• by Christina Hinds
Originally published in the OFLM 2023-8 edition
The tort of intentional infliction of emotional distress has been available to family law litigants since 1995. This article refers to the Court of Appeal decision of Ahluwalia v. Ahluwalia, outlines the three elements of the tort and discusses their application in the family law context.
Following the release of the decision from the Court of Appeal in Ahluwalia v. Ahluwalia (2023 ONCA 476), there is no “tort of family violence” available to family law litigants. The Court of Appeal held that the allegations made by the wife in the case were already captured by existing torts, namely the tort of battery, the tort of assault, and the tort of intentional infliction of emotional distress. And thus, the creation of a new tort of family violence was not warranted.
Given the state of the law and family lawyers’ relative inexperience with tort claims, this article will focus on the tort of intentional infliction of emotional distress (IIED) and explore the application of this tort to family law matters, with the goal of helping family law litigants and lawyers better understand its practical application.
The elements of the tort of Intentional Infliction of Emotional Distress (IIED)
In Ahluwalia, the trial judge found that existing torts, including the tort of intentional infliction of emotional distress, focused on individual instances rather than patterns of behaviour which lay at the heart of family violence cases. At paragraph 52, Justice Mandhane stated the following:
… the tort of intentional infliction of emotional distress requires showing that a specific interaction or behaviour was “flagrant and outrageous” and resulted in injury. In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.
The Court of Appeal’s ruling confirmed that if family law litigants wish to seek compensation for abusive and controlling behaviour, they must rely on already existing torts. The Court focused on the torts of battery, assault and intentional infliction of emotional distress.
The Court also found that these three torts applied to the allegations made by the wife and that she was entitled to damages under those torts.
The Court of Appeal’s discussion with respect to the tort of intentional infliction of emotional distress began at paragraph 69 of its decision. The tort has three elements:
- the defendant's conduct was flagrant and outrageous;
- the conduct was calculated to harm; and
- the conduct caused the plaintiff to suffer a visible and provable illness.
Element 1 - Flagrant and outrageous conduct
The conduct of the tortfeasor must reach the threshold of “flagrant and outrageous” to ground a claim of intentional infliction of emotional distress.
The Court of Queen’s Bench of Alberta in Benison v. McKinnon (2021 ABQB 843) considered what behavior will consist of “flagrant and outrageous” conduct. At paragraph 24, the court stated the following:
Merriam Webster Dictionary (online) provides several different definitions of “flagrant” including “conspicuously offensive” and “so obviously inconsistent with what is right or proper to appear to be a flouting of law or morality”. It also includes in its definition of “outrageous” as “going beyond all standards of what is right or decent.” I believe that it is these definitions that were intended when the courts have indicated that the conduct of the defendant must be “flagrant and outrageous”. (emphasis added)
In Costantini v. Constantini (2013 ONSC 1626), Justice Pazaratz found that the husband’s aggressive and intimidating behaviour was outrageous. The behaviour included verbal abuse, threats, degrading insults, and entering the wife’s home post-separation while she was asleep.
In McLean v. Danicic (2009 CanLII 28892 (ON SC)), Justice Harvison Young found that flagrant and outrageous behaviour included the threatening letters written by the Respondent, including threats that the Respondent would “put a bullet” in the Applicant’s head.
Element 2 - Conduct calculated to harm
The flagrant and outrageous conduct must occur with the intention of producing harm. At paragraph 70, the Court of Appeal in Ahluwalia explained that “the requirement that the conduct be calculated to produce harm is met where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow.”
Element 3 – Causing the plaintiff to suffer a visible and provable illness
The conduct of the tortfeasor must result in visible and provable illness.
But, the "visible and provable illness" element does not require expert medical evidence. In Saadati v. Moorhead (2017 SCC 28), the Supreme Court of Canada held that:
... while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. (emphasis added)
In Costantini, Justice Pazaratz found that the Respondent chose to say and do things with the “specific intention” of causing the Applicant pain and injury, stating:
I have no difficulty concluding the Applicant's claim in tort should succeed. The Respondent's aggressive and intimidating behaviour was outrageous. He chose to say and do things with the specific intention of causing physical pain and injury, and significant emotional upset. The Applicant suffered physical and emotional injuries, precisely as the Respondent intended.
In Yenovkian v. Gulian (2019 ONSC 7279), the mother experienced cyberbullying from the father post-separation. The father posted videos of parenting visits with the children online along with derogatory commentary. Justice Kristjanson found that the father’s conduct caused visible and provable illness to the mother. The Applicant sought assistance from her family doctor, experienced nightmares, felt physically ill, experienced mental stress and reported feeling “hyper-vigilant”. Justice Kristjanson found that the mother had satisfied the elements of intentional infliction of mental distress and awarded the mother $50,000 in compensatory damages.
In McLean v. Danicic, Justice Harvison Young awarded $15,000 in compensatory and aggravated damages to the wife primarily in relation to the husband's conduct after separation. Her Honour stated “I find that Mr. Danicic caused Ms. McLean to suffer acute anxiety, fearfulness and great distress. She continues to be fearful for herself and others, including her legal counsel, and her family. She is particularly fearful of his taunt that one day it will start again and be much worse…”
The third element of the tort of IIED was also considered recently by the Court of Appeal in AA v. BB (2021 ONCA 147). In that case, the father called the Children’s Aid Society and alleged that he had witnessed the mother abusing his children. The report was false, and the mother commenced an action claiming damages for intentional infliction of emotional distress, among other relief.
The trial was heard in 2016 and then re-opened in 2017. At the first trial, the trial judge concluded that while the first two elements were met, the court could not conclude that the father caused the mother to suffer “visible and provable illness.”
The trial judge held that while there was no doubt that the mother suffered tremendous stress as a result of the father’s false allegations, the mother had not shown that she suffered visible and provable illness.
At the re-opened trial (AA v. BB and CC, 2018 ONSC 4173), which was upheld by the Court of Appeal, the trial judge found that the mother met all three elements of the tort of intentional infliction of emotional distress. Justice Corkery stated the following:
…my original decision was released without me having the benefit of the very recent decision of the Supreme Court of Canada in Saadati v. Moorhead … on the extent to which expert evidence of mental health is required to prove damages. On the evidence of [the mother] alone, I am satisfied that the false referral caused [the mother] to suffer a visible and provable illness.
Since the introduction of the tort of intentional infliction of emotional distress in the decision of MacKay v. Buelow ( O.J. No. 867 (Ont. Gen. Div.).), it has not been used in family law matters in any significant capacity.
Based on the cases reviewed above, it may be because the barriers to bringing a successful claim of IIED are high. Therefore, it is unlikely that this existing tort will be able to adequately address the emotional and mental harms suffered by victims of family violence. Still, it was helpful for the Court of Appeal in Ahluwalia to provide much needed overview of the tort.
But whether and to what extent the IIED tort will permeate the future of family violence cases is anybody’s guess.