Court File and Parties

Court File No.: CV-19-80461

Date: 2025-08-11

Ontario Superior Court of Justice

Between:

Zak Smith, Plaintiff/Defendant by Counterclaim

– and –

Amanda Nagy, Defendant/Plaintiff by Counterclaim

Before: Justice Marc R. Labrosse

Counsel:

• Jeff G. Saikaley and Charles R. Daoust, for the Plaintiff
• Mark Bourrie and Rebecca M. Jaremko Bromwich, for the Defendant

Heard: February 12-15 and May 13, 2024

Reasons for Judgment

Overview

[1] The Plaintiff/Defendant by Counterclaim, Zak Smith ("Zak"), claims damages for defamation with respect to a Facebook Post made by his ex-wife, Amanda Nagy ("Mandy"). In response, Mandy's claims against Zak are for defamation and the tort of sexual assault.

[2] These claims arise from the roughly 10-year marriage between Zak and Mandy during which they lived in Los Angeles and were part of the online gaming and pornography industries. Their marriage was described as polyamorous and as such, they invited women to live with them and join their relationship.

[3] Almost two years following the end of their relationship, Mandy made a post on Facebook (the "Facebook Post") which included or suggested that Zak had sexually, physically and emotionally abused her and other women during their marriage.

[4] Zak has commenced this action seeking the following relief:

• a. General damages for defamation in the amount of $100,000;
• b. Aggravated damages in the amount of $50,000;
• c. Punitive damages in the amount of $25,000;
• d. An order requiring the defendant take down the Facebook Post and to publish a retraction in its place on her Facebook page, without limitation, acknowledging that her statements about Zak were false and defamatory, and providing a link to this decision on;
• e. Dismiss the defendant's counterclaim;
• f. Costs in favour of the plaintiff.

[5] Mandy concedes that the Facebook Post was published by her and concerned Zak. However, she states that the assertions made in the Facebook Post about Zak are true, and her opinions constitute fair comment. In the further alternative, Mandy states that Zak has not shown a causal link between the Facebook Post and new damage to his reputation or livelihood which would warrant an award of damages. In respect of her counterclaim, she claims:

• a. General damages in the amount of $100,000 for the tort of sexual assault;
• b. General damages of $25,000 for the tort of defamation;
• c. A retraction of the defamatory blog post complained of;
• d. A permanent injunction preventing Zak or others at his behest from publishing defamatory commentary about Mandy.
• e. Costs of these proceedings.

[6] For the reasons set out herein, many of the defamatory statements complained of are the subject of a valid defence, on the basis that Mandy's evidence, and the evidence of those who support her, has demonstrated the truth of a number of the statements made in the Facebook Post. However, Mandy has failed to establish the truth of the allegations relating to physical and sexual assault against her. In this regard, 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. In Canada, one of the essential elements of assault or sexual assault is the knowledge that the complainant is not consenting to the acts complained of. Relevant to the issue of consent is the right of a complainant who has consented to engage in sexual activity, to express by words or conduct, a lack of agreement to continue to engage in the activity: Criminal Code of Canada, s.273.1 In the present case, the evidence is that Mandy gained a new understanding of her right to withdraw her consent. Thus, she claims that the acts complained of constituted an assault or sexual assault after, over the years, gaining a better understanding of what amounts to consent.

[7] However, 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. As such, the allegations in the Facebook Post which suggest that Zak committed either a physical assault or a sexual assault on Mandy are defamatory. The question remains what damages, if any, is Zak entitled to.

Background Facts

[8] Zak 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.

[9] Mandy is a former model and adult film performer also known as "Mandy Morbid." She lives in Ottawa, Ontario.

[10] Zak and Mandy first met in 2006 when she was 21 years old, and he was 29 years old. Mandy moved to the United States to live with him, and they married in May 2007. They were involved in polyamorous relationships with other women throughout their relationship. Mandy was also featured in Zak's artwork; they released online shows about their RPG activities together and they collaborated on adult films. Zak maintained a blog entitled Playing D&D with Pornstars which described the games he played with Mandy and other adult performers.

[11] Their relationship and professional activities together featured heavily in articles about them published in mainstream magazines such as Vice and Maxim.

[12] Mandy suffers from chronic medical conditions including Ehlers-Danlos Syndrome, a genetic disorder that has at times confined her to a wheelchair.

[13] In 2016, Mandy and Zak separated and she returned to Canada. Over the next 18 months, Mandy received counselling and was diagnosed with post-traumatic stress disorder (PTSD).

[14] On January 10, 2019, Mandy posted a message on her Facebook page. She changed the settings on her Facebook page to make her post public and accessible to any Facebook user. Mandy's post was addressed to "Dear Zak Smith, aka Zak Sabbath." She also wrote, "[p]lease feel free to share this widely, on any platform you have."

[15] Generally, the Facebook Post alleged that Zak subjected Mandy to sexual, psychological and emotional abuse. The Facebook Post included the following claims:

• a. That Zak threatened to kill her if she ever got pregnant and did not have an abortion;
• b. That he 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;
• c. That he denigrated and abused her and other women;
• d. Then he pressured her to find other women and groom them sexually; and
• e. Exposed her to death and rape threats posted online by requiring her to post material that he had ghostwritten.

[16] Mandy also attached statements from two other women—Jennifer Le Claire and Hannah Middendorf—to the Facebook Post. In Ms. Le Claire's text, she stated that Zak had habitually abused and assaulted women and that she had seen him have intercourse without first obtaining consent. In Ms. Middendorf's text, she stated that she initially thought Zak and Mandy were a perfect couple but then changed her mind based on her observations and things Mandy told her. Ms. Middendorf also recounted an incident when Zak allegedly slapped and choked her before any clear boundaries or consent had been established.

[17] Mandy's Facebook Post was shared over 900 times, received more than 2000 'likes', and garnered over 200 comments in response. Many commentors said that they believed Mandy's account, expressed sympathy for what she had gone through and congratulated her for her bravery in coming forward. Some expressed hope that Zak would suffer consequences as a result of his behaviour towards Mandy, while others said they would cease supporting his work or refuse to work with him.

[18] On February 13, 2019, Vivka Grey (Emily Sherlock), another woman who had been involved with Zak and Mandy, posted her own statement on Facebook. She alleged that Zak had also sexually abused her by engaging in painful intercourse without her full consent and by demanding that she have sex with other men. The bulk of Ms. Grey's post was deemed to not be defamatory.

[19] Mandy's Facebook Post was appended to Ms. Grey's post, which was shared another 71 times and "liked" by a further 900 users. It also attracted 301 comments. The allegations in the Facebook Post circulated widely on various other online and social media platforms and blogs.

[20] Zak's evidence demonstrates that within days, the publishers of the Dungeons and Dragon's Player's Handbook announced that it would remove all references to Zak in its online and print editions. Colleagues who had collaborated with Zak disavowed him publicly. A digital retailer in the industry announced that going forward, it would no longer work with Zak and would donate revenues from his prior publications to an anti-sexual violence organization. Gen Con, the largest tabletop gaming convention in the United States, banned Zak from its events. Additionally, Zak was banned from various online forums some of which even prohibited any discussion of him or his work. Zak's work was also banned from consideration for future awards in the RPG industry.

[21] In addition, Zak's career as an artist, which he claims was his main source of income, was significantly curtailed. He alleges that his drawings were withdrawn from an exhibition in New York City, that he had to recuse himself from a speaking engagement, and that his art dealers have been reluctant to contact any clients about purchasing his paintings given the risk that they would look up Zak and find the allegations prominently featured on his Wikipedia page. Zak claims that he has not had a significant commercial showing since the allegations were published and that sales from his paintings have plummeted.

[22] Initially, Zak responded 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 Mandy or the other woman who had come forward, and he provided a counter-narrative to Mandy's description of their relationship. His post attracted supportive statements from other women who had been previously involved with Zak and Mandy, as well as a statement from Mandy's father in support of Zak. These favourable responses all claimed that Mandy's statements about Zak were untrue.

Impugned Statements

[23] Mandy's Facebook Post and the comments by Ms. Le Claire and Ms. Middendorf are attached to this decision as Appendix "A."

[24] At the request of the court, the plaintiff has provided excerpted portions of Mandy's Facebook Post which underlines those portions of the post which Zak claims are defamatory. Those impugned statements are reproduced as follows:

1. Nagy:

… As a warning, there will be potentially triggering descriptions of abuse, violence and sexual assault to follow.

What I want to convey is my grief. And my shame. There is so much of it. I think when women come forward to talk about their abusers people strip them of their grief. And I am not okay. And I should be angry but I can't be because the shame is too great. Because the abuse had me taking responsibility for everything and it's very difficult to stop that after all these years. Everything was always my fault, the problem was me--but it wasn't.

Eleven years is a long time. I was twenty - one when we met in person the first time, and a month later, 22 when I moved in with you. It's difficult to organize my thoughts about everything that happened, everything that went wrong over a decade. The abuse came in cycles where there were times you seemed to idolize me (in hindsight there was a twisted, sexist, infantilizing angle to the "idolizing" because it was always about my body and not me as a person). There were other times when you tore me down, made lectures that went in circles of manipulation, or fits of rage where you'd scream that I was useless and worthless and slam doors or throw things at the walls. You tore me down to manipulate me, and to get your way.

As time went on you learned you could threaten me in various ways. Killing me if I ever got pregnant and didn't have an abortion started as a joke but you repeated it so frequently it was clearly a warning. Kick me out if I didn't want to have as much sex, or lesser reasons.

I am ashamed. I was often silent because I wanted to keep the peace. To keep you happy. You see, I did know how to make you happy. I am ashamed I did it because I rationalized that was love. You pressured me to find and groom other women sexually. As I grew sicker, and my physical limitations grew, you were more concerned with your own needs than my illness. Eventually, even, you took my doing this for you, and me, for granted.

I saw you mistreat women we were with together, and again I was silent. I choose you over them and I am deeply ashamed. And when it was me who was being mistreated I often didn't even register it as such because the first time it happened was so traumatic. You told me I wasn't allowed to stop or say no to sex or fooling around if we'd already initiated it.

I was young and this was during the first few weeks we lived together and no one had ever taught me about consent. You were extraordinarily angry I had stopped, your hands were clenched into fists and they were shaking. I was programmed to accept it, and you always just kept telling me you loved me even if your behaviour never really proved it.

Over the next two or three years my faith and trust in you completely failed. You let me down over and over. And I came to terms with the fact that I had been a trophy wife all along, an object that was owned, not a respected or loved partner. Towards the end you weren't even trying to keep that mask you wore in the beginning on you were just straight up cruel and cold and abusive and there were no reprieves of loving or sweet acts, it was all gaslighting and narcissism gone unchecked. And there was a lot of my grief and shame at that time. Because I tried so hard to make it work anyway.

I only began to register the pain and damage done to me by this relationship in the last year we were together and in the year and half since I've left. I have PTSD. I am doing my best to focus on healing, and since leaving both my mental and physical health have improved. I'm not okay yet, but I am improved. People can see the difference in photos. Rebuilding a life after a decade of trauma takes time but I will get there.

2. Jennifer:

…He will aggressively pursue sex and rely on the fact that most women are hesitant to reject a man in a quasi-sexual situation due to safety concerns and social conditioning. Especially when he has presented himself as caring and trustworthy. But I've also seen him physically take women and start fucking them, ignoring their lack of enthusiasm or freeze of shock. He will navigate kink spaces and take someone's presence there, of general involvement in bdsm as implied consent to assault ( sic ) them. And he is fully aware of what he does, he has described a sexual encounter to me as, I quote, "raping a 12-year-old".

Ultimately I've seen him do so much fucked up shit that when I hear anything by another woman I immediately believe them without a shadow of a doubt. And yes, I'm ashamed I didn't speak up sooner. Often things only start falling into place after time passes and you see things for what they are, and when they are confirmed by others who have had similar experiences. By the time I really fully grasped the magnitude, being vocal would have meant intruding on and hurting people who didn't deserve it, with little discernable good to come out of it.

3. Hannah:

… He also told her things like "You don't need glasses, its more important for you to be pretty than it is to see" and "If you can't even have sex, what good are you?" It was not a joke. For a long time I tried to see the good in him, and hoped that he would change his behaviours once Manda confronted him about them, but he didn't seem to understand that he had done anything wrong. She told him she felt more like a doll than a human, outlined what things had upset her, and wanted to work towards a better relationship. He acted ignorant about things he had said or done, and then threatened people when anyone talked about him. (Which is why I was afraid to write this for a long time. I still am.) There was also a strange incident when we were first hanging out together during which he asked if I was into kinky stuff, to which I replied yes. He proceeded to slap me and choke me against a wall, in public. Now, in a bedroom setting, with clear boundaries and consent, it would have been fine, but out of the blue and in public, it was not okay at all.

Issues

[25] The plaintiff argues seven (7) issues before this court which are as follows:

• i. Preliminary Issue 1: What weight, if any, should the Court give to the affidavits of Ash Kreider, Kevin Veale, Darren Eskandari, Jason Pitre and Tracy Hurley?
• ii. Preliminary Issue 2: Are the medical records proffered as evidence by Mandy admissible as an exception to the hearsay rule?
• iii. Preliminary Issue 3: What role, if any, should the findings of the California court in the Grey matter play in this proceeding?
• iv. Should Mandy's counterclaim be dismissed? Is Zak liable for sexual battery?
• v. Is Zak liable for defamation?
• vi. Should Zak's action in defamation be allowed?
• vii. If Zak's action is allowed, what remedy/remedies should the Court award him?

[26] The defendant did not specifically address the issues raised by the plaintiff. Her written and oral submissions touched on various parts of the issues. I find that the list of issues identified by the plaintiff represents a proper list which encompasses the issues that require adjudication.

[27] Turning back to the Facebook Post, at the request of the court, the plaintiff underlined those portions that are alleged to be defamatory. I summarize them as and refer to them as Statements #1 to #17:

Mandy

1. "there will be potentially triggering descriptions of abuse, violence and sexual assault"
2. "The abuse came in cycles…it was always about my body and not me as a person"
3. "you tore me down, made lectures that went in circles of manipulation or fits of rage where you'd scream that I was useless and worthless. You tore me down to manipulate me"
4. "Killing me if I ever got pregnant and didn't have an abortion started as a joke"
5. "Kick me out if I didn't want to have as much sex"
6. "I saw you mistreat women we were with together"
7. "You told me I was not allowed to stop or say no to sex"
8. "You were extraordinarily angry I had stopped, your hands were clenched…. I was programmed to accept it"
9. "you were just straight up cruel and cold and abusive and there were no reprieves of loving or sweet acts, it was all gaslighting and narcissism"
10. "the pain and damage done to me by this relationship…. I have PTSD"
11. "a decade of trauma"

Jennifer

12. "He will aggressively pursue sex…I've also seen him physically take women and start fucking them, ignoring their lack of enthusiasm"
13. "he has described a sexual encounter to me as, I quote, 'raping a 12-year-old'"
14. "I've seen him do so much fucked up shit"

Hannah

15. "'You don't need glasses'"
16. "'If you can't have sex, what good are you?'"
17. "He proceeded to slap me and choke me against a wall, in public….in a bedroom setting, with clear boundaries and consent, it would have been fine, but…in public, it was not okay at all"

Preliminary Issue 1: What weight, if any, should the Court give to the affidavits of Ash Kreider, Kevin Veale, Darren Eskandari, Jason Pitre and Tracy Hurley?

[28] The plaintiff raises various issues surrounding the affidavit evidence provided by these five defence witnesses, arguing that the affidavit's are rife with hearsay and irrelevant character evidence, and therefore should be given no weight by this court.

[29] The first comment must be made in regard to hearsay statements. The plaintiff chose to only cross-examine Anna (Ash) Kreider and Darren Eskandari. The other three witnesses were permitted to file their affidavit evidence, but they were not cross-examined. While that does not change the hearsay nature of certain statements made by those witnesses, they could have been challenged on some of their evidence, but this was not done. Thus, the plaintiff made a choice as to how he would challenge the evidence. It must be remembered that this was a summary trial and, as such, the process calls for evidence to be submitted by affidavit.

[30] However, there are still considerations about hearsay evidence raised by the plaintiff that are valid. Rule 76.12 provides for evidence by affidavit but they do not deal with the contents of the affidavit. For motions and applications, some rules allow for statements of a deponent's information and belief. Rule 76 does not relax the rules of evidence for affidavits. Thus, affidavits for trial must follow the ordinary rules of evidence: see Balpinar (Estate) v. Economical Mutual Insurance Company et al., 2024 ONSC 7239.

[31] Accordingly, although certain witnesses were not cross-examined on the content of their affidavit, it does not make the hearsay evidence admissible.

Anna (Ash) Kreider

[32] Ash Kreider is a witness who has never met either the plaintiff or the defendant. [1] They testified about their online interactions with the plaintiff. In particular, they claimed to have been bullied following comments they made concerning their beliefs about the treatment of women in the porn and gaming industries.

[33] When considering the defamatory statements, their testimony does not contribute directly to any particular statement which has been claimed to be defamatory. There may be marginal references supporting the claim that the plaintiff lectured the defendant into circles of manipulation or fits of rage or made statements about mistreating women. The statements may also have some relevance in terms of the claim that the plaintiff would engage in gaslighting and narcissistic behaviour.

[34] The challenge here is for the court to attribute weight to a third party who had conflict with the plaintiff online but was not a witness to any of the specific conduct alleged to have been directed at Mandy, Hannah or Jennifer.

[35] The evidence of Ash Kreider is essentially limited to the fact that they claim the plaintiff is a bad person, that he is mean, and that he will bully individuals online who do not share his views. I am unable to give any weight to the suggestion that, because the plaintiff may have been mean to or bullied them, it is therefore more likely that he engaged in the conduct alleged by the defendant.

[36] I agree with the plaintiff's submission on the law when it comes to bad character evidence. Evidence of a party's bad character is presumptively inadmissible and particularly not if the intent is to show that the person is more likely to have committed the alleged offences: see John Sopinka, "Character Evidence in Civil Cases" (1972) 18:2 McGill LJ 246 at 248.

[37] However, it should be noted that there is relevance to the evidence provided by Ash Kreider, who attaches a July 31, 2014, online post titled, "How Dungeons and Dragons is endorsing the darkest parts of the RPG community". Which describes the plaintiff as having been banned from half the major RPG communities on the net for derailing any and all discussions about diversity and discrimination. While that article does not assist me in determining the veracity of the defendant's statements, it does shed some light on the status of the plaintiff within the RPG community and is relevant when considering the damage potentially caused by any defamatory statements.

[38] Both parties have relied on various articles and statements from third parties written about Zak and Mandy. In particular, Zak has relied on such articles and statements to establish the impact of the Facebook Post. While I accept that the articles are hearsay, the fact that Zak was banned from certain forums both before and after the Facebook Post has not been challenged and relied upon by both parties. It was open to the parties to challenge the factual nature of Zak having been banned from certain forums, events and groups.

[39] Otherwise, I find the evidence of Ash Kreider to be in large part irrelevant and certainly inadmissible in the context of bad character evidence, as it attempts to suggest that the plaintiff's conduct was more likely to have happened given how he allegedly behaved towards Ash Kreider.

Darren Eskandari

[40] The defendant also relies on the evidence of Mr. Eskandari, a role-playing hobbyist. I agree with the plaintiff that the portion of this witness's evidence which claims to have received information about the defendant's dislocations and injuries suffered as a result of intimate relationships with the plaintiff is inadmissible hearsay. I attribute no weight to that evidence.

[41] However, Mr. Eskandari's evidence does become relevant where he testifies that he often saw the plaintiff be verbally abusive towards the defendant. Mr. Eskandari heard Zak say that if she were to become fat, ugly or pregnant that he would leave her. This evidence is directly relevant to some of the alleged defamatory statements. It is admissible and was not challenged in cross-examination. However, I note that Mr. Eskandari's evidence is mostly general in nature and only speaks to a few specific instances. His evidence is first-hand as he formed part of their circle of friends, and he was present to witness the interactions between Zak and Mandy. He was also present at times when Zak would make comments about killing Mandy if she disappointed him. He also witnessed Zak telling Mandy that if she was not able to have sex with him, there would be no point to having her around. This evidence is admissible and relevant to the pleadings.

Kevin Veale

[42] Kevin Veale is a university professor from New Zealand who provided an affidavit on his encounters with Zak in his study of role-playing games. He has never met Zak or Mandy.

[43] Mr. Veale provides some opinion evidence about Zak and his online reputation. This witness was never tendered to provide opinion evidence and where his evidence ventures into opinion purportedly based on his qualifications, that evidence is inadmissible.

[44] However, Mr. Veale does provide evidence of Zak and his observations of Zak's conduct in the role-playing community RPG.net. Mr. Veale provided first-hand testimony that Zak had received a series of infractions and an eventual permanent ban from the site in 2013.

[45] He also provided evidence of posts made online which were critical of Zak's behaviour. His first-hand knowledge also extends to seeing how people would block Zak on Twitter. However, no specific references are provided, and this evidence is very general in nature. I attribute little weight to it.

[46] Otherwise, Mr. Veale testified about Zak's poor online reputation and how his reputation was notorious within certain online communities. His evidence about Zak being a textbook example of online harassment campaigns is not admissible as it represents opinion evidence from a witness who was not qualified to provide such evidence.

[47] I conclude that Mr. Veale's evidence is relevant for the purpose of his first-hand knowledge of what he has observed online. However, where his evidence ventures into opinion or generalized statements about Zak's reputation within the online community, that evidence is inadmissible.

Tracy Hurley

[48] Tracey Hurley is a blogger, podcaster and freelance writer. She provided an affidavit outlining her views on Zak's reputation within the online communities and some instances of online conflict that she had with him.

[49] She feels that Zak attacked her following some comments that she made about his involvement on a new edition of Dungeons and Dragons in 2014. She provides admissible evidence of how it made her feel to be targeted by Zak in online forums. However, her comments about his reputation in general and impressions she has formed based on other persons' views are not admissible.

Jason Pitre

[50] Finally, I consider the evidence of Jason Pitre, a professional in the tabletop game design industry. He does not have any first-hand experience with Zak or Mandy's romantic relationship or the allegations of abuse.

[51] Mr. Pitre describes Zak as an individual with an established career within the tabletop role-playing game industry and as a moderately successful designer, writer and illustrator.

[52] Mr. Pitre provides his first-hand observations of an award show in 2015 when Zak won an ENnie Award and several people walked out of the show, apparently in protest of the award given to Zak. Obviously, it is impossible to discern whether or not some or all of the people who walked out of the show at the time Zak won his award, were acting in protest or were simply leaving the room for some other reason, Clearly, the evidence has limited weight. Overall, Mr. Pitre contributes to the description of Zak as being a controversial personality within the tabletop role-playing game industry.

[53] Where Mr. Pitre comments on Zak's reputation within the RPG community, I find that evidence inadmissible as he is not qualified to provide opinion evidence. Furthermore where Mr. Pitre purports to opine on the value of Zak's earning, I also deem that evidence to be inadmissible as he has not been qualified to provide opinion evidence on Zak's earnings.

[54] Otherwise, Mr. Pitre's evidence is relevant when he describes incidents when Zak was banned from RPG.net in 2013 and from Gen Con in 2019. However, Mr. Pitre's opinions about Zak's overall reputation within the industry of tabletop roleplaying games is obviously not admissible as opinion evidence.

[55] In the end, Mr. Pitre's evidence does contribute to Mandy's position that Zak's reputation is controversial and that this impacts the assessment of damages resulting from findings of defamation.

Preliminary Issue 2: Are the medical records proffered as evidence by Mandy admissible as an exception to the hearsay rule?

[56] The plaintiff takes issue with evidence filed by Mandy concerning her medical records and how she purports to be suffering from PTSD because of her relationship with Zak.

[57] There is no dispute that in presenting her evidence on this issue, the defendant has not met the requirements of r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In addition, she has not sought to have the records admitted as business records pursuant to ss. 35 or 52 of the Evidence Act, R.S.O. 1990, c. E.23.

[58] This is particularly relevant in the context of those records being admitted under s. 52 of the Evidence Act as the plaintiff would have had the right to cross-examine the medical practitioners at trial. Ultimately, I am unable to place any weight on Mandy's assertions that she suffers from PTSD as a result of her relationship with Zak but the evidence that she has PTSD is accepted.

Preliminary Issue 3: What role, if any, should the findings of the California court in the Grey matter play in this proceeding?

[59] The plaintiff has advanced that this court cannot be bound by the findings of fact from the California proceedings in respect of his action against Vivka Grey. The plaintiff relies on the fact that neither res judicata nor abuse of process have been pleaded and that neither of those doctrines are relevant in these circumstances.

[60] I do not intend to spend a great deal of time analyzing this question, as the defendant has not brought forward any arguments suggesting that the plaintiff's position is incorrect. It is fairly clear that the three conditions for res judicata have not been met, and that the doctrine of abuse of process does not apply, given that the proceedings involved different parties and they relate to very different defamatory statements.

[61] Once again, the defendant has not attempted to persuade me differently. At best, the defendant has argued that the findings in the California trial decision are persuasive as they form part of the same factual scenario.

[62] I agree with the plaintiff that the court must be careful not to rely on the findings in the California judgment given the restrictions on relying on similar fact evidence and that no ruling was requested by the defendant on its applicability.

[63] What is relevant about the California trial decision is Zak's approach to deflecting any questions relating to that litigation. He took the position that he had not read the decision but, at the same time, he claims to have been successful in the lawsuit and had been awarded a significant amount of legal costs. Simply put, Zak lacks credibility on this issue. I am of the view that he adopted the position that he had not read the decision in order to avoid being cross-examined on its contents. How can an individual claim to have been successful in litigation, go to the extent of posting an online acknowledgement of that success, and then assert having no knowledge of the decision because he never read it? In this regard, I reject Zak's evidence that he never read the decision. This position was simply a tactic to avoid answering questions on an element of his case that presents obvious weaknesses to his claims.

[64] The bottom line is that the California decision is evidence at this trial only as to the findings made by another court in respect of different defamation claims. In that decision, much of the evidence by Mandy and Ms. Grey was accepted by the California court. There is no doubt that if Ms. Grey's and Mandy's evidence had been rejected, Zak would have been the first person to suggest that I should be persuaded by those findings.

[65] In the end, I agree with the plaintiff that I am not bound by the findings in that decision. I must also be cautious in attributing too much weight to the findings made in that action, given that they arise from different allegations and different testimony. Overall, the evidence of Ms. Grey and Mandy was largely accepted by the California court, but this does not require me to accept their testimony in this case. I find the findings of the court in that decision to be of limited value in the evidentiary record for this trial.

Issues 4 and 5: Should Mandy's counterclaim be dismissed? Is Zak liable for defamation or sexual battery?

[66] The counterclaim seeks damages for defamation and sexual assault. Mandy's defamation claim relates to a post made by Zak in the summer of 2020 where he alleges that Mandy suffers from borderline personality disorder. Her claim for sexual battery relates to claims that Mandy was assaulted by Zak several times in the summer of 2006 and that she would have suffered injuries resulting from those incidents. She also states that Zak programmed her to believe she could never refuse sex or stop sexual activity once it had begun. Finally, she alleges an incident of date rape during the couple's first encounter in a hotel room.

Defamation

[67] There is no dispute as to the law surrounding defamation. Mandy, as the plaintiff by counterclaim, must establish firstly that the defendant by counterclaim made defamatory statements, in the sense that the impugned words would tend to lower Mandy's reputation in the eyes of a reasonable person. Secondly, Mandy must demonstrate that the words referred to her. Thirdly, the words must have been communicated to at least one person other than Mandy: see Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[68] Here, Mandy is not required to show that Zak intended to do harm or even that Zak was careless. The tort is one of strict liability: Torstar, at para. 28.

[69] Zak has agreed that Mandy has established that he authored the words complained of and that they were communicated to a third party and that they can support a defamatory meaning to the extent that they would suggest to a reasonable person that Mandy would be prone to being untruthful. However, Zak alleges that he cannot be found liable for authoring the truth and for providing his opinion thereon.

[70] In Torstar, the Supreme Court of Canada held that, once a prima facie showing of defamation is made out, the words complained of are presumed to be false. A defendant can rebut that presumption by adducing evidence that the main thrust of the statement was substantially true.

[71] Here, Zak alleges that the defamatory statements are true for the following reasons:

• a. Exhibit 32: A letter dated September 28, 2010 from a clinical psychologist in California which states that "Mandy has a mental health diagnosis of Borderline Personality Disorder" and further states that she has been receiving Dialectical Behaviour Therapy.
• b. Exhibit 33: An e-mail from Mandy to Zak dated February 6, 2010, wherein she sends him links to informative websites about borderline personality disorder.
• c. Exhibit 34: An e-mail dated July 7, 2010 from Mandy to a mutual friend which makes reference to her having borderline personality disorder.
• d. Exhibit 35: Undated excerpts from Mandy's handwritten journal where she references her challenges of living with borderline personality disorder and that she was diagnosed when she was 15 years old.

[72] In considering this evidence, I am of the view that the comments made by Zak in respect of Mandy's diagnosis of borderline personality disorder are substantially true.

[73] Despite my conclusion that the statement relating to borderline personality disorder is substantially true, I am also of the view that the defence of fair comment is also applicable.

[74] In Torstar, at para. 31, the Supreme Court sets out the elements of the defence of fair comment:

As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

[75] I provide the following brief analysis of the defence of fair comment in the context of the defamatory statements made by Zak.

[76] I agree with the findings of Justice Gomery in her decision on the motion in this matter, namely that Mandy's Facebook Post engaged the interests of the online adult RPG community: see Smith v. Nagy, 2021 ONSC 4265, 156 O.R. (3d) 770 ("Nagy (Decision on Anti-SLAPP Motion)"), at para. 51. It follows that Zak's response to that Facebook Post would also engage the interests of the online adult RPG community.

[77] The comment regarding borderline personality disorder is clearly based on the fact that Mandy has the disorder, and it is expressly set out as an opinion that it "may" account for her accusations in the Facebook Post. Given the nature of the allegations and the facts which form part of the record, any person could honestly express the same opinion that Mandy has borderline personality disorder.

[78] Finally, I am not satisfied that these words were spoken out of malice. Zak is defending himself in this post and he is surmising what may have led Mandy to publish the Facebook Post. It was not used in a retaliatory way to attack Mandy but in a way to allow Zak to support his position that the allegations in the Facebook Post are false and that there may be a reason why they were written. Malice is not made out on these facts.

[79] I conclude that the defence of fair comment is made out here primarily on the basis that a reasonable person who was informed of all the evidence about Mandy's borderline personality disorder would express the same opinion.

[80] The counterclaim for defamation is dismissed.

Sexual Assault / Sexual Battery

[81] Mandy, as plaintiff by counterclaim, also alleges that she is entitled to a damages award of $100,000 for the tort of sexual assault.

[82] She has pleaded that her claim of being sexually assaulted began in the summer of 2006 and that it is the result of injurious sex while the couple lived in Brooklyn, New York. The damages result from Zak telling Mandy that she was not allowed to say "no" to sex or stop sexual activity with Zak after they had begun. It is alleged that Zak claimed that Mandy had no right to withdraw consent once it was given or signalled.

[83] The counterclaim for sexual assault pleads that Mandy was forced to endure sexual intercourse before being ready and that this resulted in bleeding from her vagina. The condition worsened and she claims that she consulted a gynaecologist who told Mandy that she had to stop having sex for at least a month. She estimates that her vagina was torn 16 times by Zak after the initial injury in the summer of 2006. She described an incident in June or July of 2006 whereby Zak became enraged and shook his fists when Mandy tried to withdraw consent and end a sexual encounter.

[84] Mandy also references their last sexual session whereby Zak is alleged to have continued to engage in sexual intercourse with her even though she was crying in pain. Mandy acknowledges that she did not tell Zak to stop but a reasonable person would infer that consent was withdrawn.

[85] Mandy also describes a pattern of psychological abuse engaged by Zak where he would convince her that she was worthless and insane. He also threatened her with abandonment or expulsion from the marital home especially in the later years when her health was deteriorating, and she was physically and financially dependent on Zak.

[86] Mandy presents no legal analysis as to the required elements of the tort of "sexual assault." She relies on the Supreme Court's decision in R. v. Ewanchuk, [1999] 1 S.C.R. 330, in support of her allegation that continued sex after the withdrawal of consent amounts to sexual assault.

[87] As presented by Mandy, the label of sexual assault may find some relevance in the essential elements of sexual assault as set out in s. 265 of the Criminal Code, R.S.C., 1985, c. C-46:

• a. That Zak touched Mandy in a sexual way;
• b. That the touching by Zak was intentional;
• c. That the touching by Zak took place in circumstances of a sexual nature;
• d. That Mandy did not consent to the sexual activity in question; and,
• e. That Zak knew that Mandy did not consent to the sexual activity in question.

[88] Leaving aside the allegations of painful and injurious sex in 2006, the bulk of Mandy's allegations of sexual assault relates to the fact that later in life, she realized that she could withdraw consent to ongoing sexual activity and stop anytime she wanted. She testified that she did not understand this as she had been programmed by Zak that she could not stop having sex after it began.

[89] The court must also consider Mandy's affidavit evidence provided in this proceeding whereby she swore an affidavit that Zak had never raped her. During her testimony in the Grey trial, she testified that Zak had raped her and that she had not consented to sex with him 40% to 60% of the time. In her trial evidence, she said it was 40% to 50% of the time. She admitted that her sworn statement to the contrary had been a lie. She explained that she had only recently come to understand the concept of consent.

[90] Mandy's claim for damages arising from sexual assault is considered in a different way by Zak who relies on the tort of sexual battery which was described by the Court of Appeal for Ontario in P(P) v. D(D), 2017 ONCA 180, 137 O.R. (3d) 138, as follows:

[71] The constituent elements of the tort of "sexual battery" are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was "harmful" or "offensive", but this element is implied (assuming a lack of consent) in the context of a sexual battery: Scalera, at para 22.

[91] In F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 49, Rothstein J., for the Supreme Court, recalled that, in civil cases involving sexual battery, "the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred." The Court further stated at para. 46:

In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.

[92] Although the plaintiff has pleaded her claim as being based on the tort of sexual assault, the proper analysis follows the law of sexual battery. As Quinn J. in R.P. v. J.R., states at paras. 68-69:

[68] Technically, there is not a distinct tort of sexual assault. The term seems to be used loosely in the jurisprudence: see G.H.L. Fridman, The Law of Torts in Canada (2d) (Toronto: Carswell, 2002). However, a sexual assault claim can be made under the recognized torts of battery and assault.

[69] Battery is "the intentional infliction of unlawful force on another person": see Norberg v. Wynrib, [1992] S.C.J. No. 60, at para. 26, per La Forest J. It is the "invasion of one's bodily security": see Reibl v. Hughes, [1980] 2 S.C.R. 880 at 890, per Laskin C.J. "[E]very person's body is inviolate": see Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, per McLachlin J., at para. 2.

[93] In assessing the evidence of the nature of the sexual activity between Zak and Mandy, there is conflicting evidence as to whether or not Zak's behaviour toward sex in the context of their relationship amounts to sexual battery. When considering the totality of the evidence in this regard, I am left to conclude that Mandy has not provided sufficiently clear, convincing and cogent evidence to the court that would allow me to conclude, on the balance of probabilities, that Zak is liable for sexual battery. I come to this conclusion for the following reasons:

• a. Vivka Grey testified as to how Zak would react with her if she did not want to engage in sexual activity. At times, he would be persistent and would intimidate her to eventually consent to his request. Mandy testified in a similar manner when she recounts the incident whereby Zak began shaking in frustration after she indicated her desire to stop a particular instance of sexual activity.

• b. Mandy also testified as to an instance while shooting a video when Mandy was not doing well, and Zak was apparently cajoling her, and it was clear that she was in no shape to continue. Many acknowledged that Zak said that she could stop. Her response was that she did not want to because he would be "disappointed with me."

• c. I have also considered Mandy's evidence who did not disagree that it was up to her to decide when the parties would have sex and that Zak had simply told her that he would always be willing.

• d. The court must then consider the evidence of numerous sexual partners of both Zak and Mandy who testified as to the nature of their sexual relationship during various periods that they were involved in polyamorous relationships.

  • i. Brittney Vitale testified that she had never witnessed Zak being abusive towards Mandy and that prior to her Facebook Post, Mandy had never confessed anything that even suggested any abusive behaviour or threats from Zak. She testified that she had never seen Zak take advantage of any woman or have sex with them without their consent. She had numerous experiences having sex with Zak and Mandy, and Ms. Vitale stated that if Mandy was not willing to have sex, she did not have sex. Mandy was not hesitant to assert herself. Ms. Vitale stated that she spent a great deal of time alone with Mandy and Mandy never mentioned any physical, mental or sexual abuse.

  • ii. Alondra Shields testified about her time as a sexual partner of the couple. She testified that at no time had she ever witnessed the things that are alleged in Mandy's Facebook Post. At the same time, she testified that when she first read the Facebook Post, she was supportive of Mandy and believed that what Mandy was saying was believable. She then stated that after speaking with Zak, she reconsidered and did not believe Mandy as she had never seen any of these signs. She did not think that Mandy was telling the truth. Ms. Shield's testimony clearly raises issues of credibility, and the court must consider that her initial reaction was that Mandy's claims were believable. Also, she acknowledged that there were times when she did not communicate her boundaries. There were times she wanted to go home and she had sex with Zak anyways.

  • iii. Michelle Ford testified about her live-in relationship with Zak and Mandy over a period of five years. When she had intercourse with the couple, she testified that most of the time Mandy was the one who initiated it and that she would decide when they should have sex. Mandy never wanted it to end until she was satisfied. In cross-examination, she went further and stated that the couple had sex when Mandy initiated. She recalled an incident on a trip to San Francisco with the couple, when Mandy would have casually stated to Zak that if he were not to follow her rules she would kill both of us in our sleep. She also testified to long periods of time when Mandy could not have sex because of her illness and that Zak stayed with her to be supportive. She never witnessed Zak be abusive to any woman and she never heard him talk about raping or hitting anyone. Her evidence was that every sexual encounter that she had with Zak or witnessed Zak having was consensual.

  • iv. Jamielynn Cowart testified as to her knowledge of the sexual relationship between the couple. She claimed that it was Mandy and not Zak who would choose who would come to bed with them. Miss Cowart testified as to Mandy's very powerful personality and that nobody tells her what to do. She testified that if Zak turned her down for sex she would unleash her wrath on him and stated that Zak was simply not allowed to turn down sex.

• e. The bulk of Mandy's allegations surrounding sexual assault turn on the issue that she understood later in life that she was allowed to withdraw her consent and stop having sex with Zak. She alleges that this realization came to her after the relationship had ended. However, when considering the essential elements of sexual assault as per the Criminal Code, those provisions require that Zak would be aware of the fact that Mandy is not consenting or that he was willfully blind to her lack of consent. I appreciate that the law of consent has evolved over the years, which requires an individual like Zak to take active steps to assert consent. However, when I consider the totality of the evidence, Mandy has 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. In addition, she has not established that she withdrew her consent at any time and that Zak knew or ought to have known about her withdrawal of consent.

• f. I am unable to accept that Mandy's revised views or understanding on consent can retroactively change consensual sex to non-consensual sex. Other than the instance when Zak is reported to have reacted negatively by shaking his fists and scolding her about stopping sex, a circumstance that Zak denies, she has not testified that she communicated a withdrawal of consent to sex at any other time which could support the evidence she gave that she had been sexually assaulted 40% to 50% of the time. This assertion is simply not believable in the context of the totality of the evidence in this case.

• g. Turning to the tort of sexual battery, considering the evidence as a whole and particularly the various sources of evidence concerning the nature of the sexual relationship between the couple, I am not satisfied on a balance of probabilities that Zak interfered with Mandy's body in a harmful or offensive manner.

[94] I have also considered the evidence of sexual assault provided by Mandy in regards to the alleged incidents in 2006, during which she claims to have suffered physical injury as a result of Zak's actions during numerous instances of sexual activity.

[95] My first comment on these allegations is that there was no supporting documentation to demonstrate the evidence of Mandy having consulted with a gynecologist who expressed concerns as to her physical injuries. That is hearsay. Zak has provided his own version of these events which in my view are equally plausible to those advanced by Mandy.

[96] I also note that Mandy's description of Zak's conduct falls in line with some of the evidence provided by Ms. Middendorf and Ms. Le Claire but is in conflict with the specific evidence of the nature of the relationship between Zak and Mandy as provided by Ms. Ford, Ms. Vitale, Ms. Shields and Ms. Cowart. I attribute greater weight to the evidence of those latter four witnesses who provided testimony in respect of Zak and Mandy's relationship based on their shared experiences with them. Therefore, I am unable to conclude that the evidence provided by Mandy, in support of her claim for sexual battery in the early parts of this relationship in 2006, amount to sexual battery as tortious conduct.

[97] Mandy has not made out the tort of sexual battery as pleaded on a balance of probabilities.

Issue 6: Should Zak's action in defamation be allowed?

[98] The defendant has not provided any detailed legal analysis of the law of defamation and has not objected to the manner in which the plaintiff has set out the applicable law in relying on Torstar as the leading case in the area of defamation which sets out a number of basic principles.

[99] As set out in Torstar, at para. 28, to make out a successful claim of defamation, a plaintiff must establish that:

• a. The defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff's reputation in the eyes of a reasonable person;
• b. The words referred to the plaintiff; and
• c. The words were communicated to at least one person other than the plaintiff.

[100] The Supreme Court went on to say that the plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is one of strict liability.

[101] At para. 31, the court in Torstar set out the following five-part test for the defence of fair comment:

• a. the comment must be on a matter of public interest;
• b. the comment must be based on fact;
• c. the comment, though it can include inferences of fact, must be recognizable as comment;
• d. the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and
• e. even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

[102] I am of the view that the proper way to analyze the plaintiff's defamation claim is to take the Facebook Post and break it down into the various statements made which are claimed to be defamatory and underlined by the plaintiff. The essence of those statements have been broken down in this decision and I will deal with each in turn.

[103] At a high level, I am of the view that many of the factual statements made about Zak and his behaviour towards Mandy qualified as abusive of sorts and suggestions of gaslighting and narcissism have in large part been made out by Mandy's testimony. The testimony of Ms. Grey, Ms. Middendorf and Ms. Le Claire along with the initial reactions of Ms. Shields are evidence that establishes part of Zak's character and his conduct within the relationship. It allows me to conclude that the defence of justification is available in many regards when considering the content of the Facebook Post and Zak's treatment of Mandy.

[104] However, when considering the allegations of violence and sexual assault, the inconsistencies in Mandy's description of these events and how she has viewed them overtime, together with the first-hand evidence of numerous sexual partners has left me to conclude that Mandy has not established those elements of the Facebook Post as being true on a balance of probabilities. I am of the view that the non-traditional sexual relationship between the parties transpired in a consensual environment. The evidence of Mandy who has changed her views on consent and reconsidered the majority of the sexual activity between the couple does not allow me to conclude that the statements of violence, abuse or sexual assault are truthful and nor do they amount to fair comment.

[105] I provide the following analysis of each of the purported defamatory statements.

Statement #1: "there will be potentially triggering descriptions of abuse, violence and sexual assault"

[106] This initial statement covers an incredibly wide range of behaviour for which evidence was provided during this trial. There is little specific context provided to these three descriptions and they are left open-ended without detail. Accordingly, they must be dealt with at a high level to be considered in the context of the evidence as a whole.

[107] Starting with "abuse": this term can obviously be relevant to different allegations made in the Facebook Post. I focus on the evidence of Mandy, Ms. Grey and Ms. Middendorf, the claim of abuse is established. Specifically, the type of things that Zak would tell them such as that they would be no use to him if they could not have sex with him. Comments about their physical appearance or the physical appearance of women with similar physical attributes. Various comments seen in the evidence and discussed below which can be attributable to gaslighting or narcissistic behaviour would qualify under the general term of "abuse." That abusive behaviour has been established on a balance of probabilities.

[108] However, when considering the terms "violence" or "sexual assault", Mandy has failed to persuade me, on a balance of probabilities, that she was the subject of either violence or sexual assault. The reasons in large part follow the reasoning for my denial of her claim of sexual battery or sexual assault.

[109] In addition, I am unable to accept Mandy's testimony as provided during cross-examination that she maintains that 40% to 50% of the time she withdrew her consent to sexual activity. While this is based on a change of her understanding of the law of consent, I simply do not accept her testimony in this regard. It is contrary to her previous statement that Zak never raped her, and it flies in the face of the testimony of almost all of the other witnesses who were active participants in sexual activity with this couple. 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.

[110] It is relevant to note that Mandy's evidence in this regard acknowledges that she did not voice her desire to stop sexual activity, except possibly once when Zak became enraged and was shaking and the last event when she claims to have been crying. Even in this instance when she voiced her desire to stop, he did not force her to continue but, at best, he expressed his displeasure with the fact that she wanted to stop. This does not, in my view, support a finding that she withdrew her consent 40% to 50% of the time given that she testified to no other circumstance when she verbally withdrew her consent. I prefer the testimony of Zak in this regard, 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.

[111] In coming to this conclusion, I also rely in large part on the testimony of Ms. Grey, who testified as to the pressures that would come from Zak to show commitment and loyalty to him, how he would make insulting comments about her physical appearance, and how he would attack her self esteem. It is noteworthy that Ms. Grey's affidavit speaks to her personal physical relationship with Zak and how he acted towards her. However, there is little to no evidence of any violence or sexual abuse directed towards Mandy. Ms. Grey's evidence is focused on Zak's verbal and psychological abuse towards her but does not touch upon any issues relating to consent or lack of consent between Zak and Mandy. She would have been in a position to observe the withdrawal of consent 40% to 50% of the time. To this, I add the testimony of the other witnesses who described their experiences as sexual partners with Zak and Mandy.

[112] In the end, the statements made by Mandy, which claim that she was subjected to violence or sexual abuse by Zak, are defamatory. Mandy has not established the defence of justification or fair comment.

Statement #2: "The abuse came in cycles…it was always about my body and not me as a person"

Statement #3: "you tore me down, made lectures that went in circles of manipulation or fits of rage where you'd scream that I was useless and worthless. You tore me down to manipulate me."

[113] Statements #2 and #3 turn in large part on Zak's verbal and psychological abusive behaviours towards Mandy. There is ample evidence in terms of the evidence of Mandy, Ms. Grey, Ms. Middendorf, Ms. Le Claire and Ms. Ford, which persuades the court to believe that the alleged behaviour in these statements forms part of the manner in which Zak treated Mandy. At the same time, this evidence is contradicted by the evidence that Zak was caring and understanding of Mandy's physical difficulties and that, in large part, his behaviour with Mandy was inconsistent over the years. At times he would be verbally and psychologically abusive or responsible for gaslighting Mandy and at other times, he was a generous and compassionate person. However, these two streams can easily coexist, and in fact, they do so perfectly within the context of the evidence received at trial.

[114] While I certainly accept the evidence of witnesses who testified as to Zak's support and caring for Mandy, I am also persuaded that the verbal and psychologically abusive behaviour has been established on a balance of probabilities and that it formed a very real aspect of the relationship between the parties, a relationship marked by contradiction and conflicting behaviours.

Statement #4: "Killing me if I ever got pregnant and didn't have an abortion started as a joke"

Statement #5: "Kick me out if I didn't want to have as much sex"

[115] These statements are also of the type that fall exactly in line with what I deemed to be the nature of the relationship between Zak and Mandy. The evidence of Mandy, Ms. Grey, Mr. Eskandari and Ms. Ford demonstrate that these are the types of statements that were said at different times during the relationship. To a certain extent, Zak himself acknowledged that if the parties were no longer compatible from a sexual point of view, there would be no purpose in continuing the relationship.

[116] I have no difficulty accepting Mandy's evidence that these are the types of statements that Zak would have made to her. Regardless of if he was joking or serious in making these statements, I accept that they were made at different times Mandy has established, on a balance of probabilities, the truth that Zak made these statements.

Statement #6: "I saw you mistreat women we were with together"

[117] In this statement the focus is on the word "mistreat." It is a term which encompasses numerous broad forms of behaviour including abuse, exploitation, hurt and insult. The statement itself does not provide any further context as to the nature of the allegation of mistreatment but, obviously, such a term can include various forms of behaviour which were attributed to Zak by numerous witnesses at this trial.

[118] Specifically, there are various examples provided by Ms. Grey, Ms. Middendorf and Ms. Le Claire which can fall under the description of mistreatment. Their evidence supports a conclusion that, over the years, Zak would mistreat some of the women. The levels of mistreatment could vary but, in the context of this statement, specific findings do not need to be made. I accept as truthful the statement that Zak mistreated a number of the women who testified at this trial, including Mandy. The truth of this statement is established on a balance of probabilities.

Statement #7: "You told me I was not allowed to stop or say no to sex"

Statement #8: "You were extraordinarily angry I had stopped, your hands were clenched…. I was programmed to accept it"

[119] Statement #7 falls in line with the allegations of sexual assault. The allegation in this statement is that the concept of consent did not exist in the context of the relationship between Zak and Mandy. Statement #8 is related as it suggests that Mandy was programmed to accept sex whenever Zak wanted it.

[120] Similarly to the allegations of violence and sexual assault, 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. The evidence of the sexual partners who participated in this polyamorous relationship persuades me that Mandy was very much in control of the sexual activity, and that she herself acknowledged that she would determine the times when sexual activity would happen. This does not support a finding that Mandy could not say no to sex.

[121] In terms of not being allowed to stop a particular sexual activity, there was conflicting evidence from Mandy and Zak. Ms. Ford testified that Mandy was of the view that nobody could stop having sex until everyone had climaxed. She was not challenged on this evidence. Mandy herself testified that there was an instance where she was not feeling well, and Zak encouraged her to stop the sexual activities, but she was afraid to disappoint him. Accordingly, the blanket statement that she was never allowed to stop or refuse sexual activity is not established on a balance of probabilities. I find that statements #7 to #8 are defamatory, and no defence has been established.

Statement #9: "you were just straight up cruel and cold and abusive and there were no reprieves of loving or sweet acts, it was all gaslighting and narcissism"

[122] Statement #9 includes a combination of opinion and fact which must be broken down and analyzed. The statement begins with an opinion about Zak being cruel and cold and abusive and it turns on Mandy's opinion of Zak.

[123] In this regard Mandy advances the defence of fair comment which must meet a five-part test previously referenced from Torstar.

[124] When considering the public interest factor, I adopt the reasoning of Gomery J. in the anti-SLAPP decision that the comments made by Mandy are on a matter of public interest as a result of the profile that these parties held within the RPG community: see Nagy ("Decision on Anti-SLAPP Motion"), at paras. 92-96.

[125] Turning to the factual basis for this comment, there is ample support for a conclusion that Zak was, at times, cruel, cold and verbally abusive. The evidence of Mandy, Ms. Grey, Ms. Middendorf, Ms. Le Claire and Mr. Eskandari establish this on a balance of probabilities. The evidence of these witnesses provides a factual basis about Zak's sexist and misogynistic comments, and that he was verbally abusive to Mandy. Comments such as suggesting if she could not have sex there was no point having her around, and remarks about Mandy having a double chin. This is evidence that I accept, which provides a factual basis for the opinion stated in Statement #9.

[126] The comments are recognizable as a comment of opinion by Mandy, and a fair-minded person could honestly express those views based upon the supporting facts which formed part of the evidence at trial.

[127] When turning to the issue of malice, the term is commonly understood as spite or ill-will. It is also described as any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest which the occasion created. Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

[128] I have considered the evidence that the plaintiff relies upon to support a finding of malice: at para. 104 of the written "Submissions of the Plaintiff, Zak Smith" dated May 8, 2024.

[129] The challenge here lies with analyzing the concept of malice in the face of the Facebook Post, which contains statements that are true and recount Zak's conduct in many regards. Conduct which I find to be reprehensible in many ways, considering the manner in which Mandy was treated. At the same time, I must consider the defamatory portions which relate to allegations of sexual assault, physical assault and actions relating to a revised interpretation of consent.

[130] There is no doubt that the Facebook Post was therapeutic for Mandy who was now two years removed from her former life in Los Angeles and facing significant health issues which limited her ability to function on a day-to-day basis. It is within this context of conflicting portions of the Facebook Post that the analysis of malice must be made.

[131] When considering the facts in support of malice, the court highlights Mandy's decision to make the post as public as possible, that she specifically pondered being sued for libel, her expressed desire to expose Zak, and that she wanted to ruin his life. These are the most egregious elements which favour a finding of malice and demonstrate that Mandy had an indirect motive or ulterior purpose in making her Facebook Post.

[132] When considering the evidence of Zak's treatment of Mandy, I return to the obvious contradictions in the evidence that I feel can coexist. The fact that Zak was at times caring and thoughtful with Mandy—understanding of her health situation and showing love and affection—does not negate that, at other times, he was cruel, manipulative and verbally abusive towards her. Specifically, I find that the evidence of Ms. Grey, Ms. Middendorf and Mr. Eskandari can perfectly coexist with the evidence of Ms. Vitale, Ms. Hill, Ms. Ford and Ms. Cowart. They speak of different elements of the relationship between Zak and Mandy.

[133] Turning then to Mandy's situation, two years removed from the relationship, she was clearly left with conflicting views of their lifestyle in Los Angeles. It is not surprising that, through therapy, Mandy's view was that Zak would have been the source of her PTSD. While it is apparent she suffers from this condition, the precise origin remains unclear.

[134] Overall, I am led to conclude that the statements in the Facebook Post were not malicious. Many of the statements are supported by evidence, particularly as it concerns the manner in which Zak treated Mandy over the years, which included instances of cruelty, verbal abuse, gaslighting, and narcissistic behaviour. The evidence supports such a finding.

[135] At the same time, I am of the view that neither the Facebook Post nor the evidence at this trial support the statements relating to sexual abuse, physical abuse or a lack of consent. It is the mix of truthful and defamatory statements within the Facebook Post that leads me to conclude that the defamatory statements were not malicious. While Mandy may have, at times, expressed ill will towards Zak, I do not find that such ill will was the dominant purpose of the Facebook Post. I accept that the primary purpose of the Facebook Post was to serve as a therapeutic outlet for Mandy. I conclude that the Facebook Post was not malicious and, as such, the defence of fair comment for the first portion of Statement #9 is made out.

[136] However, the analysis of Statement #9 does not end there because that statement includes the words that "there were no reprieves of loving or sweet acts". Simply put, as I have accepted portions of the evidence of Ms. Vitale, Ms. Hill and Ms. Cowart that Zak at times was very caring and loving with Mandy and demonstrated an ability to accommodate her needs, it cannot be the case that there would have been no reprieves of loving or sweet acts. As a result, the statement in question is not truthful when weighed against the evidence I do accept. In the context of fair comment, even if the statement is considered to be one of opinion, the record would not allow a person to honestly express that opinion on the proven facts. The contradictions in the evidence point to a relationship that contained significant internal contradictions, including periods where Zak demonstrated signs of loving or sweet acts. As such, statement #9 is defamatory and fair comment is not established.

Statement #10: "the pain and damage done to me by this relationship…. I have PTSD"

[137] This statement contains both opinion and fact. The claim Mandy has PTSD is supported by her evidence that she was diagnosed with PTSD. However, this diagnosis was not tied solely to her years with Zak. Regardless, the diagnosis of PTSD is factually correct.

[138] Turning to the "pain and damage done to me by this relationship," the statement is one of opinion for which the factual basis finds support in the evidence. I have already concluded that I accept the evidence that, at times, Zak could be cruel, verbally abusive, narcissistic and that his comments could have a gaslighting effect on Mandy. These findings find support particularly in the evidence of Mandy, Ms. Grey and Mr. Eskandari.

[139] This part of her statement also goes beyond Zak's specific treatment of her and speaks to the relationship in a general context. Overall, I accept that her life with Zak in Los Angeles has caused pain and damage at various levels, and Zak's role in this is supported by the evidence. This statement does not attribute the pain and damage solely to the defamatory aspects of her Facebook Post, but it can reasonably be interpreted as referring to the entirety of the relationship. This includes evidence that Zak was, at times, cruel, verbally abusive, engaged in gaslighting and narcissistic. The pain and damage claimed by Mandy is something that an honest person could express as a similar opinion based on the proven facts.

[140] Finally, as previously stated, this type of statement made by Mandy was not said in a malicious way. Accordingly, the defence of fair comment applies.

Statement #11: "a decade of trauma"

The claim by Mandy that she has to rebuild her life after a decade of trauma is a generalization which does not concord with the evidence that I have accepted. This statement sets out an extreme position that the entire period of the relationship brought Mandy trauma. This is not reflected in the evidence. Based on the evidence of Ms. Vitale, Ms. Hill, Ms. Ford and Ms. Cowart, which I accept, the statement is factually incorrect, as it is not established on a balance of probabilities that Mandy suffered a decade of trauma. My conclusion is that this relationship had numerous ups and downs, and that the most intimate parts of the relationship were shared with various witnesses from this trial. Justification is not made out.

[141] When I consider the defence of fair comment, the defendant has failed to establish the factual basis for the comment. An objective person who considers the evidence at trial would not conclude that the relationship amounted to a "decade of trauma."

[142] Accordingly, the defendant has failed to establish a valid defence to this defamatory statement. The more relevant part of this statement arises in the context of the damages it caused, which would obviously be minimal. This is a matter that can be dealt with in the damages section of this decision.

Statement #12 (Jennifer): "He will aggressively pursue sex…I've also seen him physically take women and start fucking them, ignoring their lack of enthusiasm"

Statement #13 (Jennifer): "he has described a sexual encounter to me as, I quote, 'raping a 12-year-old'"

Statement #14 (Jennifer): "I've seen him do so much fucked up shit"

[143] These statements form part of the post by Jennifer Le Claire, which was attached to Mandy's Facebook Post. Ms. Le Claire testified at this trial and her evidence was not significantly challenged in cross-examination.

[144] Although Zak relies on the fact that he maintained a friendship with the woman— referred to as Jess or Luc—whom Ms. Le Claire states is the subject of Statement #12, this does not detract from what Ms. Le Claire claims to have witnessed. Zak relies on a blog post from Jess in the days following the trip to San Francisco, but that document is hearsay and was filed as a lettered exhibit.

[145] I accept the evidence of Ms. Le Claire and how she perceived the incident in San Francisco. She was intimately linked to numerous conversations and incidents with Zak, and these statements fall in line with much of the evidence at trial. In addition, I accept the statement that Zak would have described the sexual encounter as "raping a 12-year-old" which aligns with Ms. Le Claire's statement that Jess was less enthusiastic. This manner in describing a sexual encounter is not dissimilar to Darren Eskandari's description of how Zak would refer to past sexual encounters. It does not, however, contribute to the claims of sexual and physical assault made by Mandy.

[146] Overall, the statements and conduct attributed to Ms. Le Claire are accepted by the court and fall in line with Zak's alternative lifestyle and his own descriptions of some of his consensual sexual encounters. To some, like Ms. Le Claire, those events may appear to be demeaning and to others, like Zak, they were consensual. I am of the view that Ms. Le Claire's statements are factually correct.

[147] As such, the fact that Mandy reposted the post by Ms. Le Claire does not, in my view, amount to defamation by Mandy.

Statement #15 (Hannah): "'You don't need glasses'"

Statement #16 (Hannah): "'If you can't have sex, what good are you?'"

[148] When considering these two statements which form part of Ms. Middendorf's blog, there is sufficient evidence to accept that these statements were made by Zak on a balance of probabilities.

[149] The statement about wearing glasses is referenced in Mandy's May 9, 2016, e-mail to Zak where she specifically references that he told her that she did not need to wear her glasses and that it was less important to see. There is no indication that Zak denied making such a statement at the time in their e-mail exchanges. That same e-mail exchange references the comment "chin up" as being a negative reference and not as Zak portrayed it in his evidence. Finally, that timely e-mail references a statement by Zak that he would have said, "What are you even here for if you're not fucking me."

[150] Although the fact that Mandy repeated these things time and time again does not make them true, the absence of a denial at the time by Zak and the corroborating evidence of Ms. Middendorf who claims to have heard these statements over the years leads me to conclude that the defence of justification applies to the reposting of those statements from Ms. Middendorf's post. I am of the view that justification has been made out for Statements #15 and #16.

Statement #17 (Hannah): "He proceeded to slap me and choke me against a wall, in public….in a bedroom setting, with clear boundaries and consent, it would have been fine, but…in public, it was not okay at all"

[151] The statement made by Ms. Middendorf and reposted by Mandy is, again, a combination of fact and comment. The first statement is a fact and Zak does not deny it. This incident happened, but he states that it was entirely consensual. In his response to Mandy's Facebook Post, he acknowledges the incident and apologizes if Ms. Middendorf did not appreciate it and if so, he claims that it was a mistake. The incident clearly happened, and Zak acknowledged that it could be a mistake.

[152] While Zak also relies on the statement: "it was not ok at all" as being defamatory by Ms. Middendorf, I disagree. This comment, about how she felt as a result of those actions, clearly meets the requirements of fair comment. The statements are supported by the facts of what transpired in public on the day in question, and a reasonable person, would have no difficulty considering the evidence that it happened and accepting that Ms. Middendorf's comment is something that anyone could honestly have expressed in the circumstances.

Conclusion on defamatory statements:

[153] For the reasons set out herein, I conclude that the defendant has failed to present a valid defence to Statements #1, #7, #8, #9 and #11 which form part of her Facebook Post.

Issue 7: If Zak's action is allowed, what remedy/remedies should the Court award him?

[154] I begin my analysis on the appropriate remedies with the analysis of general damages.

[155] In Hill v. Church of Scientology, the Supreme Court set out factors to consider in assessing damages for defamation. Some of those most relevant factors are:

• a. the conduct of the plaintiff;
• b. his position and standing;
• c. the nature of the libel;
• d. the mode and extent of publication;
• e. the absence or refusal of any retraction or apology;
• f. the conduct of the defendant; and,
• g. If malice is established.

[156] General damages in defamation cases are presumed from the very publication of the false statement and are awarded at large, meaning that the plaintiff does not need to demonstrate a loss. General damages in defamation cases serve three functions: (1) to console the plaintiff for the distress suffered from the publication of the defamation; (2) to repair the harm to the plaintiff's reputation; and (3) to vindicate the plaintiff's reputation: see Mina Mar Group Inc. v. Divine, 2011 ONSC 1172, at para. 13.

[157] To determine the quantum of general damages, the following factors can be considered: (1) the plaintiff's position and standing; (2) the nature and seriousness of the defamatory statements; (3) the mode and extent of the publication – this factor is particularly significant when the publication is made via the internet; (4) the absence or refusal to retract the libel or to apologize for it; (5) the conduct and motive of the defendant; (6) the presence of aggravating or mitigating circumstances: see Mina Mar Group Inc., at paras. 11-12, citing Hill, at para. 182.

[158] When dealing with the quantum of damages, the Court of Appeal for Ontario established in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128 "... While damages are presumed if defamation is established, there is no presumption about the nature or quantum of that damage. On this evidence, there is no reason to think that any damages awarded to the appellant would be anything more than modest, if not nominal.": at para. 22. This is particularly relevant to consider in this case. The plaintiff has failed to provide any convincing evidence of any monetary loss.

[159] It is clear from the jurisprudence that damages vary significantly based on the specific facts of the case. In Post v. Hillier, 2022 ONSC 3793, 162 O.R. (3d) 741, the court found that the factors of that case and the evidence of the defendant's actual malice, supported a significant damages award of $75,000.00 for both general and aggravated damages.

[160] In Rutman v. Rabinowitz, 2018 ONCA 80 at para. 67, the court found that an Internet defamation case is a key consideration for a trial judge and how the pernicious effect of defamation on the Internet distinguishes it, for the purpose of damages, from defamation in another medium.

[161] I have also considered the caselaw set out in McNairn v. Murphy, 2017 ONSC 1678, which sets out a number of factual scenarios where general damage awards were made for cases that fall in the vicinity of $75,000 and below.

[162] Keeping in mind that damage awards are very fact-specific, I make the following comments:

• a. Zak's conduct shows that he acted inconsistently in both his private and public life. Many of the comments complained of in the Facebook Post were deemed justified and do not paint Zak in a very flattering light.

• b. On the public front, Zak's reputation was already doubtful and certainly open to much criticism. He was already the subject of actions which limited his ability to be successful in the RPG industry. His position and standing on the professional front were already doubtful. Further, his success could certainly not be measured by his economic successes as he was unable to present reliable evidence of ongoing success in his career.

• c. When considering the nature of the libel, it is very serious. To make allegations of sexual assault and engaging in sexual activity without consent are very serious and certainly worthy of an award of general damages.

• d. The mode of publication is also an aggravating factor as Mandy made a specific effort to publish the Facebook Post to as wide an audience as possible.

• e. There is a clear refusal to remove the defamatory posts and no evidence of any willingness to provide a retraction or apology;

• f. Malice is not made out as already set out.

[163] What makes the assessment of general damage more unique in this situation is the fact that the defamatory posts are combined in the same publication as unflattering statements about Zak that portray him as cruel, cold and responsible for gaslighting and narcissism. These statements alone could have been sufficient to cause damage to Zak's public reputation. While the allegations of sexual assault and trauma are more damaging, it remains that some of the statements that were justified can be responsible for some of the impact of the Facebook Post.

[164] I also note that Zak's evidence of damages is not strong. He was already ostracized from some circles, banned from events and was unable to quantify his losses, although this is not a requirement for an award of general damages. Further, he has not provided evidence in line with an income loss analysis to demonstrate monetary loss. He was not able to demonstrate any significant financial loss. At the same time, I do acknowledge that there were some reactions to the Facebook Post which at least part would be attributable to the defamatory statements. In many respects, the defamatory statements worsened an already failing or inconsistent public reputation. I am unable to attribute all of the harm claimed by Zak to the defamatory statements related to sexual or physical assault. Part of the harm is attributable to his already failing reputation, how he was perceived in the industry and the statements deemed to be justified or fair comment: see Awan v. Levant, 2014 ONSC 6890 at para. 202

[165] Damages for defamatory statements attributable to sexual assault could vary significantly depending on the circumstances. The calculation of damages is influenced by the absence of monetary loss, the plaintiff's already inconsistent public reputation and the fact that the non-defamatory portions of the Facebook Post would also impact his on-line reputation. At the same time, I recognize that partial truth is not a defence. I accordingly order Mandy to pay general damages to Zak in the amount of $40,000.

[166] Turning now to exemplary damages, such an award focuses more on the conduct of the defendant, her conduct in the case and her state of mind are elements that the plaintiff can rely upon. Here, I am able to consider the motives and conduct of the defendant where they aggravate the injury done to the plaintiff: see Walker v. CFTO Ltd., 59 O.R. (2d) 104, at p. 120.

[167] I have already concluded that malice is not made out. The actions of the defendant sought to publish the Facebook Post to as large an audience as possible and this favours a finding of aggravation of damages. However, Mandy has been in the midst of a therapeutic process and while some degree of planning went into the Facebook Post, much of it was justified or deemed to be fair comment. I am of the view that the plaintiff is properly compensated by the award of general damages.

[168] When considering the litigation itself, the defendant did not prolong it or otherwise advance a position which was bound to fail. Much of her defence was successful. She presented her case in a proper manner.

[169] In all the circumstances, I do not find this to be an appropriate case for aggravated damages.

[170] The plaintiff also seeks punitive damages but my findings in this case do not demonstrate conduct which is so malicious and high-handed that it offends the Court's sense of decency. Further, punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages are insufficient to achieve the goal of punishment and deterrence: see Hillier, at paras. 46-47. There is no basis to punish the defendant in this case.

Injunctive Relief

[171] It is obvious that Mandy must remove the defamatory statements for which no defence is available. Accordingly, she must remove statements #1, #7, #8, #9 and #11 and if this cannot be done easily, she must remove the entire Facebook Post. That order will issue.

[172] Beyond that, Zak claims a permanent injunction against Mandy to obtain a retraction based on the facts of this case. Zak acknowledges that the granting of a permanent injunction in a defamation action is an exceptional and extraordinary remedy to be made in the clearest of cases.

[173] Zak relies on the fact that Mandy receives the Ontario Disability Support Program (ODSP) and has crowdfunded to cover her legal fees. He claims that there is a real possibility that he will not receive any compensation even if damages are awarded by this court.

[174] It is for this reason that Zak claims that not only should the Facebook Post be taken down, but that Mandy should be required to post a retraction in its place on her Facebook page acknowledging that her statements were false and defamatory and providing a link to this decision on.

[175] In Astley v. Verdun, 2011 ONSC 3651, 106 O.R. (3d) 792, at para. 21, Chapnik J. stated as follows:

Permanent injunctions have consistently been ordered after findings of defamation where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation given that enforcement against the defendant of any damage award may not be possible.

[176] In the present case, the actions of the defendant do not lead me to believe that she will not remove the defamatory posts if ordered to do so. To the contrary, the evidence in this case is that she has refused to remove the Facebook Post because she does not believe them to be defamatory. She has opposed the request to remove the entire Facebook Post and she has been correct in her position that many of the statements in the Facebook Post are not defamatory but are the truth. When faced with an order to remove them, I am confident that the defendant will do so. If not, the matter may be brought back before me.

[177] However, given the unlikelihood that he will recover any damages, Zak claims a public retraction. While a retraction may be appropriate in certain cases where the defamatory statements are flagrant and intentional, such is not the case with Mandy. I have already determined that malice is not made out in the circumstances. It is true that it is unlikely that Zak will recover any award given Mandy's personal circumstances as described at trial, but she is still young, and I hope that she will be able to see improvement in her health and finances some day.

[178] The court must also consider that the Facebook Post was in large part deemed to be truthful or that fair comment was established. Zak's success in this case is measured. At the same time, the allegations of physical assault, sexual assault and absence of consent are certainly aggravating factors which must be considered. I have deemed that they have not been established as truthful on a balance of probabilities. However, I have not concluded that they are false. The defamatory statements have not been demonstrated as justifiable, but I am not able to arrive at a definitive conclusion about the allegations.

[179] It is thus sufficient for an order to be made that Mandy must either remove the defamatory portions of the Facebook Post failing which the Facebook Post must be removed in its entirety.

Conclusion

[180] The plaintiff, Mr. Smith, has demonstrated that Statements #1, #7, #8, #9 and #11 are defamatory and that the there is no defence of justification or fair comment made out by the defendant, Ms. Nagy. Thus, those statements are defamatory.

[181] Mandy shall have 14 days to modify the Facebook Post to remove the defamatory statements #1, #7, #8 and #11 or to remove it in its entirety.

[182] As a result of the defamatory statements, particularly those related to sexual assault and the lack of consent, the defendant shall pay to the plaintiff the sum of $40,000 as general damages for the defamatory publication.

[183] All other claims are dismissed.

Costs

[184] If parties are unable to agree on the issue of costs, the plaintiff will have 30 days to file written costs submissions and the defendant will have 30 days to respond. Costs submissions must be no more than five (5) pages in length.

Justice Marc R. Labrosse

Released: August 11, 2025

Appendix "A"

COURT FILE NO.: CV-19-80461

DATE: 2025-08-11

ONTARIO SUPERIOR COURT OF JUSTICE

Between: Zak Smith Plaintiff/Defendant by Counterclaim

– and –

Amanda Nagy Defendant/Plaintiff by Counterclaim

REASONS FOR JUDGMENT

Justice Marc R. Labrosse

Released: August 11, 2025

[1] Ash describes themself as a queer, non-binary person. I have used gender-neutral they/them pronouns to reflect this.