Ahluwalia applied

Earlier this year, the Supreme Court of Canada released its decision in the case of Ahluwalia v Ahluwalia, establishing a new tort of intimate partner violence (IPV), allowing survivors to seek financial compensation for the harm done to them by an abusive partner.

For the background leading to this decision, I encourage you to read what I wrote following the trial as well as in response to the Ontario Court of Appeal decision.

Like other lawyers who assist survivors of IPV, I’ve been waiting to see how courts will apply this new tort. We now have such a decision from Ontario, and it is very encouraging.

Some background

First, some background facts. Lynda and Joe Mitchell were married for 54 years. They had four children, all of whom were independent adults when their parents’  marriage ended. Lynda had been the primary parent when the kids were young, and Joe had been the primary breadwinner.

Joe’s abuse of Lynda began in the early months of their marriage in 1966 and continued after they separated in 2020. The children were sometimes the target of his abuse and often witnesses to it, both before and after their parents separated.

Initially, Lynda sought damages for the traditional torts of assault, battery and intentional infliction of emotional distress (IIED) but, after the Supreme Court’s decision, she made supplementary submissions for damages under the newly created tort of intimate partner violence.

Justice Vella of the Ontario Superior Court of Justice noted at the beginning of her decision:

“I have the judicial authority to consider this new tort as when ‘the facts cry out for a remedy, it falls to the court to inform itself of the arguments and the context and to decide a proper answer that is reflective of the record and respects principles of fairness.’”

In reaching her decision that Joe was liable under the new tort of intimate partner violence, Justice Vella carefully reviewed the relevant statutes and case law, assessed the evidence presented by both Lynda and Joe and made findings about Linda’s claim that Joe had subjected her to serious IPV, including coercive control, for the entire length of their marriage.

She also assessed the credibility of each of them, finding Lynda to be more credible than Joe.

Long history of abuse

“[Lynda] claims that Joe engaged in a pattern of abusive tortious conduct, including repeated physical abuse, constantly belittling her, verbally abusing her, threatening to harm or kill her (sometimes in front of the children) and being physically aggressive towards or threatening the children in front of her to intimate her.”

His physical abuse included kicking, smacking, slapping, choking and punching as well as pulling her hair out and attacking her with a billy club. He also threatened her with his guns – he had a collection of 400 to 500 firearms ranging from hand guns to machine guns and was a skilled marksman who trained the military police in the use of firearms.

In addition, Lynda lived in isolation from her family and childhood friends, because Joe prevented her from seeing anyone other than his friends.

Justice Vella admitted audio recordings of telephone messages left by Joe for Lynda because they demonstrated “the hostility, threats, language used, and pattern of harassment Lynda alleges against Joe,” which outweighed any prejudice to Joe.

“Lynda lived in constant fear of being beaten, if not killed, throughout her life with Joe. Lynda was trapped in the marriage always trying to behave in a manner that would not trigger one of Joe’s bouts of rage and the ensuing violence.”

Lynda testified that she stayed with Joe to protect her children, because she believed they would be at risk if they were left alone with him. Even years after their separation, Linda lived at an undisclosed address, which was unknown to her children because she worried Joe would threaten or harm them in his efforts to find out where she lived.

In his testimony, Joe denied all of Lynda’s evidence and claimed that she was “outright lying,” even though in 2023 he pleaded guilty to one count of assault and one of uttering a threat to cause bodily harm with respect to incidents involving Lynda.

In concluding that she did not hesitate to accept Lynda’s testimony over Joe’s, she also noted:

“In this case, another historical relevant myth and stereotype about female intimate partners arose through Joe’s testimony: that women are crazy and therefore inherently untrustworthy.”

Based on the evidence provided, Justice Vella made a finding that Joe had engaged in IPV, including coercive control, beginning the year that Lynda and Joe got married and continuing after they separated.

The damages claim

In her original claim for damages under the traditional torts, Lynda sought a total of $450,000. Her claim under the IPV tort claim was lower, about which Justice Vella had this to say:

“[T]he Supreme Court of Canada held that whatever damages may be warranted under the pre-existing traditional (personal injury) tort claims, they will be higher under the new tort of IPV for overlapping abusive conduct because the new tort addresses the newly recognized wrong of coercive and controlling behaviour, and a distinct harm: namely, to the intimate partner’s dignity, autonomy and equality within the intimate partnership.

“This quantum-based directive from the Supreme Court also means, in my view, that there is no personal injury cap with respect to the tort of intimate partner violence.”

She noted that the tort provides a cause of action for compensable harm resulting from:

“an intimate partner’s interference with their partner’s dignity, autonomy and equality, within the intimate partnership, through coercive control enabled by abusive conduct which can take a myriad of forms. Also of note, it can take only one abusive act to satisfy the abusive conduct element of the tort. This is because one act can have the effect of ‘teaching’ the vulnerable intimate partner that if she falls out of line again, worse will happen.”

“In sum I find that Lynda has proven, on a balance of probabilities, that:

• Joe committed abusive and wrongful conduct against Lynda that occurred both during the course of their intimate partnership and in its aftermath . . . ;
• Joe intentionally engaged in the abusive conduct; and
• Joe’s abusive and wrongful conduct constituted, on an objective measure, coercive control. A reasonable person. . .  would have perceived Joe’s acts as amounting to an assertion of control over Lynda that had the effect of depriving her of her dignity, autonomy and equality in the intimate partner relationship.

“As such, on an objective measure, the impact of Joe’s coercive control over Lynda was to break down her will. . .  right from the outset and the first beating, to the imposition of the no contact order in the criminal proceeding.”

Justice Vella’s decision detailed the impacts of Joe’s abuse on Lynda and then analyzed the amount of damages that would be appropriate, reiterating that awards in the past for the traditional torts related to IPV “are not a good measure of future damage awards for the tort of IPV as they are too low.”

In making her determination, Justice Vella noted that an upper-end compensatory award was warranted because:

• The abuse was frequent and over a very long period of time
• It was serious and varied in nature
• Joe was in a position of power over Lynda, due to his physical strength, his ready access to guns in the home and his skills as a marksman
• He was in a position of trust with her as her intimate partner
• The consequences suffered by Lynda were serious and ongoing and included physical chronic pain as well as emotional and psychological disturbances and disorders

“In my view, the damages and abusive conduct here, for the reasons stated, warrant a higher award than has been awarded to date. This award will also reflect the reality that society and the courts are becoming more aware of the depth and pervasiveness and profound seriousness of the harms and injuries caused to a vulnerable spouse, usually a woman as observed in Ahluwalia, by an aggressor spouse, usually a man, over years of a spousal relationship.”

She found that, under the traditional torts, an award of $300,000 would have been appropriate, but that the award under the new tort of IPV must be higher, so awarded Lynda $400,000 in compensatory damages and an additional $25,000 in punitive damages, taking into account the substantial equalization payment Joe owed Lynda and his limited financial means, as well as his criminal conviction.

May future judges show the wisdom of Justice Vella as they consider claims for the tort of intimate partner violence.