Introduction
In Ahluwalia v Ahluwalia, the Supreme Court of Canada took the unprecedented step of inaugurating a novel ‘tort of intimate partner violence’ targeting coercive control.Footnote 1 In giving benediction to this new nominate tort, the judgment charts a creative path for the law of torts in Canada, which will be of interest to Anglo-Commonwealth scholars and jurists more broadly. This comment highlights the principal innovative aspects of the Court’s decision, while identifying some analytical issues in its reasoning and cautioning against its uncritical adoption.
1. Facts and procedural history
The parties were married in 1999 and separated in 2016. In post-separation proceedings, the claimant sought damages for physical and psychological abuse she suffered from her ex-husband over the course of their marriage. At trial in the Ontario Superior Court, Mandhane J interpreted the pleadings of the claimant, who was self-represented, as seeking a novel ‘tort of family violence’.Footnote 2 The trial judge awarded compensatory and punitive damages under this novel cause of action, which, she held, subsumed the torts of assault, battery, and intentional infliction of emotional distress.Footnote 3
On appeal, the Court of Appeal for Ontario allowed the husband’s appeal in part, setting aside the punitive damages award. Now represented by counsel, the claimant maintained that the ‘tort of family violence’ or, alternatively, the ‘tort of coercive control’ should be recognised. The Court of Appeal rejected this submission, on the basis that the existing torts were adequate to redress the misconduct.Footnote 4 After this stage, the parties had fixed the quantum of damages by settlement.
The Supreme Court of Canada granted the claimant leave to appeal solely on the issue of whether a new tort of family violence should be recognised. In a monumental, 249-paragraph judgment, the majority (per Kasirer J) held that a ‘tort of intimate partner violence’ should be created to redress what it called ‘a qualitatively distinct wrong’ that pertains to coercive control in intimate partnerships.Footnote 5 In concurring reasons, Karakatsanis J favoured extending the new tort further, by treating it as a ‘one-stop shop’ that captures not just coercive control, but all acts or threats of ‘violence’ that cause physical or psychological harm.Footnote 6 The dissenting judges (per Jamal J) concluded that the misconduct was compensable under existing torts and that the new tort was unnecessary.Footnote 7
In the result, the majority ruled that the defendant ex-husband was liable under the novel tort. Apart from the numerous instances of physical violence and emotional abuse, Kasirer J also identified the defendant’s exertion of financial control over the claimant as comprising a form of coercive control. While married, the defendant had ‘collected [the claimant’s] income, made every financial decision, and monitored her spending habits’.Footnote 8 Due to the parties’ settlement, the Court could only vary the Court of Appeal’s judgment by specifying an ‘order’ that ‘the new tort of intimate partner violence is recognized’ and apportioning the damages to reflect compensation awarded for this tort.Footnote 9
2. Commentary
The judicial creation of a new tort has been described as ‘obviously an extraordinary and quasi-legislative act for a court of law to take’.Footnote 10 The length and complexity of the Ahluwalia judgment, along with the wide breadth of legislative and scholarly materials it considers, is certainly consistent with a legislative mode of reasoning. Although Canadian courts have long disavowed the power to create new common law offences,Footnote 11 the Ahluwalia judgment asserts a judicial power to craft new civil causes of action, a power that other Commonwealth courts have doubted or disclaimed at common law.Footnote 12
(a) Procedural issues
A preliminary issue was that the appeal lacked a proper basis. It is trite that an appeal is from the judgment, not the reasons.Footnote 13 At the Supreme Court, the claimant expressly declined to contest the quantum of damages on appeal, but challenged only the Court of Appeal’s rejection of a tort of family violence. As a result, it had been argued that leave to appeal was improvidently granted, the claimant having received the very relief she sought from the defendant.Footnote 14 The majority denied that the appeal was moot, noting that the Court of Appeal’s order included ‘a declaration that “new torts of domestic violence or coercive control as defined in this case shall not be recognized”’.Footnote 15 According to Kasirer J, this amounted to a ‘declaratory ruling’ between the parties, which the claimant was entitled to challenge on appeal.Footnote 16
However, this assertion conflates a declaratory ruling as to a legal state of affairs between the parties with a statement of law in abstracto. It is well settled that the point of declaratory orders ‘is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights … of the parties represented in the litigation before it and not those of anyone else’.Footnote 17 In principle, it was otiose for the Court of Appeal to insert a general proposition of law into its formal order, and the Supreme Court lacked the jurisdiction to substitute for it a ‘declaration’ that a new tort is recognised at common law. In any event, given the parties’ settlement on damages, it was doubtful that a properly adversarial context existed on appeal.
(b) Framework for recognising a new tort
The majority characterised its creation of a ‘tort of intimate partner violence’, which had never been recognised in the authorities, as a ‘proper incremental development of the common law’.Footnote 18 While the majority acknowledged that prior jurisprudence had declined to enunciate ‘a general set of principles for the recognition of new torts’, Kasirer J set out a framework for such recognition: (i) there must be a recognised legal interest in private law; (ii) existing remedies must be inadequate; and (iii) the novel tort must be tailored to the wrong and consistent with the proper role of the judiciary.Footnote 19 It may be questioned whether this new ‘framework’ amounts to a universal test that is at odds with the traditionally casuistic and ‘analogical’ method of the common law.Footnote 20
On the framework’s first limb, the Court devoted significant attention to the distinctiveness of intimate partner violence as a civil wrong, compared to existing torts of assault, battery, and intentional infliction of emotional distress. The proffered justification was two-fold. First, the majority reasoned that this wrong is the breach of an ‘inherent trust that distinguishes misconduct within intimate partnerships from that between strangers’, likening it to a fiduciary breach.Footnote 21 But this comparison sits uneasily with its later conceptualisation of the wrong of intimate partner violence, or coercive control, as a ‘denial of autonomy’.Footnote 22 Despite suggesting that spouses are akin to each other’s fiduciaries, the majority insists that each party nevertheless maintains ‘the capacity to make fundamental decisions in accordance with one’s values, free from unjustified interference from others’.Footnote 23
This conception of marriage, as a locus of interaction between two atomised individuals who retain a mutual independence and autonomy, is consistent with a theory of possessive individualism.Footnote 24 But one may question whether this view truly approximates the complex reality of intimate relationships. Arguably, that intimacy consists precisely in the parties ceasing to view each other as fully separate persons bearing independent interests.
Second, the majority drew upon the condemnation of intimate partner violence in the criminal law, suggesting that an ‘emerging consensus’ supported the creation of the tort.Footnote 25 This emphasis on condemnation is atypical in tort, where standards of conduct are not defined by culpability or blameworthiness. In relying on criminal norms to justify a new tort, the majority departs from this settled view of the differing purposes of criminal and tort liability. Like English courts, Canadian courts had long disapproved the notion that torts could be modelled on criminal offences to ‘tortify’ the criminal law.Footnote 26 There are good reasons for that judicial policy. It is founded on the divergent purposes of criminal and civil law, as well as a principle against privatising the enforcement of criminal wrongs.Footnote 27 Conversely, the Ahluwalia judgment may invite a proliferation of new torts as private litigants seek to enforce criminal proscriptions.
The majority does not appear to have appreciated that condemnation is exceptional in tort law. The judgment stated that tort remedies for intimate partner violence must ‘be corrective and strongly denunciatory’, while simultaneously affirming that ‘corrective justice’ is ‘the central animating principle underlying tort law’.Footnote 28 But this is conceptually confused, for corrective justice is concerned with undoing the wrong, not deterring or denouncing at large. Indeed, the Supreme Court of Canada previously endorsed this very conception of corrective justice, explaining that ‘[t]ort law does not treat plaintiffs “merely as a convenient conduit of social consequences”’.Footnote 29
As to the adequacy limb, the majority held that the wrong of intimate partner violence must be redressed independently of the physical or emotional incidents of abuse. In its view, assault, battery, and intentional infliction of emotional distress were inadequate to respond to the ‘generalized fear of future harm’ and ‘the abusive deprivation of an intimate partner’s autonomy’ that coercive control produces.Footnote 30 This arguably attributes an undue rigidity to the existing torts, as the dissenting judges pointed out. In prior cases, Canadian courts rejected the existence of distinct torts of ‘incest’, ‘medical battery’, and ‘sexual battery’. Instead, they reasoned that while these wrongs implicate a ‘larger social context’, that context can inform the application of ordinary tort principles, such as reasonable discoverability for limitations purposes.Footnote 31
The majority contended that ‘[a]ggravated damages provide no answer to coercive control as a distinct wrong’, since the breach of trust in intimate partner violence ‘is not merely an aggravation of physical or psychological harm’.Footnote 32 This conclusion is overstated, if it implies that such breaches of trust do not exacerbate the psychological harms inflicted on victims of abuse by intimate partners. It is common for aggravated damages to be awarded to compensate for this kind of harm, where the tort ‘occurred in humiliating or undignified circumstances’.Footnote 33 Similarly, punitive damages have been awarded for breaches of fiduciary duty, which could conceivably be extended by analogy to cases of intimate partner violence.Footnote 34 There is good reason to think that existing tort remedies were capable of redressing the betrayal of trust that occurs in intimate partner violence.
(c) Elements of the new tort
To tailor a remedy to the distinctive wrong, Kasirer J crafted a novel tort of intimate partner violence, discarding the proposed tort of family violence. Despite the name, the tort is not limited to acts or threats of violence, but encompasses ‘coercive or controlling conduct by which one partner overpowers the will of the other’.Footnote 35 This newly invented tort has three elements, requiring that: (i) the abusive conduct arises in an intimate partnership or its aftermath; (ii) the defendant intentionally engaged in that conduct; and (iii) the conduct constitutes coercive control. Like other intentional torts, it is actionable per se.Footnote 36
Given the focus on coercive control, it is curious that the Court named the tort one of ‘intimate partner violence’. Kasirer J ostensibly justified this label as ‘a term widely used and understood by courts, academics, and, most importantly, the public’.Footnote 37 But he immediately qualified this remark, insisting that despite its ordinary meaning, the term ‘violence’ is not to be restricted to physical violence but must be taken to include all forms of coercive control.Footnote 38 The better approach was plainly to label it as a ‘tort of coercive control’.
The third element is most likely to generate unpredictability, as courts and litigants struggle to define coercive control. Kasirer J cited a non-exhaustive litany of conduct that could qualify, including ‘tactics of isolation; manipulation; humiliation; surveillance; physical, psychological, sexual, and emotional abuse; and intimidation’.Footnote 39 Conversely, it is said not to include mere ‘dishonesty, infidelity, emotional neglect, lack of maturity, or even cold and dismissive conduct’.Footnote 40 And ‘acts of resistance’ by victims of coercive control are not to be captured by the tort, though a specific definition of such acts was elusive.Footnote 41
There is a fine line between ‘abusive conduct’ and ‘simply antisocial conduct’.Footnote 42 The majority rightly acknowledges that any intimate partnership will, by nature, involve ‘a certain degree of sacrifice of personal freedom’ for the sake of a shared life.Footnote 43 Still, outside egregious cases that are already compensable under existing torts, the precise threshold for coercive control remains unclear.Footnote 44 It is conceivable that expert evidence may be needed to assist courts in distinguishing between the merely dysfunctional and the wrongfully coercive.Footnote 45 Meanwhile, the introduction of excuse-like considerations, through the exclusion of ‘acts of resistance’, represents an innovation in an area of law that does not recognise excuses.Footnote 46
The open-textured definition of coercive control, along with its exclusions, are likely to complicate the adjudication of this tort. This is especially as the courts will often be confronted with intersecting claims between former partners, along with conflicting evidence on a wide-ranging course of conduct by one party against another. What constitutes coercive control is to be determined objectively.Footnote 47 But the dissent fairly notes that this will require ‘large volumes of evidence – including the history of the relationship and records of daily communications – to fully contextualize the perspective of the reasonable person’.Footnote 48 These complications are likely to weaken claims that the new tort will deliver ‘access to justice’ for victims of intimate partner violence.Footnote 49
To reiterate, it is anomalous for a court to utilise a declaratory judgment to make a general pronouncement of law. Under the common law tradition, it is held that judges have no power to decide, as if legislating, what the law is in the abstract; rather, they apply their understanding of the law to determine the rights and duties of the parties in resolving a live dispute.Footnote 50 By ordering the ‘recognition’ of a new tort, the Supreme Court of Canada steps beyond this adjudicative role and acts in a quasi-legislative capacity.
Most troubling, then, is the judgment’s apparent ambivalence on the normative foundations of this novel tort. The majority hedges on whether tort law is founded upon rights, calling it ‘a point on which [commentators] disagree’, and preferring instead to frame the new tort as protecting against ‘interference with dignity, autonomy, and equality in the intimate relationship’.Footnote 51 This tripartite formulation – ‘dignity, autonomy, and equality’ – recurs throughout the reasons but, at best, offers only a vague description of the protected legal interest. Elsewhere, Kasirer J repeatedly refers to the intimate partner violence tort as protecting a distinct ‘right’ and the purpose of tort law as being ‘to enable litigants to vindicate their rights’.Footnote 52 This diffidence was unwarranted, considering that the Court has already endorsed a rights-based approach to tort law.Footnote 53 Regrettably, the concurring reasons also promulgate confusion by erroneously suggesting that an interference with an actionable right is insufficient to constitute a civil wrong.Footnote 54
Conclusion
Through the invention of a new tort, the Supreme Court of Canada responds to a felt need to address a wrong that ‘cries out for a remedy’, namely, the distinctive wrong of intimate partner violence.Footnote 55 The Ahluwalia judgment departs from settled principles of appellate procedure and tort law, following a distinctively Canadian approach that flexibly adapts private law categories to meet perceived societal needs and values. In this light, the tort of intimate partner violence finds a place alongside other Canadian innovations in private law, such as the remedial constructive trust,Footnote 56 a general, unified doctrine of unconscionability in contract,Footnote 57 and a duty of honest contractual performance inspired by a civilian ‘abuse of rights’ framework.Footnote 58 But it remains to be seen whether the judgment will deliver justice for victims of intimate partner violence or simply generate further conceptual and doctrinal quandaries. Thus, for now, the judgment is best read as a cautionary tale for other Commonwealth courts.
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