A supreme recipe for new torts: the Court splits in Ahluwalia on how new torts are created

In Ahluwalia v. Ahluwalia¹, the Supreme Court addressed the test for the creation of a new tort. The members of the Court reached opposite conclusions: while Justice Kasirer (for the majority) and Justice Karakatsanis (in concurring reasons) recognized a novel tort of intimate partner violence, Justice Jamal concluded that there was no justification for doing so where existing causes of action, flexibly applied, could provide an adequate remedy.

What you need to know

• The test for recognition of a novel tort. The majority held that to create a new tort, a court must determine (1) that the facts show a wrongful act that offends a recognized legal interest in private law and (2) that existing remedies are inadequate. If both criteria are satisfied, the court will proceed to step (3), tailoring a new tort to address the wrong in a manner consistent with the purposes of tort law, and the parameters of the proper role of the judiciary.
• Competing conceptions of incrementalism. The three sets of reasons diverge in their approaches to the development of the common law and the meaning of incrementalism. The majority and concurring reasons hold that judicial innovation is appropriate where existing causes of action fail to properly characterize the nature of the harm suffered by a plaintiff. In contrast, Justice Jamal’s dissenting reasons take a narrower approach, arguing that there is no basis for recognizing a new tort where existing causes of action can provide full compensation.  
• A distinct harm. The majority and concurring reasons emphasize the importance of the law’s recognition of the specific type of harm suffered by a plaintiff. Justice Kasirer’s and Justice Karakatsanis’s openness to the recognition of dignity-based harms suggests new avenues for litigants seeking compensation for harm in evolving contexts like privacy, where the injury may not be physical or financial.
• A new tort of intimate partner violence. To establish liability under the new tort, a plaintiff must prove (1) that the abusive conduct arose in an intimate partnership or its aftermath; (2) that the defendant intentionally engaged in that conduct; and (3) that the conduct, on an objective measure, constitutes coercive control.

Background

Mr. and Ms. Ahluwalia were married for over 16 years, during which Mr. Ahluwalia subjected Ms. Ahluwalia to ongoing physical and emotional abuse, as well as sexual coercion and financial control. In 2016, Mr. Ahluwalia commenced divorce proceedings. Ms. Ahluwalia, self‑represented at trial, sought family law relief as well as damages. The trial judge awarded $50,000 each in compensatory, aggravated, and punitive damages under a new tort of family violence ($150,000 total), on the basis that the harm resulting from coercive control was not fully captured by existing intentional torts.

The Court of Appeal set aside the recognition of the new tort, concluding that established causes of action (including assault, battery, and intentional infliction of emotional distress) were sufficient to address the harm. The Court of Appeal struck the punitive damages award but upheld the compensatory and aggravated damages on the basis of existing torts for a total of $100,000.

The majority decision

The sole issue before the Supreme Court was whether a new tort should be recognized. The parties did not appeal quantum. In a decision authored by Justice Kasirer, a five-judge majority overturned the Court of Appeal’s decision and recognized a new tort of intimate partner violence².

The Court confirmed the framework for the recognition of novel torts. The analysis proceeds in three steps:

1. The facts must show a wrongful act that offends a recognized legal interest in private law.
2. The existing remedies must be inadequate.
3. If these two conditions are satisfied, the analysis proceeds to the third step: 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.

To establish liability under the new tort of intimate partner violence, a plaintiff must prove three elements:

1. that the abusive conduct arose in an intimate partnership or its aftermath;
2. that the defendant intentionally engaged in that conduct; and
3. that the conduct, on an objective measure, constitutes coercive control.

The majority held that liability under the tort of intimate partner violence was established on the facts and upheld the Court of Appeal’s award of $100,000 in damages, but on the basis of the new tort.

The dissent

Justice Jamal (joined by Justices Côté and Rowe) dissented and would have dismissed the appeal. Justice Jamal found that novel torts should only be recognized where no adequate remedy exists on the facts before the court. On the facts of this case, he concluded, existing torts including assault, battery, and intentional infliction of emotional distress were capable of fully compensating the harm.

The Court’s analysis

All members of the Court endorsed Justice Sharpe’s analysis in the 2012 Ontario Court of Appeal decision Jones v. Tsige³ as the governing framework for recognizing new torts and agreed that incrementalism remains the core organizing principle of common law development. However, the majority and dissenting reasons diverge sharply on what those principles require in practice—particularly in assessing when the facts “cry out for a remedy” (adopting Justice Sharpe’s language in Jones). This disagreement reflects competing conceptions of incrementalism, which result in starkly different methodological approaches to the creation of new torts.

Justice Kasirer’s reasons for the majority reframe the question of whether the facts “cry out for a remedy” by focusing on whether existing torts properly understand and address the nature of the wrong. Where the nature of the harm is not adequately addressed by existing torts, a gap exists which the courts may appropriately step in to fill. Justice Kasirer relies on social science evidence as support for a social evolution in the recognition of the specific harm that results from intimate partner violence and concludes that coercive control constitutes a qualitatively distinct harm that existing torts mischaracterize. He also emphasizes the distinction between tortious conduct inflicted on a stranger and conduct inflicted in the context of an intimate relationship, concluding that the recognition of a new tort was necessary here because the injury was qualitatively different as a result of the intimate partnership setting.

By contrast, Justice Jamal advances a more restrained approach to incrementalism, grounded in rule-of-law and institutional concerns. In his view, common law development must be strictly tied to the dispute before the court and extend no further than necessary to resolve it. Where existing causes of action, applied flexibly and with an appropriate scale of damages, can provide full compensation, there is no gap for the court to fill and therefore no basis for doctrinal innovation—judicial innovation in this context is “abstract law reform”. Justice Jamal accordingly construes the Jones principle narrowly: facts “cry out for a remedy” only where no adequate remedy can be derived from existing torts. He also underscores the need for firm grounding in established legal sources, expressing skepticism that the majority’s reliance on social science evidence provides a sufficient basis for the creation of a new tort.

The takeaway

It remains to be seen whether plaintiffs will see this decision as an invitation to seek a new range of torts, arguing that the nature of the harm is analytically separate from damages—even in situations where compensation is available under existing causes of actions. This may result in increased litigation: litigants may consider alternative pleading strategies, pairing established causes of action with arguments for doctrinal development.

The decision also shows the split at the court on receiving social science evidence in establishing that a harm is qualitatively different from those recognized in existing doctrine. The framing of claims to seek compensation for dignity-based harms as being not adequately captured by existing causes of action may be particularly relevant in rapidly evolving contexts such as privacy.