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Torts - Assault. Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (Ont CA, 2023) the Court of Appeal considered the interaction between tort and statutory family law. In these quotes the court considers how the existing torts of battery and assault (amongst others) render the creation of a new family violence tort unnecessary:[60] With respect, this statement reflects a misunderstanding of the law of existing torts. Existing torts already address patterns of behaviour, for both liability and damages.
[61] In Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, this court recently provided a summary of the torts of battery and assault. Although the terms are often used interchangeably, there is a distinction. At para. 138:... battery and assault are distinct concepts in tort law, both being examples of trespass to the person … a battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person, whereas a tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature. [Citations omitted.] [62] The tort of battery requires direct interference with one’s person. Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant. The interference must be “harmful or offensive” or contact that is “non-trivial”: Scalera, at para. 16.
[63] The trial judge’s findings here that the appellant physically assaulted the respondent on three separate occasions satisfy the requirements for the tort of battery.
[64] Assault is conceptually different. It involves creating the apprehension of imminent harmful or offensive contact. In Barker, at para. 170, this court approved the following statement of law from the Hon. Allen M. Linden, et al., Canadian Tort Law, 10th ed. (Toronto: LexisNexis, 2015), at §2.42:Assault is the intentional creation of the apprehension of imminent harmful - or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. [Emphasis added.] [65] Barker involved a claim brought by 28 persons admitted to a mental health facility. They sought (among other things) damages against physicians who worked at that facility for assault, battery and intentional infliction of emotional distress. The claim for assault related to a program in the facility where patients could be sent to an extremely harsh form of solitary confinement known as MAPP. The trial judge wrote that the patients “lived under the shadow of the MAPP threat”: Barker v. Barker, 2020 ONSC 3746, at para. 1202.
[66] This court concluded that the trial judge had failed to apply the imminence requirement for assault, instead relying on a fear of future harm, which itself was “conduct-dependent”. A fear of future harm is not an apprehension of imminent harm: see Barker ONCA at para. 182.
[67] Here, however, the imminence requirement is met. The wife suffered constant threats of imminent harm, solidified by actual harm – both physical and emotional. The pattern of abuse caused her to live in a near-constant fear of imminent harm. The three violent incidents described above show that this fear, unlike that of the plaintiffs in Barker, was not conduct-dependent: simple acts such as asking a friend for help fixing a computer or receiving a compliment from a tour guide would be enough to provoke the husband’s wrath. . Deluca v. Bucciarelli
In Deluca v. Bucciarelli (Ont CA, 2022) the Court of Appeal considered a s.16(1)(h.2)(i) argument [no limitation where assault in intimidate relationship] under the Limitations Act:[9] The appellant does not dispute that she was aware that the conduct she alleged in her statement of claim occurred more than two years before she issued her statement of claim. However, she relies on ss. 5(1)(a)(iv) and 16(1)(h.2)(i) of the Act to assert that there is a genuine issue for trial concerning whether she was prevented from discovering her claim within the two-year period because of her fear of the respondent (s. 5(1)(a)(iv)) or whether her claim falls within the exception to the two-year period because her proceeding is based, at least in part, on an assault that occurred in an intimate relationship (s.16(1)(h.2)(i)).[1]
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[15] Second, the appellant raised a variety of arguments asserting that the motion judge erred in appreciating the scope of s. 16(1)(h.2)(i) of the Act or in articulating or applying the elements of the tort of assault.
[16] The motion judge relied on Bruce v. Dyer, 1966 CanLII 191 (ON SC), [1966] 2 O.R. 705 (H.C.) aff’d 1967 CanLII 653 (ON CA), [1970] 1 O.R. 482 (C.A.), for a description of the elements of the tort of assault. The motion judge said, “[t]he [appellant] must prove on a balance of probabilities that she had reasonable grounds to believe that she was in danger of violence from [the respondent], that she feared imminent harmful or offensive contact (emphasis in the original).” The motion judge was not satisfied the appellant had adduced evidence that could meet this standard.
[17] The appellant submitted that, particularly when viewed in the context of an evolving understanding of domestic violence and controlling behaviour, in assessing her evidence, the motion judge took too narrow a view of “imminence” and of the scope of “an assault” as that term appears in s. 16(1)(h.2)(i) of the Act. The appellant pointed to Warman v. Grosvenor (2008), 2008 CanLII 57728 (ON SC), 92 O.R. (3d) 663 (S.C.) and Dunne v. Gauthier, 2000 BCSC 1603, as examples of cases that illustrate that imminence can mean different things in different contexts. The appellant also argued that the motion judge erred in failing to recognize that the term “assault”, as it appears in s. 16(1)(h.2)(i), can and should be interpreted broadly, so as to encompass threatening and harassing behaviour giving rise to fear of harm at some future unspecified point in time.
[18] We do not accept these submissions. Section 16(1)(h.2)(i) of the Act provides that there is no limitation period in respect of “a proceeding based on an assault” where at the time of the assault the parties “had an intimate relationship.” In our view, the appellant’s arguments are foreclosed by this court’s recent decision in Barker v. Barker, 2022 ONCA 567, [2022] O.J. No. 3526 (C.A.), in which this court considered the scope of the tort of assault. At paras. 137-138, this court explained that a tortious assault “involves intentionally causing another to fear imminent contact of a harmful or offensive nature (citations omitted, emphasis added).” At para. 171 of Barker, this court confirmed that “imminence is a critical component of the tort of assault.”
[19] This court went on in Barker to consider the decisions in both Warman and Dunne on which the appellant relied.
[20] At para. 173 of Barker, this court described the conduct in Warman, which the trial judge found amounted to an assault, as involving a relentless, two-year campaign of harassment involving internet postings and email. The communications were homophobic and anti-Semitic. Among other things, the defendant’s internet posts referred to the victim as a “dead [] walking”, shared his address including a map of his residence, and urged readers to “pay him a visit” and let him “meet his fate – execution at the hands of a people’s government”. One post concluded, “I have a Ruger P-90 and its bullets have your name on them”.
[21] At para. 174 of Barker, this court emphasized that the Warman trial judge recognized that damages are recoverable for assault “by someone who is made apprehensive of immediate physical contact” (emphasis in the original). Significantly, the Warman trial judge stated: “Frightening or threatening someone, however, does not constitute an assault unless the event feared is imminent….”
[22] At para. 176 of Barker, this court described Dunne as a case that involved a conditional threat to cause harm if the plaintiff school bus driver ever drove on the defendant’s laneway again. Significantly, in Dunne, the conditional threat was made immediately after the defendant finished physically battering the school bus driver. Moreover, the victim was aware that the defendant drove a large tractor trailer unit that could “take out” the victim and his bus.
[23] At para. 176 of Barker, this court agreed with comments of the Saskatchewan Court of Appeal that “[b]oth Dunne and Warman are useful examples of how imminence might be understood, but they do not attenuate the fundamental requirements of the tort of civil assault.”
[24] Given this court’s decision in Barker, we see no error in the motion judge’s appreciation of the scope of s. 16(1)(h.2)(i) of the Act or in her articulation or application of the elements of the tort of assault. The motion judge’s articulation of the elements of assault is consistent with Barker. Based on the evidence adduced by the appellant, the motion judge concluded that the appellant had not adduced evidence capable of demonstrating a genuine issue for trial concerning whether the respondent’s alleged conduct met the threshold of “an assault”. In general, she assessed the appellant’s evidence as lacking in particulars and unpersuasive. Concerning the police occurrence reports on which the appellant relied, the motion judge noted that they contained a comment that the appellant did not fear for her safety. The facts of both Warman and Dunne are distinguishable from the facts of this case. The Warman trial judge was satisfied based on the specific facts of that case that the plaintiff was “reasonably apprehensive of imminent physical contact”. The physical battering that preceded the conditional threat in Dunne and the victim’s knowledge of the appellant’s capabilities were specific circumstances creating support for the finding of an assault. Here, the appellant’s allegations and evidence did not rise to a similar level. We see no basis on which to interfere with the motion judge’s findings and conclusions.
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