Advocates for the Rule of Law
According to the venerable Aristotelian maxim, the rule of law demands that one must “treat like cases alike.” In a forthcoming paper, we argue that a recent proliferation of novel tort species in Canada, through the purported recognition of the nominate torts “online harassment”, “harassment”, “public disclosure of private facts”, and “family violence”, is inconsistent with this quintessential facet of the rule of law. Put briefly, our contention is that the methodology adopted in each of these cases is consonant with a philosophical commitment to “nominalism”, the idea that legal concepts and categories are the products of judicial whim—as opposed to reflections of an underlying juridical reality. Applied to the recognition of novel torts, we explain, this commitment manifests primarily through a prioritisation of “labelling” concerns over a substantive analysis of the interpersonal wrongs at stake, thereby overlooking their potential overlaps with existing torts (such as intentional infliction of mental distress).
In our view, each of the new nominate tort judgments discloses characteristics of a nominalist judicial methodology, to differing extents. In this blog post, we will illustrate the thesis of our forthcoming paper by reference to just one of the new nominate torts. For the sake of brevity, we will not discuss all of the new nominate torts covered in our paper, but will focus on perhaps the most striking instance of this overall trend. This is the tort of “family violence”, created in the trial decision in Ahluwalia v Ahluwalia, before being overturned by the Court of Appeal for Ontario. The new “family violence” tort had generally been welcomed by commentators, especially those who regarded it as a useful addition to the legal toolbox for denouncing and deterring reprehensible conduct. Naturally, then, the Court of Appeal decision has been lamented by some of the same commentators who earlier praised the trial judgment.
At first instance in Ahluwalia v Ahluwalia, Justice Renu Mandhane expressed the view that the self-represented plaintiff[1] had implicitly sought the recognition of a new, freestanding species of civil liability for “family violence.” Although Mandhane J acknowledged that “the tort of family violence will overlap with existing torts,” she held that those torts “do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases” (para 54). In other words, even though the torts of assault, battery, and intentional infliction of mental suffering might have captured the defendant’s misconduct, she viewed them as insufficient because “it is the pattern of violence that must be compensated, not the individual incidents” and justified the ascription of liability for a novel tort on the grounds that “courts must send a strong message” in respect of this misconduct (para 70). As the Court of Appeal later clarified, there is no reason to think that intentional torts could not address patterns of behaviour, and any contrary view simply “reflects a misunderstanding of the law of existing torts” (para 60).
Proponents of the Ahluwalia trial judgment have praised the court’s crafting of a specific tort for “family violence”, as well as the signalling function the new tort is thought to serve. For example, in an assiduous commentary on this case, Jennifer Koshan and Deanne Sowter describe “Justice Mandhane’s acceptance of the tort of family violence [as] a groundbreaking legal development.” They argue that adopting this new species of tort “would have had different societal and individual effects in relation to accountability and deterrence,” due presumably to the specific label of “family violence” attached to the tort. Conversely, Koshan and Sowter state that “existing torts may lead lawyers and courts to compartmentalize conduct, which risks perpetuating reasoning based on myths and stereotypes” about domestic abuse. As they and other commentators argue,[2] it is the social, signalling function of the label of “family violence” that justified the novel tort in Ahluwalia—as opposed to merely subsuming the defendant’s misconduct under existing heads of liability for “assault,” “battery,” or “intentional infliction of mental suffering.”
To be clear, there is no question that such conduct is reprehensible and constitutes (as the Court of Appeal affirmed) an interpersonal wrong in the form of, inter alia, intentional infliction of mental distress. But the impulse animating the Ahluwalia trial judgment—to conjure a new nominate tort in order to single out for condemnation this specific mode of misconduct—is emblematic of the nominalist methodology that we criticise in our paper. From a nominalist standpoint, legal concepts and categories do not correspond to any underlying, objective order. The categories of tort law are not reflections of a rational schema of civil liability, but are taken to reflect mental projections emanating from the judge or decision-maker who posits those categories. Judicial nominalism treats the categories as mutable constructs, subject to be transmogrified or reconfigured based upon policy goals extrinsic to the law itself. On this outlook, a court’s judgment that the defendant committed a particular tort does not simply declare a pre-existing state of affairs (i.e., that an interpersonal wrong had been committed), but serves to name and construct a distinct type of proscribed conduct now to be imputed to the defendant.
As a result, under a nominalist methodology, adjudication is guided not by the intrinsic essence of legal concepts and categories, but by their social meaning and expressive function. To recognise a novel tort, such as the “tort of family violence”, is not to identify a set of facts that ought to give rise to different normative consequences from those associated with established causes of action. It is predominantly to label that conduct as a means to achieve certain policy goals. Such goals, as Koshan and Sowter aptly suggest, include the “recognition of coercive control and the need to name” patterns and instances of domestic abuse (emphasis added). The chief concern is the consequences of attaching a particular label to the misconduct, not so much whether the misconduct is appropriately classified under one normative category (“intentional infliction of mental suffering”) or another (“family violence”).
It is true, of course, that tort law has an expressive role. But it is one thing to recognise the expressive value of imposing liability on a given set of facts, and quite another to impose a different standard of liability solely because the expressive value of doing so aligns with extrinsic policy goals. Such a justification would proceed from considerations that have nothing to do with the wrongfulness of the conduct itself. Rather, it would amount to an insistence that certain cases be treated differently, in spite of the fact that the conduct involved is indistinguishable at a foundational normative level from well-established species of civil wrongs. It would mean that extra-legal considerations, and not the imperative of equal treatment, dictate the positing of novel categories of tortious liability.
As we explain in our paper, this expressivist fixation is in fundamental tension with the normative structure of liability in private law. The reason for tort law’s relative indifference to labelling lies in its structural logic of achieving interpersonal justice, which is focused on the interaction of the parties inter se. By contrast, the functions of denunciation and signalling fall within the purview of criminal law, which sets standards for the community as a whole, and where the law’s judgment determines a party’s standing relative to the public.[3]
This point is borne out in the case law. Consider two judgments of the Supreme Court of Canada. In M (K) v M (H), the Court held that “incest does not constitute a distinct tort, separate and apart from the intentional tort of assault and battery”—a conclusion well supported by the nature of the wrongs of assault and battery, and which the Court reached without minimizing “the unique and complex nature of incestuous abuse” for the purposes of the limitations period (pp 24-26). In Scalera, the Court similarly affirmed that “medical battery” and “sexual battery” need not be treated as novel, exotic species of tort; rather, based on “the traditional rights-based approach to the law of battery,” these specific kinds of misconduct fall under the more general category of wrongs that interfere with the bodily autonomy of the individual (paras 6, 15, 35-36). But rather than treat “family violence” as an instance of the overall category of ‘harms caused by intentional torts,’ Mandhane J regarded it as a unique particular distinct from other types of harm—such that it undermines any relevant unity between cases of “family violence,” “spousal battery”, non-intimate “physical assault”, and so on. Notwithstanding the labels, these are all instances of the same kind of legal wrong.
In light of these considerations, it is our contention that the Court of Appeal’s conclusions in Ahluwalia were correct on the merits. Instead of accepting “family violence” as a sui generis species of tort liability, the Court of Appeal rightly recognised that legal justification entails reference to the universalisable features of a case, holding that this putative novel tort was subsumed by the tort of intentional infliction of mental suffering. Hence to introduce a novel, highly specific tort—one that presents overlaps with existing torts—for expressivist reasons is not only to confuse the purpose of tort for criminal law. More than that, it carries the risk of undermining the rational coherence of the law and thereby jeopardising the imperative of equal treatment that lies at the heart of the rule of law.
Kerry Sun is a doctoral student at Merton College, Oxford and Fortescue Scholar with the Canterbury Institute. Stéphane Sérafin is Assistant Professor in the Common Law Section, Faculty of Law, University of Ottawa.
[1] We consider the procedural issues raised by this aspect of the case in our paper.
[2] Others have advanced similar arguments, contending that this new nominate tort would assist in condemning and denouncing this misconduct. See e.g. Mary-Jo Maur, “The Ontario Court of Appeal’s Decision in Ahluwalia v. Ahluwalia — Prudence? Or Opportunity Missed?” (2023) 42 CFLQ 107.
[3] It may be noted that even in criminal law, judicial manifestations of the nominalist impulse have yielded some tendentious reasoning. See R v Sheppard, 2023 ABCA 381 at paras 103-09 (Wakeling JA).
