Ontario appellate courts continue to underscore that civil conspiracy claims must observe principles of corporate separateness. In Cervantes v. Pizza Nova Take Out Ltd., 2026 ONSC 713, the Ontario Divisional Court reaffirmed that agreement is the core element of a civil conspiracy claim. To plead conspiracy, a plaintiff must allege that defendants acted in combination pursuant to a common design to commit an unlawful act. While a formal agreement is not required, acquiescing to a franchisor's requirements is insufficient.
The plaintiff, a delivery driver of four Pizza Nova franchises, commenced a class action against the franchisor and the 141 franchisees, alleging that he and the other drivers were hired as independent contractors rather than employees, to deprive them of certain statutory protections and benefits under the Ontario Employment Standards Act, 2000. Among other causes of action, the plaintiff pleaded a claim in conspiracy.
In reversing the motion judge’s certification of conspiracy claims, the Divisional Court held that the pleadings failed to disclose any agreement among the franchisees themselves. Instead, the alleged misconduct flowed from the franchisor’s “exclusive control” over standardized requirements, including contractual terms classifying delivery drivers as independent contractors.
The Divisional Court concluded that the essence of the plaintiff’s claim, read as a whole, framed the franchisees’ conduct as compliance with the franchisor’s requirements. That, the Divisional Court held, constituted acquiescence, not conspiracy. Cervantes confirms that uniform conduct alone is not synonymous with an agreement to conspire and affirms that “there is no tort of engaging in acts that further someone else’s conspiracy” (citing Pontillo v. Zinger et al., 2010 ONSC 5537). The decision also underscores the continued importance of precision in conspiracy pleadings, even at the certification stage.
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- The elements of the tort of a conspiracy to commit an unlawful act include: (i) that the co-conspirators act in combination by agreement or with a common design; (ii) that their conduct is unlawful; (iii) that their conduct is directed towards the plaintiff; (iv) that the co-conspirators should know that, in the circumstances, injury to the plaintiff is likely to result; and, (v) that their conduct causes injury to the plaintiff: Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460.
- The Divisional Court distinguished Cervantes from Crosslink v. BASF Canada, 2014 ONSC 4529, which involved an alleged price-fixing conspiracy concerning polymer chemicals. The Divisional Court in Cervantes noted that Crosslink involved detailed pleadings of direct communications between the defendants’ senior personnel in which they allegedly agreed to violate the Competition Act. By contrast, in Cervantes, the pleadings did not contain allegations of communications, dealings, or agreements among the franchisees.
- The Court’s reasoning may reflect a concern expressed by other courts regarding corporate separateness: associated corporations cannot be treated as a single actor without pleading their distinct, intentional participation. The same recognition of separate personalities should arguably apply to franchisees: Lilleyman v. Bumblebee Foods LLC, 2023 ONSC 4408 at para 106, aff’d 2024 ONCA 606, at paras 58-63.
Bennett Jones