Ahluwalia v. Ahluwalia, 2023 ONCA 476 (on COA decisions)
The Court of Appeal for Ontario was recently required to consider an appeal from a trial judge’s decision which had recognised a new tort of family violence ([20]). The issues on appeal were:
1. Did the trial judge err by including a tort claim in a family law action?
2. Did the trial judge err by creating a new tort?
3. Did the trial judge err in fashioning the tort of family violence?
4. Should this court recognize the tort of coercive control?
5. Did the trial judge err in assessing damages?
6. What is the procedure for a court considering a tort claim in a family law action?
The Court of Appeal held that no jurisprudence was relied on by either the trial judge or by the respondent to support the proposition that a pattern of tortious conduct is not captured by the existing torts of battery, assault, and intentional infliction of emotional distress. Similarly, no jurisprudence is cited to support the trial judge’s concern that existing torts are too narrowly focused to capture these dynamics in a relationship ([73]).
The trial judge here recognized the ability of existing torts to address the harm when she found that liability under the existing torts had in fact been established. Accordingly, the trial judge erred in creating a new tort which was not required ([93]).
The Court of Appeal went on to say that by adopting the definition of family violence created for the specific purpose of post-separation parenting plans and using it to create a new cause of action, the trial judge ignored the clear intention of the legislature. This was an error. ([102]).
The proposed tort of coercive control substantially overlaps with the tort of intentional infliction of emotional distress. The major change in the proposed new tort would be to eliminate the requirement that there be visible and provable injuries. The trial judge accepted that injuries had been proven and found the appellant here liable for intentional infliction of emotional distress. Since the issue did not arise in this case, it would be inappropriate to make a significant change to the law based on a hypothetical. ([112]). In addition, the elimination of the requirement to prove harm would be a significant change to the law. ([113]).
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