“In D’Agnone v. D’Agnone, 2017 ABCA 35 (CanLII), 48 Alta. L.R. (6th) 8, at paras. 19-25, the Alberta Court of Appeal provided the following guidance regarding what must be proven to establish a claim in conspiracy:
The tort of conspiracy requires the defendants to have an agreement to engage in a course of conduct with the predominant purpose of injuring the plaintiff, or if the conduct of the defendants is unlawful, to have acted knowingly or having ought to have known that injury to the plaintiff is likely to result: Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452 (S.C.C.).
In Cement LaFarge, the court acknowledged that “the scope of the tort of conspiracy is far from clear”, but it may be found where parties combine and effect loss in the following manner:
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- Whether the means used by the defendants are lawful or unlawful the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or
- Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.
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In Mraiche Investment Corp. v. Paul, 2012 ABCA 95 (CanLII), 524 A.R. 151 (Alta. C.A.) at para 40, this Court adopted the somewhat restated test as follows:
. . . the following elements must be proved:
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- an agreement between two or more persons;
- concerted action taken pursuant to the agreement;
- (i) if the action is lawful there must be evidence that the conspirators intended to cause damage to the plaintiff;
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(ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action would injure the plaintiff (constructive intent);
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- actual damage suffered by the plaintiff;
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The tort of conspiracy requires an agreement that is acted on and causes injury to the plaintiff. The agreement may be inferred and need not be in any specific form, or even constitute a binding contract: .. . Proving an agreement to a conspiracy is often dependent on circumstantial evidence. However, to be party to a conspiracy, more than mere knowledge that a conspiracy exists is required: … . The facts of the alleged agreement must be known and intention to be part of the alleged agreement must be found: … . There must be intentional participation with a view to furthering the common design and purpose.
The first form of civil conspiracy identified above, predominant purpose conspiracy, requires that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff, using lawful or unlawful means, and that the plaintiff suffers loss caused by the defendants’ conduct: … .
The second form, unlawful means conspiracy, requires that the alleged co-conspirators do something contrary to law to further their agreement. Unlawful means have been held to include fraud, perjury and breach of court orders: … .
A third characterization of civil conspiracy includes knowing assistance in breach of trust. This requires that there be a trust, that the trustee perpetuate a dishonest and fraudulent breach of trust, and that the respondent participate in and have actual knowledge of the trustee’s dishonest and fraudulent breach of trust: … . The knowledge requirement for this type of liability is actual knowledge; recklessness or wilful blindness will also suffice: … .”