Daniel Kim, Tyler Li, Drew Meetze and Christine Yang are law students at the University of Ottawa Faculty of Law. They filed this joint dispatch for JURIST from Ottawa. 

We attended the courtroom at the Supreme Court of Canada (SCC) in Ottawa last Tuesday and Wednesday to hear oral arguments in Ahluwalia v Ahluwalia. Cases come to Canada’s top court in several ways: by leave, by automatic right, or by reference. This tort law case was particularly notable for being granted leave despite no change in damages being requested by either the plaintiff or defendant. This notion means the Court found the legal issues of this case to be a matter of national or public importance.

At its core, the legal question was how tort law should (or should not) address intimate partner violence (IPV), currently reaching crisis proportions in Canada.

The trial judge in the case recognized a new tort of family violence to capture the defendant ex-husband’s sixteen-year pattern of coercion and control over plaintiff Ms. Ahluwalia. At the Ontario Court of Appeal, a unanimous 3-judge panel overturned the trial decision, finding that the creation of a new tort was unnecessary because the harm of IPV can be adequately addressed through the existing torts of assault, battery, and intentional infliction of mental distress (IIMD).

The case was heard by the Supreme Court over two days. The first day was oral arguments of the appellant and respondent. The second day was for the intervenors who were granted leave to provide the Court with useful and different perspectives. An astonishingly high 17 intervenors were permitted to speak, including the Attorney General of Canada and British Columbia as well as 15 different civil and public interest groups.

Appellant Arguments

Counsel Julie Hannaford and Martha McCarthy’s arguments were aimed at convincing the judges that a tort of family violence was a necessary yet incremental step in the development of tort law because of the unique harm it causes; that it was in fact the doctrinally consistent way to move forward to address the nation-wide epidemic of IPV. The entire bench actively engaged with their arguments.

Within seconds of the appellants’ opening remarks, Justice Rowe, an outspoken proponent of judicial restraint, made his views clear. He questioned why the appellants were before the court  and characterized this case as a reference, a request for the Court to effectively legislate tort law. Hannaford calmly responded that this is indeed a request: to ask the Court to exercise its superintendent function in tort law—which is judge-made law—as it relates to intimate partners and members of the family.

Quite quickly, a series of questions from Justices Côté, Kasirer, Jamal, and Rowe revealed a primary concern—pushing against the guardrails of common law incrementalism. In common law jurisdictions, the law develops step by step, building upon prior decisions. This “guiding hand” is slow, but allows for flexible refinement in response to societal changes. The Justices recognized the seriousness of IPV and the need to provide an appropriate remedy, but their underlying concern appeared to be doctrinal—about future problems with a new tort as the law continues to develop. Are the torts we currently have truly not enough?

The appellants responded that no, they truly are not enough. Martha McCarthy implored the Court to consider the access to justice issues that come with establishing a tort claim against a perpetrator of abuse in our current system. She argued that currently, an individual may have to meet the legal thresholds for 5 or 6 different torts to be granted remedies for the tortious conduct that occurred over a long period. She said the “time for tweaking is over”.

Respondent Arguments

Geoffrey Carpenter argued that the existing torts were sufficient and the publicity of this case alone has led to judges awarding higher damages in similar cases. He also urged the court that the impact of a new tort of family violence will be exponentially magnified in the family law context. He reasoned that creating a new tort goes against the fundamental tenet of judge-made law—to be developed incrementally over time. A new tort should be recognized only when the facts “cry out for a remedy.” Here, a remedy was asked for, and it was awarded by the lower courts in full.

Justice Kasirer challenged the respondent’s argument, wondering whether recognizing a new tort could in fact be less expansive than using existing torts, because IIMD has grown beyond its origins to become a large vehicle for many different harms. Justice Martin followed that line of questioning later on, querying the boundaries between common law incrementalism and judicial restraint, between expanding the tort of IIMD or creating a new tort, because IIMD was never intended to morph into an “omnibus tort”  that encompasses many things.

The respondent argued the Court’s job is not to make statements of values. The respondent suggested that if the SCC wants to create a new tort, it does so in a narrower way. He found the trial judge’s framing of the tort of family violence as being very problematic because it was too broadly worded. Should they go this way, they need to establish a clear and identifiable type of conduct that would be captured by this tort.

Common Law Incrementalism vs Access to Justice

Leaving the courthouse, our impression was that the Justices seemed to be grappling with a delicate balancing act: on one hand, an opportunity to provide redress and recognition of a particular type of insidious harm that disproportionately impacts women. On the other, their position as Canada’s apex court and the many implications of finding a new tort. Perhaps all that is required here is a strong pronouncement from the Court that you don’t get to treat your family worse than you treat strangers and that the context in which IPV takes place must be considered by trial judges. Perhaps this can be accomplished without disturbing our existing tort framework.

The back and forth between the bench and counsel revealed the Court’s conservative approach to refining the law, their reluctance to venture into what is a societal issue best dealt with by the legislature, but also whether now was an appropriate moment to take action for victims of IPV in Canada. This was aptly captured by Justice Jamal’s question during the hearing: “Do we need a new tort or simply a new attitude?”

The SCC typically provides a written judgment between 6 to 9 months after the hearing. We’ll have our answer later this year.

The entire two-day hearing and written arguments of the parties are available for viewing.