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Torts - Incremental Development (2). Ahluwalia v. Ahluwalia [framework for establishing new torts]
In Ahluwalia v. Ahluwalia (SCC, 2026) the Supreme Court of Canada establishes of a new tort of 'Intimate Partner Violence'.
Here the court sets out a framework for establishing new torts:B. A Consolidated Framework for the Recognition of New Torts
[83] These principles ground a framework for determining when the courts should recognize a novel tort. First, the facts must show a wrongful act that offends a recognized legal interest in private law. Second, the existing remedies must be inadequate. Together, these two elements measure the need for a new tort; it is only when the “felt necessities of the time” require the evolution of tort liability that a novel tort may be recognized (G. H. L. Fridman, “The Evolution of New Torts”, in N. J. Mullany and A. M. Linden, eds., Torts Tomorrow: A Tribute to John Fleming (1998), 271, at p. 272, citing O. W. Holmes, The Common Law (1881), at p. 1). Should that need exist, the analysis proceeds to the third and final step, where a novel tort is tailored to address the wrong in a manner consistent with the purposes of tort law, and the parameters of the proper role of the judiciary. These elements reflect a methodical approach that fosters the coherence, legitimacy, and the incremental development of the law so that the common law can remain properly responsive to changes in society.
(1) A Wrongful Act That Offends a Recognized Legal Interest
[84] First, the facts alleged by the plaintiff must disclose wrongful conduct that offends a recognized legal interest in private law, or an interest around which there is an “emerging acceptance” (Merrifield, at para. 25). Here, the courts constrain their inquiry to the facts and the impugned conduct before them (Sharpe, at p. 84; Beswick, at p. 434). A recognized legal interest in private law — such as privacy (Jones, at paras. 41 and 57), reputation (Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 121), or bodily and psychological integrity (Nevsun, at para. 126) — is one that is deemed worthy of legal protection in keeping with the “evolution of society” (Friedmann Equity, at para. 42).
[85] The decision of the Court of Appeal for Ontario in Jones provides, yet again, a prime example where such a legal interest was identified for the purposes of recognizing a new cause of action in tort. There, Sharpe J.A. canvassed Canadian Charter of Rights and Freedoms jurisprudence (at paras. 39-46), observing that courts have held that privacy interests protected by s. 8 of the Charter are “not simply an extension of the concept of trespass”, but are “grounded in an independent right to privacy” (para. 39, citing Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 158-59), which includes a right to informational privacy (para. 41, citing R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 23). Sharpe J.A. went on to note international human rights instruments that enshrine a right to privacy (at para. 44), legislative frameworks from other provincial jurisdictions that codify a tort for the invasion of privacy (at paras. 52-54), emerging jurisprudence from foreign jurisdictions such the United States, the United Kingdom, and New Zealand (at paras. 55-64), and legal scholarship (para. 66). It is on this basis that the court concluded that “[p]rivacy has long been recognized as an important underlying and animating value of various traditional causes of action” (ibid.).
[86] I agree with Ms. Ahluwalia that Charter values can also inform the development of tort law in this area. As Sharpe J.A. observed in Jones, Charter jurisprudence encouraged the recognition of a new tort of privacy at common law: “The explicit recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff’s seclusion” (para. 46, citing J. D. R. Craig, “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens” (1997), 42 McGill L.J. 355). Similarly, the explicit recognition of the value of equality between women and men in Charter jurisprudence, including this Court’s jurisprudence relating to intimate partnerships such as marriage, encourages the view that the disproportionate impact of violence on women in intimate partnerships is incompatible with the Charter value of equality. This encourages the recognition of a new tort, which comports with the long-established principle that the common law must develop in a manner consonant with the Charter (see RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at pp. 602-3). Respectfully, the Court of Appeal makes no mention of Ms. Ahluwalia’s right to equality in her marriage which, in my humble view, is relevant to understanding the civil wrong visited upon her over the 16 years of her marriage.
[87] Finally, meaningful access to justice for victims of intimate partner violence requires due recognition of the legal interest with which the wrongful conduct at issue interferes, informed by a broad range of legal perspectives as potentially persuasive, while respecting the incremental character of the development of the common law. Absent such recognition, plaintiffs who plead material facts that “cry out for a remedy” would be left without a redress for the specific harm suffered. The approach in Jones, as in this case, was grounded in comparative sources, including Quebec private law and international materials, with references to Charter jurisprudence to properly inform the recognition of an emerging acceptance of the relevant legal interest. Scholars have argued that authorities relevant to the development of the law relating to gender and violence should include Indigenous legal sources to throw light on a social problem felt by women and vulnerable people generally (E. Snyder, V. Napoleon and J. Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015), 48 U.B.C. L. Rev. 593, at pp. 636 and 652; see also V. Napoleon and H. Friedland, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” (2016), 61 McGill L.J. 725, at p. 750).
[88] Ms. Ahluwalia submits that individuals seeking recognition of tort claims for intimate partner violence currently face significant barriers because they must “pas[s] through a labyrinthine web of different claims, with different tests and inconsistent thresholds” (A.F., at para. 66). My colleague Karakatsanis J., writing for a unanimous Court, has acknowledged that barriers to access to justice threatens the rule of law (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 1). As the law stands, a plaintiff’s success in an intimate partner violence claim depends on whether the material facts pleaded are among those “that a court recogni[z]es as redressable” within the current patchwork of existing torts (Beswick, at p. 433). In addition to the technical challenges of proving different torts with different elements, plaintiffs seeking redress for intimate partner violence may find that the whole of their experience in the facts pleaded does not neatly fit into existing legal categories that are often ill-suited to address their situation, or, as two scholars have observed, that “[p]arsing the lived experience of [intimate partner violence] into legal claims based on different torts” may leave certain aspects of the violence that they endured unaddressed (Sowter and Koshan, at p. 342; see also J. E. Mosher, “Grounding Access to Justice Theory and Practice in the Experiences of Women Abused by Their Intimate Partners” (2015), 32:2 Windsor Y.B. Access Just. 149). Relatedly, the intervener the DisAbled Women’s Network of Canada noted that forcing plaintiffs “to pursue multiple overlapping tort claims . . . fail[s] to address the broader coercive abuse” because none of these torts “fully capture the unique harm” (I.F., at para. 9). Recognition of a new tort designed to bring out a distinct wrong not addressed by existing torts could encourage victims to take legal action to seek remedy for the injury suffered, as well as assist judges and lawyers in responding with the appropriate understanding of the intimate partnership context.
[89] As the intervener Attorney General of British Columbia submits, “[f]amily violence . . . is conceptually distinct from the individual harms addressed by existing torts” (I.F., at para. 26). The proper characterization of the civil wrong — the first step in the consolidated framework for the recognition of new torts — therefore goes to the heart of ensuring meaningful access to justice. The intervener Women’s Legal Education and Action Fund Inc. (“WLEAF”) argues, drawing on British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, [2022] 1 S.C.R. 794, at para. 35, that “‘[a]ccess to justice means many things’, including ‘knowing one’s rights’” (I.F., at para. 6). A novel tort that accurately frames the legal interest connected to the wrongful conduct and the resulting harm helps litigants understand their rights.
[90] In the family law context, claimants commence proceedings by filing an application, to which the responding party files an answer, as in this case. In these pleadings, the parties set out the material facts that support their claims; they are not required to plead any specific tort (see Sethi, at paras. 46‑49, citing Frick, at paras. 11-12; Beswick, at p. 435). A new tort grounded in the distinct wrong and distinct harm arising from intimate partner violence increases access to justice because it more accurately reflects the type of evidence that victims of intimate partner violence are able to bring to establish the abuse they suffered, instead of requiring them to fit that evidence within the varying technical confines of existing torts. It therefore simplifies the manner in which litigants may advance these claims and equips judges with a tool to grant redress for the full scope of harm suffered. From this perspective, considerations of access to justice — particularly for self-represented victims of intimate partner violence — provides a further impetus for the recognition of a new tort.
(2) Existing Remedies Must Be Inadequate
[91] Second, existing torts and their associated remedies must be inadequate. If such torts and remedies are capable of addressing the alleged interference, then judicial recognition of a new nominate tort will be unnecessary and, by extension, unwarranted (Merrifield, at para. 42). This is not to say that the availability of any tort or remedy that touches on the impugned conduct is sufficient. To be adequate, the existing tort or remedy must be capable of capturing the nature and scope of the wrong. While a difference of extent of harm resulting from the wrongful act will generally not justify a finding of inadequacy of an existing tort, the severity of the conduct may reach such an extreme as to alter its nature (Nevsun, at paras. 124-26). It may be that the wrong — say, coercive control depriving a victim of their autonomy, as opposed to battery inflicting physical injury — fixes on a different legal interest and a different form of injury that cries out for a remedy, even if some misconduct overlaps with existing torts.
[92] One of the lessons from Jones is the place of scholarship in the breadth of sources considered by the court in discerning the emerging consensus on the nature of the legal interest protected by tort law and the adequacy of existing torts and remedies. In Jones, the focus was not just on whether there was an emerging consensus in Ontario cases: Sharpe J.A. included a consideration of how “legal scholars and writers” had shown that informational privacy, as opposed to mere personal and territorial privacy, supported the recognition of the new cause of action (para. 66).
[93] There is a parallel in the present appeal where scholarship with a sensibility to women’s perspectives have helped identify the legal interest protected in intimate partner violence and the relevant wrong. Part of this, like in Jones, reflects how scholarship can help shift an entrenched perspective in the cases — an example of what Justice Bertha Wilson, writing extrajudicially, once observed as tort law’s “distinctly male perspective” (“Will Women Judges Really Make a Difference?” (1990), 28 Osgoode Hall L.J. 507, at pp. 512 and 515; see also L. Bender, “An Overview of Feminist Torts Scholarship” (1993), 78 Cornell L. Rev. 575, at p. 575; J. Cowie, “Difference, Dominance, Dilemma: A Critical Analysis of Norberg v. Wynrib” (1994), 58 Sask. L. Rev. 357, at p. 359). Not only does this work assist in identifying the wrong, but it also assists in signaling where, in cases applying existing torts, the gendered nature of the harm has been imperfectly acknowledged. The concern here is not with ideology, but with a different perspective that encourages the courts to properly recognize the nature of the wrong and of the harm it causes. Engaging with critical viewpoints does not alter the legal method, but it can enrich it by drawing attention to factors which may otherwise remain less plain (Cowie, at p. 357). The development of tort law — whether through clarification or modest increment — must of course remain grounded in principle. But principled evolution is not inconsistent with attentiveness to these perspectives. A feminist lens does not dictate judicial outcomes; it helps ensure that tort law’s methods are responsive to the full range of human experience it is meant to govern.
(3) The Novel Tort Must Offer a Proper Response
[94] Where the facts disclose a wrongful act that offends a recognized legal interest and existing remedies are not capable of remedying that interference, courts must turn to the proper formulation of a novel remedy in tort. Here, there is no unique and exhaustive checklist that must be satisfied. A well-formulated tort will ultimately depend on the factual, legal, and social context from which it arises. It is axiomatic that courts must ensure that any tort they recognize is precisely tailored to the wrongful conduct, the legal interest at stake, and the gap it seeks to fill. The recognition of a novel tort is a judicial acknowledgement of a new cause of action grounded in the material facts before the court that were not previously considered redressable (see Goudkamp, at pp. 55-56, citing notably Wilkinson v. Downton, [1897] 2 Q.B. 57; Beswick, at pp. 437-38). Accordingly, a new tort must be carefully crafted to fill the gap in the existing law. Extending it beyond that gap would risk exceeding the proper role of courts in the incremental development of tort law (Friedmann Equity, at para. 42).
[95] In sum, Canadian common law has long balanced the need for principled evolution against that of preserving predictability and coherence. Recognition of novel torts must be rare, cautious, and rooted in the incrementalism that reflects appropriate judicial restraint. The jurisprudence of this Court and the appellate courts, along with scholarship, point to three cumulative requirements that must be satisfied to justify the recognition of a new tort: the facts alleged must disclose a wrongful act that offends a recognized legal interest; existing remedies must be inadequate; and the novel tort must be a proper response, in light of the role of the courts in the development of tort law. . Ahluwalia v. Ahluwalia [history and principles]
In Ahluwalia v. Ahluwalia (SCC, 2026) the Supreme Court of Canada establishes of a new tort of 'Intimate Partner Violence'.
Here the court considers history and principles 'governing the development of the common law of torts':A. The Principles Governing the Development of the Common Law of Torts
[65] Common law jurisprudence in Canada reveals a largely settled method for how and when novel causes of action in tort should be recognized. Although the caselaw presents some differences in emphasis, a principled framework can nonetheless be identified for the recognition of a new tort in Canadian authorities. This Court, in Nevsun (at para. 243), referred to Jones in which Sharpe J.A. recognized a tort action for “intrusion upon seclusion” as an appropriate response to the inadequacy of existing torts to accommodate a civil action for invasion of privacy, a case I find provides helpful guidance (Jones, at para. 65). Sharpe J.A.’s concern of whether the “facts that cry out for a remedy” has been widely cited in scholarship and jurisprudence as a foundational methodological premise (para. 69; see, e.g., Nevsun, notably at para. 241, per Brown and Rowe JJ., dissenting in part; Beswick, at p. 438; M.-J. Maur, “The Ontario Court of Appeal’s Decision in Ahluwalia v. Ahluwalia — Prudence? Or Opportunity Missed?” (2023), 42 C.F.L.Q. 107, at p. 108). Jones fixes our attention on the factual foundation for an actionable civil wrong or, as Sharpe J.A.’s phrase intimates, “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person” (see Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.), at pp. 242-43, cited by Beswick, at p. 433). The idea from Jones that the facts must cry out for a remedy serves as a reminder to judges to proceed with caution in this exercise.
[66] Mr. Ahluwalia contends that existing causes of action are sufficient to redress the wrongs alleged in Ms. Ahluwalia’s proceedings, such that the recognition of a new tort is unnecessary. He warns against the risks of doctrinal instability arising from unnecessary judicial innovation. Ms. Ahluwalia answers that existing torts fail to address the cumulative, systemic nature of intimate partner and family violence, and that the recognition of a distinct tort of family violence is necessary to fill this gap.
(1) Judicial Development of Tort Law Is Constrained by Incrementalism and Necessity
[67] It is often remarked in Canada and elsewhere that the common law is a dynamic rather than static institution. While the development of the law is of course not unrestrained, new torts may emerge to respond to evolving social conditions as a legitimate, albeit limited, feature of the law (see, e.g., L. N. Klar and C. S. G. Jefferies, Tort Law (7th ed. 2023), at pp. 2-4; G. H. L. Fridman, “Torts — Staying Alive” (1997), 2:1 Newcastle L. Rev. 23, at pp. 23-24; J. G. Fleming, The Law of Torts (9th ed. 1998), at p. 7; W. L. Prosser, Handbook of the Law of Torts (4th ed. 1971), at pp. 3-4). The common law is sometimes described as in a state of perpetual growth, “forever fructifying, finding new reasons for creating liability for the harmful consequences of one’s acts” (G. H. L. Fridman, Torts: A Guide for the Perplexed (2017), at p. 159).
[68] The development of new torts, however, is shaped by the same concerns for caution and boldness that characterize judicial changes in the common law more generally. On the one hand, courts are the “custodians of the common law”, and on them rests the “duty to see that the common law reflects the emerging needs and values of our society” (R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 678). On the other hand, “in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform”, and upon this responsibility the judiciary cannot intrude (Salituro, at p. 670, citing Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, at pp. 760-61).
[69] Judges have developed a set of principles to mediate this tension. As this Court affirmed in Friedmann Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34, [2000] 1 S.C.R. 842, at para. 42, incremental change in the common law is warranted where necessary to “clarify a legal principle”, “resolve an inconsistency”, or ensure the law remains “in step with the evolution of society”. At the same time, the consequences of this incremental change must be capable of assessment (ibid.). Courts are ill-suited to make complex policy changes and rightly shy away from work better left institutionally to legislative action (see R. J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at pp. 87 and 93). It is no doubt true that faced with the facts in a single case, “[t]he 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” (Watkins, at p. 760).
[70] Here again, I find the language used in Jones helpful in charting the right path for the courts. After his review of relevant Canadian and international authorities, Sharpe J.A. concluded that it was “appropriate for th[e] court to confirm the existence of a right of action for intrusion upon seclusion” (para. 65) rather than, as has been aptly said, creating a new tort out of “whole cloth” (Merrifield, at para. 25). Given that privacy had long been recognized as an animating value of various traditional causes of action, Sharpe J.A. noted that it was a rational step for “the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form” (Jones, at para. 68). This exercise of confirmation is at once forward- and backward‑looking, and is not an endpoint — the term “emerging acceptance of claims” was invoked in Merrifield to explain the path traced in Jones (Merrifield, at para. 25). But Jones also used language that can fairly be associated with innovation, in that Sharpe J.A. proposed the “[r]ecognition” of a cause of action that was absent in the law as it stood, and that “would amount to an incremental step” that is within the province of the judicial function (para. 65). The authorities he canvassed showed a trend in the cases that “leave[s] open the possibility that such a cause of action does exist” (para. 25), and Sharpe J.A. proposed the cause of action to fill that gap. In their dissenting opinion in Nevsun, Brown and Rowe JJ. acknowledged that Jones is “a rare and instructive example of where a proposed new nominate tort was found by a court” (para. 243).
[71] The balance that courts must strike also reflects the distinct institutional capacity of the judiciary relative to other branches of government. Practically speaking, courts are designed to resolve real disputes between real parties. Unlike the legislative branch, they are not properly equipped with the tools necessary to study and examine the full scope of policy concerns or repercussions that may arise from a complex legal innovation. By contrast, modest and necessary judicial changes that align the law with an emerging social consensus do not raise these same concerns. Courts typically refrain from initiating developments of tort law whose ramifications are uncertain or for which a consensus remains elusive. Judges exercise restraint in the recognition of new torts for these very reasons. For example, in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, at para. 75, the Court declined to recognize a freestanding tort of “bad faith discharge”, citing the absence of supporting authority. Rather than undertaking a shift in the law for which the consequences were uncertain, the Court observed that change was best left to the legislature (paras. 76-77).
[72] Yet as author John G. Fleming noted, “the courts have shown no inclination at any stage to disclaim their creative functions, if considerations of policy pointed to the need for recogni[z]ing a new cause of action” (p. 7). In seeking the proper balance, the court in Caplan v. Atas, 2021 ONSC 670, 71 C.C.L.T. (4th) 36, at para. 168, recognized a tort of internet harassment. Mindful of Merrifield, at para. 53, in which the Court of Appeal had said that harassment, while not foreclosed in some contexts, was seen as unnecessary given the scope of existing torts, Corbett J. found extraordinary campaigns of malicious harassment on the internet cried out for a remedy, and that the tort of IIED was inadequate in that it required a visible and provable illness (Caplan, at paras. 169 and 174). While there was no evidence before the court that the plaintiffs had suffered a visible and provable illness, the court recognized that the persistent and repetitive nature of online harassment amounted to facts pointing to a wrong and to harm that called for a remedy, before such an illness occurred (paras. 169-70). Caplan illustrates how the common law develops incrementally from precedents based on new facts presented before the courts. As the High Court of Australia similarly observed, although the law evolves with due regard to the broader social and legal context, “the incremental and analogical approach of the common law” ultimately requires that its development “reflect the facts in issue in [the] proceeding” (A.A. v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle, [2026] HCA 2, at para. 300). This aligns with the longstanding incrementalist view that new rules in tort law “come into existence only by a series of analogical extensions spread over a long period of time” (see P. H. Winfield, A Text-Book of the Law of Tort (5th ed. 1950), at p. 18).
(2) Necessity Requires the Absence of Adequate Remedies
[73] The Court’s decision in Nevsun provides insight into what constitutes an adequate remedy. In Nevsun, three Eritrean workers alleged that they were indefinitely conscripted through their country’s military service into a forced labour regime where they were required to work at a mine owned by a Canadian company in Eritrea. The plaintiffs claimed that the conduct to which they were subjected breached customary international norms that prohibited forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity, and was actionable under Canadian law. The defendant moved to strike the claim. On appeal, the Court considered whether recognition of new civil remedies for the alleged breaches was possible under the common law or if existing remedies were sufficient.
[74] Mr. Ahluwalia points to the reasons of Brown and Rowe JJ. over those of the majority in Nevsun, for guidance on the recognition of novel torts. He argues that a new tort should not be recognized if (1) adequate alternative remedies exist, (2) the alleged conduct is not clearly wrongful in tort, or (3) the development would create indeterminate or substantial legal change (Nevsun, at para. 237; R.F., at para. 26, fn. 27).
[75] It is true that the dissenting reasons of Brown and Rowe JJ. in Nevsun carries forward the helpful reminder of the importance of incrementalism in the development of new torts and that the majority did not set out a general set of principles for the recognition of new torts in response to the motion to strike. But writing for the majority, Abella J. did provide guidance on the adequacy of existing remedies, a critical matter in the present appeal. For Brown and Rowe JJ. in Nevsun, adequate remedies will suffice in the form of another tort, an independent statutory scheme, or judicial review (para. 238). They need not serve the remedial and compensatory objectives of tort law, but can be achieved by other means, such as criminal sanction (para. 214). In the circumstances, said Brown and Rowe JJ., “all torture is battery . . . albeit a particularly severe form thereof” (para. 216).
[76] For the majority in Nevsun, it was “at least arguable” that the plaintiffs’ allegations were not captured by existing torts, and that it may be necessary to recognize new remedies (paras. 123 et seq.). This potentially included “the recognition of new nominate torts” or the adoption of other remedies based directly on breach of customary international law (para. 127). Notable here is the majority’s comments that existing torts may be insufficient because harm caused by forced labour, slavery, crimes against humanity, or cruel, inhuman or degrading treatment is “sufficiently distinct in nature from those of existing torts” (para. 126). On that basis, “torture is something more than battery [and] slavery is more than an amalgam of unlawful confinement, assault and unjust enrichment” (ibid.). This is generally understood not to be simply a difference in the extent of the harm suffered, but in the quality of wrong or the nature of the harm (compare Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 27). Refusing to make such distinctions “may undermine the court’s ability to adequately address the heinous nature of the harm” (Nevsun, at para. 125 (emphasis added)).
[77] Read carefully, Nevsun does not support Mr. Ahluwalia’s view. The issue in this appeal is not merely the extent of the harm, but its nature. The quality of the wrongful conduct associated with intimate partner violence and the nature of the harm invoked by Ms. Ahluwalia set the new tort apart from existing torts. An adequate remedy is one capable of capturing the nature and scope of the wrong and the harm as a whole.
[78] The focus on the adequacy of existing remedies in this framework also aligns with tort law’s anchor in corrective justice. Tort law seeks, above all things, to restore the victim to the position they would have been in but for the defendant’s wrong. Key to corrective justice is the idea that “the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm” (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 7, citing E. J. Weinrib, The Idea of Private Law (1995), at p. 156; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at para. 34). This relationship explains “why the plaintiff is the party entitled to a remedy” for which the defendant is liable (Atlantic Lottery, at para. 34 (emphasis deleted)). Where no adequate remedies are available under existing torts to redress a wrong committed, the recognition of a novel tort therefore properly responds to the principle of corrective justice by providing a remedy for correcting the wrong.
[79] Furthermore, the existence of a statutory scheme may render the recognition of a new tort unnecessary (see Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, at pp. 194-95; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at para. 60; Nevsun, at para. 238, per Brown and Rowe JJ.). Legislation that either bars a tort remedy or that would be frustrated by the advent of a new tort may be a sign that the competent legislature seeks to preclude judicial innovation of the sort spoken to in Jones (see also Watkins, at pp. 760-61). I note that no such statutory scheme exists that precludes the need for a new tort here. The fact that the Divorce Act only refers to family violence in relation to parenting orders does not signal Parliament’s intention to bar the recognition of a new tort of intimate partner violence. In point of fact, it suggests a gap, rather than a direction to oust or displace the common law (R. v. Basque, 2023 SCC 18, at para. 40). In this case, the statutory regime requiring consideration of family violence when making parenting orders cannot be said to close down common law remedies for intimate partners who allege violence. As the trial judge noted, the Divorce Act does not provide victims of intimate partner violence with “a direct avenue to obtain reparations for harms” that flow from intimate partner violence and “that go well-beyond the economic fallout of the marriage” (para. 46, citing Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587).
(3) Incremental Development May Favour New Torts Over Modified Torts
[80] Understanding the proper scope for the development of tort law by the courts when existing remedies prove inadequate begs the question: why should a court recognize a new tort when, instead, it can develop and expand the scope of existing torts? While Mr. Ahluwalia accepts that courts can recognize new torts, he also argues that this Court should refrain from recognizing one to address intimate partner violence because existing remedies are, in his view, sufficiently flexible to address the wrong at issue (R.F., at para. 39). The reasons of the Court of Appeal suggest a preference for this approach, at least insofar as it states that “[t]he existing torts are flexible enough to address the fact that abuse has many forms” (para. 92). For instance, Ms. Ahluwalia was deprived of her free choice on how to conduct her career and was forced into an economic role within the household that she did not wish to have. Mr. Ahluwalia took control of the family finances, including her money, as a means of stripping her of her autonomy and subordinating her within the relationship. The Court of Appeal recognized that this conduct “fall[s] squarely” within existing torts (at para. 91), even though the resulting harm extended beyond emotional distress.
[81] Mr. Ahluwalia’s view would indicate that, where the facts call out for a remedy, courts should endeavour to confine their changes to tort law to adjusting existing tort categories rather than recognizing new torts. This approach, however, comes with risk. Where existing torts are interpreted so “flexibly” that they become distorted beyond their core purposes, they may invite unintended consequences when the changed element of an existing tort is applied in another setting. Incrementalism does not invariably favour the flexibility of existing torts; where change would require recasting a tort’s established boundaries, it may prove less incremental than the creation of a new cause of action (J. Goudkamp, “New Torts”, in D. Rolph, J. Eldridge and T. Pilkington, eds., Australian Tort Law in the 21st Century (2024), 48, at p. 54).
[82] Recent caselaw and scholarship in the area of privacy torts illustrate the need to strike the proper balance between change within existing torts and the incremental recognition of new tort remedies. Interference with privacy rights has historically coincided with intrusion into property: gaining knowledge of another person’s private affairs usually required trespass into their private dwelling or the wrongful conversion of their personal journals or notes. However, some have observed that the advent of technology has brought into sharper focus the distinction between the protection of privacy rights and property interests (see S. D. Sugarman and C. Boucher, “Re-imagining the Dignitary Torts” (2021), 14 J. Tort Law 101, at p. 115). In Jones, for example, the defendant bank employee digitally accessed the banking information of a person barely known to her 174 times, and was able to see the details of that individual’s sensitive biographic information and financial transactions without necessarily resorting to trespass or conversion (para. 4). The court recognized intrusion upon seclusion as a stand-alone cause of action, observing that “the law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy” (para. 69). Scholars have observed that Canadian recognition of the tort of intrusion upon seclusion in Jones brought greater certainty to the law than the expansion of existing torts that could have had unanticipated impact in other settings (see, e.g., a discussion of the U.K. experience in T. D. C. Bennett, “Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario” (2013), 59 McGill L.J. 49, at pp. 91-92). And because the court in Jones formulated the tort by drawing on established and emerging legal sources, future caselaw is better able to draw on “a rich volume of authority” as to the operation and proper application of the tort (p. 92). Accordingly, where capturing the defendant’s conduct would require a redrawing of an existing tort’s boundaries, incrementalism may instead favour recognizing a new cause of action (Goudkamp, at p. 54).
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