Case reference: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
Practice Motion to strike Action brought by person suffering from disease allegedly caused by exposure to asbestos fibres Allegation of conspiracy to withhold information of potential health risks Allegations of other nominate torts Circumstances in which a statement of claim (or portions of it) could be struck out Whether allegations based on the tort of conspiracy should be struck out Rules of Court [British Columbia], Rule 19(24).
Respondent Hunt, a retired electrician, brought an action alleging that he had contracted mesothelioma because of exposure to asbestos fibres over the course of his employment. The defendants had been involved in the mining of asbestos and the production and supply of a variety of asbestos products between 1940 and 1967. It was alleged that they knew from 1934 that asbestos fibres could cause disease in those exposed to the fibres. Atlas Turner, Babcock, Caposite, Holmes, Johns Manville and T & N, P.L.C. were sued not only in negligence but also for their alleged conspiracy to withhold information about the dangers associated with asbestos which ultimately resulted in Mr. Hunt’s contracting mesothelioma. Flintkote Mines Limited and T & N, P.L.C. were named as respondents to the appeal in the Court of Appeal by order of the British Columbia Court of Appeal.
Carey Canada Inc. successfully applied to have the action against it struck for want of a reasonable claim. (The action had been based solely on allegations of conspiracy.) The Court of Appeal allowed an appeal from that decision. The issues here dealt with the circumstances in which a statement of claim (or portions of it) could be struck out, and whether the allegations based on the tort of conspiracy should be struck out.
Held: The appeals should be dismissed.
The test to be applied is whether it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable claim. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) should the relevant portions of a plaintiff’s statement of claim be struck out under Rule 19(24)(a).
Here, it was not “plain and obvious” that the plaintiff’s statement of claim failed to disclose a reasonable claim, given this Court’s most recent pronouncement on the circumstances in which the law of torts will recognize such a claim of conspiracy. Nor was it plain and obvious that allowing this action to proceed would amount to an abuse of process. Whether or not there is good reason to extend the tort to the present context is for the trial judge to consider in light of the evidence.
It is not for this Court on a motion to strike to reach a decision as to the plaintiff’s chances of success. It is enough that the plaintiff has some chance of success. Whether or not a predominant purpose had been established and whether or not Quebec’s Business Concerns Records Act limited the range of information that the defendants could produce at trial was not relevant to whether the plaintiff’s statement of claim disclosed a reasonable claim. Striking out cannot be justified because a pleading reveals “an arguable, difficult or important point of law”. On the contrary, it may well be critical that the action be allowed to proceed.
Alleging the tort of conspiracy is not precluded by the allegation of another tort. While it may be arguable that if one succeeds under a distinct nominate tort against an individual defendant, then an action in conspiracy should not be available against that defendant, it is far from clear that the mere fact that a plaintiff alleges that a defendant committed other torts is a bar to pleading the tort of conspiracy. Whether the plaintiff should be barred from recovery under the tort of conspiracy can only be determined when the question of whether it has established that the defendant did in fact commit the other alleged torts has been decided.
*source: Lexbox
