From: Samuel Beswick <sbeswick@sjd.law.harvard.edu>

Sent: Friday 15 May 2026 21:22

To: Jason W Neyers; obligations

Cc: ar.sangiuliano@gmail.com

Subject: Re: ODG: A New Tort of "Intimate Partner Violence" - Ahluwalia v. Ahluwalia, 2026 SCC 16

Having now read through the judgment, I thought I'd share the notes I jotted down of its highlights: 

Majority (Kasirer J.):

• A new tort: There is a tort of intimate partner violence (not "family violence"): [97]. It is responds to the distinct form of subordination that can occur within an intimate relationship: [135]. It is "not a new label for a collection of existing torts": [182]. It vindicates a distinct right from that vindicated by battery [145], assault [146], or IIED [154]-[155]. Its recognition is therefore justified in order to fill a gap in tort law's tapestry: [8], [17], [182].

• The IPV tort has three elements: [5], [184], [205]-[209]: "(1) the abusive conduct arose in an intimate partnership or its aftermath; (2) the defendant intentionally engaged in that conduct; and (3) the conduct, on an objective measure, constitutes coercive control." Examples of coercive conduct are provided at [187]. It is an intentional tort. It only applies to intimate partner relationships, not the family generally: [173]. It is centred on coercive control: [120], [191]. It is actionable without proof of damage: [5].

• Incrementalism: The SCC did not endorse the trial judge's framing of the new tort: [172]. It characterised its IVP tort as more properly incremental: [202].

• Damages awards should reflect the seriousness of IVP: [221]-[227].

• Corrective justice: The majority affirms Justice Brown's reasoning in Atlantic Lottery that corrective justice is "tort law's anchor" [78] and "the central animating principle underlying tort law" [136]. 

• We plead facts, not law: Letang v. Cooper is affirmed: [61], [65], [90]; see also dissent at [329]. (I'm particularly pleased about this because Letang v. Cooper is the first case I teach in Torts. Harking from a time when a succinct jurisprudentially rich appeal judgment could be delivered 3 days after hearing ... rather than 15 months and a whopping 400 paragraphs.)

• New torts jurisprudence: Lengthy discussion on when novel causes of action should be recognised and the common law changed: [65]-[95]. This discussion will no doubt inform another case currently on reserve at the SCC - Aphria Inc. v. Canada Life Assurance Co., which I've commented on here.

• Procedure: In response to "one scholar" - an upstart, no doubt - who had suggested that the appeal might be moot because Mrs. Ahluwalia already received full damages, the majority found (citing Steve Smith's book) a declaratory ruling buried in the ONCA's order, which provided a basis for the appeal even though damages weren't under appeal: [53], [242]. (The dissent disagreed.) 

Concurrence (Karakatsanis J.): Favoured an even more expansive tort that would not limit IVP to coercive control, but would encompass the traditional trespass torts, making the IVP tort "a 'one-stop shop' tort in cases of intimate partner violence": [256], [280]. Also endorsed corrective justice [260], while somewhat curiously suggesting "Corrective justice supports a permissive approach to recognizing torts": [262].

Dissent (Jamal J.):

• This was the wrong case in which to be making new law because the wife did not ask for this tort at first instance [322], she already won full compensation under the conventional torts relying on traditional precedent [337], "there are no facts that cry out for a remedy" [398], and the trial judge's initiative in fashioning a new tort for self-represented litigants raised procedural fairness issues [333].

• Unfair: New procedural fairness issues also arise from the majority's approach at the SCC tinkering with the allocation of damages to the distinct torts, given damages were not under appeal: [373]-[381].

• Unnecessary: The conventional torts are flexible and responsive enough to IVP: [339], [342]. Case law since the ONCA's decision shows the conventional torts operate satisfactorily in IVP cases: [353]. Whereas, the new IVP tort will be unwieldy and disruptive for the lower courts: [383]. It allows for recovery "even when the plaintiff was not actually coercively controlled and when the plaintiff suffered no consequential harm" [391].

• It would have been better to wait for "a future case" when the question of an IVP tort "would actually bear on the outcome": [296]. The common law develops incrementally and there was no need here for radical change: [301]-[315]. It is concerning "that the formulation of the new tort in this case has shifted at every level of court. Although this Court is not bound by the legal frameworks proposed by the litigants or the courts below, the shifting formulation of the new tort is symptomatic of developing the law in a factual vacuum." [386]

• Limitation: There will be complicated questions for the courts to work out how limitation statutes apply to this new tort: [394].

• Conclusion: Jamal J. concludes with a particularly pointed criticism of the majority's decision to use this case as a vehicle for recognising a new tort:

[399] To create a new tort in this case, one must disregard that Ms. Ahluwalia never sought the recognition of a new tort at trial and has received everything she claimed by way of damages under existing law. One must deny Ms. Ahluwalia full compensation under the existing torts, even though interfering with this aspect of the trial judge's order lies beyond the scope of this appeal, was never raised by any party, and concerns an issue on which the parties have had no opportunity to be heard. One must overlook the significant body of jurisprudence demonstrating that lower courts can and do apply the existing torts to give meaningful remedies to plaintiffs like Ms. Ahluwalia. One must design the elements of a new tort without the benefit of supportive comparative law, judicial decisions, or academic commentary. And one must accept the risk of confusion and complexity in family courts, as litigants and trial judges attempt to make sense of a new legal framework. With great respect for contrary views, I am unable to agree with such an approach.

Warm wishes,

Sam

On Fri, 15 May 2026 at 09:57, Jason W Neyers <jneyers@uwo.ca> wrote:

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

--

Anthony Sangiuliano, J.D., Ph.D.

Phone: +1 (647) 540-6149

E-mail: ar.sangiuliano@gmail.com