COURT OF APPEAL FOR ONTARIO
Paciocco, Thorburn and George JJ.A.
BETWEEN
Zak Smith
Plaintiff/Defendant by Counterclaim
(Respondent)
and
Amanda Nagy
Defendant/Plaintiff by Counterclaim
(Appellant)
Gabriel Latner, for the appellant
Charles Daoust, for the respondent
Heard: May 7, 2026
On appeal from the judgment of Justice Marc R. Labrosse of the Superior Court of Justice, dated August 11, 2025, with reasons reported at 2025 ONSC 4629.
OVERVIEW
1The appellant, Amanda (Mandy) Nagy, appeals the dismissal of a sexual battery claim she brought against the respondent, her former husband Zak Smith.1 She also appeals a defamation judgment against her in his favour, requiring her to pay Mr. Smith general damages in the amount of $40,000 and to remove “defamatory statements” that she posted online, which the trial judge concluded falsely alleged that Mr. Smith sexually and physically assaulted her.
2For the following reasons, I would dismiss her appeal.
THE MATERIAL FACTS
3Mr. Smith is an artist, tabletop role-playing game creator, and adult film performer with a significant online presence. He and Ms. Nagy were married for approximately ten years in a polyamorous relationship, living mostly in New York City and Los Angeles.
4Almost two years after their 2017 separation, Ms. Nagy, an Ontario resident, made a public Facebook post claiming that Mr. Smith had sexually, physically, psychologically and emotionally abused her during their relationship, and asserting that she was suffering post-traumatic stress disorder from the abuse. She also alleged that he had abused other women, including sexually, and she attached the accounts of two other women to the post. The Facebook post was read broadly.
5Mr. Smith published denials on his blog that attributed Ms. Nagy’s “false” allegations to what he claimed to be her borderline personality disorder. He also sued her for defamation. Ms. Nagy counterclaimed, suing him for sexual battery and for defaming her in his denial posts. The actions were tried together.
6The trial judge began his analysis with Ms. Nagy’s counterclaim, first dismissing her defamation action.2 He also dismissed her sexual battery action, after finding that “Mandy [had] not established, on a balance of probabilities, that she did not consent to the sexual activity at the time and that Zak knew or ought to have known that she did not consent.”
7The trial judge allowed Mr. Smith’s defamation action based on Ms. Nagy’s charges that he had sexually and physically abused her, and on charges she made claiming that the parties’ relationship was strictly characterized by abuse or trauma, without “reprieves of loving or sweet acts”. He found that the defences of justification and/or fair comment did not apply to the charges of sexual and physical abuse because Ms. Nagy failed to prove that she had not consented. And he found that those defences did not apply to comments made by Ms. Nagy about the parties’ relationship because the evidence showed the relationship was not strictly characterized by Mr. Smith’s cruelty but included “periods where Zak demonstrated … loving or sweet acts.”
8The trial judge found that other charges made by Ms. Nagy were not defamatory. Specifically, the defences of justification and/or fair comment applied to Ms. Nagy’s claims of emotional and psychological abuse, and to the sexual assault allegations involving other women.
9The trial judge confined the award for defamation to general damages of $40,000 because of Mr. Smith’s failure to establish monetary loss, his “already failing or inconsistent public reputation” prior to the Facebook post, and because “the non-defamatory portions of the Facebook Post would also impact his on-line reputation.”
THE ISSUES
10Ms. Nagy argues that the trial judge erred in both actions by imposing the burden on her to prove the absence of consent. It is best in stating the issues and organizing the analysis to address the burden of proof complaints relating to each of the actions separately.
11Ms. Nagy also submits that the trial judge made inconsistent findings of fact, provided insufficient reasons for rejecting the defence of qualified privilege, and erred by not applying s. 22 of the Libel and Slander Act, R.S.O. 1990, c. L.12, which creates a defence of partial justification. Finally, she argues that the trial judge conflated the allegations in the Facebook post with those made in the battery counterclaim.
12During his oral submissions, Ms. Nagy’s counsel took issue before us with statements that the trial judge made in which he commented broadly on the consensual nature of the parties’ sexual relationship. I refer to some of those comments below. I agree that the material issue is not whether a relationship was broadly consensual, but whether consent was given to each alleged act of sexual contact. However, there is no basis for concluding that the trial judge failed to understand this or for treating these findings as meaningless. In her evidence, Ms. Nagy particularized very few incidents of allegedly non-consensual contact, which the trial judge addressed. Most of the evidence she presented was about the general nature of her and Mr. Smith’s sexual relationship. The impugned comments the trial judge made were responsive to the way the case was presented. When read in context, those comments represent wholesale rejections of Ms. Nagy’s allegations of non-consensual sexual contact. For this reason, and because Ms. Nagy did not raise the trial judge’s focus on the sexual nature of the relationship as a ground of appeal, I will say no more about the way his findings were worded.
13I would state and address the issues that arise as follows:
(a) Did the trial judge err by reversing the burden on consent in the sexual battery action?
(b) Did the trial judge err by requiring Ms. Nagy to prove non-consent in Mr. Smith’s defamation action?
(c) Did the trial judge commit legal error by making inconsistent findings?
(d) Did the trial judge give insufficient reasons relating to the defence of qualified privilege?
(e) Did the trial judge err by failing to apply the defence of partial justification?
(f) Did the trial judge err by conflating the Facebook post with claims made in Ms. Nagy’s counterclaim?
14I would reject grounds of appeal (b) to (f), inclusive. I would find with respect to ground (a) that the trial judge did err by reversing the burden on consent in the sexual battery action. However, this did not result in a substantial wrong or lead to a miscarriage of justice because the trial judge found that Mr. Smith’s evidence affirmatively established consent. I would not order a new trial.
ANALYSIS
A. Did the trial judge err by reversing the burden on consent in the sexual battery action?
1. The trial judge reversed the burden of proof
15Ms. Nagy points out correctly that in a battery action, including medical battery and sexual battery, “If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented”: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 2; and see para. 6.3 In sexual battery actions, non-consent is presumed: Nole v. Seymour, 2023 BCCA 329, at para. 59, leave to appeal refused, 2024 CanLII 40770 (SCC); Scalera, at para. 22. Consent is therefore conceived of as an affirmative defence that must be raised by the defendant: Scalera, at paras. 3-7.
16In this case, Ms. Nagy’s claim that the alleged sexual contact occurred was not contested. That being so, if Mr. Smith wished to defend the action based on Ms. Nagy’s consent, the burden was on him to establish that she consented, or that he reasonably believed she consented. It is evident that the trial judge failed to assign this burden correctly. As described in para. 6 above, he denied the sexual battery claim because “Mandy [had] not established, on a balance of probabilities, that she did not consent to the sexual activity at the time and that Zak knew or ought to have known that she did not consent”.
17The trial judge reached this conclusion after asking whether Ms. Nagy had provided “sufficiently clear, convincing and cogent evidence to the court that … Zak [was] liable for sexual battery.” The phrase “sufficiently clear, convincing and cogent evidence” was evidently derived from para. 46 of F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which the trial judge cited. But, in F.H.,Rothstein J. was speaking generally about the kind of evidence that is required to satisfy the balance of probabilities standard where it applies: see paras. 46, 49. It was wrong for the trial judge to impose that standard on Ms. Nagy on an issue Mr. Smith was legally obliged to disprove. The trial judge committed the burden of proof error that Ms. Nagy has raised relating to the battery action.
2. A new trial is not warranted
18This court may only order a new trial if the trial judge’s misallocation of the burden led to a “substantial wrong or miscarriage of justice”: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). An error in assigning the burden of proof will meet this standard and require a new trial where the finding of fact on which the outcome depends cannot be untangled from the legal error, such that it is not clear that the trial judge would have come to the same conclusion if he had applied the burden correctly: Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., 2024 ONCA 889, 174 O.R. (3d) 620, at para. 32; and see Caisse populaire de Maniwaki v. Giroux, 1993 CanLII 151 (SCC), [1993] 1 S.C.R. 282, at p. 301.
19Although he approached the burden issue incorrectly by asking whether Ms. Nagy proved that she did not consent, there can be no question that the trial judge found it was more likely than not that she consented. Had the trial judge applied the burden correctly, the outcome would not have changed because the factual findings he made in his ruling necessarily entail Mr. Smith satisfying the burden of proof the law imposes. I say this for the following reasons, even though the trial judge explicitly stopped short of proclaiming that Ms. Nagy’s claims were false.
20Most significantly, the trial judge said, “I accept Zak’s evidence that the nature of the relationship between Zak and Mandy brought about a consensual physical relationship which included the sexual and physical interactions complained of by Mandy” (emphasis added). This is a clear affirmative finding of fact by the trial judge that would not be possible unless he was satisfied that the sexual and physical interactions Ms. Nagy said were abusive were more likely to be consensual than not.
21Later in his decision, when addressing an allegedly defamatory statement in the Facebook post that Ms. Nagy was prohibited from refusing sex, the trial judge said, “I am of the view that there was not an absence of consent at the time that the sexual activity was happening during the relationship”. Once again, this is an affirmative finding that necessarily reflects the trial judge’s conclusion about what was probable relating to the sexual battery allegations. The language is unequivocal. This is not a description of something that has not been disproved, or an expression of indecision. It is an affirmative factual finding of consent by the trial judge that would necessarily satisfy the balance of probabilities standard he should have applied.
22Finally, after expressing his conclusion of mixed fact and law that Ms. Nagy had not established the allegations of violence and sexual assault in the defamation action, the trial judge effectively repeated the same affirmative finding: “I am of the view that the non-traditional sexual relationship between the parties transpired in a consensual environment.”
23The trial judge’s statement, made when addressing the defamation claim, that he could not “arrive at a definitive conclusion” that the sexual battery allegations were “false” must be read in light of these findings. The trial judge concluded that it was more likely than not that Ms. Nagy consented. However, that did not require him to express a certain conclusion on consent or the absolute truth or falsity of the allegations. This would be a far more exacting standard than the balance of probabilities.
24The strength of the trial judge’s conclusion that the sexual contact that occurred within the relationship was consensual is apparent not only from the direct statements he made, but also from his credibility findings. He did not accept Ms. Nagy’s testimony relating to consent. He said it was not “clear, convincing and cogent”. In contrast, he believed Mr. Smith’s evidence relating to consent. When speaking of Ms. Nagy’s claim that she withdrew her consent 40 to 50 percent of the time, the trial judge said, “I prefer the testimony of Zak … which acknowledges an unconventional sexual relationship and indicates that his conduct during sexual activity with Mandy does not suggest that he was violent or that he sexually assaulted her.” As I have noted above, the trial judge explicitly accepted Mr. Smith’s account that the “sexual and physical interactions complained of by Mandy” were consensual. His clear preference for Mr. Smith’s testimony confirms his conclusion that consent was more likely than not.
25The trial judge offered multiple reasons why he did not accept Ms. Nagy’s testimony. He was clearly troubled by inconsistencies in Ms. Nagy’s testimony. More than once, he commented on the inconsistency between an affidavit she provided, claiming that Mr. Smith never “raped” her, and testimony she gave that she had not consented to have sex with him 40 to 50 percent of the time. In cross-examination, she recast this allegation as withdrawing her consent 40 to 50 percent of the time. Yet she testified that she wanted to end these sexual encounters, but felt as though she could not, and only learned of her right to withdraw consent post-separation. In light of this evidence, the trial judge disbelieved her claim to having actually withdrawn consent, noting that she did not give evidence that she ever communicated this withdrawal to Mr. Smith, save for one instance where Mr. Smith became upset but did not force her to continue. He commented, “She has not established a single specific instance where, by express words or conduct, she expressed a lack of agreement to continue to engage in the activity and was forced to continue.”
26The trial judge also noted that she acknowledged eventually consenting when Mr. Smith persisted because she did not want to disappoint him.
27Significantly, the trial judge found that Ms. Nagy’s testimony was not supported by her and Mr. Smith’s sexual partners, whose evidence he preferred, including that of Michelle Ford, who was in a live-in sexual relationship with both Mr. Smith and Ms. Nagy for five years. He recited Ms. Ford’s testimony that Ms. Nagy would most often initiate the sex and would decide when they would do so. He also accepted the evidence of Jamielynn Cowart that Ms. Nagy would choose who came to bed with the couple and that Ms. Nagy would be angry with Mr. Smith if he turned down sex. And the trial judge noted that in her evidence, Ms. Vivika Grey, who Ms. Nagy called as a witness, spoke about being abused by Mr. Smith but provided “little to no evidence of any violence or sexual abuse directed towards Mandy”, even though Ms. Grey “would have been in a position to observe [Ms. Nagy’s] withdrawal of consent 40% to 50% of the time”, if it occurred.
28This is not a case like Shakur v. Pilot Insurance Co. (1990), 1990 CanLII 6671 (ON CA), 74 O.R. (2d) 673, where the trial judge’s burden shifting error influenced his assessment of the parties’ evidence. Regardless of who bore the burden of proof, the trial judge was required to scrutinize the evidence put forth by both parties for credibility and reliability: McDowell v. Barker, 2012 ONCA 827, at para. 13; Charkhandeh v. College of Dental Surgeons of Alberta, 2025 ABCA 258, at para. 67. He did precisely this. And in doing so, he outright rejected Ms. Nagy’s account regarding consent and outright accepted Mr. Smith’s. The burden of proof played no role in this assessment.
29In my view, based on the affirmative factual findings he made relating to consent and his credibility assessment of the opposing accounts on consent, there can be no doubt that had the trial judge correctly imposed the burden on Mr. Smith to prove consent on the balance of probabilities, he would have found that the burden was met.
30The trial judge’s reasoning also suggests that he was satisfied, on the balance of probabilities, that Mr. Smith reasonably believed that Ms. Nagy was consenting during their sexual encounters. In the overview to his decision, he said explicitly, “I am persuaded, on the balance of probabilities, that during their relationship Zak believed that Mandy was consenting to the nature of their physical and sexual relationship and that, Mandy did not communicate by words or conduct, the withdrawal of her consent.” It is true that the trial judge did not explicitly address the reasonableness of this belief. However, when this finding is read in the context of the entire judgment, in which the trial judge expressed no qualms about the foundation for this belief, this finding arguably demonstrates that the trial judge was satisfied that Mr. Smith’s belief in consent was reasonable. Such a finding alone would prevent the battery action from succeeding.
31I am therefore persuaded that although the trial judge mistakenly believed that Ms. Nagy bore the burden of establishing non-consent, he was satisfied on the balance of probabilities that Ms. Nagy had consented to the sexual contact that occurred between her and Mr. Smith. No substantial wrong or miscarriage of justice has occurred and there is no need for a new trial.
B. Did the trial judge err by requiring Ms. Nagy to prove non-consent in Mr. Smith’s defamation action?
32In a defamation action, where the plaintiff proves that words are defamatory in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person, those words are presumed to be false where they have been communicated to a third party: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28. The burden falls to the defendant to prove that the sting of the words is substantially true if they wish to defend the lawsuit using the defence of justification: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 107. These rules operate in defamation cases involving allegations of battery: see Vanderkooy v. Vanderkooy et al., 2013 ONSC 4796, 366 D.L.R. (4th) 108, at paras. 156, 158 and 163; A.T. v. D.C., 2026 BCCA 250, at paras. 4, 53.
33The general underlying policy basis for requiring defendants to establish that their words are substantially true is obvious. Simply stated, “Those who give currency to a defamatory report are responsible for its truth”4: Vanderkooy, at para. 157, citing Raymond E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1994), at pp. 10-19 to 10-27. Put simply, people should generally5 not make statements that will damage the reputation of others unless they know those statements to be true.
34The trial judge respected this body of law in his decision by imposing the burden on Ms. Nagy to prove her sexual battery allegations were true. Although the record before us is incomplete, there is no suggestion that he was asked to do otherwise. He found that Ms. Nagy had not discharged her burden because she failed to prove on the balance of probabilities that her claims of non-consent were true. She therefore did not have a defence of justification for the prima facie defamatory comments she communicated alleging that Mr. Smith sexually and physically abused her.
35Ms. Nagy now submits, seemingly for the first time on appeal,6 that there is what I would call a partial exception to this rule where the prima facie defamatory statements allege battery. Ms. Nagy appears to accept that to enjoy the defence of justification for communicating an allegation of battery, the defendant must prove that the allegation of intentional touching is true. But she argues that the burden is on the plaintiff to prove consent on the balance of probabilities if they wish to defeat the defence of justification and succeed with their defamation claim. In effect, she suggests that contrary to the usual rule in a defamation action, a defendant’s claim of non-consent is presumed to be true, not false.
36Ms. Nagy offers no authority for what appears to me to be a novel proposition. She argues that it is supported by the reasoning applied in Scaleraand the principles against inconsistency and absurdity. I am not persuaded that she is correct, and I would deny this ground of appeal. In my view, the trial judge was correct to proceed as he did.
1. The reasoning in Scalera does not support the proposed change
37The rule affirmed in Scalerais long-standing. As noted above, it holds that in any battery action, sexual or otherwise, once the physical contact is established, the defendant must prove consent: Scalera, at paras. 2, 6. This rule is anomalous7 because “a plaintiff generally must prove all elements of the tort she alleges”: Scalera, at para. 18. Exceptionally, the rule affirmed in Scalerareverses the onus on the issue of consent. That rule exists, in part, because where the plaintiff has presented a prima facie case of direct interference, reversing the burden provides an incentive to the defendant, who “is in a position to say what happened”, to testify: Scalera, at para. 13. After noting this rationale for the rule, McLachlin C.J. then went on in Scalera, at para. 15, to emphasize what I would characterize as the primary reason for reversing the burden on consent in battery cases:
The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can.
38Neither of these rationales apply with full force in defamation actions where the impugned charge alleges battery. It is necessary to give an alleged abuser an incentive to testify in a battery action if they can otherwise sit back and rely on the plaintiff’s burden of proof to avoid liability. In contrast, there is no need to give the alleged abuser an incentive to testify in a defamation action because, as the plaintiff, they are required to establish that the defamatory statements were made, and they are already incentivized to counter a defence of fair comment or justification if it is raised since it will put their action at risk.
39Meanwhile, the primary reason for the rule, quoted in para. 37 above, depends entirely upon the nature of the tort of battery. It is inextricably linked to the fact that the contact element of the tort of battery is a prima facie violation of the personal autonomy of the plaintiff. This, and the high interest in personal autonomy in one’s body, warrants the creation of an exceptional rule for battery actions that facilitates the ability of plaintiffs to obtain compensation.
40The tort of defamation is different. It is not about the protection of personal autonomy and does not provide compensation for battery. Its function is to protect people from the communication of statements by others that will unjustifiably damage their reputations: Torstar, at para. 2. Providing alleged victims of sexual assault with procedural assistance in resisting liability for communicating damaging allegations of battery to non-authorities will do nothing to vindicate their personal autonomy. Put simply, the policy interest undergirding the rule affirmed in Scalerawould not be advanced by applying a similar rule in defamation actions.
41Indeed, the proposed extension of the rule affirmed in Scalerato defamation cases would turn the rule on its head. In a battery action, the alleged abuser is the defendant, and the alleged victim of the abuse is the plaintiff — i.e., the party who needs to establish a prima facie violation of their right to trigger the reverse onus. But in a defamation action, the alleged abuser is the plaintiff, and the alleged victim of the abuse is the defendant, who would get the benefit of the reverse onus without having to establish anything. Indeed, the rule would be triggered against the defamation plaintiff after the plaintiff has established a prima facie violation of their right to be free from the communication of defamatory statements. A plaintiff’s tool designed to vindicate a prima facie right would become a defendant’s tool for impeding the vindication of a prima facie right. And the presumption of falsity that the law now recognizes would be turned into a presumption of truthfulness.
42In support of her submission that the rule recognized in Scalerashould apply in defamation actions, Ms. Nagy also raises considerations arising from the sexual nature of the battery allegation in her case. She presents the concern that putting the onus of proving consent on sexual battery complainants would raise the risk of victim-blaming, put complainants in the difficult position of having to address the alleged abuser’s belief in consent, and resurrect the myth of the “marital rape exception”. These are serious concerns, but I am not persuaded that they provide meaningful support to the extension of the rule recognized in Scalerato defamation cases.
43First, these concerns are particular to sexual battery cases, with the third concern being confined to defendants who are married to their alleged sexual abusers. Yet Ms. Nagy is not asking us to recognize the exception for prima facie defamatory statements alleging sexual battery alone. She asks us to recognize its application in all battery-based defamation actions. I am not persuaded that concerns affecting a subset of cases should drive a general exception in this way.
44Second, applying the rule recognized in Scalerato defamation cases would result in different procedural rules operating for different kinds of defamatory statements, with a presumption of falsity operating for all other prima facie defamatory statements and a presumption of truth operating for prima facie defamatory statements alleging non-consensual contact. In Scalera,the majority rejected the invitation to treat sexual battery cases differently from other battery cases, unless this was necessary to do justice: Scalera, at paras. 28-29. The same must hold true with defamation cases. Different forms of defamation should not be treated differently unless it is necessary in the interests of justice.
45I am far from being persuaded it is necessary to recognize this exception to the usual treatment of prima facie defamatory statements to do justice. The concerns Ms. Nagy raises can be addressed using the familiar tools of excluding irrelevant evidence, preventing abusive cross-examination, disallowing reliance on myths, and disregarding the possibility of mistaken belief in consent where it lacks an “air of reality” or rejecting it where such belief would not be reasonable because it is not supported on the objectively discernable facts.
46More importantly, it is not necessary for complainants to communicate prima facie defamatory allegations to non-authorities to protect their personal autonomy to control who touches their bodies. It is enough that they can make such allegations to the authorities under the shelter of qualified privilege8 and pursue criminal prosecutions and compensation in battery actions.
47Although not developed in argument before us, I have considered in this regard whether the Scalera exception should be applied in defamation cases to discourage the abusive use of defamation allegations by abusers to intimidate complainants from reporting abuse. In my view, while the potential for such abuse doubtlessly exists and needs to be addressed, it does not support reversing the onus of proof on consent. The law of qualified privilege can address this concern, as can Ontario’s anti-SLAPP regime: see Courts of Justice Act, s. 137.1. The latter tool allows for the pre-trial dismissal of even meritorious defamation claims where the harm to reputation is outweighed by the public interest in expression on sexual violence, including the chilling effect such claims may have on those who allege they have been victimized: Hansman v. Neufeld, 2023 SCC 14, [2023] 1 S.C.R. 519, at paras. 5, 75-77. Adapting a rule that is founded on bodily integrity to ease the path to defending defamation allegations where the impugned communication is not made to others for the purpose of protecting bodily integrity is both unnecessary and ill-advised.
48I am therefore persuaded that it is not necessary in the interests of justice to treat prima facie defamatory allegations based on battery differently than other defamation allegations by extending the rule affirmed in Scalera to defamation actions. Indeed, doing so would be contrary to the interests of justice by lowering the legal restraints on the unnecessary communication of allegations damaging to the repute of others where the allegation is about battery.
2. The principles against inconsistency and absurdity do not support the proposed change
49Ms. Nagy offers the separate submission that unless the rule in Scaleraimposing the burden of proving consent on the alleged batterer is applied in defamation cases involving claims of battery, inconsistent factual findings and absurd outcomes could occur. Specifically, in cases where the issue of consent cannot be affirmatively resolved one way or the other, the alleged batterer could be found liable for battery, yet the complainant could be liable for defamation for communicating a claim that he committed battery. In such cases, both parties would lose (the “hypothetical outcome”).
50She also argues that under the conventional approach to assigning burdens, if the suits were brought separately and the alleged abuser failed to prove consent during the sexual battery action, this would create an issue estoppel problem for him in proceeding with the defamation action (the “issue estoppel argument”). In oral argument, Ms. Nagy’s counsel submitted that it is arbitrary to stop a subsequent defamation action on this basis yet apply different burdens if the actions are tried together. She appears to be offering the alignment of the burdens of proof as the solution.
51I would not accept either of these submissions. The inconsistency that Ms. Nagy raises is not concerning, and the principles of res judicata, including issue estoppel,would not apply if the actions proceeded sequentially in the hypothetical proposed.
a. The inconsistency relied upon is not concerning
52First, with good reason, the law is not troubled by different outcomes that result from the operation of different rules of proof that apply in different actions arising out of the same factual allegations. The rules of proof vary according to the policy demands that are engaged in the litigation in question and where different rules of proof apply, it is to be expected that they may produce different outcomes in some close cases.
53This general point can readily be illustrated by the fact that individuals found not guilty in criminal prosecutions can subsequently be found civilly liable for the same factual conduct. In Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, 90 O.R. (3d) 630, for example, a judge dismissed a tort action brought by Ms. Polgrain’s estate against a nurse for allegedly sexually abusing her prior to her death because he found it to be abusive re-litigation, as the nurse had previously been acquitted after a criminal trial involving the same allegation. This court overturned the dismissal, finding that the civil suit was not abusive. Rosenburg J.A., who wrote the judgment, concluded that the mere inconsistency arising from the application of what he called different “burdens of proof”9 will not diminish the authority or credibility of the judicial process or undermine the aim of finality: Polgrain Estate, at paras. 23-24.10
54The underlying reasons for this conclusion are obvious. Because of the juridical nature of the burden in a criminal case, the verdict of acquittal was not an affirmative finding that finally determined whether non-consensual sexual contact had occurred: Polgrain Estate, at paras. 33, 35-36. The acquittal was nothing more than a finding that the Crown had not proved the nurse’s guilt beyond a reasonable doubt: Polgrain Estate, at paras. 33, 36. Therefore, even if the estate were to prevail in the civil lawsuit after securing a finding the sexual abuse did occur, the respective verdicts would not conflict.
55Nor would the discrepant results be arbitrary. Any apparent disparity in the verdicts would be the natural result of the application of different rules of proof crafted for different purposes. The cautious criminal standard of proof beyond a reasonable doubt is insisted upon where liberty is at stake, while the less cautious civil standard of proof on the balance of probabilities best suits loss allocation.
56Ms. Nagy argues that cases such as Polgrain Estateare distinguishable because they deal with outcomes driven by standards of proof, whereas the outcomes of concern that she raises would arise from different burdens of proof. This is not a material distinction. What matters is that, just as a verdict of acquittal is not an affirmative finding that the alleged sexual abuse did not occur, a verdict upholding a sexual battery claim in a tort action is not an affirmative finding that the complainant did not consent. This is because the law does not require an affirmative finding of non-consent for liability to follow. A failure by the defendant to disprove non-consent is enough. Since a successful sexual battery verdict means no more relating to the issue of consent than that the defendant failed to prove consent, a subsequent finding in a defamation action that the complainant could not prove non-consent is not inconsistent with that verdict. Instead, the disparate outcomes are consistent with the fact that both parties were unable to marshal sufficient evidence to meet their respective burdens.
57Nor would the civil liability of both parties be arbitrary. Finding each of them liable for different torts would be an anticipated result of the operation of procedural rules that differ because the interests being protected in a battery action differ from the interests protected in a defamation action. In sexual battery actions, the law chooses to give the complainant the benefit of the uncertainty on the question of consent because the action concerns a prima facie violation of their personal integrity through sexual touching by a party who is conceived to be capable of presenting material evidence on the issue of consent: see Scalera, at paras. 11-13, 15 and 22. In defamation actions, the law chooses to give the plaintiff the benefit of the doubt on whether a prima facie defamatory statement is true so that it can more effectively protect personal reputations from the communication of damaging statements that the defendant should not communicate unless they know them to be true or which can otherwise be defended: Erika Chamberlain, Karen Eltis and Raymond E. Brown, Law of Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Carswell, 1994) (loose-leaf updated April 2026, release No. 2), at § 10:2, §3.8 (note 1). The different outcomes result from considered policy choices, and not from any discreditable failings in the law that require correction.
b. Issue estoppel would not apply
58As indicated, Ms. Nagy also raises what she sees to be a related but different objection to the way the law currently allocates burdens of proof in defamation and battery cases. Specifically, she argues that if an alleged batterer failed to prove consent in a sexual battery action that had been tried first, issue estoppel would operate to defeat the alleged abuser’s subsequent defamation claim because the issue of consent had already been decided against him. If this were true where the actions proceeded sequentially, but not if they were tried together, it would discredit the operation of the law.
59However, the premise of this argument, that issue estoppel would apply at the subsequent defamation action, is false. I will offer the technical explanation for this conclusion, but before doing so, I would simply point out that the principles of res judicata, including issue estoppel, are “designed to advance the interests of justice”: Patrick Street Holdings Ltd. v. 11386 NL Inc., 2026 SCC 15, at para. 36. It would not advance the interests of justice to defeat the plaintiff’s defamation action by using issue estoppel, as the effect of doing so would be to relieve the defendant of the burden of proof the law assigned her, to the prejudice of the plaintiff. The plaintiff would lose the defamation action not because the defendant/complainant proved non-consent, as the law requires, but because the plaintiff failed to prove consent in a different action.
60Fortunately, this unfairness is avoided because the law of issue estoppel does not apply. It does not operate because the preconditions for its operation are not satisfied. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44,[2001] 2 S.C.R. 460, at para. 25, those preconditions were described as requiring:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
61It is the first precondition that is not met. Although both actions address the issue of consent, the same question relating to consent is not being decided in both actions if the battery claim is successful. In Heynen v. Frito Lay Canada Ltd. (1999), 1999 CanLII 1386 (ON CA), 45 O.R. (3d) 776 (C.A.), at para. 20, leave to appeal refused, [1999] S.C.C.A. No. 56, Goudge J.A. explained how to identify whether the same question has been decided:
Although at a high level of generalization, two proceedings might seem to address the same question, this requirement of issue estoppel is met only if on careful analysis of the relevant facts and the applicable law the answer to the specific question in the earlier proceeding can be said to determine the issue in the subsequent proceeding.
62A careful review of the applicable law shows that the issue of whether the complainant consented does not have to be determined in either action. It is enough for liability in a sexual battery action for the defendant to fail to prove consent affirmatively. And it is enough for liability in a defamation action arising from the communication of a battery allegation for the defendant to fail to prove non-consent affirmatively. Therefore, a failure to prove consent or non-consent does not decide whether the complainant consented or not.
63In contrast, if the alleged batterer had prevailed at the sexual battery action, a “careful analysis of the relevant facts” would show that the issue of consent had been resolved. Given the juridical nature of the burden, such a verdict would require an affirmative finding of consent. This decision would satisfy precondition (1) to the operation of issue estoppel at a subsequent defamation action against the complainant for communicating the same sexual assault allegation.
64It can therefore be seen that, depending on the verdict arrived at, differences in the burden of proof can preclude the operation of issue estoppel. In Kennedy v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 1196, at para. 65, for example, an acquittal in a Criminal Code unlawful importation case did not result in issue estoppel in an action to challenge a civil Crown seizure orderarising from the same transaction. One of the explanations given was that “the onus of proof is different” between the proceedings.11 The factual question relating to the alleged importation arising in the seizure action was not decided by the acquittal because the Crown bore the onus of proving unlawful importation (and thus the validity of the seizure) in the criminal action, while Mr. Kennedy bore the onus of proving that the seizure was unlawful in the civil action: Kennedy, at paras. 59, 65.
65Similarly, in Fawson Estate v. Deveau, 2016 NSCA 39, the appellant argued that issue estoppel prevented the respondents from arguing that the testator had capacity to execute beneficiary designations because the verdict at an earlier proceeding invalidated the testator’s proposed will based on her incapacity. The court disagreed after concluding that the first proceeding did not decide the capacity question that was now before it, in part because of the different burdens operating in the two proceedings: Fawson Estate, at para. 28. The case is correct. The reason the will was not approved at the earlier proceeding was that the respondents could not discharge their burden of rebutting the presumption of incapacity which arose from the circumstances of suspicion: Fawson Estate, at para. 21. Hence, the earlier proceeding did not decide the factual question of the testator’s capacity at issue in the second proceeding where the burden remained on the appellant throughout. The verdict simply meant that the respondents had failed to rebut the presumption of incapacity that operated at the first proceeding.
66And in British Columbia (Chief firearms officer) v. Donnelly, 2001 BCSC 724, 155 C.C.C. (3d) 183, the issue was whether issue estoppel arising from the earlier failure by the Crown to secure a firearms prohibition against Mr. Donnelly under the Criminal Code applied in a subsequent s. 74 Firearms Act reference before a provincial court judge to determine whether the denial of a firearms licence could be justified based on the same factual allegations. It was held that it did not, again because of differences in the onus of proof between the two proceedings: Donnelly, at paras. 28-30. The finding in the first proceeding that the Crown had failed to prove the risk Mr. Donnelly posed did not amount to a finding that he did not pose a risk. Therefore, it did not foreclose the issue from being tried in the subsequent proceedings where Mr. Donnelly bore the burden.
67In support of her position to the contrary, Ms. Nagy relies upon two decisions where judges used findings made in a sexual battery action to dismiss the related defamation action. These decisions do not support the application of issue estoppel in the circumstances under consideration.
68In Whitfield v. Whitfield, 2016 ONCA 720, 133 O.R. (3d) 753 (“Whitfield ONCA”), rev’g 2014 ONSC 2745 (“Whitfield ONSC”), leave to appeal refused, [2018] S.C.C.A. No. 83,Roberts J.A. relied upon the disposition of the sexual battery action as resolving the truth of the defamation action: Whitfield ONCA, at paras. 58-59. But this case did not involve the issue of consent: Whitfield ONSC, at para. 38. The sexual battery action failed because the complainant could not prove that the sexual events she alleged had occurred: Whitfield ONCA, at paras. 22-38, 58. This was the same issue that arose in the defamation action, where the burden was also on the complainant to prove that this allegation was true. Both actions concerned the same question of whether the alleged victim had proved that the alleged sexual contact occurred. Moreover, Whitfield was not an issue estoppel case. It simply involved the application of the material factual finding to both issues to which it applied in the same proceeding.
69The decision in Vanderkooy is similar. It also involved a trial judge finding that the battery plaintiff had not proved that the alleged sexual contact had occurred, and if it did, had not established that the contact was perpetrated by the battery defendant: Vanderkooy, at paras. 150-52, 223. He then applied this same finding in holding that the defence of justification was not made out in the opposing defamation action: Vanderkooy, at paras. 165, 224. Again, this is not an issue estoppel case, as the actions were tried together. Nor is it a case where a trial judge’s finding on consent in the battery action determined the outcome on the defence of justification. Rather, like Whitfield, it was a case where the sexual battery complainant failed to establish the elements of battery on which she bore the burden of proof and thus failed to establish justification in the related defamation action, where she bore the same burden of proof.
70For these reasons, I would not accept Ms. Nagy’s argument that the rule she opposes is discredited because issue estoppel would defeat the defamation action had the two actions proceeded sequentially.
c. Conclusion
71In my view, it does not offend the principles against inconsistency and absurdity to impose the burden on the defendant to prove non-consent in a defamation action that is based on an allegation of sexual battery. I would not accept this ground of appeal.
C. Did the trial judge commit legal error by making inconsistent findings?
72It can be a reversible error for a trial judge to make incompatible factual findings or apply “a finding of fact to different questions of law in a manner that [is] not uniform”: R. v. R.(D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, at para. 50; and see Tajkovich v. Ontario (Natural Resources), 2009 ONCA 898, 256 O.A.C. 322, at para. 18. Ms. Nagy argues that the judgment contains such inconsistencies. I would reject this ground of appeal. There are no incompatible findings of fact.
73First, there is no contradiction between the trial judge’s findings that the Facebook post contained allegations of violence and sexual assault, and his finding that the post’s introductory trigger warning was untrue. The trigger warning said, “there will be potentially triggering descriptions of abuse, violence and sexual assault”. When the trial judge said that the trigger warning was untrue, he was not suggesting that the post did not contain allegations of violence and sexual assault. Instead, he was finding that the vague allegations of violence and sexual assault against Mr. Smith that the trigger warning implied when read in context had not been proved by Ms. Nagy to be substantially true.
74Second, I do not see any inconsistency between the trial judge’s finding that it had not been shown to be true that Mr. Smith told Ms. Nagy that she could not say no to sex, and his findings that Mr. Smith did say that there was “no point to having her around” if she could not have sex with him and that he would evict her if she “didn’t want to have as much sex”. Without, in any way, defending the reprehensible statements Mr. Smith was found to have made, telling someone that there will be consequences for their decision not to consent is not factually the same as telling them they have no choice. These statements do not carry the same sting, as Ms. Nagy claims. The former statement, that she could not say no to sex, carries the sting of non-consensual sexual contact (i.e., sexual assault), while the latter statements carry the lesser sting that Mr. Smith pursued aggressive tactics to secure consent.
75Third, the trial judge’s finding that Ms. Nagy had not established a factual basis on which to opine that she “suffered a decade of trauma” is not inconsistent with his findings that she suffered “pain and damage” from the emotional and psychological abuse she experienced. He explained that the “relationship had numerous ups and downs” and found that it was an “extreme position” or exaggeration for Ms. Nagy to claim that “the entire period of the relationship brought [her] trauma.”
76I would deny this ground of appeal.
D. Did the trial judge give insufficient reasons relating to the defence of qualified privilege?
77Ms. Nagy raised the defence of qualified privilege in her pleadings. The trial judge did not address it. This is not surprising. Although Mr. Smith made formidable submissions before the trial judge as to why the defence would not apply, Ms. Nagy did not argue this defence at trial. I cannot verify a causal link, but I note that Ms. Nagy’s decision not to pursue the defence of qualified privilege at the trial occurred after a motion judge concluded, when denying Ms. Nagy’s anti-SLAPP motion, that there were “no grounds to find that the defence … [was] valid”: Smith v. Nagy, 2021 ONSC 4265, 156 O.R. (3d) 770, at para. 81. Given Ms. Nagy’s lack of real reliance on this defence, it cannot be said that this was one of the “important issues dividing the parties” that the trial judge was required to grapple with: Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at para. 34.
E. Did the trial judge err by failing to apply the defence of partial justification?
78Ms. Nagy points out that the trial judge found numerous prima facie defamatory statements she made to be substantially true, including allegations of sexual abuse against other women. The trial judge also found that the damage Mr. Smith suffered was mitigated by “the fact that the non-defamatory portions of the Facebook Post would also impact his on-line reputation.” She argues that, considering these findings, she should have received the benefit of the full defence of partial justification, in accordance with s. 22 of the Libel and Slander Act, which provides:
22 In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.
79While Ms. Nagy made brief reference to s. 22 in her pleadings, it did not form part of her defence at trial, and it was not referenced in her closing submissions. In all practical effect, she abandoned this issue at trial. Accordingly, I treat it as a new issue raised on appeal: see e.g., Shaver Hospital for Chest Diseases v. Slesar et al. (1979), 1979 CanLII 1662 (ON CA), 27 O.R. (2d) 383 (C.A.), leave to appeal refused, [1981] 1 S.C.R. xiii; Becker v. Toronto (City), 2020 ONCA 607, 452 D.L.R. (4th) 679, at paras. 35-39. I am not persuaded that the interests of justice require that this new issue be entertained for the first time on appeal: see Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. I will nonetheless comment on the applicability of s. 22 as the evidentiary record is sufficient to do so: Kaiman, at para. 18.
80I agree with Ms. Nagy that s. 22 means that an unjustified charge will only give rise to liability where it causes additional, independent, or “qualitatively different” material injury than charges which have been justified: Bent, at para. 113; Brown and Chamberlain, Law of Defamation, at § 10:15. However, it is clear on the facts and the findings of the trial judge that the unjustified charges caused additional material damage beyond the damage caused by the charges Ms. Nagy made that were justified. Therefore s. 22 would not assist Ms. Nagy.
81On the evidence, the factual nature of the charges shows that the unjustified charges are more serious than the justified charges and would lead to additional, independent material injury, beyond the reputational injury caused by the justified charges. Together, the unjustified charges allege that Mr. Smith subjected Ms. Nagy to a decade of unrelenting trauma in which he repeatedly sexually assaulted her. The justified charges allege that Ms. Nagy was subjected to emotional and psychological abuse, and that Mr. Smith sexually abused other women. In no way do I intend to diminish the seriousness of the allegations involving the other women, but the reputational harm caused by the unjustified charges are particularly grave in relative terms. They allege traumatic sexual violence in the context of a decade-long relationship of trust and close interdependence. Moreover, it is common sense that the more pervasive someone’s misconduct is, the worse their reputation becomes. Adding Ms. Nagy’s account to the chorus of voices accusing Mr. Smith of various forms of misconduct could only serve to materially worsen his reputation. The unjustified charges caused additional, independent reputational damage to Mr. Smith.
82Although the trial judge erroneously concluded that “partial justification is not a defence”, it is clear he found that the allegations of sexual assault and trauma caused material additional damage to Mr. Smith’s reputation beyond the damage caused by the allegations Ms. Nagy justified. He concluded that the unjustified sting or main thrust of the defamatory words followed from the “very serious … allegations” Ms. Nagy made “of sexual assault and engaging in sexual activity without consent”. And he held that these allegations alone justified an award of general damages, even though “some of the statements that were justified [could] be responsible for some of the impact” on Mr. Smith’s reputation (emphasis added). Notably, he reduced Mr. Smith’s damages award because of the impact of the “non-defamatory portions of the Facebook Post”, but he did not eliminate it. In my view, it can be safely said that he would not have applied the defence of partial justification, even had he recognized it.
83I would dismiss this ground of appeal.
F. Did the trial judge err by conflating the Facebook post with claims made in Ms. Nagy’s counterclaim?
84Although this argument was not raised in her factum, Ms. Nagy argued during her oral submissions12 that the trial judge improperly treated factual allegations she made in her sexual battery counterclaim as if they had been made in the Facebook post. She suggests that this was an error by the trial judge because it required her to justify charges that the Facebook post did not make.
85Respectfully, there is no merit to this submission. As noted above, the defence of justification depends on the underlying truth of the allegation. If the claims Ms. Nagy advanced in the sexual battery proceeding were made out, this would be sufficient to rebut the presumption of falsity that arose from the portions of the Facebook post that alleged or insinuated sexual assault, violence, and an inability to withdraw consent. It was thus entirely proper for the trial judge to consider the allegations in Ms. Nagy’s battery counterclaim in his analysis of the defence of justification because the impugned portions of the Facebook post carried the sting of battery.
CONCLUSION
86I would deny the appeal and order costs payable to Mr. Smith in the agreed amount of $15,000, inclusive of disbursements and applicable taxes.
Released: July 28, 2026 “D.M.P.”
“David M. Paciocco J.A.”
“I agree. Thorburn J.A.”
“I agree. J. George J.A.”
Footnotes
- Technically, “sexual battery” is not a distinct tort, but rather a subset of the tort of battery. It bears no established exceptional rules: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at paras. 27-34. I refer to the action as sexual battery only because that is the context of the action and doing so facilitates the clarity of the discussion.
- Nothing more needs to be said about it, as this decision is not being appealed.
- Scalera was a “duty to defend” insurance case in which this issue was implicated. This does not weaken the authority of the four-person majority’s treatment of the burden issue. Iacobucci J., for a three-person minority, took a different view on this issue in a non-authoritative concurring decision.
- Though this statement was made in the context of repeating a defamatory remark, it is equally applicable to the remark’s originator.
- I add the word “generally” to allow for other defamation defences, including qualified privilege and fair comment.
- It is in the interests of justice to entertain this argument on appeal since it addresses the correctness of the law the trial judge relied upon to reach his decision and all the facts necessary to address this ground are before the court as if it had been pursued at trial: see Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.
- In modestly more guarded language, Linden J. referred to it as a “perhaps somewhat anomalous” rule in Bell Canada v. COPE (Sarnia) Ltd., (1980), 11 C.C.L.T. 170 (Ont. H.C.), at p. 180, aff’d (1980) 1980 CanLII 1868 (ON CA), 31 O.R. (2d) 571 (C.A.), quoted in Scalera, at para. 12.
- A sexual battery complainant is generally protected by the defence of qualified privilege when they make a complaint to the police or a regulatory body that is prima facie defamatory. In such circumstances, absent malice or the complainant exceeding the scope of the privilege, the complainant has a legal, moral, or social duty/interest in making their complaint, and the receiver of the complaint has a corresponding duty/interest in receiving it: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 146-49. Indeed, “complaints to police, regulatory bodies or public authorities are classic examples of occasions of qualified privilege”: Cusson v. Quan, 2007 ONCA 771, 87 O.R. (3d) 241, at para. 39, rev’d on other grounds, 2009 SCC 62, [2009] 3 S.C.R. 712; see also Zeppa v. Rea, 2023 ONCA 668, 168 O.R. (3d) 481, at para. 25, leave to appeal refused, [2023] S.C.C.A. No. 511. I am not suggesting that the defence of qualified privilege is confined to self-protection. It was recognized in Whitfield v. Whitfield, 2016 ONCA 581, 133 O.R. (3d) 753, at para. 76, for example, that suitably tailored communications undertaken to protect others, prevent future abuse or seek emotional support may qualify. The instant point is that the rationale in Scalera, linked to the protection of personal autonomy over the body, is not advanced by extending the rule recognized in Scalera to defamation cases.
- Although Rosenberg J.A. used the term “burdens of proof” (a procedural rule that assigns the risk of loss and the obligation to initiate proof), the case before him arose from differences in the “standards of proof” (a procedural rule that defines the sufficiency of proof). It is not uncommon to use the term “burdens of proof” compendiously in this way as including the standard of proof, since the assigned burden of proof will not be satisfied without meeting the relevant standard of proof. As I will explain below, the principles do not vary depending upon whether the disparate outcomes are attributable to differences in the burdens of proof as opposed to differences in the standards of proof.
- The trial judge’s reasoning was open to the interpretation that he not only had a reasonable doubt about the nurse’s guilt but found that the alleged sexual assaults had not occurred, on the balance of probabilities. Rosenberg J.A. explained that a finding by the criminal judge that innocence had been proved on the balance of probabilities should not be treated as a judicial finding for the purpose of the doctrine of abuse of process by relitigation because there is no mechanism for appealing such a finding. Since the judge’s finding relating to the balance of probabilities was not material to the relitigation issue, the relitigation issue ultimately turned on the effect of the acquittal.
- There were additional reasons given as to why issue estoppel would not apply, but this alone would have been enough to prevent its application.
- This ground of appeal was raised in Ms. Nagy’s notice of appeal.