ABSTRACT
In recent years, there has been a resurgence of interest in tort law’s expressive dimension. Prior to the Supreme Court of Canada’s judgment in Ahluwalia v Ahluwalia, 2026 SCC 16, commentators argued that the judicial creation of new torts is justified on the ground of expressing or symbolically vindicating public values. This article defends the orthodox view that the expression of public condemnation or social disapproval is not an aim of the Anglo-Canadian law of torts, such that it does not suffice on its own to motivate doctrinal developments such as the judicial creation of new causes of action. Descriptively, it argues that the extant doctrine in tort law does not principally embrace the expression of public values as a basis of common law development. Normatively, it contends that expressivism is inapt in the context of private wrongs, as these wrongs do not characteristically attract condemnation on the part of the whole community. By instrumentalizing tort law to express public values, these approaches undermine the distinctive public value of tort law itself, namely, to instantiate a practice of relational accountability between equal persons.
Sun, Kerry and Sérafin, Stéphane, Against Expressivism in Judicial Tort-Making (September 9, 2026).
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