Friday with Rogers Partners

August 19, 2023

At our weekly meeting, Megan Chan discussed the recent decision of the Ontario Court of Appeal in Ahluwalia v. Ahluwalia, 2023 ONCA 476.

Overview:

The Ontario Court of Appeal has overturned the Superior Court’s decision, in which the new tort of family violence was established. The Court of Appeal found that while intimate partner violence is a pervasive social problem, the existence of family violence, does not, by itself, justify the creation of a new tort.

The existing torts of assault, battery, and intentional infliction of emotional distress were adequate alternate remedies to address the harm suffered by the plaintiff. Moreover, existing torts are capable of addressing the pattern of tortious conduct that lies at the heart of family violence.

Brief Facts:

The parties, husband (appellant/defendant) and wife (respondent/plaintiff), were married for 17 years. Their marriage was characterized by a pattern of emotional and physical abuse, as well as financial control.

Issue:

Did the trial judge err in creating the new tort of family violence?

Law:

The test for the creation of a novel tort comes from Jones v. Tsige[1]: the creation of a new tort is only appropriate when there is a harm that “cries out” for a legal remedy that does not exist.

Torts should not be created where:

  1. there are adequate alternative remedies;
  2. the tort does not reflect and address a wrong visited by one person upon another; or
  3. where the change wrought upon the legal system would be indeterminate or substantial.[2]

ONSC decision:

The trial judge found that there was a gap in the law. She found that the existing torts (assault, battery, and intentional infliction of emotional distress) focused too specifically on the harmful incidents and did not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family.

She held that a plaintiff could establish a defendant’s liability for the tort of family violence in any one of the following three ways:

  1. Intentional conduct that was violent or threatening;
  2. Behaviour calculated to be coercive and controlling to the plaintiff; or
  3. Conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.

In the liability analysis, the focus must be on specific, particularized conduct, with reference to specific incidents. A plaintiff must show a pattern of conduct that included more than one incident of abuse. Once liability was proven, the nature of the family violence would be relevant to damages, with aggravated and punitive damages available as well.

The trial judge found the husband liable for the tort of family violence and found him liable, in the alternative, for the torts of assault, battery, and intentional infliction of emotional distress. She awarded a total of $150,000 in damages: $50,000 for each of compensatory, aggravated, and punitive damages.

The position of the parties on appeal:

The husband conceded his liability with respect to the existing torts of assault, battery, and intentional infliction of emotional distress. However, he argued that the new tort of family violence should not be recognized, specifically because the creation of this tort constituted a change that would fundamentally change family law, and hence was a change better left to the legislature. Regarding damages, he argued that the award was excessive and disproportionate.

The wife argued that the creation of the new tort was necessary because existing torts did not address the cumulative harm caused by a pattern of family violence. In the alternative, if the court of appeal was not prepared to uphold the creation of the tort, she argued that the court should create a narrower tort of “coercive control”. The proposed tort of coercive control would be made out where a person:

  1. In the context of an intimate relationship
  2. Inflicted a pattern of coercive and controlling behaviour
  3. That, cumulatively, was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.

Regarding damages, the wife submitted that the trial judge’s award should be afforded deference. She argued that the aggravated damages for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct as well as punitive damages based on the social harm associated with family violence were justified.

ONCA decision:

The tort of family violence

While the court of appeal took no issue with the trial judge’s inclusion of a tort claim in a family law proceeding, the Court of Appeal held that the creation of the novel tort was unnecessary. The creation of a new tort is only appropriate when there is a harm that “cries out” for a legal remedy that does not exist.

The Court of Appeal held that the facts, as found by the trial judge, fell squarely within the existing jurisprudence on assault, battery, and intentional infliction of emotional distress. In finding liability under the three alternative existing torts, the trial judge was able to address the harm the plaintiff suffered.

Existing torts are flexible enough to address patterns of behaviour, with respect to both the analyses for liability and damages. The Court of Appeal discussed numerous cases where courts a) have recognized that patterns of physical and emotional abuse constitute tortious behaviour and did not limit their focus to individual incidents, b) found that a pattern of behaviour became tortious, despite the individual incidents not being tortious, and c) specifically considered the pattern of abuse to justify a higher award.[3]

The tort of coercive control

The Court of Appeal also declined to create the narrower tort, as proposed by the wife. The main difference between the proposed tort (coercive control) and the existing tort (intentional infliction of emotion distress) is the removal of the requirement for plaintiffs to show harm.

First, there was no need to create a new tort because the existing torts provided an adequate remedy. Second, on the facts, there were visible and provable injuries (physical abuse), thus, there was no need for the court to consider whether to remove the proof of harm requirement. Third, the elimination of the requirement to prove harm would be a significant change to the law that would be best left to the legislature.

Damages

The court of appeal upheld the trial judge’s award for compensatory and aggravated damages, despite admitting that the award was higher than in many previous cases. The higher award was justified because a) a trial judge’s assessments of damages attract a high level of deference, b) the higher award reflects the developing understanding of the harm of intimate partner violence, and c) the award reflects the society’s abhorrence towards the conduct.

However, the Court of Appeal allowed the appeal with respect to punitive damages because the trial judge failed to address why the general and aggravated awards were insufficient to achieve denunciation and deterrence of family violence.[4]

Takeaway:

The tort of family violence no longer exists in Ontario. Plaintiffs seeking relief for family violence should instead frame their claim in tort with respect to other existing torts. To justify the creation of a new tort, the facts must reveal a gap in the existing law.[5] While a pattern of abuse is not an independent cause of action, plaintiffs should still raise evidence relevant to a pattern because such evidence can help justify an award of higher damages.

[1] 2012 ONCA 32.

[2] Nevsun Resources Ltd. v. Araya, 2020 SCC 5

[3] O.O.E v A.O.E., 2019 SKQB 48; C.S.F. v J.F., [2002] O.J. No. 1350; MacKay v Buelow (1995), 11 R.F.L. (4th) 403 (Ont. Gen Div.); Valenti v Valenti (1996), 21 R.F.L (4th) 246 (Ont. Gen. Div.), affirmed (1998) 41 R.F.L. (4th) 289 (C.A.); Dhaliwal v Dhaliwal, [1997] O.J. No. 5964 (gen. Div.); N.C. v W.R.B., [1999] OJ No 3633 (S.C.); Warman v Grosvenor (2008), 92 O.R. (3d) 663 (Sup. Ct); Jones v Tsige, 2012 ONCA 32; Calin v Calin, 2019 ONSC 3564; Jane Doe 72511 v Morgan, 2018 ONSC 6607, Farkas v Kovacs, [1989] O.J. No. 2387 (Dist. Ct.); S. (L.N.) v (W.M.), 1999 ABQB 478; Van Dusen v Van Dusen, 2010 ONSC 220; McLean v Danicic (2009), 95 O.R. (3d) 570 (S.C.).

[4] Whiten v. Pilot Insurance, 2002 SCC 18 sets out the principles for determining an award of punitive damages.

[5] See Caplan v. Atas, 2021 ONSC 670 where the court recognizes the tort of internet harassment.