In Ahluwalia v. Ahluwalia, 2026 SCC 16, the Supreme Court of Canada (SCC) customised a new tort of intimate partner violence (IPV) in response to what it described as the “pernicious social ill”[1] of coercive control in intimate relationships. In doing so, the SCC granted family law litigants and survivors of IPV a powerful civil remedy; and practitioners, a comprehensive and structured primer on the advent of novel torts, marking a first in Canadian law.
Although this decision arose in a family law dispute, it is expected to shape the development of tort law well beyond the confines of family law, making it an essential read for all civil litigators. This article focuses on the SCC’s preion governing the evolution of new torts.
Background
The story unfolds along an extraordinary trajectory. In 2022, Ms. Ahluwalia, a self-represented litigant won an 11-day trial in a divorce suit filed by her husband. The trial judge found that Ms. Ahluwalia’s 16-year long marriage had been characterised by a consistent pattern of coercion and control by her husband and was “not just ‘unhappy’ or ‘dysfunctional’; it was violent.”.[2]
As part of her plea, Ms. Ahluwalia sought damages for the physical and mental abuse she had suffered in the marriage. In normal course, her plea for damages would have been part of a separate civil action and considered under existing intentional torts of battery, assault and intentional infliction of emotional distress. In this case, the trial judge, unprompted by either party, took the unusual step of inviting submissions on whether a tort of family violence should be recognised.
Citing the limitations of traditional torts to account for longstanding patterns of violence and coercive behaviour in abusive relationships, the trial judge endorsed a new tort of family violence modelled on the definition of “family violence” in the Divorce Act.[3] The trial judge awarded $50,000 each in general, aggravated and punitive damages ($150,000 in total) both under the new tort and the traditional torts. Mr. Ahluwalia appealed.
The Court of Appeal unanimously overturned the lower court on grounds that existing torts already provided adequate remedies to victims of IPV and, in this case, had duly compensated Ms. Ahluwalia. The punitive damages were struck and the total award reduced to $100,000.
Ms. Ahluwalia appealed to the SCC. Her appeal concerned one question alone - whether a new tort of family violence ought to be recognised. Neither party contested the Court of Appeal’s findings or award under the traditional torts. Despite having “won” and been fully compensated, Ms. Ahluwalia found herself as an appellant before the SCC on the question of a new tort, marking yet another unusual turn in her remarkable story.
The SCC Decision
In a 6-3 decision, the SCC partially allowed the appeal. Kasirer J., writing on behalf of five judges, articulated a framework for recognising novel torts; endorsed the new tort of IPV grounded in coercive control; and upheld the Court of Appeal’s damages award. Applying the new framework to the facts, the majority endorsed a new tort of intimate partner violence with the following elements: (1) the wrongful conduct must have occurred in the course of an intimate partnership or its aftermath; (2) the abusive conduct by the defendant must have been intentional; and (3) the defendant’s conduct must be shown, on an objective basis, to be coercive control.[4]
Karakatsanis J. concurred in the majority result but differed on the scope of the tort, concluding that it should cover all forms of violence within intimate relationships and not just be limited to acts of coercive control. Jamal J., writing for the three-person minority, found that a new tort was not warranted, as Ms. Ahluwalia had already been adequately compensated under traditional torts.
Framework for Recognising Novel Torts
The common law evolves incrementally in cautious steps customised to address gaps in law based on particular facts and changing mores of society. On one hand, judge-made law must be nimble enough to remain relevant and responsive to evolving times, needs and values. On the other hand, judges must refrain from engaging in major policy or law reform, which in a constitutional democracy, is the bailiwick of the legislature. The line between judicial restraint and judicial activism, though not always apparent, must always be held in balance.
Well-attuned to these complexities, both the majority and dissent endorsed an incremental, analogy-based approach to the evolution of tort law, grounded in principles of judicial restraint and necessity. In doing so, they drew from Sharpe J.’s guidance in Jones v. Tsige, 2012 ONCA 32, where His Honour held that the recognition of a novel tort is justified where the circumstances “cry out for a remedy” or put simply, reveal a recognised legal wrong that existing causes of action fail to address.[5] Founded on these principles, the majority articulated the following framework for the recognition of a new tort:[6]
(1) The facts must demonstrate a wrongful act that offends a recognised legal interest protected by private law.
(2) Existing remedies must be inadequate to address the harm.
(3) Only where the above threshold requirements are satisfied should the court proceed to determine whether the new tort is tailored to address the wrong in a manner consistent with the purposes of tort law and the parameters of the proper role of the judiciary.
Conflicting Views of Incrementalism
Despite their concurrence on fundamental principles governing the advancement of common law, the majority and dissent vigorously disagreed on the application of these principles, reaching opposite conclusions. At the heart of the disagreement were their competing views on incrementalism; specifically, about where the boundary lay between incrementalism and activism.
The majority found that traditional torts fell markedly short in providing redress to victims of IPV, thereby exposing a gap in law that called for a remedy. Existing torts were designed to address discrete or episodic instances of violence and abuse but failed to recognise or account for the profound loss of dignity, autonomy and equality inflicted through coercive control in intimate relationships. Irrespective of the quantum of damages, which in this case was not in dispute, a tort regime that failed to acknowledge the true nature of the harm it sought to redress, was inadequate. The majority carefully crafted the tort of IPV tailored to bridge the precise gap it had identified.
In contrast, the dissent concluded that no gap existed in the law. Traditional torts, in its view, were able to fairly compensate victims of IPV by awarding enhanced damages to account for the unique harm associated with IPV. The dissent emphasized that any development in the common law had to be grounded in the facts before the court. As Ms. Ahluwalia had received an adequate award of damages under the traditional torts, there remained no doctrinal gap necessitating the recognition of a new tort in her case. The dissent’s approach represents a more restrained version of incrementalism.
Conclusion
The law of torts follows the story of time. As time evolves, so do our values. With rapid advancements in technology, particularly AI, the very nature of human interactions and transactions is in flux. Tort law, if it is to remain relevant, will inevitably have to adapt. When it does, courts and litigants will have the benefit of the analytical framework gifted by the SCC in this case. Yet, as the sharp divide between the majority and dissent demonstrates, a framework does not predict outcomes. How future courts will interpret and apply the framework remains to be seen.
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