On July 7, 2023, the Court of Ontario released its decision in Ahluwalia v. Ahluwalia. In a nutshell, the Court of Appeal acknowledged that “intimate partner violence must be recognized, denounced and deterred” but it concluded that it “was unnecessary to create a novel tort” of family violence. The Court of Appeal reduced the damages from $150,000 to $100,000 by eliminating the award for punitive damages. As agreed between the parties, no costs were ordered.
Below are summaries of the trial judge decision and the Court of Appeal judgement.
Trial Decision
The plaintiff wife brought an action against her ex-husband for support and property equalization, and she also claimed damages for the husband’s violent conduct during the marriage. Justice Renu J. Mandhane of the Superior Court of Justice dealt with the statutory relief and recognized a new tort of family violence. Justice Mandhane assessed damages for this new tort at $150,000: $50,000 for each compensatory, aggravated and punitive damages.
In recognizing the tort of family violence, the trial judge concluded that:
- Interest of survivors of family violence was worthy of protection,
- Development in the law was necessary to stay abreast of social changes,
- Narrow elements of liability in existing torts did not adequately address the day-to-day reality of family violence, and
- New tort of family violence was in line with the compensatory goals of tort law.
Court of Appeal Judgement
The husband appealed Justice Mandhane’s decision. He conceded that he was liable for existing torts but not the new tort of family violence. He disputed the amount awarded for damages.
The Court of Appeal concluded that the trial judge had “not erred by including a tort claim in a family law proceeding.” It is therefore appropriate to have one unique claim and avoid multiplicity of proceedings when it comes to various claims resulting from the breakdown of the marriage. With respect to the process, the Court of Appeal cautioned that the “court should complete the statutory claims before assessing liability and damages for tort claims.”
The Court of Appeal concluded that creating the new tort of family violence was unnecessary. The trial judge’s finding of the appellant husband’s violent conduct satisfied the requirements to prove the torts of battery, assault and intentional infliction of emotional distress.
The trial judge had found that the existing torts did not capture the pattern of conduct in family violence and did not attract damages to reflect such conduct. The Court of Appeal rejected this finding by citing many cases where the courts had specifically considered the pattern of abuse as a reason to award higher damages: Calin v. Calin 2019 ONSC 3564, Jane Doe 72511 v. Morgan 2018 ONSC 6607, Farkas v. Kovacs, [1989] O.J. No. 2387 (Dist. Ct.) and Van Dusen v. Van Dusen 2010 ONSC 220. More decisions are cited in the Court of Appeal’s decision.
The Court of Appeal also rejected the respondent’s proposed new tort of coercive control because it found that the tort of intentional infliction of emotional distress provided an adequate remedy and “the elimination of the requirement to prove harm would cause a significant impact on family law litigation best left to the legislature.”
With respect to punitive damages, the Court of Appeal decided that an award for punitive damages was not appropriate. In this case, compensatory and aggravated damages were “sufficient to accomplish the objectives of condemnation.” However, the Court of Appeal did not close the door on punitive damages in matters involving intimate partner violence.
Conclusion
In Ahluwalia, the Court of Appeal clearly recognized that intimate partner violence is a “pervasive social problem.” However, by rejecting the proposed tort of family violence, the Court of Appeal missed an opportunity to recognize the cumulative and pervasive harm of intimate partner violence. The tort of family violence, as enunciated by the trial judge, captured the long-term and far-reaching effects of violence on surviving partners.
Below are takeaways from the perspective of a personal injury lawyer:
- it is appropriate to include tort claims in a family proceeding. There is no need for duplicate proceedings. Pair up with a family lawyer. You can advance tort claims such as battery, assault, intentional infliction of emotional distress, and/or harassment. The family law lawyer can advance the statutory claims on behalf of the survivor of intimate partner violence.
- Present evidence on the pattern of the violent conduct to support higher damages in the tort claims.
- If you are seeking punitive damages, review the Supreme Court of Canada decision of Whiten v. Pilot Insurance, 2002 SCC 18. Show to the court that other heads of damages, such as compensatory and aggravated damages, are not sufficient to meet the objective of condemnation of punitive damages. Explain that a monetary award to achieve the goals of denunciation and deterrence is necessary.
It will be interesting to see if the respondent seeks leave to appeal the decision to the Supreme Court of Canada.
See OTLA’s summary of Ahluwalia v. Ahluwalia, 2022 ONSC 1303 here.
