damages for breach of s. 2(b) of the Charter, and the novel claim of “blacklisting.” They claimed that a branch of the provincial Ministry of Forests, Lands, Natural Resource Operations & Rural Development and its employees had malice and an intention to harm Mr. Watt because they were embarrassed and resentful about deficiencies raised by him in their data management, compilation and analysis. They alleged that the respondents set contract bidding qualifications that they knew the applicants could not satisfy, rejected the applicants from the 2011 to 2014 list of pre qualified contractors, despite their inclusion on that list in previous years, denied data and information to the applicants that is routinely provided to contractors, and interfered with contracts between the applicants and other government branches. The respondents brought an application to strike the notice of civil claim and dismiss the action.

The chambers judge struck all four claims on the basis that the pleadings disclosed no reasonable cause of action and were unnecessary, frivolous and an abuse of process. The Court of Appeal allowed the appeal in part, set aside the lower court Order, dismissed the application to strike the claims of misfeasance in public office, conspiracy, and damages for breach of s. 2(b) of the Charter, but allowed the application to strike out the claim of blacklisting.