Novel torts
The new tort era heads to the SCC. Plus disclosing sensitive information about lawyers, the right to work two jobs, and this week's SCC hearings.
Dylan Gibbs, Michel Hajjar, Amira Tekle, Alexandra Son & Ethan Russell
May 22, 2024
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Hearing Officer Luke Coupal recently dealt with a doozy of a file at Saskatchewan’s Office of Residential Tenancies. Props to him for applying a rigorous analysis amid the circus:
I remain shocked by the circumstances of today’s matters…
Neither party takes any great issue with the tenancy agreement having been drafted simply to collect additional government benefits. Neither party is disturbed that the landlord has filed a letter from a drug trafficker as evidence for me to consider… The parties are oblivious to the moral quandaries in which they exist…; yet I recognize that my job is not to settle moral quandaries, only residential tenancies quandaries.
— Dylan Gibbs
with Alexandra Son, Michel Hajjar, Amira Tekle, and Ethan Russell
TODAY'S DOCKET | 8-min read |
Novel torts
Putting criminal charges in the lawyer directory
The right to work two jobs
Court translation delays
This week’s SCC hearings
Legal causation for manslaughter
LEAVE TO APPEAL
Novel family violence tort heads to the SCC
Do victims of intimate partner violence need a new tort? The Ontario Court of Appeal said no, but stay tuned. The Supreme Court granted leave to appeal last week, giving the novel claim another shot.
Birth of a tort: Intimate partner violence doesn't have a perfect match in the tort world. But victims can sue for assault, battery, and intentional infliction of mental injury. In 2022, Justice Mandhane said those options aren’t good enough because they only capture specific incidents of abuse. She created a new tort to address the recurring patterns of abuse that plague intimate relationships:
[E]xisting 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. [T]he proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize.
New tort in hand, Justice Mandhane awarded $150,000 to Ms. Ahluwalia, whose husband abused her for years. As far as inventions go, plenty of people liked this one.
Death of a tort: The Court of Appeal agreed Ms. Ahluwalia deserved compensation. But it disagreed with the route Justice Mandhane took to get there. The Court of Appeal said the existing torts already account for patterns of conduct. And there’s no need to create a new tort when the old ones have it covered:
[The common law’s] gradual evolution, with significant change best left to the legislature, means that new torts should not be created where existing torts suffice. The existing torts are flexible enough to address the fact that abuse has many forms.
Big picture: Depending on where you live, your tort toolbox may have seen some new additions recently. Courts have spent the past six years on a tort-creating spree, recognizing claims like public disclosure of private facts, publicity placing someone in a false light, online harassment, and just plain harassment.
Now that one of the novel torts is finally headed to the Supreme Court, we may see a comment on this broader trend.
HEARSAY ROUNDUP
Canadiana
👀 Should regulators disclose outstanding criminal charges in public lawyer directories? The LSO is thinking about disclosing outstanding charges that raise concerns about a lawyer’s practice, criminal convictions, and more detailed disciplinary information.
👨👧👧 Preventing someone from working two jobs might be discriminatory. A man in BC was balancing two jobs until one of his employers changed his hours. He says the change discriminated against him based on family status, because he needs both jobs to support his family. The employer applied to strike the claim, arguing that there’s “simply no human right to work a second job of one’s choosing.” But the BC Human Rights Tribunal said the issue deserves a hearing.
📝 Judge Dennis Galiatsatos said the Quebec law forcing judges to translate English decisions into French conflicts with federal law and can’t be applied:
[T]he direct effect of [the law] is to prevent a judge from rendering his verdict in a criminal matter in a timely manner. This creates a concrete impediment to the operation of the criminal law, which falls under the exclusive jurisdiction of Parliament.
THIS WEEK AT THE SCC 🗓️
Voting rights and province-led class actions
It’s the Supreme Court’s only hearing week of the month—and what appears to be the last set of hearings before the Court’s summer break. Here’s what’s happening.
The Court started the week with Ontario’s election spending limits. Organizations other than political parties can’t spend more than $600,000 in the 12 months before an election. An Ontario Court of Appeal majority struck the limit down for placing too big of a roadblock between voters and information—violating section 3 of the Charter.
If you were banking on this case also dealing with the notwithstanding clause, don’t get your hopes up. Ontario did use the notwithstanding clause to back the spending limit, trumping claims based on freedom of expression. And the Court of Appeal did comment on whether the province properly invoked the clause. But the parties haven’t raised the issue on appeal.
Tomorrow, the Court is tackling the novel legislation BC is using to sue opioid companies. Several provinces are trying to recover healthcare costs driven up by the opioid crisis. BC empowered itself to represent other jurisdictions in a class action, streamlining the process.
The companies targeted by the lawsuit argued BC’s multi-province class action innovation is unconstitutional. But the BC Court of Appeal disagreed.
The multi‑Crown proceeding represents an innovative response to the expense, time and inefficiencies involved in several separate actions. It represents a major step towards what in Canada may not be possible in the full sense — a truly national class proceeding.
CRIMINAL LAW
SCC upholds manslaughter convictions for group assault participants
Five members of the Supreme Court split over a group assault turned homicide last week. The Court dealt with the thorny issue of holding group members responsible for consequences they may not have anticipated—and the equally thorny issue of explaining that concept to a jury.
What happened: Emanuel Lozada and Victor Ramos were part of a group that attacked Rameez Khalid. Lozada and Ramos threw punches and kicks. Another group member stabbed Khalid and killed him shortly after the attack began.
A jury convicted Lozada and Ramos of manslaughter—even though there was no evidence they knew about the knife or anticipated the stabbing.
The issue on appeal: The trial judge told the jury to consider what Lozada and Ramos should have anticipated when they joined the attack.
He said it “may be enough” to convict of manslaughter if it was reasonably foreseeable the assault would continue and cause nontrivial bodily harm to Khalid.
Lozada and Ramos argued the trial judge’s comment set the bar too low—he should have told the jury to convict only if an act like the stabbing was reasonably foreseeable.
The majority sided with the Crown: Justice Moreau upheld the convictions in her debut set of reasons. She said the trial judge’s comment may have been ambiguous alone, but the rest of his instructions cleared up any uncertainty.
[I]t was correct to tell the jury that the reasonable foreseeability of continuing assaults “may be enough” to establish causation, provided that the jury accepted the premise that the continuation of assaults was of the same “general nature” as the fatal act (the stabbing) or that the stabbing flowed reasonably from the appellants’ conduct.
The remainder of the instructions made that underlying premise clear.
The Crown also argued that intervening acts never break the chain of causation during a group assault—participants need to live with the consequences, no matter how unpredictable. But Justice Moreau rejected that general rule.
Two judges weren’t convinced: Justice Jamal, joined by Justice Rowe, said Justice Moreau’s reasoning required a leap. Since the trial judge didn’t tell the jury to consider whether the stabbing was in the same ballpark as the prior assault, the jury may not have reached that conclusion.
The trial judge’s inaccurate instructions cannot be salvaged by assuming that the jury would have characterized the general nature of the stabbing in this case as a “continuation of [the] assault”. The trial judge never referred to the “general nature” of the stabbing. [The rest of his instructions] would not have made this underlying premise clear…
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