In many cases relating to comparative advertising the plaintiffs have asserted claims for injurious falsehood and unlawful interference with economic relations. In order to succeed with a common law action asserting injurious falsehood the plaintiff must show that:
i) the statement made was false,
ii) the statement was made with intent to cause injury without lawful justification, and
iii) actual economic loss has been suffered as a result of making the statement.
The key to a claim for injurious falsehood is identity. If the plaintiff is not identified in the comparative advertisement there is no tort. However, if the defendant identifies the plaintiff by implication in the offending advertisement this may be sufficient for purposes of such an action.
The truth of any statement is a complete defence to a claim for injurious falsehood.
Unlawful Interference with Economic Relations
In order to succeed with a common law action for the tort of unlawful interference with economic relations the plaintiff must show that:
(i) The defendant intended to injure the plaintiff and targeted the plaintiff. Negligent interference or the foreseeability of economic harm does not amount to intentional interference;
(ii) The defendant has employed unlawful means. Criminal offences and breaches of statute are not be per se actionable but the tortwill be available if, under common law principles, thoseacts also give rise to a civil action by the third party andinterfered with the plaintiff's economic activity.
(iii) Actual economic loss has been suffered as a result of the interference.
Jurisdiction
A court of competent jurisdiction in a province has jurisdiction to hear and determine actions for injurious falsehood or unlawful interference with economic relations and claims under the Copyright and Trademarks Acts. However such a court may only grant injunctive relief that is effective in that province although there may be limited exceptions.
The Federal Court of Canada has jurisdiction to hear and determine actions for claims under the Copyright and Trademarks Acts concerning which it may grant injunctive relief that is effective in the entire country. But generally the court has no jurisdiction relating to claims for injurious falsehood or unlawful interference with economic relations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
