ONTARIO LIBRARY ASSOSSIATION Copyright Symposium D Libraries, and Economic Torts

Transcription

1 ONTARIO LIBRARY ASSOSSIATION Copyright Symposium D Libraries, and Economic Torts December 4, 2015 Hart House, University of Toronto Kenneth M. Farrell Anissimoff Mann Professional

2 This session is presented for only. NOTICE: No should be interpreted as legal advice.

3 THE ECONOMIC TORTS in CANADIAN LAW Statutory Property Copyright Act Trade-marks Act Patent Act Passing Off Deceit Contract Industrial Design Act Market Law Private Tort Economic Improper Market Negligence Assault BaWery Trespass Cause Loss by Unlawful Means Conspiracy Public Criminal Conspiracy Inducement to Breach of Contract Intent to Injure Intent to Injure by Unlawful Means

4 CONSPIRACY IN CANADIAN LAW Criminal Criminal Code 465 (1) Criminal Conspiracy Except where otherwise expressly provided by law, every one who conspires with any one to commit a criminal offence is guilty of a criminal offence. *restricted to criminal offences *does not require overt act in furtherance of conspiracy Conspiracy with Intent to Injure Predominant Purpose Conspiracy Two or more persons agreeing to a course of conduct, which may be otherwise legal, for the predominant purpose of injuring a third party. *it is unlawful for two people to do what would be lawful for one person to do, if the intent was to injure a third party Civil Conspiracy with Intent to Injure by Unlawful Means Unlawful Means Conspiracy Two or more persons agreeing to a course of conduct that is unlawful, and the conspirator knows or ought to know that injury to a third party is likely to and does result.

5 Conspiracy with Intent to Injure by Unlawful Means Elements of the tort: A conspiracy with intent to injure by unlawful means. Third party actually suffered damages An agreement between two or more people to act together in a planned, concerted manner Need not be a contract A corpora@on may be a party to a conspiracy If unlawful means are used and cons@tute a civil wrong as against the plain@ff, the civil wrong itself provides the plain@ff with a remedy against at least one of the conspirators. Suing for conspiracy enables a plain@ff to seek recovery of damages from those that do not actually par@cipate in the commission of the underlying unlawful act.

6 Conspiracy with Intent to Injure by Unlawful Means Elements of the tort: A conspiracy with intent to injure by unlawful means. Third party actually suffered damages Construc@ve intent to injure may be found where the conspirators knew or should have known that injury to the plain@ff would ensue. Where there is construc@ve intent, the object of the combina@on is irrelevant so long as the conspiracy involved the use of unlawful means. It is not necessary that the actual iden@ty of the plain@ff be known to the defendants. It is enough if the plain@ff is one of a group of people against whom the defendants unlawful conduct was directed and injury to the plain@ff was foreseeable.

7 Conspiracy with Intent to Injure by Unlawful Means Elements of the tort: A conspiracy with intent to injure by unlawful means. Third party actually suffered damages Includes: criminal conduct breach of contract breach of fiduciary obliga@on statutory or regulatory breach An infringement of copyright, trademark, patent, or industrial design, will sa@sfy the unlawful means element of a conspiracy with intent to injure by unlawful means. The plain@ff is not required to join as par@es all persons alleged to have been involved in the conspiracy.

8 Conspiracy with Intent to Injure by Unlawful Means Elements of the tort: A conspiracy with intent to injure by unlawful means. Third party actually suffered damages Pecuniary: A loss that can be evaluated in money terms. Must result from the combina@on or agreement In business cases, there is a presump@on that pecuniary loss is necessary to establish damage. Where the act resul@ng in damage to the plain@ff itself cons@tutes a tort for which damage is presumed by law, proof of actual pecuniary loss may not be required. The presence of a conspiracy may en@tle a plain@ff to increased awards in the form of aggravated damages, exemplary damages, or both.

9 Strategies for MiDgaDng Exposure to Liability for Economic Torts Avoid Avoid infringement Do not intend injury to a third party Defences Ignorance Mistake of law Ac@ng on the advice of legal counsel

10 Strategies for MiDgaDng Exposure to Liability for Economic Torts There is only risk for a library, in terms of the economic torts, in the area of unlawful means conspiracy Liability for this tort cannot arise if the printing of the object is not unlawful : if a competent legal professional clears each object before printing, there cannot be liability for the library under this heading. Indeed, since relying on the advice of a lawyer is a complete defence to unlawful means conspiracy, working closely with a lawyer is recommended. In the absence of legal advice, however, liability would still only attach to a library for unlawful means conspiracy where the library knew or ought to have known that the printing of the object was an unlawful act. The recommendations above, in the Industrial Design and Patent sections, with respect to checking the appropriate registries at CIPO will help ensure that a library does not commit this economic tort; As well, the library has to have conspired with the user in order to be found to have committed this tort: The use of waivers (a topic discussed in the Signs presentation) could hurt the library s defence to an allegation of conspiracy and, reinforcing the Patent and Trademark recommendations above, the less involvement the library has in the actual printing the better able the library will be to also avoid liability for unlawful means conspiracy; Where a library -- and not its competent legal professional (Patent Agent, Trademark Agent, or lawyer) -- actively reviews and approves an object for printing, exposure to liability increases.