The Cause of Action in Ahluwalia v. Ahluwalia

Appeals in civil litigation are usually brought by the losing party: the party who did not obtain the outcome they sought. In this respect, the appeal to the Supreme Court of Canada in Ahluwalia v. Ahluwalia might seem unusual. The appeal is being brought by a plaintiff who ostensibly won her tort claim in the courts below.

Maitland considered that the great benefit of the common law having abandoned the forms of action was to free litigants and courts to attend “to the real problem of what are the rights between man and man, what is the substantive law.” That problem squarely arises in Ahluwalia. The case is not simply about compensation for loss, holding a wrongdoer accountable, or correcting an injustice between two people. It is about the vindication of private rights. The question for the Court is whether vindication at common law lies in the imposition of civil liability and redress for a proven cause of action, or in the specific denotation of a civil wrong as a nominate tort.