Torts - Intentional Infliction of Mental Suffering. 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?. Ahluwalia v. Ahluwalia
 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.
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 existing tort of intentional infliction of mental distress:
 There is also the tort of intentional infliction of emotional distress. It has three elements: (i) the defendant's conduct was flagrant and outrageous; (ii) the conduct was calculated to harm; and (iii) the conduct caused the plaintiff to suffer a visible and provable illness. See Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.).. Boucher v Wal-Mart Canada Corp.
 The requirement that the conduct be calculated to produce harm is met where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow: Allen M. Linden, Canadian Tort Law, 7th ed. (Markham, Ont.: Butterworths, 2001) at p. 34, Prof. G.H.L. Fridman, The Law of Torts in Canada (Toronto: Carswell, 1989) at p. 53. The "visible and provable illness" does not require expert medical evidence. It is satisfied when depression or physical illness result from the conduct: see Saadati v. Moorhead, 2017 SCC 28,  1 S.C.R. 543.
In Boucher v Wal-Mart Canada Corp. (Ont CA, 2014), a wrongful dismissal case, the Court of Appeal addressed the elements of the tort of intentional infliction of mental suffering:
 The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:. McIlvenna v 1887401 Ontario Ltd.
• The defendant’s conduct was flagrant and outrageous;See Prinzo v. Baycrest Centre for Geriatric Care 2002 CanLII 45005 (ON CA), (2002), 60 O.R. (3d) 474 (C.A.).
• The defendant’s conduct was calculated to harm the plaintiff;
• The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.
 The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur: see Piresferreira, at para. 78.
In McIlvenna v. 1887401 Ontario Ltd. (Ont CA, 2015) the Court of Appeal set out the elements of the tort of intentional infliction of mental suffering:
 As for the tort of intentional infliction of mental suffering, this cause of action is comprised of the following elements: (a) flagrant and outrageous conduct; (b) calculated to produce harm; (c) which results in visible and provable injury: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A), at para. 43.. Merrifield v. Canada (Attorney General)
 The tort of intentional infliction of mental suffering is not actionable without proof of actual harm. This is because the basis of liability for this tort is not rooted in the trespass action, but is a descendant of the action on the case. A plaintiff must prove that he or she has suffered a recognized psychiatric illness to establish a cause of action: see A. Linden and B. Feldthusen, Canadian Tort Law, 9th ed. (Markham: LexisNexis, 2011), at p. 55. See also Frame v. Smith, 1987 CanLII 74 (SCC),  2 S.C.R. 99 at para. 46, referring to the need to establish “recognizable physical or psychopathological harm.”
In Merrifield v. Canada (Attorney General) (Ont CA, 2019) the Court of Appeal discusses "IIMS" in the context of deciding whether a new tort of harassment is warranted:
II. THE INTENTIONAL INFLICTION OF MENTAL SUFFERING (IIMS). Colistro v. Tbaytel
 The tort of IIMS is well established in Ontario and may be asserted as a basis for claiming damages for mental suffering in the employment context.
 In the leading case, Prinzo v. Baycrest Centre for Geriatric Care, (2002) 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474, at para. 48, this court held that the test for IIMS is met where the plaintiff establishes conduct that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness.
Was IIMS established?
 The trial judge set out the test for IIMS outlined by this court in Wal-Mart. This requires a plaintiff to establish that the defendant’s conduct:
1) was flagrant and outrageous;
2) was calculated to harm the plaintiff; and
3) caused the plaintiff to suffer a visible and provable illness.
In Colistro v. Tbaytel (Ont CA, 2019) the Court of Appeal discusses the tort of intentional infliction of mental suffering:
II. INTENTIONAL INFLICTION OF MENTAL SUFFERING. Correia v. Canac Kitchens
The trial judge’s reasons
 The trial judge correctly summarized the three elements of the tort of intentional infliction of mental suffering:
1. Flagrant or outrageous conduct;
2. Calculated to produce harm; and
3. Resulting in a visible and provable illness.
 He noted, again correctly, that the first and third branches of the test are objective, and the second is subjective. Citing this court in Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 45, he wrote that the “calculated to produce harm” element is established “where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow”. He referred to Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), 319 D.L.R. (4th) 665, at paras. 78-79, leave to appeal refused,  S.C.C.A. No. 283, and instructed himself that the second element is not satisfied by evidence of foreseeability or reckless disregard: “Foreseeability, which indicates only that a result may follow, is much less than knowledge that a result is substantially certain to follow”. He also cited Piresferreira for the principle that while the extent of the harm suffered need not be anticipated, the kind of harm must have been intended or known to be substantially certain to follow.
 In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), 120 O.R. (3d) 481, at para. 44, Laskin J.A. , citing Piresferreira, summarized the relevant principle:
The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur. In my view, Piresferreira does not require that the defendant must have intended to produce a particular, recognized psychiatric illness or have known that it was substantially certain to follow. The confusion arises from para. 79 of Piresferreira, where Juriansz J.A. commented that the evidence did not support the inference that the defendant intended or knew that it was substantially certain to follow that the plaintiff would suffer post-traumatic stress disorder or a major depressive disorder. However, subsequent passages in para. 79 indicate that Juriansz J.A. accepted that the requisite “kind of harm” in that case was the more general category of serious psychological injury. He wrote that, at most, the trial judge found that serious psychological injury was foreseeable and, “[f]oreseeability, which indicates only that a result may follow, is much less than knowledge that a result is substantially certain to follow.” The second element of the test was not satisfied in Piresferreira because the trial judge had wrongly applied a test of reckless disregard or reasonable foreseeability, not because the harm that was foreseeable was not of the right kind.
 As the trial judge noted, the second element of the test is subjective. Further, as Juriansz J.A. stressed in Piresferreira, where, as in this case, a plaintiff relies on the “substantially certain to follow” branch of the second element of the test, more than evidence of foreseeability or reckless disregard is required: Piresferreira, at paras.77-79; Boucher, at paras. 43-44. The bar is necessarily high where a defendant is to be liable for all of the consequences of an intentional wrongful act.
 The requirement that the defendant have intended to produce the harm that occurred, or known that the harm was substantially certain to follow as a result of his or her conduct, is an important limiting element of the tort and distinguishes it from actions in negligence. It is now well established that a plaintiff can recover in negligence for psychological injury. A plaintiff seeking recovery in negligence for mental injury must show that: (1) the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; (2) the defendant breached that duty by failing to observe the applicable standard of care; (3) the claimant sustained damage; and (4) such damage was caused, in fact and in law, by the defendant’s breach: Saadati v. Moorhead, 2017 SCC 28 (CanLII),  1 S.C.R. 543, at para. 13; Mustapha v. Culligan of Canada, 2008 SCC 27 (CanLII),  2 S.C.R. 114, at paras. 8-9. Frequently, the issue will be whether it is reasonably foreseeable that a person of ordinary fortitude would suffer the mental injury incurred as a consequence of the defendant’s allegedly negligent behaviour. However, in Piresferreira, this court held, at paras. 50-63, that an employee cannot pursue a claim for negligent infliction of mental suffering in the employment context.
In Correia v. Canac Kitchens (Ont CA, 2008) the Court of Appeal canvassed the issue of intentional infliction of mental distress:
(b) Analysis of the intentional infliction of mental distress claims
 In Prinzo v. Baycrest, supra, at paras. 34-64, this court confirmed (a) the three-pronged test to establish the tort of intentional infliction of mental distress and (b) that if it is established as an actionable wrong that is separate from wrongful dismissal, then damages for the tort of intentional infliction of mental distress can be awarded in the context of a wrongful dismissal action. Therefore, a claim for intentional infliction of mental distress should not be struck or dismissed only because it is raised in a wrongful dismissal context or because the facts giving rise to the claim may overlap with those that form the basis for aggravated or punitive damages from the wrongful dismissal.
 In Prinzo, this court, at paras. 44-46, adopted the formulation of the three-pronged test for the tort of intentional infliction of mental distress as set out by McLachlin J., as she then was, in the British Columbia Supreme Court decision Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (BC SC),  B.C.J. No. 2790, 51 B.C.L.R. 200 (S.C.). That case was somewhat similar to this one because it involved the abrupt termination of an employee based on a wrongful charge of theft. There, a bank teller was accused of stealing $2,000 that another teller could not account for and was summarily dismissed. She suffered mental distress and sued for wrongful dismissal, claiming separately for the damages she suffered for her mental anguish caused by the false allegation of theft and the fallout from that false accusation.
 McLachlin J. first analyzed the mental distress claim as part of the damages for breach of the contract of employment. She concluded that the damage did not flow from the failure to give adequate notice of dismissal, but from the employee's termination for theft without an opportunity to clear her name, which was not a breach of her contract of employment. Although the employee could not recover these damages as part of her damages from the wrongful dismissal, she could recover in tort. McLachlin J. found, at p. 214 B.C.L.R., that the bank manager "acted with a reckless disregard as to whether or not shock would ensue from his accusation" and that this was sufficient to make the infliction of mental distress willful. She had no trouble concluding, at p. 215 B.C.L.R., that the bank's conduct was outrageous: "Allegations of theft should not be made recklessly, without proper care for whether they are true or not."
 Finally, McLachlin J. concluded, at p. 215 B.C.L.R., that the bank's conduct was calculated to produce the effect it did because[page381]
. . . [i]t was clearly foreseeable that the accusations of theft which the defendant made against the plaintiff would cause her profound distress. That distress could only be exacerbated by the defendant's failure to conduct a proper investigation or allow the plaintiff to defend herself. In Prinzo, at para. 45, this court used similar language noting that this element is made out "if the consequences are known to be substantially certain to follow". It is implicit in the reasons of the motion judge that she was satisfied on the facts before her that Canac's conduct could be found to meet the three-pronged test. It was flagrant and outrageous; it was calculated to cause the distress it did because it was clearly foreseeable that it would; and it caused Mr. Correia significant mental distress. We agree with this conclusion and that there is therefore a triable issue in respect of the intentional infliction of mental distress claim against Canac.
 It is also implicit in her reasons that the motion judge would have allowed the claim to go ahead against Marilyn Smith, but believed that an action could not be brought against her personally because she was acting in the course of her employment. The motion judge erred in law in this respect. An employee acting in the context or course of employment can be personally responsible in law for his or her tortious conduct: see: London Drugs v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC),  3 S.C.R. 299,  S.C.J. No. 84; Alper Development Inc. v. Harrowston Corp. (1998), 1998 CanLII 2237 (ON CA), 38 O.R. (3d) 785,  O.J. No. 1199 (C.A.); ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 CanLII 1527 (ON CA), 43 O.R. (3d) 101,  O.J. No. 27 (C.A.); Meditrust Healthcare Inc. v. Shoppers Drug Mart, a division of Imasco Retail Inc., 1999 CanLII 2316 (ON CA),  O.J. No. 3243, 124 O.A.C. 137 (C.A.).
 Carthy J.A. explained in ADGA Systems, supra, at p. 106 O.R., that the effect of the rule in Said v. Butt is not that it grants immunity for any wrongdoing to employees acting in the course of their employment, but that it grants an exception from personal liability for employees or officers of companies who terminate contracts on behalf of their corporate employers:
[The rule in Said v. Butt] provides an exception to the general rule that persons are responsible for their own conduct. That exception has since gained acceptance because it assures that persons who deal with a limited company and accept the imposition of limited liability will not have available to them both a claim for breach of contract against a company and a claim for tortious conduct against the director with damages assessed on a different basis. The exception also assures that officers and directors, in the process of carrying on business, are capable of directing that a contract of employment be terminated or that a business contract not be performed on the assumed basis that the company's best interest is to pay the damages for failure to perform. By carving out the exception for these policy reasons, the court has emphasized and left intact the general liability of any individual for personal conduct. [page382] Marilyn Smith was the person who terminated Mr. Correia and facilitated turning him over to the police to be charged with criminal offences following the negligent investigation, in which she herself made the error that caused blame to be falsely cast on him. In law she may be held personally liable for her conduct. The rule in Said v. Butt does not apply here because we are talking about responsibility for a separate actionable tort, not for the wrongful termination of the contract of employment itself.
 A similar analysis must be applied to the Aston defendants as to the Canac defendants. The motion judge did not consider their conduct sufficiently outrageous to meet the first prong of the test for intentional infliction of mental distress. That conduct will now be the subject at trial of an action for negligent investigation. If it is found that Aston was negligent in its investigation, in the context where it knew the serious consequences of a wrongful charge of criminal conduct against an employee, its conduct may well be found to be outrageous and to meet the requirement for intentional infliction of mental distress. When the motion judge's reasons for dismissing the claims for intentional infliction of mental distress against the Aston defendants are viewed in light of this possibility, as well as the motion judge's decision to permit this claim to proceed against Canac, we find that her clarifying reasons do not provide a sufficient basis for granting summary judgment in favour of Aston or its employees on this cause of action.
 The final defendant is Kohler. It appears that Kohler was not separately considered by the motion judge. There is no basis at this stage to distinguish Kohler's role from Canac's role in the investigation and the actions taken against Mr. Correia for the purpose of considering the claim for intentional infliction of mental distress. For the reasons that the claim can proceed against Canac and Smith, it can also proceed to trial as against Kohler.