FORCOMP Forestry Consulting Ltd. et al. v. British Columbia, et al, 2021 BCCA 465
FORCOMP contracted with the Ministry, between 1993 and 2002, to provide forestry data analysis. FORCOMP alleged the contract work stopped after 2002 because, in retaliation, the Ministry had blacklisted FORCOMP for identifying errors in the Ministry’s growth models which led to errors in the Ministry’s resource planning.
FORCOMP sued the respondents for misfeasance in public office, conspiracy, damages for breach of s. 2(b) of the Charter, and the novel claim of “blacklisting.” The chambers judge struck all four claims because the pleadings disclosed no reasonable cause of action and were unnecessary, frivolous and an abuse of process. The appellants’ appealed the chambers judge’s order.
The appeal was allowed, in part. The Court of Appeal held that the chambers judge erred in striking the claims for misfeasance in public office, conspiracy and breach of s. 2(b) of the Charter. However, the chamber judge did not err in striking the novel tort claim of “blacklisting”. The Court of Appeal based its decision on the lack of sufficient pleading and the lack of legal authority for the proposed tort. The Court of Appeal found there was no tort of blacklisting in existence in the common law world, nor had such a tort been proposed in any common law academic text or other commentaries. Allowing the tort of blacklisting would amount to creating a new law which is solely the legal purview of the legislature.