COURT OF APPEAL FOR ONTARIO

DATE: 20000225

DOCKET: C32527

OSBORNE A.C.J.O., LASKIN AND BORINS JJ.A.

B E T W E E N :

ROGERS CABLESYSTEMS LIMITED
T. Pinos and
S. Robertson
for the Appellant/Plaintiff

Appellant
(Plaintiff)

and

LOOK COMMUNICATIONS INC., LOOK
T.V. ONTARIO INC., 690981 ONTARIO
LIMITED and CRECCAL INVESTMENTS
LIMITED
J. Richler and
J. Prestage
for 690981 Ontario Limited
and Creccal Investments Limited

Respondents/Defendants

Respondents
(Defendants)

and

M. Spears

for Look Communications Inc.,
and Look T.V. Ontario Inc.
Respondents/Defendants

JERRY LAPCHUK, ALF N. PEPE, JUANITA
PERALTA, DANIELA MICHALSKA,
BERTHA TURGEON and JOAN DART

Heard: February 1 and 2, 2000

Intervenors
(Third Parties))

On appeal from the judgment of Nordheimer J. dated July 5, 1999

BY THE COURT:

[1] The appellant, Rogers Cablesystems Limited (“Rogers”), commenced an action against the respondents Look Communications Inc. and Look T.V. Ontario Inc. (collectively, “Look”) and 690981 Ontario Limited and Creccal Investments Limited (collectively, the “landlord”) for a number of injunctive remedies intended to prevent Look from delivering cable television services to the landlord’s apartment buildings and its tenants living in the buildings. As well, Rogers claimed damages of $1,000,000 from Look and the landlord for the tort of intentional interference with economic relations.

[2] The action evolved from a dispute between Rogers and Look as to whether one, or the other, or both have the right to supply cable television services to the landlord’s apartment buildings. The dispute was precipitated by the landlord terminating its contract with Rogers which permitted Rogers to supply television services to the buildings and its tenants, and entering into an exclusive arrangement with Look to provide such services. As a result, the exclusive right to supply cable television services which Rogers and its predecessors had for about 24 years came to an end.

[3] In an effort to come to a speedy resolution of the action, C. Campbell J. directed a trial of the following issue:

Whether 690981 Ontario Limited by its
agent Creccal Investments Limited
(collectively, the “landlord”) can
terminate the right of Rogers
Cablesystems Limited (“Rogers”) to
supply cable television services to the
Buildings and the tenants therein and,
if not, whether the landlord has
wrongfully interfered with the economic
interests of Rogers.

[4] The issue was tried by Nordheimer J. who concluded the landlord could terminate the right of Rogers to supply cable television services to the buildings and the tenants therein, and, as a consequence, the landlord had not wrongfully interfered with the economic interests of Rogers in so doing. In the course of the trial of the issue, the trial judge found that the landlord and Look, by entering into the exclusive arrangement to which we have referred, had not intentionally interfered with Rogers’ economic relations with those tenants who had existing contracts with it for the supply of cable television services.

[5] Rogers has appealed from the findings of Nordheimer J. in respect to two of the elements of the tort of unlawful interference with economic relations approved by this court in Lineal Group Inc. v. Atlantis Canadian Distributing Inc. (1998), 1998 4248 (ON CA), 42 O.R. (3d) 157, which he considered in reaching the conclusion that the respondents had not intentionally interfered with Rogers’ economic relations. It is Rogers’ position that the trial judge erred in his interpretation and application of the element of the tort whereby the plaintiff must prove an intention to injure it, and that he erred in concluding that Rogers had failed to prove the element of the tort which requires that the interference be by way of unlawful means.

[6] It was Rogers’ position before both the trial judge and this court that in entering into the exclusive arrangement with the landlord, Look had breached s. 9 of the Broadcasting Distribution Regulations which states: “No licensee shall give an undue preference to any person, including itself, or subject any person to an undue disadvantage.” Look is a “licensee” within the meaning of s. 9. Indeed, on March 25, 1999, shortly after it commenced its action, Rogers filed a complaint against Look with the Canadian Radio-Television Telecommunications Commission (“CRTC”) alleging that Look was in breach of s. 9. We were advised by counsel that the CRTC has not as yet adjudicated the complaint. Notwithstanding the pending complaint before the CRTC, the trial judge felt that he could deal with this issue. He resolved it in favour of Look, and concluded that it was not in breach of s. 9 in entering into the exclusive arrangement with the landlord, and, therefore, had not engaged in unlawful means.

[7] In our view, the issue before Nordheimer J. was clear and straightforward. If he found that the landlord was justified in terminating Rogers’ right to supply cable television services to the apartment buildings and the tenants who lived in them, it was unnecessary for him to determine whether the landlord had wrongfully interfered with Rogers’ economic interests. Indeed, the operative paragraph of the formal order in respect to which the trial of the issue was conducted reflects Nordheimer J.’s resolution of that issue. This paragraph states:

2. THIS COURT FURTHER ORDERS AND ADJUDGES
   that the defendants 690981 Ontario Limited
   and Creccal Investments can terminate the
   right of Rogers Cablesystems Limited to
   supply television services to the Buildings
   and the tenants therein, and have not
   wrongfully interfered with the economic
   interests of Rogers Cablesystems Limited.

[8] On the basis of this analysis, there was no need for Nordheimer J. to embark upon the determination of the broader issue, whether Look and the landlord had committed the tort of intentionally interference with Rogers’ economic interests. Indeed, in resolving this question the trial judge went beyond the narrow issue he was required to try and decided the appellant’s claim against the respondents that they had intentionally interfered with the appellant’s economic interests. It was the trial judge’s conclusion that Rogers had failed to prove that the respondents had committed this tort which gave rise to the appeal.

[9] However, this is not intended as a criticism of the trial judge. We believe that he was led into considering the tort issue and the Broadcasting Distribution Regulations issue by the manner in which the issue he was directed to try was presented to him. The issue to be tried contained a contractual component and a tort component. On the basis of his conclusion on the contractual component, it was unnecessary for the trial judge to consider the tort component.

[10] Therefore, it is our view that the only findings which this court should review are those which arise from the issue which Nordheimer J. was required to try. Those findings are contained in paragraph 2 of the formal order set out above.

[11] In our view, the trial judge was correct in his conclusion that the landlord could terminate Rogers’ right to supply cable television services to the landlord’s apartment buildings and its tenants. We agree with the submission of Mr. Richler, on behalf of the landlord, that because the relationship between the landlord and Rogers was governed by a contract which permitted the landlord to terminate Rogers’ right to deliver cable television services to the landlord’s buildings and its tenants, in terminating Rogers’ right under the contract the landlord was exercising a right which it enjoyed under the contract. Indeed, Rogers has not suggested that in terminating the contract, the landlord was in breach of the contract. Consequently, the landlord’s lawful exercise of its contractual right to terminate the privileges which were given by the contract to Rogers could not serve as a foundation for Rogers’ tort claim against the landlord and Look.

[12] Having reached this conclusion in respect to the first component of the issue to be tried, it followed that there was no need for the trial judge to make any findings arising from the second component of the issue, the tort claim asserted by Rogers. It follows that it is unnecessary for this court to consider that issue.

[13] As we are satisfied that Nordheimer J. made no error in respect to the issue that he was directed to try, there is no need for us to determine whether he erred in his interpretation and application of the elements of the tort of intentional interference with economic interests.

[14] Accordingly, the appeal is dismissed with costs.

Released: February 25, 2000 “C.A.A. Osborne ACJO”
“J.I. Laskin J.A.”
“S. Borins J.A.”

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