From: Jason W
Neyers <jneyers@uwo.ca>
Sent: Friday 15
May 2026 17:58
To: ar.sangiuliano@gmail.com;
obligations
Subject: ODG: A
New Tort of "Intimate Partner Violence" - Ahluwalia v. Ahluwalia,
2026 SCC 16
Interestingly, that consolidated framework is quite consistent with the
rights-based view of torts (at [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 [right?] in private law. Second, the existing remedies must be
inadequate. ... 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.
Moreover, the result and much of the reasoning, at least through the
first 150 paragraphs, is as also consistent with the rights based view:
being in a marriage (or a similar intimate partnership) creates mutual 'duties
of respect, fidelity, succour, and assistance' [105] . The rights to these are
violated when the offending spouse seeks to dominate or control the other. As
the court notes: 'Such abusive conduct is a breach of a duty "to act loyally"
rooted in the pre-existing intimate partnership that may be compared, in
certain respects, to a parent-child relationship' (at [106]). This
(family/status) right (as Kantians often describe them) is different than our
rights to or bodies and therefore requires a separate tort to vindicate it. As
the majority states:
Mr. Ahluwalia's
submission rests on the assumption that the only legal interest engaged by his
conduct is Ms. Ahluwalia's bodily and psychological integrity, such that the
only harm arising from his conduct are physical and psychological injuries.
This view fails to respond to intimate partner violence in its full scope.
Although the reasoning is often couched in terms of violations of
dignity and autonomy, these are unilateral interests that everyone has in
relation to everyone else, and could not therefore limit the tort to situations
of intimate partners as the court seeks to do - the concept of family right
certainly does however.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Anthony Sangiuliano <ar.sangiuliano@gmail.com>
Sent: May 15, 2026 11:14 AM
To: obligations <obligations@uwo.ca>
Subject: A New Tort of "Intimate Partner Violence" - Ahluwalia
v. Ahluwalia, 2026 SCC 16
Dear
colleagues,
Today the
Supreme Court of Canada released its highly anticipated decision in Ahluwalia
v. Ahluwalia. In an opinion written by Justice Kasirer, the majority
recognized a new tort of "intimate partner violence." Justice
Karkatsanis wrote a concurrence, and Justice Jamal dissented. The Court's
plain language Case-in-Brief can be found here.
The
judgment is likely to be of great interest across the common law world, not
only because of the great victory it represents for victims of domestic abuse
but also because the majority outlines what it describes as a
"consolidated framework for the recognition of new torts."
In the
appeal before the Supreme Court, I served as a representative for the
intervener Tort Law and Social Equality Project, which as many of you know, is
headed by me, Sophia Moreau, and Haim Abraham. We made submissions on the
applicable framework for recognizing new torts. The Court's judgment cites to
the writing of a plethora of ODGrs, including Sam Beswick, Andrew Botterell,
Peter Cane, Erika Chamberlain, James Goudkamp, Margaret Hall, Nick McBride,
John Murphy, Stephen Pitel, Arthur Ripstein, Lionel Smith, Stephen Smith, Jane
Stapleton, Robert Stevens, Jason Varuhas, Ernest Weinrib, and perhaps more (I'm
sorry of I missed anyone!).
No doubt
the judgment will provide plenty of food for thought ...
All the
best,
Anthony
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