Torts - Categories Never Closed. 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 the law of the creation of new torts:
Did the trial judge err by creating a new tort?. Canada v. Whaling
 It is not suggested that tort law, however it may be developed or expanded, is capable on its own of solving the problem of family violence. The existence of family violence does not, by itself, justify the creation of a new tort. The creation of a new tort is only appropriate when there is a harm that “cries out” for a legal remedy that does not exist.
 The respondent relies on Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, where this court acknowledged that the common law must evolve when faced with evidence that it fails to address a social ill. That case involved the defendant repeatedly, and without any valid reason, accessing the banking records of her ex‑husband’s new partner, the plaintiff. Sharpe J.A. concluded in that case that a right of action for intrusion upon seclusion should be recognized as a new tort in Ontario. His conclusion followed an extensive review of Canadian and Ontario jurisprudence, the academic literature and American and British tort law. He recognized that technological developments threatened privacy and the facts of the case “cry out for a remedy": at para. 69.
 Privacy is recognized as a right worthy of protection. The routine collection of personal information accessible in electronic format increased the threat to a right that has been protected for centuries. Sharpe J.A. confirmed, at para. 66, that:
The caselaw, while certainly far from conclusive supports the existence of such a cause of action. The principles for the creation of a new tort were discussed by this court in Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494. There, the trial judge had recognized the new tort of harassment. This court cautioned that common law change is evolutionary. It happens slowly and significant change is best left to the legislature. At paras. 20-21:
Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically, as McLachlin J. explained in Watkins v. Olafson, 1989 CanLII 36 (SCC),  2 S.C.R. 750,  S.C.J. No. 94, at p. 760 S.C.R.: When remedies already exist, a new tort is not required. As stated in Merrifield, “legal remedies [are] available to redress conduct that is alleged to constitute [the new tort.]. The tort of [intentional infliction of emotional distress] is one of these remedies…” (at para. 42).
Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.
 A new tort is not required when the only difference from established torts is the quantum of damages. In Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24,  1 S.C.R. 551, the court explained, at para. 27, that the tort of sexual battery was not necessary because the harms suffered by the plaintiff were addressed by the established tort of battery and the sexual component only went to damages.
 Merrifield left open the possibility that there could be a situation arising where existing torts do not address the impugned conduct. This is what occurred in Caplan v. Atas, 2021 ONSC 670, where the tort of internet harassment was recognized. Corbett J. concluded that existing torts did not adequately respond to the extraordinary behaviour before him. The conduct spanned over 20 years and went beyond the bounds of decency and tolerance. Yet, the plaintiff had not established injury, so intentional infliction of emotional distress was not available. At paras. 168-170, he explained:
In my view, the tort of internet harassment should be recognized in these cases because Atas’ online conduct and publications seek not so much to defame the victims but to harass them. Corbett J. defined the test for internet harassment as “communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm” (para. 171). At para. 174, he distinguished Merrifield:
The tort of intentional infliction of mental suffering is simply inadequate in these circumstances: it is designed to address different situations. ...
I do not have evidence that the plaintiffs have suffered visible and provable illnesses as a result of Atas’ conduct. One would hope that a defendant’s harassment could be brought to an end before it brought about such consequences. To coin a phrase from Sharpe J.A., quoted by the Court of Appeal in Merrifield, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.” The law would be similarly deficient if it did not provide an efficient remedy until the consequences of this wrongful conduct caused visible and provable illness.
However, the facts of the case before me are very different from the facts in Merrifield. … the law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct. Similarly, in Alberta Health Services v. Johnston, 2023 ABKB 209, Feasby J. found that existing torts left a gap in the law with respect to the misinformation, conspiracy theories and hate that had been promulgated by the defendant. He therefore recognized a tort of harassment, though defined slightly differently from the tort recognized in Caplan.
 In Nevsun Resources Ltd. v. Araya, 2020 SCC 5,  1 S.C.R. 166, Abella J. said, at para. 118, that the common law develops to “keep law aligned with the evolution of society”. At paras. 237 et seq., Brown and Rowe JJ. summarized Canadian jurisprudence and set out a test for the recognition of new torts. While their reasons were dissenting, they deal with an issue not addressed by the majority and so do not conflict with the binding holding in any way. The direction is helpful:
Three clear rules for when the courts will not recognize a new nominate tort have emerged: (1) The courts will not recognize a new tort where there are adequate alternative remedies; (2) the courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another; and (3) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial. Put another way, for a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration. [Citations omitted.]....
 As set out in Merrifield, this desirable gradual evolution, with significant change best left to the legislature, means that new torts should not be created where existing torts suffice. The existing torts are flexible enough to address the fact that abuse has many forms. Recurring and ongoing abuse, intimidation, domination and financial abuse exist can be patterned into daily life. Trial judges should be alive to these dynamics. 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.
In Canada v. Whaling (Fed CA, 2022) the Federal Court of Appeal comments on the changeable nature of tort, including charter torts:
 Returning to the task at hand, HMQ’s categorical positions call to mind the Supreme Court’s comments in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45 at para. 21 [Imperial Tobacco]:
The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, 1932 CanLII 536 (FOREP),  A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd.,  2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. These comments were made in the context of a motion to strike pleadings for failing to disclose a cause of action, but the principle articulated by the Court applies in this context as well. The application of the principles established in Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28 [Ward] to the facts alleged in the statements of claim is novel. The plaintiffs’ claims should not fail on that ground alone. Those seeking to extend the boundaries of the Ward principles are not entitled to succeed but they are entitled to try.
 It may well be that liability for Charter damages cannot be assessed in the absence of misconduct by one or more state actors whose "“fault”" can be attributed to Canada "“writ large”", but the Supreme Court’s statement in Ward perhaps leaves that possibility open:
…an action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable”. In accordance with s. 32 of the Charter, this is equally so in the Canadian constitutional context. In fairness, Ward also leaves open the possibility that:
Ward at para. 22.
…considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state. Such considerations may be appropriately kept in mind. But this does not necessarily mean that Charter damages are only available in circumstances in which private law damages would be available under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, which explicitly deals with vicarious liability and requires both an identifiable state actor and an identifiable fault.
Ward at para. 22.