Intentional torts: when intent counts, with or without a bruise

Not every bruise tells the full story in tort law, and sometimes there is no bruise at all. Canadian intentional torts cover a wider range of wrongs than most people expect, and the law does not require a visible injury to make them stick.

In this article, we’ll answer some questions regarding intentional torts, such as where battery ends and emotional harm begins, or why a defendant’s insurer might refuse to answer the door.

What are intentional torts in Canadian personal injury law?

Intentional torts are civil wrongs where the defendant meant to do the act that caused harm, even if they never intended the harm itself. They sit alongside negligence in Canadian tort law, but the two are legally distinct in ways that affect how a case is built, what damages are available, and who ultimately pays.

In general, intentional torts are deliberate acts (hence, the “intentional” part) which are intended either to:

• injure the other person, or
• interfere with the other person’s rights

The most common examples in Canadian personal injury litigation include:

• assault (threatening imminent harmful contact)
• battery (unwanted physical contact)
• intentional infliction of emotional distress (IIED)
• false imprisonment
• invasion of privacy

Here’s a video which explains the fundamental elements of the intentional torts of assault and battery:

Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to learn about the factors that lawyers and litigants should not miss in these cases.

Intentional torts vs. “Unintentional” torts

More than just the type of conduct involved, intentional and unintentional torts can be differentiated in this way:

• negligence or unintentional torts: rests on the defendant’s failure to meet the standard of the reasonable person under the same circumstance
• intentional tort: rests on the defendant’s state of mind; here, the plaintiff must show the defendant chose to engage in the act itself

This distinction shapes how courts assess liability and how claims must be pleaded. For instance, under r. 25.06(8) of Ontario’s Rules of Civil Procedure, intentional torts require “full particulars.” This means that vague allegations in a pleading will not survive a pleadings motion.

In Ceballos v. DCL International Inc., 2018 ONCA 49, the court said that pleadings for intentional torts must:

• meet a “stringent standard of particularity,” and
• be drafted with “clarity and precision”

Two Ontario decisions reinforced this standard. In Dorceus v. Ontario, 2026 ONCA 321, and Hartman v. Canada (Attorney General), 2026 ONCA 270, the court has stricken out the claims for intentional torts since the pleadings offered no particularised allegations of intent or malice.

Defences against intentional torts

Under Canada’s personal injury law, there are three main defences that are available against any claim for intentional torts:

• consent: this includes whether the person had capacity to consent and whether consent was later revoked
• self-defence: it must be genuine and there must be a reasonable belief in danger, and not just simply a counterattack
• legal authority: that parents, teachers, and police officers have acted within their lawful limits

Does intent to harm matter in a battery claim?

The short answer is no, and this may surprise many defendants. Battery in Canada requires three things:

• intentional physical contact,
• contact that is non-trivial, and
• contact that is offensive because the plaintiff did not consent

What it does not require is any intent to cause harm.

Battery claims and patient’s consent

This was settled in Malette v. Shulman, 72 OR (2d) 417, where the Ontario Court of Appeal upheld a battery finding against a physician who gave a blood transfusion to an unconscious Jehovah’s Witness despite her written refusal.

While the physician intended to save the patient’s life, the physician was still found liable regardless, with $20,000 in damages awarded. The court said that “[t]he right to determine what shall be done with one’s own body is a fundamental right in our society.”

The battery test under common law

Drawn from Bahmutsky v. Griffiths, 2022 BCCRT 184, the modern battery test asks the following questions:

• was there intentional physical contact?
• was the contact non-trivial?
• was the contact offensive, meaning the plaintiff did not consent?

Because battery is tied to specific incidents of physical contact, it does not capture the ongoing toll of prolonged manipulation, financial control, or isolation. That gap is what Ahluwalia v. Ahluwalia, 2026 SCC 16, was built to address.

What did Ahluwalia change for intentional infliction claims?

The tort of IIED has its roots in the 1897 English case of Wilkinson v. Downton, [1897] 2 Q.B. 57. Here, the defendant told a woman, as a practical joke, that her husband had been seriously injured in an accident. Even though it was false, she suffered a violent shock to her nervous system, vomiting, and weeks of incapacity.

The court in Wilkinson held that the defendant is liable because he had “wilfully done an act calculated to cause physical harm to the plaintiff.” It added that “it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs.”

That principle evolved in Canada into a three-part test requiring conduct that is:

• flagrant or outrageous,
• calculated to produce harm, and
• resulting in a visible and provable illness

What changed in the Ahluwalia IIED case

The Supreme Court in Ahluwalia exposed where this test falls short.

The court found that chronic low-level coercive conduct often fails the “flagrant or outrageous” threshold when any single act is viewed in isolation. This conduct includes financial control, surveillance, isolation, and verbal degradation.

The “visible and provable illness” requirement also excludes victims whose harm is real but not yet clinically diagnosable.

To address this, the majority recognised a new tort of intimate partner violence (IPV), which is grounded in coercive control. Under this new tort, the plaintiff must establish three elements:

• the abusive conduct arose in an intimate partnership or its aftermath
• the defendant intentionally engaged in that conduct
• the conduct, assessed objectively, amounts to coercive control that deprives the plaintiff of dignity, autonomy, and equality

Types of conduct capable of constituting coercive control include:

• physical and sexual violence,
• emotional and psychological abuse,
• financial control,
• stalking,
• isolation,
• litigation abuse, and
• threats involving children

In IPV, no separate proof of consequential harm is required, since the harm flows from proof of the wrongful conduct itself.

The “family discount” problem

The court also confronted the “family discount” problem. As cited in Ahluwalia, a 2024 survey by legal scholar Samantha Eisen of 65 final decisions on spousal violence tort claims found the average award across Canadian family courts was $43,512.57, with a median of just $17,500.

As such, the court held that damages in IPV cases must fully compensate the plaintiff “without discount or exceptionalism.”

Assault, which is another type of intentional torts, can also result in a criminal charge. Watch this video to learn more about assault charges under Canadian criminal law:

Head over to Canadian Lawyer’s Events page for more in-person lawyer conferences and activities to get insights from legal professionals across the country on various topics.

When does an insurer have to cover an intentional tort?

Standard liability policies cover accidents, which means they cover fortuitous losses. However, if a claim is grounded in an intentional tort, the insurer will likely point to an intentional act exclusion and refuse to defend or indemnify the claim.

Duty to defend vs. Duty to indemnify

The duty to defend is broader than the duty to indemnify. As held in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, an insurer must defend wherever the facts alleged, if proven, would raise even a possibility of coverage.

When negligence pleadings won’t save coverage

However, when the true nature of a claim is intentional, adding negligence to the pleadings will not preserve the coverage.

In Henderson v. Northbridge General Insurance Corporation, 2021 BCSC 1841, the British Columbia Supreme Court held that where negligence and assault arise from the same actions and cause the same harm, the negligence claim is subsumed into the intentional tort. The Ontario Superior Court reached the same conclusion in Jack-O’s Sorts Bar v. US Liability Insurance Co., 2023 ONSC 5925.

When coverage can still apply

One exception remains: coverage can exist where the act was intentional, but the consequences were not. In Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Company, 2015 ONCA 702, it was confirmed that the fortuity principle bars coverage for intentional acts with intended consequences, but not for every intentional act where the resulting harm was unforeseen.

Intentional torts: deliberate acts matter, not the bruises

Intentional torts have always asked courts to look past the injury and focus on the choice behind the act. The challenge therefore is knowing which tort fits the facts, pleading it with the particularity the courts demand, and planning from day one for the likelihood that no insurer will be at the table.

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