Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by Lucas K on Unsplash.
👨👩👧👦 On Friday, May 15, 2026, the Supreme Court of Canada will release its decision in Ahluwalia v. Ahluwalia. At issue is whether a trial judge was right to recognize a new tort of family violence.
🎯 Last week, on May 8, 2026, the SCC released its decision in Patrick Street Holdings Ltd. v. 11368 NL Inc., 2026 SCC 15. In a 6–3 decision, the Court dismissed the appeal, holding that Patrick Street was barred by cause of action estoppel from relitigating its claim to payment under a $4 million mortgage.
🤖 73% of Fantasy Courts players correctly predicted the result. The SCCbot got it wrong.
🔮 Head over to Fantasy Courts to lock in your predictions for this week’s decision. Scroll down for details on this week’s case or a recap of last week’s judgment.
Case to Predict: Tort of Family Violence
Appeal by leave from Ahluwalia v. Ahluwalia, 2023 ONCA 476
What Happened?
The trial judge found that Mr. Ahluwalia was abusive during the parties’ 16-year marriage. She accepted Ms. Ahluwalia’s evidence that the relationship was marked by emotional and physical abuse and financial control. Ms. Ahluwalia sought the usual family law remedies, including divorce, support, and equalization, but also claimed damages for Mr. Ahluwalia’s conduct during the marriage.
The trial judge held that existing torts did not fully capture the cumulative harm caused by a pattern of coercion and control. She recognized a new tort of family violence and awarded Ms. Ahluwalia $150,000: $50,000 in compensatory damages, $50,000 in aggravated damages, and $50,000 in punitive damages.
The Ontario Court of Appeal allowed the appeal in part. It agreed that tort claims can be advanced in family law proceedings, and that intimate partner violence must be recognized, denounced, and deterred. But it held that a new tort was unnecessary because existing torts — including assault, battery, and intentional infliction of emotional distress — could address the harm. The Court of Appeal reduced the damages award by $50,000 and declined to recognize either a tort of family violence or a narrower tort of coercive control.
What Was Argued at the SCC?
Appellant: Ms. Ahluwalia argues that the trial judge was right to recognize the tort of family violence. Existing torts force survivors into a patchwork of narrow claims that focus on isolated incidents rather than the cumulative reality of coercive control. A tort of family violence would better reflect the pattern-based nature of abuse, improve access to justice, and respond to harms that disproportionately affect women and children.
Respondent: Mr. Ahluwalia argues that the Court of Appeal was right. He does not dispute the importance of intimate partner violence, but says a new tort is not necessary. Existing torts already address the same issues, and the proposed tort is vague, overbroad, and would have an indeterminate impact on family law litigation. Major changes of this kind are better left to legislatures, not courts.
What Else Should You Know Before Making a Prediction?
This case is not about whether family violence is real or serious. Everyone agrees it is. The dispute is about how the common law should respond. If the Court sides with Ms. Ahluwalia, it could mark a major expansion of tort remedies in family law and give survivors a single cause of action designed around the cumulative nature of family violence. If the Court sides with Mr. Ahluwalia, tort claims for intimate partner violence will remain available, but litigants will have to fit those claims within established torts like assault, battery, and intentional infliction of emotional distress.
I’m leaning toward appeal dismissed, but likely with reasons that take family violence seriously and emphasize that existing torts must be applied with attention to patterns of coercion, control, and abuse. The Court may be reluctant to endorse a broad new tort, especially where the Court of Appeal found that the same facts supported liability under existing torts.
SCCbot
This season, we’re also asking the SCCbot, an AI tool that predicts Supreme Court of Canada decisions, what it thinks the Court will do. This week, the SCCbot predicts the appeal will be dismissed (~70% confidence). It reasons that the ONCA’s case-by-case survey already establishes that existing torts capture patterns of coercive and controlling behaviour for both liability and damages, leaving no real gap to fill. Sharpe J.A.’s caution in Jones v Tsige against deciding more than necessary will be decisive. The trial judge herself found the tort of intentional infliction of emotional distress was made out, so this case doesn’t present the no-injury fact pattern that would actually require the new tort. Anchoring the new tort on the Divorce Act‘s s. 2 definition — a provision Parliament tied deliberately to the best-interests analysis — runs into the Seneca College v. Bhadauria problem of using a statutory policy choice as the foundation for a new common law tort. Rowe J., who co-wrote the Nevsun dissent framework Benotto J.A. applied, will be alive to this problem. The Court will affirm and strengthen the ONCA’s damages dicta at para. 128 to put the “family discount” to rest within existing torts, and to leave the door explicitly ajar for a more narrowly tailored coercive control tort in a future case where the gap actually presents. Watch for a Karakatsanis and/or Martin J. concurrence pressing the access-to-justice and substantive equality framing. SCCbot is now 8 for 10.
Previous Case Recap: Patrick Street Holdings Ltd. v. 11368 NL Inc.
Patrick Street Holdings Ltd. v. 11368 NL Inc., 2026 SCC 15
Held (6:3): Appeal dismissed. Patrick Street was barred by cause of action estoppel from relitigating its entitlement to payment under a $4 million mortgage.
Key points:
- A party relying on res judicata must plead and raise it at first instance, but that obligation is functional: the focus is on whether the other side had fair notice of the case it had to meet.
- 11368 met that obligation by relying on the earlier accounting decisions and arguing that Patrick Street was trying to relitigate what had already been decided.
- The 2016 and 2019 proceedings involved the same cause of action: determining the validity, value, and priority of encumbrances on the property through the accounting process.
- Patrick Street could have advanced its arguments about the $4 million mortgage in the earlier proceeding. Its failure to do so barred it from raising them later.
- Justices Karakatsanis and Martin would have allowed 11368 to raise res judicata on appeal, but would have exercised discretion against applying it. Justice Côté would have held that res judicata was not properly raised at first instance and could not be raised for the first time on appeal.
📊 73% of Fantasy Courts players predicted correctly! SCCbot got it wrong.
Thanks for reading and playing Fantasy Courts. If you liked today’s newsletter, we’d love for you to share it with a friend, or you can sign up to receive it as an email: https://mailchi.mp/37b20ffd0198/fantasycourts
-Tom Slade