By now, most are aware that in its decision in Ahluwalia v. Ahluwalia, 2026 SCC 16, the Supreme Court recognized a new tort of intimate partner violence. In its decision, the Court set out frameworks to, firstly, recognize a new or novel tort, in this case intimate partner violence, and then set out what is necessary to establish liability under that new tort.
To the first part, recognition, and this would presumably apply to the process of recognizing any new tort, the Court set out a three-part framework:
[84] First, the facts alleged by the plaintiff must disclose wrongful conduct that offends a recognized legal interest in private law, or an interest around which there is an “emerging acceptance”…
…
[91] Second, existing torts and their associated remedies must be inadequate…
…
[94] Where the facts disclose a wrongful act that offends a recognized legal interest and existing remedies are not capable of remedying that interference, courts must turn to the proper formulation of a novel remedy in tort.
The Court then went on to establish what the plaintiff has to prove for there to be liability under this particular tort:
[184] Under the new tort of intimate partner violence recognized in these reasons, a plaintiff must establish three elements: (1) the abusive conduct arose in an intimate partnership or its aftermath; (2) the defendant intentionally engaged in that conduct; and (3) the conduct, on an objective measure, constitutes coercive control.
We would suggest that it would be wrong to conclude that if an existing tort does not provide an appropriate remedy – or the remedy one wants – that one should then argue that a new tort should be recognized. The Court stating, in relevant part, that “…existing torts and their associated remedies must be inadequate…and…not capable of remedying that interference…” has to set the bar a bit higher. Or, putting this another way, dislike of an outcome may not a new tort make.