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Family And Intimate Partner Violence – ONCA Renders Landmark Decision In Ahluwalia v. Ahluwalia
We consider the lessons learned from this much discussed and debated case, Ahluwalia v. Ahluwalia, 2023 ONCA 476, after summarizing both the trial and appellate decisions.
Authored by: Erika Tower, Zahra Vaid, and Elizabeth Grace
Last week, the Court of Appeal for Ontario (ONCA) released its highly anticipated decision in Ahluwalia v. Ahluwalia, 2023 ONCA 476. In this blog, we consider the lessons learned from this much discussed and debated case, after summarizing both the trial and appellate decisions.
In short, the decision was an appeal from the judgment of Justice Renu J. Mandhane of the Ontario Superior Court of Justice (ONSC), in a family law proceeding in which she created and applied the novel tort of family violence, and awarded the wife $150,000 for compensatory, aggravated and punitive damages. In our previous blog, we discussed the new tort and Justice Mandhane’s decision at length.
Writing for a unanimous 3-member panel of the ONCA, Justice Mary Lou Benotto determined that the creation of the novel tort of family violence was unnecessary in light of existing torts which adequately address the harms suffered. Although the new tort was not recognized, the decision provided an important opportunity for the ONCA to comment on the complexity of the various forms of violence and abuse that occur in intimate relationships and how they can be addressed by courts in the context of family law proceedings. The decision clearly states that such violence and abuse should be recognized, denounced and deterred, and confirms the jurisdiction of family court judges to render judgments on tortious misconduct in the course of their proceedings.
Background and Lower Court Decision
In this case, the appellant husband and respondent wife were married in 1999 in India. Shortly after their marriage, the couple immigrated to Canada for better opportunities. They arrived in 2002 with their first child and, like many newly immigrated families, had little social and financial support.
The marriage involved significant and serious emotional, financial and physical abuse of the mother at the hands of the appellant father, which led to the couple’s separation in 2016.
The respondent mother subsequently brought an action for statutory relief including divorce, child support, spousal support, and property equalization. She also claimed damages for the husband’s abusive, coercive and controlling conduct during their marriage.[1]
In assessing damages, Justice Mandhane explained that the “no fault” nature of family law must give way where there are serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”.[2] She therefore went on to recognize a new tort of family violence. In her view, this was necessary to stay “abreast of social change” and was also consistent with the compensatory goal of tort law.[3]
In characterizing the tort, Justice Mandhane held that a plaintiff could establish, through specific and particularized conduct, a defendant’s liability for the tort in the following ways:
intentional conduct that was violent or threatening;
behaviour calculated to be coercive and controlling to the plaintiff; or
conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.[4]
To establish liability, Justice Mandhane stressed there needed to be a “pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, or killing or harming an animal of property”.[5]
In her view, the tort was necessary as existing torts, like assault and battery, did not “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence”.[6]
After finding liability under the tort of family violence, Justice Mandhane assessed damages at $150,000: $50,000 each for compensatory, aggravated and punitive damages. She then considered the statutory claims and determined that the appellant mother was entitled to the entire proceedings of sale from the matrimonial home.[7]
Ontario Court of Appeal
The appellant husband appealed and asked that the ONCA reject the creation of a new tort. While he conceded some liability, his concession was related to liability for existing torts that Justice Mandhane found in the alternative (i.e., torts of assault, battery, and intentional infliction of emotional distress). He argued that the tort of family violence was “poorly constructed, too easy to prove, and would apply to a vast number of cases and create a floodgate of litigation that would fundamentally change family law”.[8]
The appellant wife argued in response that a novel tort was necessary as existing torts “did not address the cumulative pattern of harm caused by family violence”.[9] However, she proposed a narrower tort of “coercive control”, which would be made out where a person, in the context of an intimate relationship inflicted a pattern of coercive and controlling behaviour that cumulatively was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.[10]
The ONCA without question recognized the significance of intimate partner violence, citing the statistic that nearly half of women and one third of men in Canada have experienced intimate partner violence, and it acknowledged the widespread and intergenerational effects of this kind of abuse. However, the issue before it was whether a new tort of family violence was required to address the problem, or existing alternative remedies were sufficient. The short answer was: “existing torts are flexible enough to address the fact that abuse has many forms” and, therefore, the creation of a new tort of family violence is not necessary.
The creation of a new tort of coercive control was also rejected, and the ONCA took particular issue with the submission that the tort as proposed would not require proof of actual harm, but rather must only involve conduct calculated to cause harm.
According to the ONCA, the torts of battery, assault, and intentional infliction of emotional distress are able to recognize the patterns of behaviour that constitute intimate partner violence, for the purposes of both liability and damages. It also noted with approval that a “pattern” of abuse has previously been used to justify higher damages awards through these existing torts. The ONCA provided a lengthy and helpful discussion of how each of these torts sufficiently addresses such patterns of abuse.
Importantly, the ONCA concluded that it was not a mistake that the trial judge included a tort claim in a family law proceeding, and the compensatory damages awarded were appropriate. However, the ONCA allowed the appeal of the punitive damages award of $50,000, as the trial judge failed to make any finding that an award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. The wife’s damages were therefore decreased on appeal to $100,000, from $150,000.
Comment and Discussion
A Message to the Family Law Bar
Although the ONCA rejected the creation of a new tort of family violence, one of the key takeaways from its decision is its explicit confirmation that tort claims can properly be included in family law proceedings, and significant damages can be awarded.[11]
This acknowledgment is crucial, as many survivors of intimate partner violence only consider civil remedies after the conclusion of their family law claim. This can be inefficient and costly, and judgments more difficult to satisfy after assets have been divided and distributed. Having family law and civil law issues dealt with together avoids duplication of effort and resources, and streamlines the process and outcome.
There are other advantages to addressing tort claims within the family courts. For example, there is a more detailed and fulsome disclosure of assets and income in family law proceedings that is not generally available in a civil proceeding. Given the increasingly resolution-based nature of the family law system, litigants are often focused on reaching a final resolution, to achieve certainty and finality, and allow them to move forward with their respective lives.
The acknowledgment and discussion provided by the ONCA of the pervasiveness and seriousness of the various forms of violence and abuse that occur in intimate relationships is also extremely valuable and can be cited and relied upon in future proceedings involving intimate partner abuse. For example, it is recognized that recurring and ongoing abuse, intimidation, domination and financial abuse can become patterned into daily life, and trial judges need to be alive to these dynamics. It is also clearly stated that where any form of abuse leads to psychological injury, compensation is warranted.
A New Benchmark for Damages
In upholding the compensatory and aggravated damages of $100,000 awarded by the trial judge, the ONCA created a new benchmark for damages in cases involving intimate partner violence. It specifically recognized that the trial judge’s damages assessment was based on the depression and anxiety experienced by the respondent wife as a result of the abuse, the “overall pattern of coercion and control and clear breach of trust”, as well as the ways the appellant husband preyed upon the wife’s vulnerability as a new, racialized immigrant to Canada, which made it difficult for her to meet their children’s daily needs.[12] The ONCA justified the high award in light of society’s “emerging understanding of the evils of intimate partner violence and its harms”.[13]
While it remains to be seen whether leave to appeal to the Supreme Court of Canada will be sought, and if so, granted (we think it unlikely), Ahluwalia has generated significant and valuable discussion among the family and civil bars and the judiciary about the intersection of civil and family law proceedings in the context of allegations of intimate partner violence.
A clear message has emerged: intimate partner violence is serious, and it will no longer be rare or exceptional for claims for damages arising out of such allegations to be included in family court proceedings.
[1] Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para. 16
[2] Ibid at para. 17.
[3] Ibid at para. 19-20.
[4] Ibid at para. 23.
[5] Ibid at para. 24.
[6] Ibid at para. 23.
[7] Ibid at paras. 26-28.
[8] Ibid, at para. 29.
[9] Ibid, at para 33.
[10] Ibid, at para 34.
[11] Ibid, at para. 46.
[12] Ibid, at para 127.
[13] Ibid, at para. 128.
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Prohibitions On Non-Disclosure Agreements In Canada: Ontario’s Amended Bill 26
As a result of submissions by many stakeholders, including experts, community advocates, and student organizations, a number of amendments were made to the content of Bill 26, which the Legislature voted to approve on December 1, 2022.
Also authored by: Vanshika Dhawan
In our previous blog post discussing prohibitions on non-disclosure agreements and, specifically, Ontario’s Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, we noted that the Bill would go before Ontario Legislature’s Standing Committee on Social Policy on November 22, 2022. Many stakeholders, including experts, community advocates, and student organizations provided oral and written submissions in response to Bill 26. As a result of the submissions, a number of amendments were made to the content of Bill 26, which the Legislature voted to approve on December 1, 2022. The Bill has now passed its third reading and will be placed before the Lieutenant Governor for Royal Assent.
At the outset, we note that earlier drafts of Bill 26 used the language “sexual abuse” to describe the student-employee relations that universities and other post-secondary institutions would be required to address by implementing policies pursuant to the Bill. Now, Bill 26 uses the broader term “sexual misconduct” throughout. Though institutions may still implement their own definitions of “sexual misconduct” in their respective policies, this change acknowledges that “abuse” carries the connotation of physical acts, whereas “misconduct” more readily encompasses both physical and non-physical inappropriate sexualized behaviours.
The most significant amendments to the Bill were made in the subsection that addressed non-disclosure agreements (NDAs). In our previous blog, we examined the subsection restricting NDAs, stating that the provisions, as drafted, were too narrow as NDAs would only be prohibited where “determinations” of sexual abuse were made by a “court, arbitrator, or other adjudicator”. We also addressed the fact that the Bill lacked provisions allowing for NDAs in contexts where it was the survivor-student’s expressed wish and preference. These concerns were also reflected in written submissions made to the Standing Committee by the Canadian Centre for Legal Innovation in Sexual Assault Response (CCLISAR), of which Elizabeth Grace was a signatory.
The amended Bill 26 expands the restrictions on NDAs. These no longer apply only to “determinations” (or findings) of sexual abuse. Now, agreements and settlements entered into after Bill 26 takes effect cannot prohibit the disclosure of the fact that an “allegation or complaint” of sexual misconduct was made against an employee. This means a formal investigation or adjudication process is not necessary to trigger this subsection, and NDAs are restricted as soon as such an allegation or complaint is made. This is a broad prohibition.
In addition, survivor-centric exceptions to restrictions on NDAs have also been explicitly carved out in the amended Bill 26. Similar to the broader legislation introduced (or being introduced) in other provinces, institutions can enter into agreements of set and limited durations that prohibit disclosure of the fact that an allegation or complaint of sexual misconduct was made where the survivor-student requests it. However, there are certain safeguards put into place. For example, the survivor-student must have a reasonable opportunity to receive independent legal advice, there must be no undue attempts to influence the student, and the agreement must include the opportunity for a student to decide to waive their own confidentiality in the future, as well as the process by which to do so.
While it remains to be seen whether these restrictions on NDAs will be expanded to other sectors as we, CCLISAR, and others have urged, the submissions by experts, community members, and student organizations, among others, have led Ontario Legislature to place survivors, rather than alleged perpetrators and their institutional employers, at the centre of these amendments to Bill 26. We believe this is a step in the right direction and that it will, hopefully, encourage greater accountability from perpetrators and their post-secondary education employers and thereby contribute to reducing the epidemic of sexualized violence in our society.
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Prohibitions On Non-Disclosure Agreements In Canada: PEI, Ontario, And Beyond
One year after PEI’s Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in the province’s legislature, multiple jurisdictions across Canada have been prompted into action.
Authored by: Zahra Vaid, Elizabeth Grace and Vanshika Dhawan
One year after PEI’s Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in the province’s legislature, discussed in our blog In the Hot Seat: Non-Disclosure Agreements in Cases of Sexual Violence, multiple jurisdictions across Canada have been prompted into action.
Nova Scotia, Manitoba, and most recently, Ontario have tabled provincial legislation to regulate the use of non-disclosure agreements (“NDAs”). While Nova Scotia and Manitoba have introduced broad legislation to regulate NDAs in the context of sexual harassment and discrimination similar to what became law in PEI, Ontario’s initiative is narrower and deals only with sexual abuse in the post-secondary education sphere.
The Developing Approach to Regulating NDAs – PEI, Nova Scotia, and Manitoba
Prince Edward Island’s Non-Disclosure Agreements Act was passed on November 17, 2021 and came into force on May 17, 2022. Its purpose is to restrict the use and content of non-disclosure agreements in cases of sexual harassment and discrimination in all out-of-court settlements where a survivor does not want it. It is the first legislation of its kind in Canada. It follows the introduction of similar legislation in jurisdictions across the United States, as well as efforts currently underway in the United Kingdom, Australia, and Ireland. Though the impact of PEI’s Non-Disclosure Agreements Act has yet to be seen, other Canadian jurisdictions are following suit.
In Nova Scotia, a private member’s bill, Bill 144, Non-Disclosure Agreements Act, was introduced to limit the use of NDAs and confidentiality clauses in cases of discrimination and harassment, including sexual harassment. Nova Scotia’s proposed legislation is similar to PEI’s, with nearly identical language. If passed, Nova Scotia’s Non-Disclosure Agreements Act will only allow NDAs where it is the express wish and preference of the survivor, they have had an opportunity to obtain independent legal advice, and no undue attempts to influence them have occurred. Bill 144 passed its first reading on April 7, 2022.
In Manitoba, a private member’s bill, Bill 225, Non-Disclosure Agreements Act, was introduced to restrict the use of NDAs related to claims of harassment and discrimination, with the goal of better protecting survivors of sexual violence. Its language is substantially similar to that used in PEI and Nova Scotia. As of October 2022, Bill 225 has passed its second reading.
All three of these legislative schemes, whether enacted or proposed, put survivors of sexual violence in the driver’s seat. In other words, the NDA is prohibited unless a survivor makes a free and informed choice to enter into an NDA. This includes a reasonable opportunity to receive independent legal advice. However, even when the NDA is the expressed wish and preference of the survivor, it may still be prohibited in certain contexts, such as when the NDA adversely affects the public interest. All three schemes also provide that the NDA must allow for the survivor to waive the confidentiality by a process set out in the agreement itself.
PEI, Nova Scotia, and Manitoba have each introduced broad legislation aimed at varying forms of harassment and discrimination, extending beyond sexual violence. Ontario’s emerging approach is much more limited. It is focused only on a single sector – post-secondary education – and it deals only with “sexual abuse”.
Ontario’s Unique Position in Regulating NDAs
On October 27, 2022, Ontario’s Minister of Colleges and Universities Jill Dunlop introduced Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022. Since its second reading, Bill 26 has been referred to the Standing Committee on Social Policy, which is expected to convene next week.
If ultimately passed, Bill 26 would amend existing legislation to require post-secondary institutions to implement policies to address sexual abuse perpetrated by faculty and staff against students. The proposed scheme would prohibit the use of NDAs in specific contexts.
Bill 26 provides a minimum definition of sexual abuse, informed by the Criminal Code and Human Rights Code, that includes physical sexual relations and touching, behaviour, or remarks of a sexual nature. The proposed legislation empowers post-secondary institutions to further define conduct that falls under sexual abuse in their respective policies.
Bill 26 would also allow institutions to discharge or discipline employees who have committed “sexual abuse”, as defined, against students and to create a prohibition for these employees’ re-employment even when doing so would violate existing employment contracts. The also reinforces former Premier of Ontario Kathleen Wynne’s “It’s Never OK: An Action Plan to Stop Sexual Violence and Harassment” by requiring post-secondary institutions to develop a sexual misconduct policy.
With respect to NDAs specifically, Bill 26 targets agreements, including settlements, which post-secondary institutions make with employees who were found to have committed sexual abuse. If Bill 26 passes, these agreements cannot contain provisions that prohibit the institution from disclosing that an employee was found to have committed sexual abuse against a student. The application of this in Bill 26 is narrow – it would only apply to findings of sexual abuse made by “a court, arbitrator, or other adjudicator.”
Notably, “adjudicator” is not defined in Bill 26 or relevant existing legislation. It is unclear whether “adjudicator” would include internal or external investigators, who are frequently brought in by post-secondary educational institutions to review and address concerns about sexual abuse and harassment. This is particularly problematic considering settlements often follow such investigations, and occur before courts or arbitrators become involved.
It seems Bill 26 affords post-secondary institutions significant discretion. Not only can they define “sexual abuse” in their own internal policies, but it is likely also open to them to define who constitutes an “adjudicator”. This would mean that individual institutions can determine whether the proposed legislative amendments apply to settlements that occur after investigations have determined that allegations of sexual abuse have merit.
Notably, there are no provisions in Bill 26 that speak to the wishes and preferences of the student survivor of sexual abuse. This could lead to situations where a survivor wishes to have an NDA in place but Bill 26 does not allow it. Further, the Bill’s prohibition on NDAs only prevents the disclosure of the fact an employee was determined to have committed an act of sexual abuse against a student. It would still be possible for limitations to be placed on what a survivor can say about their experience, the impacts this has had on them, and the terms of any settlement, including the amount paid.
Ultimately, if royal assent is obtained, these amendments would come into effect on July 1, 2023. The proposed amendments would not apply retroactively to agreements and settlements that pre-date the coming into force date of the applicable legislation, although the Bill would override existing collective agreements.
Access to justice for survivors of sexual violence is a key consideration in assessing any legislative effort concerning NDAs. Restricting the use of NDAs increases the likelihood that perpetrators and their enablers will be held accountable and empowers survivors to share their stories. However, in the context of litigation, prohibitions on NDAs can also reduce the likelihood of early settlements. This can lead to longer legal processes, which are not only time-consuming and costly but particularly burdensome on vulnerable and marginalized survivors.
Providing a survivor the opportunity to make an informed and genuine choice on whether or not to enter into an NDA, based on their unique situation and circumstances, is the best option to protect them and enhance access to justice. Affording a survivor this choice may also aid in their healing process, and allow for finality and greater closure. While Ontario’s legislation is a step in the right direction, it is narrow and focuses on the employment relationship rather than on the needs of the survivor. It remains to be seen whether Bill 26 will be further amended to prioritize survivors, or whether the province is content to allow post-secondary institutions to develop and implement specific policies regarding NDAs and sexual misconduct. It also remains to be seen whether similar prohibitions on NDAs will be introduced in other sectors in Ontario. One has only to think of elementary and high school students who have been abused by teachers and staff, and who gain nothing from the current proposed legislation, to appreciate how limited in scope Ontario’s Bill 26 is.
Next Steps – A Coordinated Legislative Effort?
While no legislation restricting NDAs has been proposed at the federal level to date, Senator Marilou McPhedran is expected to introduce legislation to the Senate in the coming months to prohibit NDAs for specified organizations under federal jurisdiction.
Whatever happens in the federal context, it is clear for now that PEI, Nova Scotia, Manitoba, and Ontario are at the forefront of an evolving discussion in Canada around the need to restrict NDAs. The impact of PEI’s and the emerging legislation will be measured in the years to come and will provide important and practical insight on how to make perpetrators of sexual violence and their enablers more accountable so the extent of this widespread problem in society is reduced, while also facilitating access to justice for survivors.
In Ontario, the Standing Committee on Social Policy will be reviewing Bill 26 and is holding public hearings on November 22, 2022. This provides anyone interested in providing input on the proposed legislation an opportunity to make written submissions to the committee by 7:00pm on November 22. More information on how to do this can be found on the Ontario Legislature’s website.
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The Anatomy Of The Tort Of Family Violence – A Promising Development For Survivors Of Sexual Violence
This tort has the potential to further access to justice for diverse communities.
Earlier this year, in Ahluwalia v Ahluwalia 2022 ONSC 1303, Justice Renu Mandhane of the Ontario Superior Court of Justice gave life to the tort of family violence, ordering a man to pay his former spouse $150,000 in damages for the abuse she experienced during their 16.5 year marriage. Her decision is now under appeal. Judges, lawyers, and many in justice-seeking groups concerned with intimate partner and gender-based violence are waiting to see how the Court of Appeal for Ontario responds to Justice Mandhane’s expansion of our common law to address a deep-seated societal problem.
Although created in the family law context, this tort provides survivors of sexual violence a new avenue of recourse in the civil justice system, where their abusers are family members. Arguably, the tort allows our legal system to begin to grapple with the complexity of sexual violence, as survivors are often also subject to multiple other forms of abuse simultaneously, including emotional, financial, and psychological abuse.
This tort has the potential to further access to justice for diverse communities. In particular, racialized immigrant women, who can be subjected to a myriad of abuse due to their intersecting identities, and who have limited support and resources to hold abusive family members accountable.
Factual Background
Ahluwalia arose from a family law dispute between a father, Amrit, and a mother, Kuldeep. In addition to the property, child support, and spousal support issues, the mother sought “general, exemplary and punitive damages for the physical and mental abuse suffered by [mother] at the hands of the [father]”.[1]
The couple met in Chandigarh, India, in 1999 and married shortly thereafter. They remained married until July 2016, at which point they separated.
While in India, the couple lived in a joint family home. Their relationship was defined along gendered lines, which meant – like many South Asian families – the mother was responsible for the caregiving, and the father was responsible for earning money outside the home. In the early years of their marriage, the focus was on starting a family.[2]
In 2000, the father suggested that the family immigrate to Canada to pursue better opportunities. By March 2002, the father, mother, and their first child had arrived in Canada. As newcomers for whom accreditation was costly and timely, they were required to work full-time in a factory to make ends meet.
Over the course of their marriage, the father was mentally, emotionally, and psychologically abusive. He was financially controlling and extremely aggressive in response to the mother’s efforts to gain independence.[3] The father would require her to seek permission to leave the home, and when the couple hosted dinner parties, she was required to remain in the kitchen.
The father was also physically abusive towards the mother. He would become jealous when she received attention from other men and would engage in severe physical abuse. These episodes of physical abuse were followed by periods of silent treatment, ending only after the mother complied with demands for sexual intercourse.[4]
In sum, the father was prone to angry outbursts when intoxicated and would meet challenges to his authority with physical violence. This violence was condoned by members of his family.[5] Notably, in September 2021, the father was charged criminally with two counts of assault against the mother and one count of uttering threats to cause death, both of which related to events during the marriage.[6]
The Anatomy of the Tort of Family Violence
In assessing the mother’s claim for damages, Justice Mandhane noted it was imperative to properly understand the relevant factual context in the 16-year pattern of emotional, mental, and psychological abuse. She explained that the “no-fault” nature of family law must give way to serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”[7] and proceeded to recognize the tort of family violence.
In creating the tort, Justice Mandhane stated, “[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.”[8]
In her view, this was such a case. She explained that recognizing this tort is consistent with the compensatory goal of tort law, and imperative to remove economic barriers that survivors face when trying to leave violent relationships and access justice.
In her view, “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.”[9]
Justice Mandhane characterized the test as follows: a plaintiff must establish conduct by a family member towards the plaintiff, within the context of a family relationship, that:
is violent or threatening; or
constitutes a pattern of coercive or controlling behaviour; or
causes the plaintiff to fear for their own safety.[10]
In order to satisfy the test, the plaintiff must show that the defendant acted with an awareness of their actions (i.e., was deliberate, intentional, or calculated).
Furthermore, for the tort to be made out, the plaintiff will have to plead and prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property.[11]
Once liability is proven, the nature of the family violence, including the circumstances, extent, duration, and specific harm, will all be factors relevant to assessing damages. Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence.[12]
In this case, Justice Mandhane awarded a total of $150,000 under three heads of damages: $50,000 in compensatory damages related to the mother’s ongoing mental health disabilities and lost earning potential, an additional $50,000 in aggravated damages for the overall pattern of coercion and control and the clear breach of trust, and $50,000 in punitive damages due to the father’s prolonged and abusive conduct which required strong condemnation.[13]
Why is this Important?
It remains to be seen what the Court of Appeal and other trial courts will do with the tort of family violence. While the tort has not yet been considered in any other reported court decision, it is a step towards better understanding the complexity and multifaceted nature of sexual violence, particularly when the perpetrator is a family member.
A majority of survivors of sexual violence are abused by someone they know.[14] Children who experience sexual violence know their perpetrators 90% of the time, and over half of these perpetrators are family members.[15] Given their proximity, family members who commit sexual violence often engage in a pattern of coercive and controlling behaviour, which can be either subtle or explicit, forcing the survivor into dependency.
This leads survivors of sexual violence to comply with the demands of their abusers out of fear for their safety (i.e., physical harm, risk of homelessness, and/or losing contact with loved ones). It is the nature of this coercion and dependency that is not adequately captured by other torts.
Unlike existing torts that focus on harmful incidents, the tort of family violence focuses on long-term patterns of conduct intended to control or terrorize survivors. [16] These existing torts, including assault and battery and the intentional infliction of mental suffering, do not fully capture the cumulative harm that results from such conduct as their focus is on specific and individualized incidents. Thus, while there is overlap with existing torts – a point which Justice Mandhane acknowledged – there are unique elements that have justified the recognition of a new tort.
The tort of family violence provides survivors, their counsel, and the courts with a new tool to express the profoundly calculated and deliberate nature of abuse, and hold perpetrators accountable. It has the potential to recognize that sexual violence and abuse is not an isolated incident and is deeply linked to various other forms of abuse and harm.
Perhaps what is most powerful about the tort of family violence is its potential to recognize and implement intersectionality within our analysis and understanding of abuse. Justice Mandhane’s reasoning in Ahluwalia speaks to the experience of many racialized immigrant women, who simply cannot report the abuse they face due to economic dependency, the presence of children or elders who are dependent on them, the fear of retaliation from community members, as well as the lack of social and financial support.
For many racialized and immigrant groups, discussion surrounding abuse is taboo. Often, when racialized immigrant women share their experiences of sexual abuse with others, they are told to remain in contact with their abusers in the name of keeping family members together and avoiding bringing shame to their family or community. For many, as in Ahluwalia, the motto is “stay quiet, stay happy.” This allows family members who are abusive to continue perpetrating their abuse with no accountability.
Recognition of this new tort provides survivors who are in cyclical patterns of abuse with a remedy that not only sees, hears, and understands them, but also compensates them fairly for the harms they experience.
It is a promising legal development for survivors of sexual violence, and one that our courts should continue to recognize. Ultimately, it is only as our civil justice system develops the tools to understand the complexity of sexual violence that it will be able to better protect survivors and hold perpetrators accountable – and the tort of family violence is a step in the right direction.
[1] Ahluwalia v Ahluwalia 2022 ONSC 1303 at para 27.
[2] Ibid, at para 7-8.
[3] Ibid, at para 108.
[4] Ibid, at para 106.
[5] Ibid, at para 99.
[6] Ibid, at para 19.
[7] Ibid, at para 46.
[8] Ibid, at para 50.
[9] Ibid, at para 47, 54.
[10] Ibid, at para 52.
[11] Ibid, at para 55.
[12] Ibid, at para 57.
[13] Ibid, at paras 114, 119-120.
[14] Adam Cotter and Laura Savage, Statistics Canada, 2019.
[15] Finkelhor, D. (2012). Characteristics of crimes against juveniles. Durham, NH: Crimes against Children Research Center; Whealin, J. (2007-05-22). “Child Sexual Abuse”. National Center for Post Traumatic Stress Disorder, US Department of Veterans Affairs.
[16] Ibid, at para 54.
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In The Hot Seat: Non-Disclosure Agreements In Cases Of Sexual Violence
On November 4, 2021 Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in Prince Edward Island’s provincial legislature.
On November 4, 2021 Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in Prince Edward Island’s provincial legislature. This is a bold step that I expect will be followed in other parts of Canada.
The proposed PEI legislation restricts the use and content of non-disclosure agreements (“NDAs”) in cases of sexual harassment and discrimination in all out-of-court settlements where the survivor does not want it.[1] If passed, this legislation would be the very first time that a non-disclosure agreement is subject to any kind of regulation in Canada.
Background and Context
Confidentiality clauses or NDAs in out-of-court settlements in cases of sexual violence – which includes sexual abuse, assault, and/or harassment – have been hotly contested for decades. They have long been used to “gag” and silence survivors of sexual violence, conceal wrongful conduct of perpetrators, and protect powerful individuals and entities, including employers and religious institutions.
In the era of #MeToo and the Harvey Weinstein scandal, NDAs have become particularly notorious, and the criticism of these silencing tools has become far more widespread.
In response to the media scrutiny and exposure of NDAs, legislators have been pressured to take concrete action. Many jurisdictions, primarily in the United States, have moved to restrict or prohibit the secrecy NDAs force upon survivors, primarily in the employment context.
The legislation proposed by Ms. Lund is the first of its kind in Canada. It is modelled on Ireland’s draft Employment Equality (Amendment) (Non-Disclosure Agreements) Bill expected to go into second reading in early 2022.[2] While there are few details available, a similar bill is expected to be introduced by Senator Marilou McPhedran at the federal level.
Other jurisdictions, including the United Kingdom and Australia, are also considering legislation that restricts the use and content of NDAs.
The potential for such legislative reform at both the provincial and federal level in Canada, suggests a renewed commitment to prohibiting the use of NDAs in cases of sexual abuse. With NDAs back in the hot seat, one must ask: how far will this effort go?
Taking a Step Back: What’s Wrong with NDAs?
It is well-known that a majority of civil actions, including cases of sexual abuse and sexual harassment, end in a private settlement between the parties, and not in a public court setting. While a carefully drafted non-disclosure agreement has the potential of serving all parties involved, they often perpetuate harmful conduct against survivors of sexual violence.
Specifically, NDAs that prevent survivors from sharing their experiences of sexual violence can interfere with a survivor’s healing process, and impact how they are able to move forward.
Healing is not a linear process and strategies used may be unique to each survivor. Some survivors may choose to share their stories immediately; others may not be prepared to share until later in life, if at all. However, a restrictive NDA signed years prior may eliminate such an opportunity. Although some NDAs may carve out exceptions and specify who a survivor can discuss their experiences with, such as a partner, immediate family, and/or medical professional(s), this may not be enough. The restriction on who they can say what to – or, in other words, their freedom of expression – can perpetuate the harms they suffered as a result of the abuse and, in many cases, can also leave survivors with the feeling that justice has not been served.
In effect, then, the continued presence of such broad NDAs protects the reputation of perpetrators, employers, and/or organizations, rather than survivors of sexual violence themselves.
This highlights a bigger problem:
Many survivors of sexual violence do not come forward due to feelings of shame, guilt, and a fear for their safety or reputation. Often, this is rooted in well-known historical and contemporary stereotypes and myths about sexual violence.
The ability of survivors who have taken action against perpetrators to speak about and share their experiences can encourage others to come forward and take action. However, if survivors of sexual violence who have already come forward are forced into silence through NDAs, other survivors may not come forward with their experiences as they may be unaware of the extent and prevalence of sexual violence and lack the necessary support and resources.
This allows perpetrators to continue their abuse and harassment, thereby limiting accountability and, ultimately, change.
Recognizing that NDAs, initially created to protect trade secrets and proprietary corporate information, have been weaponized against survivors of sexual violence to impose secrecy and silence them means that it is time that our law-makers intervene by restricting the use and content of NDAs through legislation.
Creating Change: Legislation Restricting the Use of NDAs
Many jurisdictions in the United States moved to enact legislation restricting the use and content of NDAs following the #MeToo movement. As noted, nearly all of the jurisdictions that have passed or introduced such legislation have done so in the employment context. The exception is California, and most recently, PEI.
In 2018, California passed the Stand Together Against Non-Disclosures Act (“STAND Act”), which amended California’s Code of Civil Procedure to prohibit a settlement agreement from preventing the disclosure of factual information related to specific “acts” in certain civil or administrative claims in the context of sexual harassment, sexual assault, and sex discrimination.[3] This was expanded on October 7, 2021, as Governor Gavin Newsom signed the Silenced No More Act into law.[4] The Silenced No More Act builds on the STAND Act by expanding anti-NDA protections to apply to all forms of harassment, discrimination, and retaliation in the employment context, rather than only sexual harassment, sexual assault, and sex discrimination.
The Non-Disclosure Agreements Act proposed in PEI would prohibit the use of NDAs in cases where sexual harassment or discrimination has occurred or been alleged to have occurred, and where the NDA has the “purpose or effect of concealing the details relating to a complaint of discrimination or harassment”, where such an agreement is not the preference of the victim.[5]
The proposed legislation would also:
Establish the permitted and required content of a non-disclosure agreement;
Protect and support survivors who, in relation to an incident of sexual harassment or misconduct, make disclosure to law enforcement authorities, regulated health and care professions, legal professions, or close contacts; and
Create penalties for those who do not comply with the legislation.
Some jurisdictions in the United States which have passed legislation regulating NDAs, including New York State, New Jersey, and Maryland, have distinguished between confidentiality of the fact and terms of settlement, and the underlying allegations.
Ms. Lund’s proposed legislation does not explicitly make such a distinction. However, the legislation does provide that “nothing in this section prohibits the inclusion or enforcement of a provision in a settlement agreement that precludes the disclosure of the amount paid in the settlement of a claim”,[6] suggesting that it is possible for settlement amounts paid as part of an agreement to remain confidential.
Ultimately, it remains to be seen how the Green Party’s proposed legislation will be received on the floor, and whether it or some variation of it will pass into law.
Balancing Interests: How Far Will These Efforts Go?
As noted, with the exception of California and PEI, most jurisdictions that have enacted or introduced legislation restricting the use and content of NDAs have focused exclusively on the employment context. This may be for various reasons, including the fact that the widespread scrutiny of NDAs arose out of employment-related scandals and, therefore, NDAs are thought to be more frequent in employment-related contexts. It may also be because regulating the use and content of NDAs beyond the employment context may be considered “too far” for stakeholders and lawmakers.
Nevertheless, expanding this protective legislation beyond the employment context is imperative. Regardless of the context in which they appear, NDAs can be and are often used to unfairly silence survivors. Although it is reassuring that Ms. Lund’s proposed legislation applies beyond the employment context, whether or not it will ultimately be passed, let alone with such broad application, remains to be seen.
Simultaneously, it is important recognize that settlement of a dispute is generally a positive outcome and it takes two, or more, to settle. Defendants in court cases and, equally, potential defendants who want to avoid being named in a civil lawsuit, need to continue to see a benefit in settling.
One way to ensure that they continue to see settlement as an attractive option is for legislation to distinguish between the fact and terms of settlement, versus the underlying allegations. Some jurisdictions in the United States have recognized this distinction in their statutes, and allowed confidentiality over the fact and terms of settlement.
Doing this may balance competing interests by protecting the right of survivors to share their experiences, while also ensuring that defendants and potential defendants have a sense of finality and closure. Without this, many may choose litigation through the court system and all the risks and expense it entails over settlement.
Ultimately, whether or not the enactment of restrictive legislation will go far enough in protecting survivors of sexual violence who want to settle out of court remains to be seen.
However, I believe it is a step in the right direction, as such legislation will help protect survivors and hold those who perpetrated and enabled the violence against them accountable. It will also encourage survivors to share their stories, foster public dialogue and education, and by doing so, hopefully reduce the prevalence of sexual violence in society.
[1] Bill No. 118, Non-Disclosure Agreements Act, 2nd Sess, 66 Leg, Prince Edward Island, 2021 [“Bill 118”].
[2] Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (Ireland).
[3] Code of Civil Procedure, Chapter 3.5. Confidential Settlement Agreements, § 1001 (California).
[4] Senate Bill No. 331, Chapter 683: An Act to Amend Section 1001 of the Code of Civil Procedure, and to amend Section 12964.5 of the Government Code, relating to civil actions (California).
[5] Bill 118, s. 4(1).
[6] Bill 118, s. 4(10).
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