Supreme Court recognizes new tort of intimate partner violence

In what’s being hailed as a landmark decision, the Supreme Court of Canada has created a tort of family violence, which will allow those who have suffered harm through intimate partner violence to seek damages.

“Intimate partner violence is a pernicious social ill deserving of the full attention of the law,” Justice Nicholas Kasirer wrote for the majority in the 6-3 decision.

He said the abusive conduct isn't limited to conduct that inflicts physical or psychological injury, but includes all abusive conduct where an intimate partner coerces and controls the other, depriving them of their autonomy.

“This includes egregious acts of physical and psychological violence, as well as tactics of isolation, manipulation, humiliation, surveillance, economic abuse, sexual coercion, and intimidation that can control and entrap intimate partners.”

In the case at hand, Kuldeep Kaur Ahluwalia proved she had been the victim of abuse at the hands of her husband, Amrit Pal Singh Ahluwalia, over the course of their 16-year marriage. At trial, the judge awarded her $150,000 in damages in what was characterized as the novel tort of family violence.

At the Court of Appeal, the damages were reduced by $50,000, and the Court declared that no new tort or domestic violence or coercive control should be recognized.

Upon appeal to the Supreme Court, the amount of damages was not at issue; rather, the issue was the recognition of a novel intentional tort of family violence.

The Supreme Court of Canada’s majority decided to recognize a tort of intimate partner violence, as opposed to family violence, based on the facts of the case at hand. To establish liability under the new tort, three elements must be proven: the abusive conduct arose in an intimate partnership or its aftermath; that the defendant intentionally engaged in the conduct; and that the conduct constitutes coercive control.

“While some of the conduct captured by the new tort may overlap with existing torts, coercive intimate partner violence generally includes and extends beyond discrete acts of physical and psychological abuse,” Kasirer wrote.

“None of the existing torts consider whether the alleged wrongful conduct coerces or controls the victim, nor are they designed to compensate the victim for the distinct injury to their intangible interests in dignity, autonomy, and equality within an intimate relationship.”

He added that these distinctive features of the new tort distinguish it from misconduct between strangers. These features are not captured by existing torts that must not go without a remedy. The new basis for liability applicable to intimate partners is in keeping with the proper incremental development of the common law.

“This coercive and controlling conduct is a violation of the trust and equality inherent in intimate partnerships in Canadian law,” Kasirer said.

Within the majority, there was a 5-1 split. Justice Andromache Karakatsanis agreed on the creation of the new tort and on its first two elements, but felt it should include both coercive control as well as the threat of violence.

The Court outlined three principles for the limited circumstances when a new tort should be created, specifically when there is a gap in the law to be filled. First, whether a wrongful act offends a recognized legal interest in private law. Second, that existing legal remedies are inadequate. Taken together to measure the need for a new tort, it is only when the “felt necessities of the time” require the evolution of tort liability that a novel tort may be recognized.

“Should that need exist, the analysis proceeds to the third and final step, where a novel 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,” Kasirer said.

“These elements reflect a methodical approach that fosters the coherence, legitimacy, and the incremental development of the law so that the common law can remain properly responsive to changes in society.”

In the dissent, Justice Mahmud Jamal, joined by Justices Côté and Rowe, felt that so long as Ms. Ahluwalia was fully compensated under existing torts, there was no reason to create a new tort in the circumstances.

‘A historic judgement’

Angela Marinos, chief general counsel with the Raoul Wallenberg Centre for Human Rights, which intervened in the case, says this appeal is the result of one woman's courageous decision to change the law.

“This is a historic judgment that has changed the landscape of tort law,” Marinos said in an email.

“In recognizing the many insidious and invisible forms of intimate partner violence, harm and coercive control, the Court ensures that the law is truly responsive to the multiple and diverse conglomerate of factors that can play a role in intimate partner violence. The decision clearly states that this conduct is a violation of the trust and equality that should exist in intimate partnerships.”

She was relieved to see recognition of the pernicious ill of family violence, and to witness how it filled the gap where the law fell short.

“We should not be contorting the law to fit into legal tests that are inadequate; we should be evolving the law and making sure those legal tests reflect lived experience,” Marios said, echoing language in the decision.

“That is what the Court did today, and I am so proud to have played a small role in this appeal.”

Kat Owens, executive director of LEAF, which also intervened in the case, was thrilled to see the majority really grapple with what coercive control is and why intimate partner violence is different from other forms of violence.

“This new tort that they’ve created recognizes those unique harms…that this violence is overwhelmingly gendered,” she says.

“It helps potentially improve access to justice for survivors across Canada.”

LEAF had made arguments around access to justice. Owens says recognizing a tort tells survivors that the harm they’ve suffered is real and that the law can provide compensation for it is an important access-to-justice issue.

She did note that while the new tort is narrow in definition, it’s positive to see the Court leave the door open to further incremental development in the law around other forms of family violence, including against children and elders.

LEAF sought clarity on the creation of new torts, and Owens says they’re satisfied with how the majority addressed this issue and applied it to the facts in this case.

“We particularly appreciated the way that the Court talked about how Charter values inform that consideration, and in this case, how the fact that intimate partner violence violates survivors’ rights to liberty, psychological and physical security, and equality,” she says.

“That really matters in thinking about how existing torts are sufficient or whether a new tort is required.”

Tracy Brown, principal lawyer with Brown Law Group in Edmonton and chair of the CBA Family Law section, says this decision reflects the need for the common law to align with social realities.

In the coming weeks, she says there will be many opportunities for family lawyers to discuss the implications and practical application of the decision.

“There is certainly the potential for future legislative reform to accompany this decision,” Brown says, noting there is discussion in the decision about how limitations may require future action.

“The decision is so important on a principled level, but in the practical reality, the legal profession will need to figure out the sequencing of the claims, the practical aspects of how you combine both civil claims in tort and statutory claims in family law, which are largely no-fault based.”

For self-represented litigants, this decision will help eliminate the need to juggle multiple tort claims, even though there may still be some gaps, as noted in Justice Karakatsanis's concurring decision.

‘A masterful job of understanding coercive control'

Mary-Jo Maur, an associate professor at Queen’s University law school whose work was cited by the Court, says Justice Kasirer did “a masterful job of understanding coercive control,” both in his list of actions that constitute it and in recognizing that it may be a single incident, not necessarily a pattern.

“It was lovely to see,” she says.

“The issue is going to be how, on the ground, trial court judges are going to define it. The decision gives them some help.”

Maur is also pleased that the decision aligns civil disputes with Charter values, particularly with respect to dignity and autonomy, using the Charter as an analogy or metaphor for how we should behave in personal relationships.

That said, Maur is concerned that the second element of proving the tort—that the defendant intentionally engaged in the conduct—puts it apart from existing intentional tort law, where the plaintiff doesn’t have to prove intention because the actions can assume it.

Justice Kasirer also warned about ensuring coercive control doesn’t become weaponized by users, particularly around complaints of parental alienation.

“He said that this is about a loss of dignity,” Maur says, and notes a decision in the late 1980s that closed the door firmly on a tort of parental alienation.

“That discussion is closed.”