New causes of action and Ahluwalia v Ahluwalia (2022)

On what bases should the common law courts recognize new causes of action? Is it necessary for there to be a gap in the law that would otherwise leave the plaintiff without a remedy? Should new torts be created to reflect changing societal values, thereby protecting interests that have historically been ignored? Should it matter whether the wrongful conduct at issue is already covered by existing torts? All of these questions arise in light of Ahluwalia v Ahluwalia, a 2022 family law decision of the Ontario Superior Court of Justice, which recognized a new tort of “family violence.” The husband had committed several violent acts against his wife, as well as years of emotional abuse, coercion, and financial control. While this conduct was already captured by the torts of assault, battery, and intentional infliction of emotional distress, Justice Mandhane explained that “the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize.”

The family violence tort is made out where the defendant’s conduct:

  1. is violent or threatening, or

  2. constitutes a pattern of coercive and controlling behaviour, or

  3. causes the plaintiff to fear for their own safety….

This decision follows a trend in Ontario, where the courts have recognized four other new torts in the last decade (intrusion on seclusion, public disclosure of private embarrassing facts, publicity placing the plaintiff in a false light, and internet harassment). When the Court of Appeal started this trend in Jones v Tsige, it explained that it was an “incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.” It recognized intrusion on seclusion because the plaintiff would otherwise have been left uncompensated, even after the defendant had unlawfully accessed her banking records over 174 times during a four-year period.

However, in the remaining cases, including Ahluwalia, the plaintiff could have been awarded a remedy even without the recognition of a new tort. So, why recognize a brand-new tort when an existing tort will do?

One argument that has animated the Ontario courts is that the existing torts do not adequately capture the nature of the defendant’s wrong. Justice Mandhane explained, “the existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays [sic] at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse.”

Relatedly, one could argue that tort law performs an important signaling function to society, indicating what kinds of conduct we ought to condemn, or what kinds of interests we ought to protect. This is important in the context of family violence, since women’s interests have often, until recently, been downplayed by the common law. Tort law has not historically highlighted the oppressive and coercive

behaviours that have served to suppress women’s sexual, reproductive, and financial autonomy, or have caused women to experience lasting fear, humiliation, and helplessness.

Yet, the common law courts have not recognized a specific tort of sexual battery, even though it could be argued that violations of a sexual nature are sufficiently different from conventional batteries like fights and unwanted medical treatment, and that victims of sexual batteries have not received adequate compensation through tort law in the past.

Indeed, tort law tends to operate through broad, flexible concepts like “battery” and “negligence,” which are capable of capturing a host of behaviours that, respectively, violate physical autonomy or pose unreasonable risks of harm. Should we depart from this approach in favour of one that seeks to set out an ever-increasing number of situation-specific wrongs, with specific elements that the plaintiff must prove?
-Professor Erika Chamberlain, UWO Faculty of Law

A v A is significant for tort law and family law. The decision recognizes a new tort of family violence, the implications of which are thoughtfully explored by Erika Chamberlain in the previous post. From a family law perspective, the decision is significant for two reasons. First, it encourages victims of intimate partner violence (IPV) to plead the tort of family violence in family law proceedings. Second, it creates a new tort that is specific to the family context.

A v A is also a feminist decision; however, as I will explain, whether the decision will benefit individual women – at least in the family law context – remains to be seen.

Justice Mandhane assumes that pleading the tort of family violence in family law proceedings will increase access to justice for IPV victims; however, there is little reason for such optimism. Ontario’s family justice system is facing an access to justice crisis exacerbated by the pandemic. Tort claims add complexity to family cases, especially for family lawyers who are not experienced civil litigators. For self-represented litigants, who make up a significant portion of family law litigants, proving the tort of family violence may be especially challenging.

Extending tort law into the family realm may also have unintended consequences for women in family law disputes. The tort of family violence is the first family-specific tort to be recognized since the 1978 Family Law Reform Act abolished common law family torts (i.e., criminal conversation). It is also the first family tort to be recognized in the era of “no-fault” divorce, a philosophy for resolving family law disputes that informed the Supreme Court of Canada’s decision not to recognize a new family tort of parental alienation in Frame v Smith. By piercing the “no-fault” veil and recognizing that there are actionable wrongs particular to the family, A v A may lend support to a reconsideration of Frame. Men, including those who allege parental alienation, may have a renewed interest in using tort to address other family-specific wrongs.

(This post is based on my recent annotation in Canadian Cases on the Law of Torts: Claire Houston, “Case Annotation: A v A” (2022) 81 CCLT (4th) 130.)
-Professor Claire Houston, UWO Faculty of Law

Thank you, Erika and Claire, for these stimulating comments. I am wondering if there might be a basis for this new tort grounded in the distinctive type of wrong at issue in situations of domestic abuse. I think Justice Mandhane is right that the existing torts of battery, assault, and IIED don’t fully capture the gist of the wrong, but I disagree that this has to do with “the cumulative harm” associated with domestic abuse. My tentative thought is that the heart of the wrong in these cases concerns abuse of trust. The reason that violence between spouses might be different than violence between strangers, we might suggest, is that in addition to the wrong of non-consensual interference with the physical person, there is the wrong of the violation of the marital relation of trust.

Now, of course, as Claire astutely points out, wrongs to the marital relation as such (e.g., criminal conversation) for the most part and in most jurisdictions have been abolished by statute or overruled by judicial decision. So perhaps an additional unintended consequence of the creation of the tort of family violence is to open the door (slightly) to the recognition of an interest in the marital relationship that could be protected by tort law – perhaps even an interest that could be protected against interference by third parties.

Dear Erika and Claire,

Thank you very much for this important discussion.
It reminds my of one development of tort law in Israel. As marriage and divorce are governed by religious laws, there are many instances in which one spouse refuses to divorce the other for many years, and there is no legal way to undo the marriage. In the last ten years or so, courts have interpreted the scope of negligence to include remedies for such refusals, noting that they violate the willing spouse’s autonomy by the prolonged refusal.
More generally, while offering a remedy through negligence or a tort of family violence may result in the same obtain the same remedy, the signal sent (both by creating the tort and by its continued use) could be said to be different. But is that a sufficient reason to create a new tort?