The Court of Appeal disagreed. They distinguished the difference between "random virtue testing," which occurs in entrapment, and "random compliance testing," which is what test shopping is, on the grounds that sellers of cigarettes operate in a regulatory commercial environment and therefore enjoy a diminished expectation of privacy due to their increased responsibility (to not sell cigarettes to minors). The Court also noted that since selling tobacco was part of the store's ordinary business, a test shopper was not offering Mr. Clothier an opportunity to commit an illegal act that he previously did not have.
Although the Court of Appeal noted that it was possible for the use of test shopping to check compliance with a regulatory scheme to become an abuse of process (leaving future challenges to regulatory law open in that regard), they found that Mr. Clothier did not suffer from abuse of process and dismissed his appeal. Read-the-whole-case rating: 4 for a very readable explanation of both the theory of entrapment and why it doesn't typically apply to regulatory regimes.
Print N' Promotion (Canada) Ltd. v. Kovachis. The Kovachis family own commercial premises in downtown Toronto. They leased those premises to a numbered corporation seeking to use the premises for a bar and restaurant. Their tenant had trouble making rent. During a period when the Kovachis family and the tenant were attempting to resolve the dispute, the tenant sublet use of an exterior wall for advertising purposes to Print N' Promotion without the Kovachis family's consent.
Shortly thereafter the Kovachises terminated the lease, and the tenant company and Print N' Promotion both applied to the court for relief; the tenant for relief from forfeiture of the lease plus damages, and Print N' Promotion for damages for intentional interference with economic interests and contractual relations; the tenant then dropped out of the action, leaving Print N' Promotion as the sole plaintiff. The application judge granted both parties their relief and ordered that the application become a civil action. The Kovachises appealed.
The Court of Appeal granted the appeal. They stated that proof of intention by the defendant to injure the plaintiff is an essential part of the tort of intentional interference, and that in turn requires not merely that the actions of the defendant be intentional but that the intention behind those actions be, at least in part, to specifically injure the plaintiff. In this instance the intentions of the defendant almost totally ignored Print N' Promotion; their conflict was with their tenant, and what happened to Print N' Promotion was merely an additional consequence of that conflict. Having knowledge of the subtenancy of the plaintiff did not demonstrate intention to harm them.
The Court also pointed out that there was evidence to demonstrate that the Kovachis family formed intention to terminate the tenant's lease before it became aware of Print N' Promotion's subtenancy, which made a tort of intentional interference essentially impossible. Read-the-whole-case rating: 2.
- Christopher Bird, Toronto