The New Tort Trend?
March 31, 2022
On this long overdue episode of the pod, Professor Hilary Young and Robert Danay discuss the apparent new trend in which judges in Canada have been creating new common law torts.
Some of the cases discussed include:
- Ahluwalia v. Ahluwalia, 2022 ONSC 1303 in which Mandhane J. created the new tort of family violence;
- Caplan v. Atas, 2021 ONSC 670 in which Corbett J. created the new tort of cyber harassment;
- Nevsun Resources Ltd. v. Araya, 2020 SCC 5, in which the Supreme Court of Canada declined to strike a claim rooted in the new tort of breaching customary international law;
- Merrifield v. Canada (Attorney General), 2019 ONCA 205, in which the Ontario Court of Appeal rejected a new tort of harassment;
- Crookes v. Newton, 2011 SCC 47 in which the Supreme Court described the circumstances under which the republication of a hyperlink may be considered defamatory (and also cited Rob's paper called “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” (2010), 56 McGill L.J. 1); and
- Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), in which the Ontario Court of Appeal found the fact that a defamatory statement was published on the internet increased the quantum of damages and vitiated the availability of the qualified privilege defence.
In Obiter Dicta:
- Hilary recommended "The World of Yousuf Karsh: A Private Essence" a photography exhibition at the Canadian Museum of Immigration at Pier 21 in Halifax, Nova Scotia; and
- Rob recommended Ukrainian band DakhaBrakha's performance on NPR's Tiny Desk Concert Series.