Court File and Parties

COURT FILE NO.: CV-19-80461 DATE: 2021/06/11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Zak Smith Plaintiff/Respondent

– and –

Amanda Nagy Defendant/Moving party

Counsel: Jeff Saikaley and Charles Daoust for the plaintiff James Anderson for the defendant

HEARD: January 26, 2021

Decision on Anti-SLAPP Motion

Justice Sally Gomery:

[1] On February 10, 2019, Amanda Nagy posted a message on her Facebook page saying that Zak Smith sexually, physically and emotionally abused her and other women during their marriage. Smith sued her for defamation. Nagy has now brought this motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), asking the court to dismiss Smith’s action on the basis that it unduly limits debate on a matter of public interest. In the alternative, Nagy seeks an order for security for costs against Smith.

[2] For the reasons that follow, the motion is dismissed.

Background

[3] Although both parties have filed extensive affidavit evidence, the basic facts giving rise to this action are not disputed.

[4] Smith is an American artist, tabletop role-playing game (“RPG”) creator and adult film performer also known as “Zak Sabbath”. He lives in Los Angeles, California. His income prior to February 2019 was derived from monthly subscriptions for his online activities, royalties from publications and payments for his contribution to game creation. He also earned money from his artwork, which is found in collections at the Museum of Modern Art in New York City and the Saatchi Gallery in London, England.

[5] Nagy, also known as “Mandy Morbid”, is a former model and adult film performer. She currently resides in Ottawa, Ontario.

[6] Smith and Nagy first met in 2006 when she was 21 years old and he was 29. She moved to the U.S. to live with him and they married in May 2007. They were involved in polyamorous relationships with other women throughout their relationship.

[7] Smith and Nagy’s personal and professional lives intermeshed. Nagy was featured in Smith’s artwork, they livestreamed RPG activities together and they collaborated on adult films. Smith maintained a blog entitled “Playing D & D with porn stars”, which described games he played with Nagy and other adult performers. Their relationship and professional activities together featured heavily in articles about Smith published in mainstream magazines such as Vice and Maxim.[^1]

[8] In 2016, Nagy and Smith separated, and she returned to Canada. Over the next eighteen months, she received counselling and was diagnosed with Post-traumatic Stress Disorder (PTSD). Nagy also suffers from chronic medical conditions including Ehlers-Danos syndrome, a genetic disorder that has, at times, confined her to a wheelchair.

[9] On January 10, 2019, Nagy posted a message on her Facebook page (the “Facebook post”). The settings on Nagy’s Facebook page made her post accessible to any Facebook user. Nagy’s Facebook post was nominally addressed to “Dear Zak Smith, aka Zak Sabbath”. Above this greeting, however, Nagy wrote: “Please feel free to share this widely, on any platform you have”.

[10] In her two-page long, single-spaced post, Nagy alleged that she had PTSD after a “decade of trauma” with Smith. She asserted that, throughout their relationship, he subjected her to sexual, psychological and emotional abuse. Among other things, she stated that he: threatened to kill her if she ever got pregnant and did not have an abortion; told her that she was not allowed to refuse consent to sex or that he would kick her out if she refused to have sex; denigrated and abused her and other women; pressured her to find other women and groom them sexually; and exposed her to death and rape threats posted online by requiring her to post material that he had ghostwritten.

[11] Nagy attached statements from two other women, Jennifer Le Claire and Hannah Middendorf, to the Facebook post.[^2] Le Claire, one of Smith and Nagy’s former lovers, alleged that Smith had “habitually abused and assaulted” women and that she had seen him have intercourse without first obtaining consent. She urged readers to “maybe reconsider your support of him and his art”. Middendorf, wrote that she initially viewed Smith and Nagy as “a perfect couple”, but later changed her opinion based on her own observations and what Nagy told her. She described a public incident during which Smith allegedly slapped and choked her before any clear boundaries or consent had been established.

[12] Nagy’s Facebook post was shared over 900 times, over 2000 users “liked” it, and over 200 comments were posted in response to it. Most commenters said that they believed her account, expressed sympathy for what she had gone through and congratulated her for her bravery in coming forward. Some expressed hope that Smith would suffer consequences as a result of his behaviour towards Nagy, while others said they would cease supporting his work or refuse to work with him.

[13] On February 13, 2019, Vivka Grey, another woman who had been involved with Smith and Nagy, posted her own Facebook statement. She alleged that Smith had also sexually abused her by engaging in painful intercourse without her full consent and by demanding that she have sex with other men. Nagy’s Facebook post was appended to Grey’s post, which was shared another 71 times and “liked” by a further 900 users. It also attracted 301 comments.

[14] The allegations in the Facebook post circulated widely on various online and social media platforms and blogs. Within days, the publishers of the “Dungeons and Dragon’s Player’s Handbook” announced that it would remove all references to Smith in its online and print editions. Many colleagues who had collaborated with him disavowed him publicly. A digital retailer announced that, going forward, it would no longer work with Smith and would donate revenues from his prior publications to an anti-sexual violence organization. GenCon, the largest tabletop gaming convention in the United States, banned Smith from its events. He was also banned from various internet forums, some of which even prohibited any discussion of him or his work. RPG industry awards that Smith had previously won were retracted, and his work was banned for consideration for future awards.

[15] Smith responded initially to the Facebook post by posting two lengthy responses on his blog on February 13 and March 2, 2019. He denied that he had abused or assaulted Nagy or the other women who had come forward and provided a counter-narrative to her description of their relationship. His posts attached supportive statements from other women previously involved with Smith and Nagy as well as a statement by Nagy’s father.[^3] They said that Nagy’s statements about Smith were untrue.

[16] Smith’s responses had little effect in turning the tide of public opinion in his favour. After unsuccessfully demanding that Nagy take the Facebook post down, Smith served her with a libel notice on May 13, 2019. He began this action under the simplified rules on June 11, 2019.

[17] In his statement of claim, Smith alleges that Nagy’s statements in the Facebook post were defamatory, false and made with malicious intent, and that he has suffered damages as a result of them. He seeks $100,000 in general damages, $50,000 in aggravated damages, $50,000 in punitive damages, and an unspecified amount of special damages for lost income and lost business opportunities. He also seeks Nagy’s public retraction of the allegations in her Facebook post and an injunction preventing her from any further publication of them.

[18] After being noted in default, Nagy served a statement of defence in December 2019. She denies that the Facebook post was defamatory. In the alternative, she states that her statements were true or substantially true, or constituted fair comment, or are protected by qualified privilege. She alleges that there was an important and substantial public interest in the Facebook post, and that Smith’s action is a Strategic Lawsuit Against Public Participation (“SLAPP”) suit. She served this motion in August 2020.

The test under s. 137.1

[19] Section 137.1 of the CJA allows a defendant to seek the dismissal of a lawsuit on the basis that it will unduly eliminate or limit legitimate criticism about a matter of public interest. The purposes of an anti-SLAPP motion are stated at s. 137.1(1):

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

[20] In summary, an anti-SLAPP motion is intended to “prevent others from silencing persons who are speaking on matters that have significance beyond themselves”: Grist v. TruGrp Inc., 2021 ONCA 309, at para. 17.

[21] Subsections 137.1(3) and (4) set out the analysis that the motion engages:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[22] Argument on an anti-SLAPP motion proceeds in two stages.

[23] The defendant making the motion must first persuade the judge that the lawsuit “arises from an expression made by the person that relates to a matter of public interest”: s. 137.1(3). If the defendant cannot meet this threshold, the motion must be dismissed.

[24] If the defendant meets this threshold, the analysis moves to the second stage. The onus shifts to the plaintiff, the responding party on the anti-SLAPP motion, to persuade the motion judge that there are grounds to conclude that:

(i) the lawsuit has substantial merit;

(ii) the defendant has no valid defence; and

(iii) the harm likely to be or which has been suffered by the plaintiff as a result of the defendant’s expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”: s. 137.1(4)(b).

[25] If the defendant/moving party satisfies the first stage of the test, the plaintiff/respondent must carry the day on all three parts of the second stage of the test in order to proceed with the lawsuit. If the plaintiff cannot meet the onus on the first two, merits-based parts, then there is no need for the court to balance the competing interests at play. If the competing interests weigh in favour of a dismissal of the action — that is, that the harm that has been or that is likely to be suffered by the plaintiff as a result of the defendant’s impugned expression is trivial, or clearly outweighed by the public interest in protecting that expression — then the merits of the claim or the validity of any defence do not need to be assessed.

[26] In its two recent decisions on anti-SLAPP motions in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (“Pointes Protection SCC”) and Bent v. Platnick, 2020 SCC 23, the Supreme Court of Canada emphasized that the motion judge must reach their own conclusion, based on their own assessment of the record, on the potential merit of the action and the existence of valid defences. Explaining the analysis on s. 137.1 at paras. 41 and 42 of Pointes Protection SCC, Côté J. wrote:

Importantly, the assessment under s. 137.1(4)(a) must be made from the motion judge’s perspective. … The clear wording of s. 137.1(4) requires “the judge” hearing the motion to determine if there exist “grounds to believe”. Making the application of the standard depend on a “reasonable trier” improperly excludes the express discretion and authority conferred on the motion judge by the text of the provision. The test is thus a subjective one, as it depends on the motion judge’s determination.

Taking all of the foregoing together, what s. 137.1(4)(a) asks, in effect, is whether the motion judge concludes from his or her assessment of the record that there is a basis in fact and in law — taking into account the context of the proceeding — to support a finding that the plaintiff’s claim has substantial merit and that the defendant has no valid defence to the claim.

[27] However, a decision on an anti-SLAPP motion is “unequivocally not a determinative adjudication of the merits of a claim”: Bent v. Platnick, at para. 4. Section 137.1 does not provide another form of summary judgment: 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Pointes Protection ONCA”), at para. 73; see also Pointes Protection SCC, at para. 38. Its purpose is instead to assess whether, for the sake of protecting debate on matters of public interest, a hearing on the merits of some cases ought never to take place. That is the why the balancing exercise in the final stage has been described as the fundamental crux of the s. 137.1 analysis: Pointes Protection SCC, at para. 18.

[28] I will expand further on the legal test for each part of the test on an anti-SLAPP motion as I address the parties’ arguments.

Preliminary issue: Should the motion be dismissed as untimely?

[29] Smith asks that I dismiss this motion on the basis that it was not brought promptly and, he submits, was intended to frustrate his attempts to prosecute the action. He points out that the notice of motion was served after Nagy belatedly served her statement of defence, two days before discoveries were set to start and a little over a week before his motion to strike portions of Nagy’s defence was scheduled to be heard.

[30] Smith relies, in particular, on Zoutman v. Graham, 2020 ONCA 767 (“Zoutman”). In that case, a motion judge dismissed an anti-SLAPP motion because it was served after the plaintiff brought a summary judgment motion. The Court of Appeal upheld this decision, finding that “given the constellation of facts in this case, it was open to the motions judge to decline the s.137.1 relief on the basis of its timing”: Zoutman, at para. 17. Smith also cites Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at para. 9, where the Court of Appeal likewise upheld a motion judge’s discretion to determine if a s. 137.1 motion should be heard; Levant v. Day, 2019 ONCA 244 (leave to appeal to S.C.C. refused, [2019] S.C.C.A. No. 194), at para. 29, where the Court of Appeal justified a costs award against a plaintiff who brought an anti-SLAPP motion after a case was set down for trial; and the observation by Doherty J. in Pointes Protection ONCA, at para. 76, that a s. 137.1 motion “is intended to be brought at an early stage of the proceeding.”

[31] Based on this case law, a motion judge seized with an anti-SLAPP motion may decline to grant it if it has not been brought in a timely way. Section 137.2(1) provides that a defendant may bring an anti-SLAPP motion “at any time after the proceeding has commenced” A defendant is accordingly not subject to any hard and fast deadline. Late delivery of such motions should, however, be discouraged, due to their impact on proceedings and cost implications.

[32] Pursuant to s. 137.1(5), once an anti-SLAPP motion is served, “no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.” Bringing a motion can therefore delay the prosecution of the underlying action for months or even years. This is why s. 137.2(1) requires that the motion be heard within 60 days of the filing of the notice with the court. Moreover, pursuant to s. 137.1(7), if the motion is successful, the moving party/defendant is presumptively entitled to costs on the motion and the proceeding on a full indemnity basis. As the Court of Appeal has stated: “Given the serious cost consequences which can result from a successful anti-SLAPP motion, such as full indemnity costs as per s. 137.1(7), these motions should be brought early in the proceedings”: Levant v. Day, at para. 29.

[33] In the circumstances of this case, however, I do not find that Nagy brought the motion so late that it should be dismissed as untimely. The action is still in its early stages, even though it was commenced almost two years ago.

[34] The statement of claim was served on June 11, 2019. Smith noted Nagy in default in August 2019 and brought a motion for default judgment. This motion, set to be heard on November 19, 2019, was adjourned because Smith did not serve materials on Nagy. The parties then agreed that Nagy would be allowed to serve a statement of defence if she served an affidavit of documents, scheduled examinations for discovery and paid costs for setting aside the noting in default. Nagy served a statement of defence on December 6, 2019. Smith responded by serving a motion to strike portions of it pursuant to r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This motion was set to be argued in mid-March 2020. Discoveries were scheduled for January 2020 but also later postponed to March. Both the r. 25.11 motion and discoveries were suspended by the service of Nagy’s s. 137.1 motion on March 3, 2020.

[35] Reviewing this chronology, it appears that the much of the delay to date — from March 3, 2020 to the hearing of this motion on January 26, 2021 — is the result of the limited access to the courts during the early stages of the COVID-19 pandemic. Had regular civil hearings in Ottawa not been suspended for a period of time, the motion would have been heard in 2020 rather than 2021.

[36] Smith contends that the service of the s. 137.1 motion was procedurally abusive because it was inconsistent with the agreement reached by the parties in late 2019 that allowed Nagy to file a statement of defence. He points out that Nagy has still not paid any costs nor has she attended discoveries. It appears, however, that the parties never reached an agreement on the amount of costs that Nagy would be required to pay. While it is true that Nagy agreed to schedule discoveries, she was not foreclosed from bringing this motion, any more than Smith was foreclosed from bringing a r. 25.11 motion. I do not infer that Nagy has brought it simply to delay or for any other improper purpose. This situation is distinguishable from that in Zoutman, where the defendant brought the motion in response to the plaintiff’s summary judgment motion. Contrary to Smith’s submission, this action is not ready to be set for trial, save for discoveries. Pleadings have not even been finalized.

[37] Although Smith is understandably frustrated by the delay caused by the motion, he stood to benefit from its adjudication prior to the conduct of any discoveries or the hearing of his motion to strike. Had Nagy won the motion, Smith would have had to indemnify her fully for her legal costs in both the motion and the action, unless he could establish that this would be inappropriate.

[38] I conclude that the motion should not be dismissed without consideration of its merits.

Stage 1: Does the lawsuit arises from an expression that relates to a matter of public interest?

[39] On the first stage of the motion, Nagy must establish that the lawsuit “arises from an expression made by [her] that relates to a matter of public interest”: s. 137.1(3).

[40] The lawsuit undeniably arises from an expression as defined in s. 137.1(2). The question is whether allegations in the Facebook post relate to a matter of public interest.

[41] In her affidavit, Nagy asserts that:

My Facebook post is clearly a matter of public interest, specifically, the issues of domestic violence, gender based violence, intimate partner violence, survivorship, empowerment of women who are victims of abuse, assault and other forms of gender based violence, and solidarity

[42] In her factum, Nagy adds that the statements “related to #MeToo, sexual assault, sexual harassment, sexual violence, intimate-partner violence, family violence — including emotional and psychological abuse — are expressions of public interest.” In making this argument, Nagy relies on recent amendments to the Criminal Code, R.S.C. 1985, c. C-46, the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and other legislation that expand the definition of “family violence” and offer new protections to victims of sexual violence.[^4] Nagy argues that the response to her Facebook post, and Smith’s notoriety as a public figure, also support a finding in her favour on this stage of the s. 137.1 analysis.

[43] Smith, on the other hand, says that the Facebook post relates to “a purely private concern”, that is, Nagy’s relationship with Smith and her feelings about both him and her marriage. He notes that it is written in the first person and addressed to him. He relies on this observation by the Court of Appeal in Pointes Protection, at para. 61:

Public people are entitled to private lives. Expressions that relate to private matters are not converted to matters relating to the public interest merely because those expressions concern individuals in whom the public have an interest or involve topics that may titillate or entertain.

[44] The burden at this stage of the s. 137.1 test is not onerous: Pointes Protection SCC, at para. 28. Having reviewed the guidance provided by appellate courts and other cases involving allegations of sexual assault and harassment, I find that the Facebook post is an expression that relates to a matter of public interest.

[45] “Public interest” is not defined in the CJA. The Supreme Court of Canada has repeatedly held, however, that judges on anti-SLAPP motions should interpret the concept in a “generous and expansive fashion”: Pointes Protection SCC, at paras. 28-30. They must consider whether “some segment of the community would have a genuine interest in receiving information on the subject”, bearing in mind that, in Canada, “[t]he democratic interest in […] wide-ranging public debate must be reflected” in decisions on anti-SLAPP motions: Pointes Protection SCC, at para. 27, drawing on its earlier decision in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640.

[46] At the same time, the Court has held that judges must not conflate “expression that relates to a matter of public interest” with “expression that simply makes reference to something of public interest, or to a matter about which the public is merely curious” (emphasis in original): Pointes Protection SCC, at para. 29. To qualify as an expression relating to a matter of public interest, a statement must address an issue “about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Grant v. Torstar, at para. 105.

[47] I reject Smith’s contention that the Facebook post cannot relate to a matter of public interest because it is addressed to him and written in the first person. Nagy posted her allegations in such a way as to make them publicly available. She invited readers to “share this widely, on any platform you have.” The post was clearly designed for a wider audience than Smith.

[48] On the other hand, I cannot accept Nagy’s argument that her allegations self-evidently relate to a matter of public interest because “she positions her Facebook expression within the #MeToo movement.” Nagy has not described the #MeToo movement or filed any material with respect to it. I am not at liberty to take judicial notice of an undefined social phenomenon, the parameters of which are subject to debate: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 53. Nagy furthermore does not explain if, on her argument, every public denunciation of sexual misconduct is an expression that relates to a matter of public interest. If this is her argument, I reject it. Not every allegation of sexual misconduct by one person against another engages the public interest, even if one or more of them is a public figure.

[49] There have, however, been cases where allegations of sexual assault, abuse, harassment or bullying have been found to be expressions that relate to a matter of public interest: Mazhar v. Farooqi, 2020 ONSC 3490, aff’d 2021 ONCA 355; Bullard v. Rogers Media, 2020 ONSC 3084; and Lyncaster v. Metro Vancouver Kink Society, 2019 BCSC 2207 (“Lyncaster”). Although these cases were ultimately grounded in personal interactions between two or more individuals, each situation had an element that gave rise to a broader debate.

[50] Two of these cases involved a communication about alleged assault or harassment by a person active within a particular community. In Mazhar v. Farooqi, the parties were both volunteers in a Muslim service organization. Farooqi made a written complaint to the head of the organization regarding Mazhar’s alleged harassment of her. The motion judge found that the character and integrity of mentors in a volunteer organization was a matter of public interest, because “some segment of the […] community would have a genuine and legitimate interest in knowing about the character and integrity of mentors in their organization”: Mazhar v. Farooqi, 2020 ONSC 3490, at para. 38. The Court of Appeal agreed, adding that “it is in the public interest that persons working with a volunteer organization be able to complain to the organization about personal harassment by another volunteer”: Mazhar v. Farooqi, 2021 ONCA 355, at para. 17. In Lyncaster, the plaintiff’s defamation action followed the publication of a statement by a kink community warning its members that Lyncaster had, among other things, “abused vulnerable young women” and “performed BDSM acts without the consent of his partners”: Lyncaster, at para. 5. The motion judge held that “[i]ssues of consent boundaries and safe interactions between members of the Vancouver kink community concern the welfare of community members, that is, their safety and health, and therefore would be of substantial concern”: Lyncaster, at para. 27.

[51] In the case at bar, I find that the Facebook post engages the interests of the online adult RPG community. When it announced that it would end all collaborations with Smith, the digital retailer OneBookShelf stated that its goal was to “keep bad actors out of the roleplaying community.” When it banned Smith from its events, GenCon stated that “we flat-out don’t tolerate harassers or abusers in our community or at our convention.” Community members were clearly concerned about the broader implications of Smith’s alleged conduct on the reputation of the RPG community as a whole and on the safety of female players with whom he came in contact.

[52] Mazhar v. Farooqi and Lyncaster differ from this case in that they arose from communications with established organizations, as opposed to a post on an individual’s Facebook page. Given the public nature of the Facebook post, however, and the evidence about the reaction it provoked within the gaming community and industry, this is not a meaningful distinction. In those cases, as in this one, the expression relates to a matter of public interest because, even though it stems from a personal interaction between two or more individuals, the issues raised transcend that personal relationship.

[53] It is also significant that, in two cases, the person sued was a woman who alleged harassment or abuse by a man. In Bullard v. Rogers Media, a radio personality sued a magazine that published an interview with his former partner, in which she claimed he had harassed following their breakup. Justice McKelvey held that the comments were of public interest, in part because “they related to gendered based harassment which is a legitimate area for public concern”: Bullard v. Rogers Media, at para. 58.

[54] Again, not every allegation made by a woman against a former male partner is a matter of public interest. Because of the circumstances particular to these parties, however, Nagy’s allegations about the true nature of her relationship with Smith give rise to a broader debate. Their activities together as adult performers in an apparently happy polyamorous relationship were an inextricable element of Smith’s public persona during their marriage. The power imbalance between them during their relationship, arising from Smith’s advantages in terms of age, health, money and fame, is also arguably relevant.

[55] For all of these reasons, I conclude that Nagy has satisfied the first stage of the s. 137.1 test.

Stage 2(i): Has Smith shown that the lawsuit has substantial merit?

[56] The Supreme Court has defined “substantial merit” as a “real prospect of success — in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff”: Pointes Protection SCC, para. 49. Although Nagy contends that some portions of the Facebook post were not defamatory, she conceded in oral argument on the motion that Smith can satisfy this part of the test. Based on my own assessment of the record and the law, Smith’s claim has substantial merit.

Stage 2(ii): Has Smith shown that Nagy has no valid defence?

[57] At this stage of the analysis, Smith must show that there are grounds on which I could reject Nagy’s defenses to the defamation claim. In Côté J.’s words, there must be “a basis in the record and the law — taking into account the stage of litigation at which a s. 137.1 motion is brought — for finding that the underlying proceeding has substantial merit and that there is no valid defence”: Pointes Protection SCC, at para. 39. If I find that the defenses could realistically fail, then Smith has met his onus on this part of the test: Pointes Protection SCC, at para. 60.

[58] In her statement of defence, Nagy has asserted the defenses of justification, fair comment and qualified privilege. For the reasons that follow, I conclude that there are grounds, based on the law and the record in this case, on which these defences could realistically be rejected. Smith has therefore met this part of the test under s. 137.1.

[59] In the context of this motion, Nagy also argued that Smith’s action is time-barred, even though no limitations defence has been raised in her statement of claim. The Supreme Court held that “it would be unreasonable to encumber the plaintiff at the s. 137.1(4)(a)(ii) stage with the task of anticipating every defence the defendant might raise and then rebutting those defences”: Pointes Protection SCC, para. 56. The defendant must first “put in play the defences it intends to present” before the plaintiff is required to show that there are grounds to believe that those defences are not valid: Pointes Protection SCC, at para. 56.

[60] Where an anti-SLAPP motion is made after a statement of defence is served, in my view it is unfair to require the plaintiff to make submissions about a defence that has not been advanced in the pleading. Since Nagy did not put a limitations defence in play in her statement of defence, I have not assessed whether there are grounds to find that the limitations defence has no real prospect of success.

The defence of justification

[61] If a court is satisfied that words communicated are defamatory, then they are presumed to be false. To succeed in a justification defence “a defendant must adduce evidence showing that the statement was substantially true”: Grant v. Torstar, at para. 33.

[62] Smith initially responded in detail to the Facebook post with his own lengthy Facebook message. He has reproduced this response, as well as a further detailed affidavit. Beyond this, at para. 38 of his affidavit, he has generally denied committing any criminal offence, including sexual assault, assault or abuse of any woman, including Nagy; uttering any threats to kill Nagy; and compelling Nagy to groom women for three-way sex.

[63] Despite this, Nagy urges me to find that her defence of justification will necessarily prevail. She relies on s. 22 of the Libel and Slander Act, R.S.O. 1990, c. L.12, which provides as follows:

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.

[64] Nagy argues that the allegations in the Facebook post that are truly “sting” — the allegations that Smith uttered death threats, that he pressured Nagy to procure other women for sexual purposes, and that he sexually assaulted her — are corroborated by affidavit evidence by Le Claire, Middendorf and Grey, and is not systematically refuted by Smith.

[65] Nagy accuses Smith of a litany of misconduct, including criminal acts, in the Facebook post. There is strikingly little detail about the most serious allegations in the post. She provided much more specific information in her affidavit in support of this motion. If she is found to be credible at trial, she could establish that Smith committed criminal offences, including sexual assault, assault and threats, against her.

[66] I do not, however, agree that the additional affidavits filed by Nagy assist her in proving that Smith committed criminal acts against her, as they do not directly address these allegations:

• Le Claire states that she was in a relationship with Smith prior to his marriage to Nagy. She describes an incident when Smith and she engaged in three-way sex with another woman who did not clearly consent. She also describes insulting and demeaning behaviour by Smith towards women in general. Le Claire did not, however, observe any interactions between Smith and Nagy.

• Middendorf states that she lived with Smith and Nagy for about two weeks in 2016, and also visited them about once every two years for some time prior to that. She describes insulting comments that Smith made about Nagy and other women, but no assaults, threats or coercive behaviour against Nagy. Middendorf’s most serious allegation is that Smith choked and slapped her when they were shopping, after asking if she was into “kinky stuff”. Nagy does not figure in this incident.

• Grey states that she was in a polyamorous relationship with Smith and Nagy for about five months in 2010 and 2011. She describes demeaning and coercive behaviour by Smith towards her and occasions where he pressured her to have sex, encouraged her to have sex with other men or ignored her complaint that sex was painful. She alleges that, after paying for Grey’s breast implant procedure, Smith said that her breasts were still small. Grey also says that she witnessed Smith yell at, physically objectify and insult Nagy. She does not, however, describe any non-consensual sex between Smith and Nagy, any death threats or threats to evict Nagy, or any pressure on Nagy to procure other sex partners for Smith.

[67] Some of the allegations by Le Claire, Middendorf and Grey are obviously very serious. Some could give rise to criminal charges. They paint a deeply unflattering picture of Smith as a human being. They could establish the truth of allegations about Smith’s misconduct towards them. They do not assist Nagy, however, in proving that her allegations about Smith’s criminal behaviour towards her are true.

[68] Neither party conducted any cross-examinations on the affidavits filed on this motion. At the hearing, Smith’s lawyer contended that he could not do so because r. 76.04 states that cross-examination of a deponent on an affidavit under r. 39.02 is not permitted in an action like this. Nagy’s lawyer disagrees, pointing out that cross-examinations were contemplated on a timetable endorsement. Whoever is correct on this point, I am faced with untested but contradictory affidavits.

[69] Smith’s affidavit evidence is reasonably capable of belief. In addition to denying Nagy’s allegations of criminal acts in some detail, he describes starkly different dynamic between them. He has filed affidavits from two women who were involved with Smith and Nagy over many years; one of them, Michelle Ford, lived with them for five years. They deny ever witnessing any abuse or threats or assaultive behaviour by Smith towards Nagy and corroborate his account of their relationship.

[70] On the whole, the evidence filed by Smith on the motion provides a basis to find that the allegations that he assaulted, threatened and coerced Nagy are not substantially true. The defence of justification therefore cannot be considered to weigh more in favour of Nagy such that it may be considered valid for the purpose of the test under s. 137.1(4)(a)(ii). I accordingly find that Smith has met his burden with respect to this defence.

[71] This conclusion in no way should be taken to imply in any way that Nagy will be unable to prove her allegations against Smith in the absence of an eyewitness who can corroborate them. A judge who hears their testimony could decide that she is credible and that he is not. I am not in a position to adjudicate the merits of this claim, nor is that my task on a s. 137.1 motion. I am merely assessing the paper record before me on the motion.

The defence of fair comment

[72] To establish a defence of fair comment, a defendant must meet a three-part test set out in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28 (“WIC Radio”). They must show that their comments:

(a) deal with a matter of public interest;

(b) are based on fact; and

(c) are recognizable as comments, although they can include inferences of fact.

[73] The defendant must furthermore show that a reasonable person could honestly express the opinion at issue on the proved facts, and that the comments were not deliberately malicious: WIC Radio, at para. 28.

[74] The Facebook post contains many expressions of opinion. Nagy states, for example, that there was a “twisted, sexist, infantilizing angle” to Smith’s idolization of her during their marriage, and that he was “just straight up cruel and cold and abusive.” These are comments, not fact. They may be based on incidents that Nagy will ultimately be able to prove are true, but they remain her subjective characterization of their relationship.

[75] The “sting” or truly defamatory content of the Facebook post consists of allegations of fact, not expressions of opinion. They include Nagy’s allegations that Smith threatened to kill her if she got pregnant and did not get an abortion; that he would evict her if she refused to have sex; that he induced her to procure other women for three-way sex; and that she could not withdraw consent if they began to have sex. These allegations are not recognizable as comment.

[76] In light of this, I cannot conclude that Nagy’s defence of fair comment has a real prospect of success. I accordingly find that Smith has met his onus with respect to this defence.

[77] Smith has alleged that, to the extent that Nagy expressed her opinion in the Facebook post, she acted maliciously and in bad faith. Given the conclusion I have already reached on the fair comment defence, I do not need to assess this argument.

The defence of qualified privilege

[78] In para. 18 of her statement of claim, Nagy asserts a defence of qualified privilege. In a section beginning at para. 83, she states that the Facebook post was a communication on “public interest matters” between Nagy “and other women who have a direct interest in the matter, namely the Plaintiff’s behaviour with women.” In paras. 84-86, she expands on why the post relates to a matter of public interest. These are the only factual allegations in the statement of claim that appear to advance the defence of qualified privilege.

[79] In The Law of Libel in Canada, 4th edition, LexisNexis Canada Inc., 2018, at p. 168, Peter Downard summarizes the defence of qualified privilege as follows:

The common law rule is that an occasion of publication is privileged if the publisher has an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published, and the person to whom it is published has a corresponding interest or duty to receive it. It is necessary to establish this reciprocal interest or duty of both the communicator and the person receiving the communication.

[80] Proof that the communication was made maliciously may defeat a defence of qualified privilege: The Law of Libel in Canada, at p. 191. The privilege is exceeded if the communication is made “to an audience extending beyond those with a legitimate interest in the communication or a duty to receive it”: The Law of Libel in Canada, at p. 192.

[81] Based on the current record and the law, I find that there are no grounds to find that the defence of qualified privilege is valid. Even if Nagy establishes at trial that she had an interest in disclosing Smith’s conduct to women who had an interest in receiving this disclosure, any privilege would be exceeded because Nagy deliberately made the communication to the world at large. Smith has met the onus with respect to this defence.

[82] In light of my conclusion on this issue, I again do need to assess the evidence advanced by Smith that Nagy acted maliciously.

Stage 2(iii): Has Smith shown that the harm caused or likely to be caused by the expression is outweighed by the public interest in protecting Nagy’s expression?

[83] Since I have concluded that Smith has met the onus on the merits analysis under s. 137.1, I must now consider whether the public interest nonetheless favours a dismissal of his action.

[84] Section 137.1(4)(b) states that a motion judge shall not dismiss a proceeding if the plaintiff satisfies the judge that:

The harm likely to be or have been suffered by the [plaintiff] as a result of the [defendant’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[85] Having conducted this balancing exercise in this case, I conclude that the harm that has been suffered by Smith as a result of the Facebook post is sufficiently serious that the public interest in permitting this action to proceed to a hearing on the merits outweighs the public interest in protecting Nagy’s expression.

[86] Until recently, a judge typically began the weighing exercise by considering whether the lawsuit has the hallmarks of a SLAPP.[^5] In Pointes Protection, however, Côté J. cautioned that the weighing exercise was not “simply an inquiry into the hallmarks of a SLAPP.” She directed motion judges to focus on the harm suffered or potentially suffered by the plaintiff, the corresponding public interest in allowing the underlying proceeding to continue and the public interest in protecting the underlying expression. In assessing these considerations, Côté J. proposed a list of “additional” relevant factors at para. 80:

[T]he importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation.

[87] In light of Côté J.’s reference to these factors as “additional”, I do not understand that is inappropriate for me to assess whether an action has the characteristics of a SLAPP. If it does, this may weigh heavily against allowing the action to proceed. If the action does not have the classic hallmarks of SLAPP, this does not preclude a dismissal of the action, should I find that the public interest favours it.

[88] Ultimately, the Supreme Court urges judges to scrutinize “what is really going on in the particular case before them” given that s. 137.1(4)(b) “effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy”: Pointes Protection SCC, at para. 81.

[89] The expression at issue in this case is important to Nagy personally and more generally. Any allegation of sexual assault, domestic violence or other criminal conduct must be taken very seriously. The Facebook post raises particular concerns about the treatment of women within the online RPG community and the gaming industry at large.

[90] As noted thirty years ago in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, sexual assault, unlike other crime, is very often unreported. In light of this, there is a public interest in protecting expression and debate on the topic of sexual and domestic violence and abuse, and in not discouraging victims from speaking up. Victims of violence should not be inhibited from disclosing what they have experienced because they fear being sued for defamation. It is legitimate to ask whether allowing the lawsuit to proceed could prevent other women in Nagy’s situation from coming forward.

[91] It is important to consider, however, whether there is any evidence that any public debate has been or may be unduly chilled if this particular defamation suit is allowed to proceed. There is no evidence that Nagy, or anyone else, has been inhibited from expressing themselves as a result of this action. There is also no evidence that Nagy hesitated to disclose her allegations because she feared being sued. The contrary is true. In an email she sent to Le Claire before publishing the Facebook post, Nagy anticipated that Smith might sue her for libel. She went ahead and posted it anyway. Le Claire also recognized that her own allegations about Smith might seem “like slander”. Despite this, she permitted Nagy to append them to the Facebook post.

[92] This action does not have the hallmarks of a classic SLAPP. Smith has no history of using litigation to silence his critics and no history of litigation with Nagy. Since the Facebook post was issued, he has begun defamation lawsuits against Grey and a journalist, Paul Matjevik, who reported on Nagy’s statement. There is no evidence, however, that these lawsuits (or this one) were motivated by a desire for revenge or any other improper purpose.[^6] Although Smith earned more money, enjoyed better health and had a higher public profile while he and Nagy were married, as matters now stand I do not find that there is any significant power imbalance between them.

[93] There is a strong public interest in permitting the action to proceed. As McLachlin CJ wrote at para. 57 of Grant v. Torstar, “the right to free expression does not confer a licence to ruin reputations.” In Platnick v. Bent, Côté J. noted at para. 146 that reputation is one of the most valuable assets that a person can possess, and that, because a good reputation is closely related to an individual’s innate worthiness and dignity, “it must, just as much as freedom of expression, be protected by society’s laws.”

[94] Based on the evidence of both parties on this motion, Nagy’s allegations have had a devastating impact on Smith. His career has been derailed by the removal of his name from RPG publications, the retraction of industry awards, his banishment from industry events, the refusal of past collaborators to work with him, the termination of publishing contracts, the elimination of most of his revenue stream from internet platforms and the removal of his art from exhibitions. Smith earned only $24,000 in 2019 and virtually nothing in 2020. His damages are potentially substantial. They include not only lost past and future revenues but general damages: Pointes Protection CA decision, at para. 88, citing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 117-21; and Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 79-80.

[95] Given the impact of the Facebook post on Smith, this lawsuit is not a disproportionate response. Since Nagy has not filed a criminal complaint against him and Smith has not been able to obtain a retraction, it is difficult to see how he would otherwise re-establish his personal and professional reputation.

[96] Weighing the public interest in allowing the case to proceed and the public interest in encouraging debate on the matters raised in the Facebook post, I conclude that the case should be determined on its merits.

Nagy’s request for security for costs

[97] If I do not grant the s. 137.1 motion, Nagy asks that I order Smith to post security for costs, based on either r. 56.01 or s. 12(1) of the Libel and Slander Act. Smith contends that this is not an appropriate case for awarding security for costs because, through Nagy’s own actions, Smith is now almost impecunious.

[98] An order for security for costs is discretionary. On the evidence in this case, I decline to make such an order under r. 56.01 or s. 12. Although Smith has not provided full disclosure of his financial situation, his action has a good chance of success on the merits: 2311888 Ontario Inc. v. Ross, 2017 ONSC 1295, at para. 17. Nagy has moreover provided me with no indication of the amounts she seeks as security for costs. There is therefore no way for me, pursuant to r. 56.01(1), “to make such order for security for costs as is just.”

Conclusion

[99] Nagy’s motion is dismissed.

[100] If the parties are unable to agree on costs, they may each submit a cost outline, attaching a draft bill of costs and any authorities, within ten days of the release of these reasons. The cost outline submitted by each party shall not exceed three pages in length.

Justice Sally Gomery

Released: June 11, 2021

[^1]: Davy Rothbart, “Playing Dungeons and Dragons with Porn Stars” Maxim (12 January 2012); Kimberly Kane, “Zak Loves Mandy” Vice (16 October 2012).

[^2]: Although the post did not identify these two women by their full names, they have identified themselves as the authors of the appended messages in affidavits filed in support of this motion.

[^3]: In an affidavit filed in support of this motion, Nagy’s father now says he has since come to believe that Nagy’s allegations are true, based on what she has told him and a better understanding of how victims of sexual assault may behave.

[^4]: She cites, in particular, Bill C-46, An Act to amend the Criminal Code (production of records in sexual offence proceedings), 2nd Sess., 35th Parl., 1997; Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, 1st Sess., 42nd Parl., 2019; and Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, 1st Sess., 41st Leg., Ontario, 2016.

[^5]: The classic hallmarks of strategic lawsuit against public participation include the plaintiff’s past use of litigation or threats of litigation to silence critics; a power imbalance favouring the plaintiff; an improper motive for the lawsuit; and the absence of any meaningful damages as a result of the conduct by the defendant that gave rise to the lawsuit: Platnick v. Bent, at para. 99.

[^6]: Only one of these two other lawsuits remains active. Matjevik issued a public apology, retracted his statements about Smith and paid money to settle Smith’s defamation claim against him.