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  • Writer's pictureThe Moot Times UCalgary Law

How a Tort is Made

By Megan Goldie

Having just finished the first-year survey of tort law, it is easy to conceive of this area as antiquated and set in stone. After all, I don’t think there was another class where I had a case from the 17th century on my framework. However, as demonstrated in recent judgements that acknowledged new torts in Canadian jurisdictions, tort law (like the rest of common law) is a changing and developing field.

The tort of public disclosure of private facts was recognized in Alberta in ES v Shillington. In this case, a judgment in default was made for the plaintiff, whose ex-partner posted intimate images of her online both throughout their relationship and after it ended. The photographs were given to the partner as gifts with the understanding that they would not be shared publicly.

The tort of harassment was recognized in Alberta in Alberta Health Services v Johnston, which was also a judgment in default because the defendant, although appearing in court, made no attempt to raise a defence. This was an action for defamation, assault, invasion of privacy, and tortious harassment in relation to the behaviour of a Calgary provocateur in the anti-mask and vaccine movement. While it was found that Alberta Health Services, as a government entity, could not sue for defamation, Johnston was found liable for the defamation and harassment of Sarah Nunn, a health inspector who was a frequent target of his ire.

Finally, the tort of family violence was acknowledged in Ontario in Ahluwalia v Ahluwalia. This was a divorce proceeding in which Mrs. Ahluwalia demonstrated a pattern of physical and financial abuse by Mr. Ahluwalia lasting throughout the marriage. The judge noted that this abuse required a remedy in addition to spousal support. However, this tort was promptly abolished on appeal by the Ontario Court of Appeal (ONCA).

The rationale for acknowledging new torts is that the current scope of the law is in some way unable to properly address the wrong that has been done. In the leading case on the recognition of new torts, Nevsun Resources Ltd v Araya, Abella J writing for the majority states: “Development of the common law occurs where such developments are necessary to clarify a legal principle, to resolve an inconsistency, or to keep the law aligned with the evolution of society.”

Interestingly, all 3 of the above novel torts address issues often associated with women. In his reflection on the law of recognizing new torts in AHS, Feasby J said:

I am mindful that the existing constellation of torts is a product of the accumulation of judicial decisions over many centuries. For most of this time, many harms experienced by women and members of other marginalized groups were not recognized. Harassment is something that can happen to anyone, but disproportionately affects women and members of other marginalized groups.

Considering this history of unequal access to justice for marginalized groups, it seems right that new developments in tort law ought to address the concerns of these groups. The status quo should not be maintained. In the words of Feasby J, “[t]he historical failure of courts to recognize a tort of harassment is not evidence that such a tort should not exist.”

Of course, that is not to say that every minor variant in a cause of action will, or ought to, lead to a new tort. In Nevsun, while the majority did not specifically address requirements for the recognition of a novel tort, Brown and Rowe JJ came through in a dissent with the 3-part test that we, as law students, crave. The test requires that a court should not recognize a new tort where 1) another adequate remedy is available, 2) the proposed tort does not reflect a wrongful act from one person to another, and 3) the change to the legal system would be indeterminate or substantial.

The judgements in Shillington and AHS both cited this test and spent considerable time explaining how the torts of public disclosure of private facts and harassment meet the test. Mandhane J in Ahluwalia 1 did not cite to Nevsun, instead stating “[w]hile trial judges must be cautious about developing new foundations for liability, there is scope to do so where the interests are worthy of protection and the development is necessary to stay abreast of social change.”

Choosing not to use the Nevsun test appears to have been an error, as the ONCA approved of the test, writing:

While [Brown and Rowe’s] reasons were dissenting, they deal with an issue not addressed by the majority and so do not conflict with the binding holding in any way. The direction is helpful.

The ONCA then found that a new tort of family violence was not necessary since adequate alternative remedies already exist for the wrongs covered by the tort.

Indeed, in her judgment, Mandhane J found that Mr. Ahluwalia was, in the alternative, liable for assault and intentional infliction of emotional distress for his actions during the marriage. On appeal, this alternative somewhat protected the award granted to Mrs. Ahluwalia (it was reduced from $150,000 to $100,000), but it also weakened the argument for recognizing a new tort.

It appears that the conservative test provided in the dissent in Nevsun is the current approved path to recognizing a new tort. This is largely a positive development. The test provides a clear framework for courts to consider when it is proper to recognize a new tort, which is important for the development of the law. Particularly with social changes, such as the upheaval and rise of misinformation surrounding COVID 19, as well as technological changes, such as the ease of sharing images online, the test is a valuable tool for courts to use to address new issues. It will be interesting to see how the torts of harassment and public disclosure of private facts are developed and applied in the future, as well as how they fare if examined on appeal.

One drawback to this approach is that it might be more difficult for complex wrongs which encompass or overlap with other torts (such as domestic violence) to be recognized as nominate torts under the test from Nevsun. This difficulty may be due to the existence of analogs which cover individual parts of a larger tort, the way assault, battery, and intentional infliction of emotional distress did for the tort of family violence. While these torts do describe some of the behaviour involved in domestic violence, I agree with Mandhane J and Mrs. Ahluwalia that “the existing 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 and which creates the conditions of fear and helplessness.”

Perhaps as the law of torts continues to adapt it will continue on a trend towards acknowledging wrongs experienced by marginalized groups, including recognizing and supplying remedies for potential torts which are greater than the sum of their parts.

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