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In a landmark decision, the Supreme Court of Canada has created a new tort of intimate partner violence that will allow people to sue for damages when they have been subject to abuse in a relationship.<\/p>\n
“Intimate partner violence is a pernicious social ill deserving of the full attention of the law,” the summary of the majority judgement says in defining intimate partner violence.<\/p>\n
“Best understood, it is not confined to conduct that inflicts physical or psychological injury, but includes all abusive conduct by which one intimate partner coerces and controls the other, thus depriving them of their autonomy.”<\/p>\n
The six-to-three decision further defines the new tort as covering acts of physical violence, isolation tactics, manipulation, humiliation, surveillance, economic abuse, sexual coercion and intimidation.<\/p>\n
Torts are not criminal laws that allow the prosecution of individuals or companies, but are part of civil law and are designed to allow victims of physical or financial harm to seek financial compensation and deter conduct.<\/p>\n
Woman suffered abuse during 16-year marriage<\/p>\n
The Supreme Court ruling is tied to the case of Kuldeep Ahluwalia, a Punjabi woman who met and married Amrit Ahluwalia in India, in 1999 before emigrating to Canada in the early 2000s.<\/p>\n
The ruling summary explains that Amrit Ahluwalia abused his wife over their 16-year marriage through “physical assaults, humiliation, intimidation and conduct intending to inflict emotional distress.”<\/p>\n
“The husband\u2019s conduct had coerced and controlled the wife in order to break her will and condition her to obey him from the beginning of their marriage,” the summary says.\u00a0<\/p>\n
During divorce proceedings initiated by Amrit, Kuldeep agreed to the divorce and requested damages for the abuse she suffered. She was awarded $50,000 in compensation, another $50,000 in aggravated damages and then a final $50,000 for family violence.\u00a0<\/p>\n
That last award of $50,000 was awarded on the back of a tort the Superior Court of Ontario created during the case and named family violence.\u00a0<\/p>\n
On appeal, the Ontario Court of Appeal ruled that there was no need to create a new tort for family violence, because existing law was already sufficient to protect partners from intimate violence.\u00a0<\/p>\n
The Court of Appeal struck down the $50,000 payment for family violence and Kuldeep appealed her case to the Supreme Court of Canada, which issued their ruling on Friday.<\/p>\n
Filling gap in law<\/p>\n
Writing for the majority, Supreme Court Justice Nicholas Kasirer said Friday that “there was additional injury flowing from Mr. Ahluwalia\u2019s coercive control for which general compensatory and aggravated damages were necessary, above and beyond that associated with the existing torts.”<\/p>\n
Kasirer said that where existing torts fail in this case is that they do not adequately “remedy the specific wrong to dignity, autonomy and equality that intimate partner violence creates.” \u00a0<\/p>\n
While Kasirer agreed with the Ontario Court of Appeal decision in part \u2014 that the tort of family violence created by the Superior Court should not be recognized \u2014 he said failing to recognize the specific nature of coercive control and family violence in intimate relationships was an “error of law.”\u00a0\u00a0<\/p>\n
“This reflects a failure to consider coercive control in intimate partnerships as distinctly wrongful conduct \u2026 and the distinct harm that arises from it. Respectfully, this was an error of law to which no deference was owed,” Kasirer wrote.<\/p>\n
Writing for the dissenting justices, Justice Mahmud Jamal described intimate partner violence in Canada as an epidemic that demands a response from the justice system that “is both compassionate and principled.”<\/p>\n
“The need for judicial restraint is especially pronounced when a court is asked to recognize a wholly new tort,” Jamal wrote. “That exercise is subject to clear preconditions identified in the jurisprudence.<\/p>\n
“Among them is the principle that courts should not recognize a new tort when adequate alternative remedies for the wrong already exist.”<\/p>\n