|
Mootness - No Lis Pendens (Pending Suit). Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (SCC, 2026) the Supreme Court of Canada establishes of a new tort of 'Intimate Partner Violence'.
Here the court considers whether a SCC appeal, where the quantum of damages was agreed but the cause of action (here a new tort) was outstanding, was moot:[52] In commenting on these proceedings, one scholar described this aspect of the appeal to our Court as “unusual” in that the matter has been brought by an appellant “who ostensibly won her tort claim in the courts below”, but he declined to state whether or not a new tort was justified (Beswick, at p. 429; see also pp. 430 and 449-50). It is true that, while rejecting the existence of a new tort and setting aside the punitive damages, the Court of Appeal confirmed the quantum of general compensatory and aggravated damages awarded to Ms. Ahluwalia at trial, and that this award is not being challenged on appeal. This might give rise to the impression that the Court is being asked to pronounce on the existence of a tort in the absence of a live dispute between the parties, which might be understood to be contrary to its proper adjudicative role in private law matters.
[53] I disagree with this view. The matter is properly before the Court. Not only did the Court grant leave, but neither party argued that, because the quantum of damages was settled, the appeal was moot or that the appeal should be quashed. There is nothing theoretical about the appeal. The Court of Appeal order includes a declaration that “new torts of domestic violence or coercive control as defined in this case shall not be recognized” (C.A. Order, at p. 2). This portion of the order can be construed as a “declaratory ruling . . . which confirms a particular and nominative legal status, relationship, or duty”, directly in response to the two parties’ submissions (S. A. Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (2019), at p. 14). Ms. Ahluwalia is thus entitled to challenge that order in this Court as being wrong in law. The order of the Superior Court, which Ms. Ahluwalia seeks to have restored, condemned Mr. Ahluwalia to pay damages “for family violence” (A.R., at p. 84). Mr. Ahluwalia is also entitled to contest that order on appeal as a mistaken reference to a new tort.
[54] Furthermore, the parties’ agreement not to appeal the quantum of damages provides no answer to the distinct question of the proper basis in tort for awarding those damages. To conclude from the agreement that no new tort need be recognized presupposes that no additional legally cognizable wrong exists — the very issue that this Court has been asked to decide. The quantum of damages and the basis of liability — though related — are analytically distinct issues. Identifying the proper basis of tort liability logically precedes the assessment of damages. The parties’ agreement does not preclude the Court from determining whether the damages were awarded on the proper basis — namely, whether the damages properly rest on existing torts or require recognition of a new tort. As I seek to explain below, the factual findings disclose a wrong and harm that are distinct in nature from those addressed by existing torts.
[55] The settlement of damages between the parties does not resolve the issue of the proper measure of compensatory damages, as a matter of law, for harms arising from the tortious conduct in this case. At trial, Ms. Ahluwalia was awarded $100,000 in general compensatory and aggravated damages and $50,000 in punitive damages for the tort of family violence. In the alternative, the trial judge would have awarded the same amount for the “included” torts of assault and of IIED. She did not differentiate the harms associated with the new tort and the existing torts. Under both the primary basis — the new tort of family violence — and the alternative basis grounded in existing torts, she would have awarded the same quantum of damages: $50,000 in compensatory damages for Ms. Ahluwalia’s “ongoing mental health disabilities and lost earning potential” (para. 114), and $50,000 in aggravated damages “due to the overall pattern of coercion and control and the clear breach of trust” (para. 119). This $100,000 amount was confirmed by the Court of Appeal as a remedy for harms arising from the existing torts only. The punitive damages awarded by the trial judge, but set aside by the Court of Appeal, are not at issue.
[56] Although the Court is bound by the parties’ settlement of damages, the trial judge’s failure to indicate that the damages awarded for the new tort and the existing torts would differ raises the issue of whether damages were properly ordered by way of redress for the tort of family violence. I am of the respectful view that her decision to award identical amounts of damages for the new tort and for the “included” existing torts reflects an error in law. The new tort included conduct covered by the existing torts but expanded the compass of misconduct to coercive and controlling behaviour not covered by battery, assault or IIED. That meant the “alternative” basis of liability grounded solely in existing torts does not account for some of the misconduct that the trial judge found, as a matter of fact, to have occurred and to have caused a distinct harm. Accordingly, in law, the two amounts cannot be the same: if the amount of $100,000 provides full compensation for the harm suffered for the new tort, then the same amount for the existing torts is overcompensation.
[57] The tort of family violence was expounded to cover a “gap” in the existing law — the unique wrong of coercive control unaddressed by existing torts (see trial reasons, at para. 54) — deserving of redress through general compensatory damages, rather than being treated merely as an “aggravation” of physical and psychological harm. If the quantum of general compensatory and aggravated damages required to redress the harms arising from conduct associated with the broader tort of family violence is $100,000, the amount required to remedy the more limited but included torts must be less. As a result, the Court of Appeal’s decision to uphold an identical amount in general compensatory and aggravated damages on the basis of existing torts is not deserving of deference.
[58] The existence or non-existence of the new tort of family violence must first be resolved. While it is accepted, by reason of the settlement, that the quantum of damages is determined to be $100,000, this Court cannot be taken as confirming the trial judge’s basis of the calculation as correct in law. That basis needs to be addressed. The fact that the Court is not tasked with re-calculating damages does not therefore affect the viability of these proceedings.
|
