A beneficial ruling. And strikingly innovative. The SCC has effectively moved tort law from discrete wrongful acts, toward regulation of patterns of domination within intimate relationships. Also showing a conspicuous willingness to draw normative content from outside traditional private-law sources: equality discourse, Charter values, feminist analysis, social science, and statutory developments concerning family violence.

Yet the majority opinion (perhaps to pre-empt critics) seeks to minimise what it is doing, insisting that it is only filling “gaps”, constantly warning against overbreadth, claiming that the tort addresses “violence” rather than anything broader, with tight doctrinal confinement to “intimate partners”.  In particular:

(1) the naming of the tort as one of “violence” rather than coercive domination suggests some nervousness about how far the innovation might appear to extend. Violence (in any ordinary sense of the word) is only one example of the new tort’s concerns, which are (rightly) far broader.

(2) the restriction to “intimate partners” is poorly defended. “An intimate partnership is a relationship of close personal connection, sustained over a period of time, and marked by mutual interdependence, care or commitment, and the presence of domestic, emotional, financial or physical intimacy” – certainly, but so are many other family relationships. Nothing in the majority’s reasoning convincingly explains why its logic would stop where it does.

Ironically, while Justice Jamal’s dissent is unconvincing (underestimating the inadequacy of the existing torts), it is probably the most accurate account of the scale of the doctrinal transformation the majority is undertaking. The difficulties of definition and boundary-setting now facing lower courts are very real, and while the majority have deliberately limited the step they have just taken, it may only be the first of several. 

Steve Hedley
s.hedley@ucc.ie

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

Phone: +1 (647) 540-6149

E-mail: ar.sangiuliano@gmail.com