Torts - Coercive Control. 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, and dismisses, the creation of a new tort of 'coercive control' - largely in the course of considering the 'harm' requirement of the existing tort of intentional inflict of mental suffering:
Should this court recognize the tort of coercive control?
 Recognizing the concerns inherent in the trial judge’s proposed approach, on appeal the respondent proposed a “more sophisticated recognition of family violence” as embodied in the term “coercive control” which she submits concerns subordination and control. It includes emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities. The key is that the controlling tactics are patterned, repeated, and often integrated into everyday life, magnifying and accumulating harms.
 The respondent submits that the tort of coercive control would not require proof of harm and would be made out where a person:
(a) in the context of an intimate relationship Note the distinction. Proof of harm is not an element of the tort. Rather the requirement is that the conduct is calculated to cause harm.
(b) inflicted a pattern of coercive and controlling behaviour
(c) that, cumulatively, was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.
 I would not recognize the tort of coercive control at this time because: (i) the existing tort of intentional infliction of emotional distress provides an adequate remedy; (ii) the elimination of the requirement to establish visible and provable injuries does not arise in the case before us; and (iii) the elimination of the requirement to prove harm would cause a significant impact on family law litigation best left to the legislature.
 The respondent submits that the existing tort of intentional infliction of emotional distress focuses on specific acts and behaviours, not the context, underlying dynamics, and pattern or web of coercion and control. I disagree. A proper analysis of the tort of intentional infliction of emotional distress would involve the context of the relationship and the patterns of controlling behaviour causing harm. As I have already explained, there is no impediment to a consideration of the context and pattern of behaviour when assessing the elements of a tort, particularly in a domestic situation.
 The respondent further submits that the existing tort “risks missing tactics of domination” that may on their own seem minor or trivial, but which function as part of an overarching pattern of coercion and control. Again, I disagree. This is the pattern of behaviour that fits squarely within the existing torts. (See McLean, at para. 92).
 I turn to the proposed elimination of the requirement to show injury.
 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. This is, in effect, the gap in the law that the appellant says cries out for a remedy. The submission is similar to that made in Merrifield, which dealt with the proposed tort of harassment. While this court rejected the proposed elimination of the element of visible and provable injuries, it left open the possibility of “the development of a properly conceived tort of harassment that might apply in appropriate contexts” (at para. 53).
 The facts of this case do not fall into any gap in the law. The trial judge accepted that injuries had been proven and found the appellant here liable for intentional infliction of emotional distress.
 Since the issue does not arise in this case, it would be inappropriate to make a significant change to the law based on a hypothetical. As Sharpe J.A. cautioned in Jones at para 21:
…as a court of law, we should restrict ourselves to the particular issues posed by the facts of the case before us and not attempt to decide more than is strictly necessary to decide that case. A cause of action of any wider breadth would not only over-reach what is necessary to resolve this case but could also amount to an unmanageable legal proposition that would, as [Professor Prosser] warned, breed confusion and uncertainty. In addition, the elimination of the requirement to prove harm would be a significant change to the law. The degree of proof necessary to demonstrate mental injury is not as onerous as it once was. Initially, “visible and provable injury” was interpreted to only include “recognized” psychiatric injuries—essentially requiring a medical diagnosis. In Frame, Wilson J. wrote, at para. 46, that if the tort were available, the plaintiff could only recover damages stemming from his treatment for mental depression. This position was affirmed by the B.C. Court of Appeal in Young v. Borzoni, 2007 BCCA 16, which referred to the Diagnostic and Statistical Manual of Mental Disorders as a primary source of “recognized psychiatric injury.”
 However, this court’s decision in Prinzo held that the absence of medical expert evidence was not fatal. Likewise, in Saadati v. Moorhead, 2017 SCC 28,  1 S.C.R. 543, a unanimous court rejected the historical practice of requiring “claimants alleging mental injury to show that such injury has manifested itself to an expert in psychiatry in the form of a clinically diagnosed, recognizable psychiatric illness” (at para. 29). Instead, the court adopted the standard set in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27,  2 S.C.R. 114, at para. 9: compensable psychiatric injury “must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept”. Therefore, the testimony of lay witnesses in Saadati sufficed to demonstrate the requisite mental injury.
 While Saadati and Mustapha were cases of negligence, not intentional tort, the reasoning in Saadati about the proof required to establish injury rebuts the Young v. Borzoni approach. At para. 31:
Confining compensable mental injury to conditions that are identifiable with reference to these diagnostic tools is, however, inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects. … [T]he trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them. Downloading the task of assessing legally recoverable mental injury to the DSM and ICD therefore imports an arbitrary control mechanism upon recovery for mental injury, conditioning recovery not upon any legally principled basis directed to the alleged injury, but upon conformity with a legally irrelevant classification scheme designed to facilitate identification of particular conditions. [Emphasis in original.] Thus, the relevant question for the trier of fact is not the diagnosis but rather the symptoms and their effects. At para. 38:
To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. … To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And … the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury. This court recently clarified the threshold for psychological injury in Bothwell v. London Health Sciences Centre, 2023 ONCA 323, at para. 32:
In my view, paras. 37 and 38 [of Saadati] together are a clear direction that, in distinguishing mental injury from psychological upset, the trier of fact must consider not only the claimant’s psychological upset but also how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken in relation to the psychological upset. Thus, while the methods by which psychological injury can be proved have been relaxed, and courts’ understanding of what constitutes such an injury have evolved, it remains the case that mere upset, or a vague assertion of psychological harm, will not suffice.
 The respondent would have this court eliminate the requirement to offer proof of injury. This would result in a significant change in the jurisprudence with unknown, potentially far-reaching and unintended effects – particularly for families involved in litigation. I will explain.
 Family law affects not just the parties, but their children, their extended families and society at large. And for every claim that has merit, there are some which involve claims made for strategic reasons. That is why, for decades, progressive elements in family law sought to move away from the fault allegations that were shown to cause permanent and ongoing damage to the family. It took time, but the move away from an adversarial approach towards a resolution-based approach has been adopted. Law schools offer courses in negotiation for family law. Collaborative law associations have been established. The Family Law Rules, O. Reg. 114/99, require three conferences with a judge prior to proceeding to trial. This has significantly reduced the number of cases that actually proceed to trial. The aim is to reduce conflict so as to assist families to better function cooperatively after separation.
 These changes were necessary because the classic adversarial model of dispute resolution was not achieving this goal. The devastating exchange of incriminating affidavits remained accessible to the children. And every allegation required a response, resulting in the classic “affidavit war”. The evolution towards case management, early resolution, alternate forms of dispute resolution, negotiation strategies, cooperative lawyering has been gradual but beneficial.
 I do not for a moment suggest that it is appropriate to shift cases involving intimate partner violence from the court system. Nor do I diminish the importance of properly addressing it in the context of family law litigation through tort claims. Where abuse, physical or otherwise, leads to psychological injury, compensation is in order, and any approach suggesting otherwise must be rejected. I simply caution that to lower the level of impugned conduct may unintentionally encourage allegations of fault in every case, thereby undermining the movement towards a resolution-based system.
 A fundamental change to tort law eliminating the requirement to show injury has significant potential to impact several aspects of federal and provincial legislation, including the Divorce Act, the Children’s Law Reform Act, the Family Law Act and the Family Law Rules, to name a few. As McLachlin J. (as she then was) explained in Watkins v. Olafson, 1989 CanLII 36 (SCC),  2 S.C.R. 750, at pp. 760-61, significant change may best be left to the legislature:
There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform. For these reasons, I would not recognize the proposed new tort of coercive control.