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Damages - Intimate Partner Violence (IPV). Ahluwalia v. Ahluwalia [damages]
In Ahluwalia v. Ahluwalia (SCC, 2026) the Supreme Court of Canada establishes of a new tort of 'Intimate Partner Violence' (IPV).
Here the court considers damages for this new IPV tort - an issue that was complicated by an earlier party-agreement to settle quantum of damages:(3) Assessing Damages for the Tort of Intimate Partner Violence
[221] The trial judge awarded Ms. Ahluwalia $150,000 in damages: $50,000 in general compensatory damages for Ms. Ahluwalia’s depression and anxiety caused by Mr. Ahluwalia’s abuse, and loss of earning potential; $50,000 in aggravated damages for Mr. Ahluwalia’s “overall pattern of coercion and control and the clear breach of trust”; and $50,000 in punitive damages. She ordered that amount in relation to the tort of family violence and would have directed Mr. Ahluwalia to pay the same amount, in the alternative, based on proof of harm made under the existing torts of assault and IIED. The Court of Appeal noted that the damage assessment was higher than in previous cases. But it declined to interfere with the trial judge’s determination of general compensatory and aggravated damages based on deference and because it recognized the higher damage award reflected “an emerging understanding of the evils of intimate partner violence and its harms” (para. 128). The court overturned the punitive damages award on the ground that the trial judge had “made no finding that the award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence” (para. 132). Both parties accept the Court of Appeal’s decision on this point, and have settled the quantum of general compensatory and aggravated damages at $100,000, an amount that is not at issue before the Court. Nevertheless, because the effect of the present judgment is to recognize a novel tort of intimate partner violence, the assessment of damages require comment in these circumstances.
[222] Consistent with the corrective function of tort law, the guiding principle in assessing the quantum of compensatory damages is that the award should restore the plaintiff to the position they would have been in had the specific wrong not occurred (Pitel, at p. 2). Quantifying the value of intangible losses, such as those associated with physical inviolability or emotional suffering is a notoriously difficult task. This is no less true for the measure of the losses associated with dignity, autonomy, and equality, resulting from coercive control. As this Court observed in the civil law case of de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 27, “the exercise of reasoned discretion remains the rule, [and] the judge must also give as much priority as possible to following established judicial practice while adapting it to the specific circumstances of each case”. Of course, there is no body of Canadian precedents at this time with which to guide courts in awarding damages for the novel tort rooted in coercive control. Future damage awards must reflect the specific nature of the tort, its various manifestations, and the extent of the harm it causes to the victim’s dignity, autonomy, and equality.
[223] In her submissions, Ms. Ahluwalia denounces a “family discount” in the assessment of damages awarded for family violence (A.F., at para. 31). She cites a number of lower court decisions in which damages awarded to victims of family violence, usually women, were lower than what might be expected for similar conduct between strangers. She alleges that the “unconscionably low damage awards must occur as a result of a mindset that is infected with myths and stereotypes” (A.F., at para. 36 (emphasis in original)). Mr. Ahluwalia argues that the decisions relied on by Ms. Ahluwalia are outdated and do not reflect more recent trends in the caselaw in which the quantum of damages has increased, particularly in reaction to the Court of Appeal’s decision in this dispute.
[224] The phenomenon described by Ms. Ahluwalia is well documented. As an example, damage awards between intimate partners for violence involving a sexual element have often been lower than awards for the harm caused by sexualized violence outside intimate relationships. In Zando v. Ali, 2018 ONCA 680, the Court of Appeal upheld a $200,000 award for one instance of sexual assault between colleagues. In Badreddine v. Shapovalov, 2019 ONSC 4914, the court awarded the plaintiff $100,000 after the defendant was held liable for attempting to use a “date rape” drug on the plaintiff. In R.Y.H. v. Y. LTD., 2021 SKQB 28, the court awarded $100,000 in general and aggravated damages for a single incident of sexual assault. In Seymour v. Nole, 2022 BCSC 867, the court held the defendant liable for $272,300 in damages for non-consensual intercourse with the plaintiff while she was asleep. Such awards are difficult to reconcile with decisions like Hammond, where a comparable act in an intimate partnership yielded markedly lower damages of $10,000. While the court recognized that the wife was indeed entitled to “general damages for the affront to her dignity, as well as for the violation of her personal and physical autonomy” (para. 110) as discussed earlier, it concluded that “$10,000 in general damages [was] appropriate to compensate [the wife] for pain, suffering and loss of enjoyment of life, and to vindicate her dignity and personal autonomy” (para. 116).
[225] This reflects what some legal scholars refer to as an inappropriate “sexual exceptionalism”: the tendency to treat harm involving intimate partners as less serious, less credible, or less worthy of compensation than equivalent harm between strangers (Sowter and Koshan, at pp. 331-32; see also M. Chamallas, “Social Justice Tort Theory” (2021), 14 J. Tort Law 309, at p. 331; Eisen, at p. 199). Such exceptionalism can be perpetuated through myths and stereotypes relating to implied consent, marital harmony, and wives’ alleged propensity to fabricate. It reflects an unwillingness to recognize the full depth of their injury (J. Koshan, “The Judicial Treatment of Marital Rape in Canada: A Post-Criminalisation Case Study”, in M. Randall, J. Koshan and P. Nyaundi, eds., The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (2017), 257, at pp. 259-60; Eisen, at pp. 195-97).
[226] Empirical data gathered over the past two decades supports Ms. Ahluwalia’s contention that damages in tort awarded for family violence more broadly tend to be comparatively low. In a 2007 review of 25 final decisions dealing with tort claims for spousal violence, author Laura Buckingham found that the court awarded less than $10,000 in 9 of them, and 6 cases were unsuccessful and therefore no damages were awarded at all (“Striking Back: The Tort Action for Spousal Violence” (2007), 23 Can. J. Fam. L. 273, at pp. 276 and 304; see also Kelly, at p. 335). And in a more recent survey of 65 final decisions relating to claims for damages for spousal violence released between January 2007 and January 2024, scholar Samantha Eisen found that the average damage award in family courts across all provinces was $43,512.57, with a median damage award of $17,500 (p. 191; see also the overview for Quebec in A. Lakhdar, “Octroi de dommages-intérêts pour la violence conjugale et l’aliénation parentale en matière familiale”, in Service de la qualité de la profession du Barreau du Québec, vol. 556, Développements récents en droit familial (2024), 77, especially at p. 115). This data supports the view that courts have historically failed to appreciate the full extent of the harm caused by violence within the context of an intimate relationship in part by decontextualizing the basis of liability from the intimate partner setting.
[227] Intimate partner violence is a social ill and a deep affront to one’s dignity. The common law’s remedial response against it must therefore be corrective and strongly denunciatory. This cannot occur when even those plaintiffs who make out their claim in court are unable to fully recover their losses due to myths or stereotypes. However, loss of dignity is not simply an aggravating factor that justifies a higher quantum of damages. As previously discussed, in the context of intimate partner violence, the interference with dignity is a feature of the tort itself: it is inherent to, and indissociable from, the conduct and its harm as is evident in respect of the elements of the new tort identified here. General compensatory damages, therefore, must fully redress the injury to the victim’s autonomy arising from a conduct amounting to coercive control. Violence that occurs at the hands of one’s intimate partner is arguably more harmful, or at least differently harmful, than violence at the hands of a stranger. Where a court is satisfied that the defendant’s tortious conduct arose in the context of intimate partner violence, the damages awarded must acknowledge and fully compensate the plaintiff for that harm, without discount or exceptionalism. It would be an error to presume that the violence that occurs in the context of an intimate partnership is somehow less damaging.
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[241] In light of the foregoing, I would set aside the order of the Court of Appeal in part. Rather than restore the order of the Superior Court in its entirety, I would recognize that Mr. Ahluwalia’s liability rests on the new tort of intimate partner violence. As I noted above, the parties resolved that they would not raise the issue of the quantum of damages in this Court.
[242] As a result, only the basis for liability in tort was formally in issue before us. For the foregoing reasons, the appeal must be allowed in part. Paragraph 2 of the formal order of the Court of Appeal states: “THIS COURT FURTHER ORDERS THAT the new torts of domestic violence or coercive control as defined in this case shall not be recognized.” I would set aside this declaration and replace it by one that states that the new tort of intimate partner violence is recognized.
[243] The quantum of damages set by the Court of Appeal is no longer in dispute. In these circumstances, I would not interfere with para. 1 of the Court of Appeal’s order, which states that the appeal to that court “shall be allowed in part and the damages award shall be reduced by $50,000.00”.
[244] The trial judge’s order at para. 15 cannot, however, be fully restored, except as to the quantum of damages of $100,000, as the amounts set by the trial judge under the tort of family violence for general compensatory and aggravated damages respectively do not reflect compensatory damages associated with repairing the loss arising from coercive control. Paragraph 15 of the order of the Superior Court recorded the following distribution for the damage award:15. [Mr. Ahluwalia] shall pay to [Ms. Ahluwalia] damages for family violence as follows:a. $50,000 in compensatory damages in relation to [Ms. Ahluwalia’s] mental health disabilities and lost income earning potential;
b. $50,000 in aggravated damages due to the overall pattern of coercion and control, breach of trust, and for the post-separation conduct of [Mr. Ahluwalia]; and
c. $50,000 in punitive damages as condemnation for [Mr. Ahluwalia’s] conduct. [245] I would exercise this Court’s power under s. 45 of the Supreme Court Act, R.S.C. 1985, c. S-26, to give the order the trial judge should have given had she properly characterized the tort of intimate partner violence under the principles established in these reasons (see, e.g., Laferrière v. Lawson, 1991 CanLII 87 (SCC), [1991] 1 S.C.R. 541, and G. Ragan et al., Supreme Court of Canada Practice 2025 (2025), at § SCA 46:1).
[246] The Court of Appeal has rejected the award of $50,000 in punitive damages and therefore para. 15(c) of the order of the Superior Court regarding these damages is no longer in effect. However, two modifications to para. 15 of the trial order must be made.
[247] First, the trial judge’s reference to “damages for family violence” should be changed to reflect that damages are awarded, specifically, for the “tort of intimate partner violence”.
[248] Second, the distribution of compensatory and aggravated damages awarded by the trial judge should be modified and the order should state: “$100,000 in compensatory damages in relation to the tort of intimate partner violence”. The conduct the trial judge considered warranting aggravated damages falls within the scope of the tort of intimate partner violence as defined in these reasons. It is subject to compensation based on the principle of restitutio in integrum rather than as aggravated damages to compensate malicious conduct that would not otherwise be covered. I accept that in other circumstances, a dignity interest may merit compensation through aggravated damages (see J. Berryman, “Reconceptualizing Aggravated Damages: Recognizing the Dignitary Interest and Referential Loss” (2004), 41 San Diego L. Rev. 1521). In this case, however, the harm experienced by Ms. Ahluwalia from coercive control, including that associated with her dignity, autonomy, and equality should fall fully under general compensatory damages for the tortious conduct of intimate partner violence. Had the trial judge properly characterized the tort of intimate partner violence, the resulting harm would have been compensable as general compensatory damages, not as aggravated damages. The trial judge’s order should therefore be modified to reflect that the entire award of $100,000 is included under the head of general compensatory damages. Paragraph 15 of the trial order should be replaced with the following: “The Applicant Father shall pay to the Respondent Mother $100,000 in general compensatory damages in relation to the tort of intimate partner violence”.
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