A Supreme Court of Canada decision on Friday could result in the landmark recognition of a new tort
There are 17 intervenors in Ahluwalia v. Ahluwalia, the Supreme Court of Canada case that, when decided on Friday, could result in the landmark recognition of a new tort: family violence.
In Ahluwalia v. Ahluwalia, the plaintiff, who suffered physical, financial, and emotional abuse by her husband of several decades, was representing herself in family law proceedings against her husband when she essentially pleaded the novel tort of family violence.
According to the Ontario Superior Court of Justice, which agreed to recognize the new tort and outlined its parameters in 2022, the plaintiff did not plead any of the existing torts that covered aspects of her husband’s abuse: assault, battery, or intentional infliction of emotional distress. The Ontario Court of Appeal declined to recognize the new tort the following year.
For most of the intervenors in the case – including the Attorney General of Canada, human rights organizations, and women’s shelters – the stakes are clear: creating the tort of family violence would streamline the process for domestic violence survivors to pursue damages, allowing them to file a single tort claim instead of pursuing multiple torts that often fail to account for the full breadth of the abuse they’ve suffered.
In its 2022 decision, the Ontario Superior Court of Justice had stated that a defendant was liable for the tort of family violence if they’d engaged in any of three types of conduct or behaviour: conduct that was violent or threatening, behaviour that was calculated to be coercive and controlling to the plaintiff, or conduct that the defendant knew would cause the plaintiff to fear for their safety or that of another person.
This conceptualization of family violence is broader than that encompassed by existing torts that typically apply to cases involving domestic abuse. Angela Marinos, chief general counsel for one of the intervenors, the Raoul Wallenberg Centre for Human Rights, calls the tort of family violence an “umbrella tort.”
It captures “the conglomerate of violence that occurs in the setting of intimate partner violence,” Marinos told Canadian Lawyer in an email this week. This includes, she says, “not only physical violence, which is devastating enough, but also, more insidious and ‘invisible’ forms of psychological violence, emotional abuse, and coercive control: e.g., isolating victims and survivors from family members, colleagues and the community at large; preventing them from pursuing training, employment or other avenues of financial freedom; dehumanising them; and taking away their sense of agency, security and liberty.”
Shalini Konanur, executive director and a lawyer at the South Asian Legal Clinic of Ontario, another intervenor, said Thursday that the ramifications of the Supreme Court recognizing the tort of family violence would extend beyond civil proceedings.
“We have clients who have not been physically harassed, but for years and years and years have had no financial control, have been isolated, have not been able to speak to their families back home,” Konanur says. By recognizing the new tort and its broader conceptualization of how domestic violence operates, she says, the SCC would make it possible for survivors of domestic violence to rely on that conceptualization in both civil and non-civil proceedings.
For example, survivors who leave their partners and apply for welfare will be able to point to the new tort’s definition of family violence to make their case, in the event there is any pushback from social assistance programs. They could also potentially cite the tort in immigration proceedings. “We can link [the tort] to the experience that a woman has had to say, ‘This is violence, and that’s why she’s left, and that’s why you need to safeguard her immigration status,’” Konanur says.
“That really is a distillation of how something at the Supreme Court trickles all the way down to the practical realities for people facing violence in the work that we do.”
The vast majority of the intervenors in the case support the recognition of the new tort, including the federal government, which argued that such a tort would complement its own efforts to make the justice system more responsive to victims of intimate partner violence.
The exception is the Tort Law and Social Equality Project. In a factum filed with the SCC, the TLSE said it was not taking a position on whether the high court should recognize the tort of family law.
Instead, the organization said it aimed to clarify that there are three options before the SCC: recognizing that existing torts already capture the facts of family violence, modifying the existing torts to make them capable of capturing those facts, or creating a new tort of family violence to capture those facts.
Hassan Ahmad, counsel for the TLSE, notes that it is rare for new torts to be created, with the courts only recognizing a handful – including internet harassment and intrusion upon seclusion – in recent years.
While Ahmad says he believes addressing intimate partner violence is important, he argues that framing Ahluwalia v. Ahluwalia as a case that is simply about providing a remedy to survivors belies a narrow understanding of its stakes.
“If you take a step back, what I think is really at issue is what is the role – not just of tort law – [but] of the courts when we look at pressing social issues” like intimate partner violence, Ahmad says.
Many people might argue that legislatures, not courts, should be tackling such issues, or that courts shouldn’t use a single dispute between spouses to devise policy on family violence, he says.
“What’s really at stake here is the role and the limits of the law, and the role and the limits of [the] court, and the separation of powers between the courts and the elected branches of government,” Ahmad adds.
