Western’s Tort Law Research Group and Canada’s New Tort of Intimate Partner Violence
July 28, 2026
The scholarship of several members of Western’s Tort Law Research Group (TLRG) has influenced the Supreme Court of Canada’s landmark decision in Ahluwalia v Ahluwalia, 2026 SCC 16. The decision, which recognized a new tort of intimate partner violence, cited articles and book chapters by Professors Andrew Botterell, Stephen Pitel, and the late Gerald Fridman. It also referred to two books co-written by TLRG members and co-edited by Pitel and Professor Erika Chamberlain: Fridman’s The Law of Torts in Canada (Thomson Reuters) and Introduction to the Canadian Law of Torts (LexisNexis). In addition, the majority decision cited a family law casebook co-authored by Professor Claire Houston and a collection co-edited by Professor Melanie Randall. All told, in its historic decision, which draws extensively on academic work, the court cited more authors from Western Law than from any other law school.
The court’s use of TLRG scholarship focused on foundational issues in tort law and tort theory, including corrective justice, the rights-based approach to tort law, and the objectives of compensatory damages. Significantly, both the majority and dissenting opinions referred to Fridman’s scholarship on common law methodology and the creation of new torts, which was a central issue in the case. While the majority stressed the common law’s ability to respond to changing social conditions, the dissent stressed that the law should evolve incrementally. The tension between judicial creativity and judicial restraint is longstanding in the common law, and a court’s predisposition can determine whether it is willing to make profound legal changes, as the majority did in Ahluwalia.
Following the release of the court’s decision, three case comments by TLRG members will be featured in a special issue of the Canadian Cases on the Law of Torts (CCLTs), of which Chamberlain is General Editor.
Professor Chamberlain
The first comment is Chamberlain’s “When the Facts Cry out for a Remedy: Ahluwalia’s Framework for Recognizing New Torts.” The majority’s framework indicates that a new tort can be recognized if the defendant’s conduct constitutes “a wrongful act that offends a recognized legal interest at private law,” for which the existing law does not provide an adequate remedy. Chamberlain notes that, while this framework provides the appearance of methodological clarity, it leaves its constituent elements largely undefined. Chamberlain observes that questions about private law wrongs and protected interests are normative ones, which do not yield obvious answers. More generally, Chamberlain estimates that the majority’s framework signals a noticeable shift in perspective and a greater willingness to recognize new torts.
Professors Randall and Pitel
In the second comment, “The New Tort of Intimate Partner Violence: Definitional Difficulties,” Pitel and Randall raise five concerns about the name and elements of the tort as defined by the majority. In particular, while the majority chose to name the tort, “intimate partner violence,” the gist of the wrong is not violence per se (which is encompassed by the tort of battery), but the coercive control of one’s partner. This can include isolation, surveillance, financial control, sexual coercion, and other forms of psychological or physical abuse. Thus, as Pitel and Randall argue, the term “violence” is both too narrow and too broad in reference to the new tort. Their other concerns highlight the potential confusion created by the majority’s description of the new tort’s elements of intimate relationships and coercive control. They show how these elements lack clarity and provide only vague guidance to litigants and lower courts.
Professors Neyers, Botterell, and Sinel
The third comment is “Everything Old is New Again: Corrective Justice and Rights in Ahluwalia v Ahluwalia,” by Botterell and Professors Jason Neyers and Zoë Sinel. They start with the court’s affirmation that corrective justice is “the central animating principle” of tort law and then analyze the court’s understanding of corrective justice theory. At times, the court refers to the classic conception of corrective justice as involving correlative rights and duties. At others, the majority in Ahluwalia adopts a remedial conception of corrective justice – one that simply requires the defendant to make the plaintiff whole. The authors explain that the primary rights identified by the majority as underlying the new tort (dignity, autonomy, and equality) are described in ways that are essentially unilateral and are therefore misaligned with the bilateral structure of classic corrective justice. Instead, the authors suggest three potential, bilateral bases for the tort: a right to equality and support within a marriage; a right against intimidation; and a right against interference with our volitional capacity.
These comments on Ahluwalia v Ahluwalia represent initial reactions of TLRG members to a long and complex decision. They demonstrate that, while the decision engages deeply with tort theory, doctrine and methodology, and confronts the profound social problem of intimate partner violence, it has left several important questions unanswered. Torts scholars, litigants and courts will grapple with these questions in the coming years. Western’s TLRG will continue to be at the forefront of this important work.
The special issue of the CCLTs, which will also include the full bilingual text of Ahluwalia v Ahluwalia, will be released in mid-summer and will be accessible in a bound volume and on Westlaw.
