Personal injury law: new torts, and new causes of action

As the cause of action in personal injury law has always been the starting point, there are now more of them in 2026. A Supreme Court of Canada (SCC) ruling this May recognised a new tort that did not exist in Canadian law before. At the same time, legislative reforms are quietly reducing what injured plaintiffs can actually recover.

For personal injury lawyers and their clients, the question is no longer just whether a case exists, but rather, it is which tools to reach out for in that specific case.

What is the causation test in Canadian personal injury law today?

The causation test has not changed since the Supreme Court of Canada settled it in Clements v. Clements, 2012 SCC 32. While the default is still the “but for” test, the “material contribution to risk of injury” is still there as the substitute.

The “but for” test in personal injury law

The “but for” test states that a plaintiff must show, on a balance of probabilities, that “but for” the defendant’s negligence, the injury would not have occurred. Under this test, the court does not require scientific proof, since a common-sense inference from the evidence is enough.

What that means in practice matters. The trial judge in Clements dismissed the claim partly because accident reconstruction modelling could not pinpoint the exact cause. However, the SCC said that was an error, stating that scientific precision is not a precondition. As such, courts are expected to take a practical, grounded approach to the evidence in front of them.

The “material contribution to risk of injury”

There is a second, narrower causation pathway that comes up occasionally, which is called the material contribution to risk. It is not a causation test at all, and the SCC described it as a policy-driven rule that lets plaintiffs recover where the “but for” causation cannot be proven.

The “material contribution to risk of injury” only applies when:

• the loss would not have occurred but for the negligence of two or more tortfeasors
• it is genuinely impossible for the plaintiff to prove which of them caused the injury, because each point at the other

One tortfeasor, one file, scientific uncertainty — none of that qualifies. As practitioners sometimes try to invoke this pathway in single-defendant cases, yet courts consistently turn it away. As held in Clements, these two approaches are “two different beasts,” and treating them as interchangeable is an error that can unravel a case on appeal.

What about multiple defendants

Where multiple defendants are involved and each can credibly deflect individual, material contribution to risk is the appropriate framework. Think of Cook v. Lewis, [1951] SCR 830, where two hunters fired simultaneously and no one could say whose shot struck the plaintiff.

Here, the plaintiff still needs to establish global negligence. Notably, it is a narrow exception, and Canadian courts have never extended it to a single-tortfeasor case.

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How does intimate partner violence tort expand personal injury claims?

For most of Canadian legal history, a victim of sustained domestic abuse had to squeeze their experience into existing torts, such as:

• assault for physical strikes,
• battery for contact, or
• intentional infliction of emotional distress for psychological harm

Under the law, each of these causes of action required proving a specific incident. However, none of them captured what actually happens in a coercive relationship: the slow erosion of a person’s autonomy over months or years.

That gap closed in May 2026 with Ahluwalia v. Ahluwalia, 2026 SCC 16, where the SCC recognised a new tort of intimate partner violence (IPV).

Grounded in coercive control, IPV is now a unique tort under Canadian personal injury law. The SCC in Ahluwalia held that existing torts were structurally incapable of addressing the distinct harm caused by coercion within an intimate relationship, specifically, the loss of dignity, autonomy and equality.

The three elements of IPV

To establish the new tort of IPV, a plaintiff must prove three things:

• the abusive conduct arose within an intimate partnership or its aftermath
• the defendant intentionally engaged in that conduct
• the conduct, assessed objectively and cumulatively, constitutes coercive control

Once those three elements are made out, no separate proof of harm is required. That is a deliberate departure from intentional infliction of emotional distress, which requires a visible and provable illness. Under the new tort of IPV, the coercive conduct itself is the harm.

What counts as coercive control under the tort of IPV

The SCC listed the following as capable of constituting coercive control, but putting a caution that this list is non-exhaustive:

• physical and sexual violence
• emotional and psychological abuse, including verbal abuse
• harassment, humiliation and denigration
• financial control, stalking and surveillance
• isolation from family, friends or employment
• litigation abuse
• threats involving children or threats of suicide by the abuser

More importantly, a single act of violence can constitute coercive control if it operates, in context, to subordinate the partner. The tort is not limited to patterns, and it extends beyond formal separation, since post-separation litigation abuse is expressly included.

The majority in Ahluwalia also addressed the persistent “family discount” in damages. In most cases, courts tend to award less for violence between intimate partners than for equivalent conduct between strangers. In this recent ruling, the SCC said plainly that damages must reflect the full harm, “without discount or exceptionalism.”

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What are the provincial law changes on personal injury compensation?

While the SCC was expanding personal injury doctrine, provincial laws are also tightening the financial framework around damages recovery. The combined effect across Ontario, Alberta, and Atlantic Canada is a narrowing of what injured claimants can realistically expect to receive.

Ontario: SABS and what is no longer automatic

As of July 1, 2026, many accident benefits that previously came automatically with any Ontario automobile insurance policy are now optional. For policyholders, it means that they must now actively purchase them.

Under Ontario Regulation 383/24, amending the Statutory Accident Benefits Schedule (SABS), the following benefits are no longer included as standard:

• income replacement benefits (previously up to $400 per week)
• non-earner benefits
• caregiver and housekeeping benefits
• funeral and death benefits

Medical, rehabilitation and attendant care benefits remain mandatory.

Effect of changes with the SABS

The tort implications are significant. Historically, defendants could set off accident benefit payments against tort damages. If fewer claimants carry income replacement coverage, that set off disappears and defendants face larger net liability.

Plaintiff lawyers should also note that the population now most at risk are precisely those excluded from the optional benefits. Examples would be:

• pedestrians
• cyclists
• non-vehicle owners

Those clients will increasingly arrive at tort claims without any accident benefits buffer.

Ontario: the deductible keeps climbing

As of January 1, 2026, Ontario’s statutory deductible on pain and suffering awards has also increased. Under the Insurance Act, the current figures are as follows:

• $47,913.01: deductible on non-pecuniary general damages
• $159,708.71: threshold above which the deductible disappears
• $23,956.52: deductible on Family Law Act loss of guidance, care and companionship claims

For instance, a plaintiff awarded $100,000 for pain and suffering takes home $52,086.99. As that gap grows every year, claims that were economically viable two or three years ago may no longer be, depending on the facts and expected award range.

Cap figures for Alberta and Atlantic Canada

Alberta’s minor injury cap rose to $6,306 effective January 1, 2026. This cap applies to sprains, strains and mild whiplash (WAD I and WAD II) that do not cause serious impairment. However, concussions, fractures, and nerve damage are never subject to the cap.

In Atlantic Canada, the 2026 cap figures are:

• Nova Scotia: $10,862
• New Brunswick: $9,926.59
• Prince Edward Island: $9,659
• Newfoundland and Labrador: no cap, but a flat $5,000 deductible on all general damages

What do these new rulings mean for personal injury lawyers?

The Ahluwalia decision and the provincial reforms do not move in the same direction. One expands liability, while the others compress recovery. Managing both is now the central challenge in personal injury practice.

The personal injury law for the plaintiff side

The new tort of intimate partner violence should be pleaded alongside existing torts, not in place of them. The Supreme Court was clear that existing causes of action remain available. Where coercive control can be established, the new tort provides a more complete remedy and removes the need to prove harm separately.

Evidence strategy shifts too. Practitioners no longer need to map every incident to a specific tort. Financial records, communications, testimony about isolation and control — all of it is relevant to establishing the cumulative pattern of coercive conduct.

Limitation periods remain an open question. An example is Ontario’s Limitations Act, which currently exempts civil claims for “assault” arising in intimate relationships, under s. 16(1)(h.2). Whether that exemption extends to the new tort is unresolved. Until there is clarity, practitioners should plead both the new tort and existing torts as alternatives.

Personal injury law on the defence side

The SABS reform creates new complexity around setoffs and insurer exposure. With fewer claimants carrying income replacement coverage, tort defendants can expect higher gross claims. Adjusting liability reserves and settlement ranges to reflect that shift is now a practical necessity.

For minor injury cap files in Alberta and Atlantic Canada, the “serious impairment” exception remains the primary battleground. Insurance adjusters routinely categorise injuries as minor. That assessment is frequently wrong and frequently contested, e.g., a soft tissue injury that persists and disrupts employment may qualify for uncapped compensation worth many times the cap amount.

Personal injury law: new causes of action are here

Canadian personal injury law has always rewarded practitioners who read the landscape early. The 2026 rulings and reforms are not minor adjustments; they represent a genuine recalibration of what is claimable, how it is proved, and what a client can expect to recover at the end of a file. The cause of action may be the starting point. The outcome depends on knowing which one to bring.

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