Hi all,

 

The Court of Appeal for Ontario released its decision today in Ahluwalia v Ahluwalia: https://coadecisions.ontariocourts.ca/coa/coa/en/item/21597/index.do, reversing the lower court’s decision to recognize a new tort of “family violence.”

 

The original decision arose in the context of divorce proceedings (2022 ONSC 1303). While the Superior Court judge found that the torts of battery and assault were established, she found that they did not adequately capture “the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse” (para 54 of the ONSC decision).

 

The Court of Appeal disagreed, finding that the torts of battery, assault and intentional infliction of emotional distress were sufficient to address abusive behaviour: “new torts should not be created where existing torts suffice” (para 92). This is consistent with the Court of Appeal’s decisions in Jones v Tsige (2012) (recognizing the tort of intrusion on seclusion) and Merrifield v Canada (2019) (refusing to recognize a tort of harassment).

 

The Court of Appeal also declined to recognize a narrower tort of “coercive control,” which would have focused on an intention to create conditions of fear or helplessness in an intimate relationship. This tort would have been distinguished from intentional infliction of emotional distress in that it would not require proof of harm in the form of a “visible and provable injury” (para 113ff). The Court of Appeal concluded that this would be a significant change in the law, best left to the legislature.

 

Because existing torts were proved by the plaintiff, the Court of Appeal upheld the compensatory damages award of $100,000. It eliminated the $50,000 punitive damages award imposed by the trial judge.

 

Erika

 

Erika Chamberlain, LL.B., Ph.D. (Cantab.)

Professor and Dean

Faculty of Law, Western University

London, ON, Canada, N6A 3K7

echambe@uwo.ca, (519) 661.2111 x.80036