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Torts - Defamation - Libel and Slander Act (LSA). Smith v. Nagy
In Smith v. Nagy (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against "the dismissal of a sexual battery claim she brought against the respondent, her former husband" and "a defamation judgment against her in his favour, requiring her to pay Mr. Smith general damages in the amount of $40,000 and to remove “defamatory statements” that she posted online, which the trial judge concluded falsely alleged that Mr. Smith sexually and physically assaulted her".
Here the court considered s.22 ['Justification'] of the Libel and Slander Act:E. Did the trial judge err by failing to apply the defence of partial justification?
[78] Ms. Nagy points out that the trial judge found numerous prima facie defamatory statements she made to be substantially true, including allegations of sexual abuse against other women. The trial judge also found that the damage Mr. Smith suffered was mitigated by “the fact that the non-defamatory portions of the Facebook Post would also impact his on-line reputation.” She argues that, considering these findings, she should have received the benefit of the full defence of partial justification, in accordance with s. 22 of the Libel and Slander Act, which provides:22 In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges. [79] While Ms. Nagy made brief reference to s. 22 in her pleadings, it did not form part of her defence at trial, and it was not referenced in her closing submissions. In all practical effect, she abandoned this issue at trial. Accordingly, I treat it as a new issue raised on appeal: see e.g., Shaver Hospital for Chest Diseases v. Slesar et al. (1979), 1979 CanLII 1662 (ON CA), 27 O.R. (2d) 383 (C.A.), leave to appeal refused, [1981] 1 S.C.R. xiii; Becker v. Toronto (City), 2020 ONCA 607, 452 D.L.R. (4th) 679, at paras. 35-39. I am not persuaded that the interests of justice require that this new issue be entertained for the first time on appeal: see Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. I will nonetheless comment on the applicability of s. 22 as the evidentiary record is sufficient to do so: Kaiman, at para. 18.
[80] I agree with Ms. Nagy that s. 22 means that an unjustified charge will only give rise to liability where it causes additional, independent, or “qualitatively different” material injury than charges which have been justified: Bent, at para. 113; Brown and Chamberlain, Law of Defamation, at § 10:15. However, it is clear on the facts and the findings of the trial judge that the unjustified charges caused additional material damage beyond the damage caused by the charges Ms. Nagy made that were justified. Therefore s. 22 would not assist Ms. Nagy.
[81] On the evidence, the factual nature of the charges shows that the unjustified charges are more serious than the justified charges and would lead to additional, independent material injury, beyond the reputational injury caused by the justified charges. Together, the unjustified charges allege that Mr. Smith subjected Ms. Nagy to a decade of unrelenting trauma in which he repeatedly sexually assaulted her. The justified charges allege that Ms. Nagy was subjected to emotional and psychological abuse, and that Mr. Smith sexually abused other women. In no way do I intend to diminish the seriousness of the allegations involving the other women, but the reputational harm caused by the unjustified charges are particularly grave in relative terms. They allege traumatic sexual violence in the context of a decade-long relationship of trust and close interdependence. Moreover, it is common sense that the more pervasive someone’s misconduct is, the worse their reputation becomes. Adding Ms. Nagy’s account to the chorus of voices accusing Mr. Smith of various forms of misconduct could only serve to materially worsen his reputation. The unjustified charges caused additional, independent reputational damage to Mr. Smith.
[82] Although the trial judge erroneously concluded that “partial justification is not a defence”, it is clear he found that the allegations of sexual assault and trauma caused material additional damage to Mr. Smith’s reputation beyond the damage caused by the allegations Ms. Nagy justified. He concluded that the unjustified sting or main thrust of the defamatory words followed from the “very serious … allegations” Ms. Nagy made “of sexual assault and engaging in sexual activity without consent”. And he held that these allegations alone justified an award of general damages, even though “some of the statements that were justified [could] be responsible for some of the impact” on Mr. Smith’s reputation (emphasis added). Notably, he reduced Mr. Smith’s damages award because of the impact of the “non-defamatory portions of the Facebook Post”, but he did not eliminate it. In my view, it can be safely said that he would not have applied the defence of partial justification, even had he recognized it.
[83] I would dismiss this ground of appeal. . Hamilton v. Vaughan
In Hamilton v. Vaughan (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, here from a dismissal of an 'anti-SLAPP motion' in a defamation action brought by their former legal counsel.
Here the court considers the Libel and Slander Act notice requirements [under s.5(1),6 LSA]:[5] On the limitations issue, the motion judge found that the LSA imposes two limitation periods: s. 5(1) requires notice to be given within six weeks of discovery if the comments were made in a newspaper or in a broadcast and s. 6 requires an action to be commenced within three months for comments in a newspaper or a broadcast. The appellant’s comments were not published in a newspaper, so she had to establish that the comment constituted a “broadcast” to trigger ss. 5(1) and 6 of the LSA. The motion judge rejected the appellant’s submission that her comments constituted a “broadcast”. Relying on Levant v. Day, 2019 ONCA 244, the motion judge held that the comments were not a broadcast because the appellant had failed to present any evidence regarding the platform where she made the comments nor did she advance any policy reasons for justifying an extension of the word “broadcast”. Therefore, the action was not statute barred by the LSA. . Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione
In Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione (Div Court, 2023) the Divisional Court considers the application of s.5(1) ['Notice of Action'] of the Libel and Slander Act to a slander:[7] Section 5(1) of the Libel and Slander Act reads:Notice of action
5(1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant. ....
(b) Did the motion judge err in finding that s. 5(1) of the Libel and Slander Act applied?
[23] The Appellant’s position is that the motion judge was bound by Ontario Court of Appeal decisions that have held that a written communication sent by email or facsimile does not engage the notice requirement in s. 5(1) of the Libel and Slander Act. Further, the Ontario Divisional Court has held that a party seeking to rely on the s. 5(1) notice requirement must lead compelling evidence about its application and that was lacking in the materials before the motion judge. The Respondents did not lead any evidence that could support a finding that the Letter sent by email in this case constitutes a “publication” that triggered notice to have been provided pursuant to s. 5(1) prior to the claim being commenced.
[24] It is the Respondents’ position that the Appellant pleaded and relied on the Libel and SlanderAct and not the common law tort of defamation. As a result, the onus was on him to show how the Libel and Slander Act applied. Here, the Appellant’s defamation claim was statute-barred by operation of s. 5(1) and so the motion judge was correct in striking the defamation pleadings since it would be a waste of court time for the claim to proceed. It would be inappropriate and unfair to the Respondents for the motion judge to have “read in” the general common law tort of defamation when the Libel and Slander Act was specifically pleaded by the Appellant.
Discussion
[25] I conclude that the motion judge erred in his alternative finding that, if this is a case to which the Libel and Slander Act does apply, then the Appellant did not comply with the notice requirement under s. 5(1) of the Act and so his defamation claim should be struck.
[26] The purpose of the s. 5(1) notice is to bring an alleged libel to the publisher or broadcaster’s attention so that they may investigate and, if deemed appropriate, publish or air a retraction, correction, or apology; this enables the publisher or broadcaster to reduce or eliminate any damages: see Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.), 2005 CanLII 19660 (ON CA), at para. 38; and J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), 2016 ONCA 375, at para. 19(iv).
[27] The Ontario Court of Appeal has affirmed that allegedly defamatory emails do not constitute a broadcast or a newspaper for the purposes of the Libel and Slander Act, and so the s. 5(1) notice requirement does not apply to them: see Janssen-Ortho Inc., at para. 6; and Weiss v. Sawyer, 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526, at paras. 28-30.
[28] The jurisprudence is also clear that oral communications made over a telephone call do not constitute a “broadcast” within the meaning of the Libel and Slander Act: see Elguindy v. Koren, 2008 CanLII 7744 (ON SC), at para. 27; and Bedessee Imports Ltd. v. K M Imports Inc., 2014 ONSC 1889, at para. 81.
[29] Section 5(1) is not triggered in this case. Simply pleading the Libel and Slander Act does not engage the s. 5(1) notice requirements. Rather, there must be an underlying newspaper publication or an underlying broadcast for s. 5(1) to apply. Here, there is no publication in a newspaper or broadcast alleged in the statement of claim. Nor was there any evidence led by the Respondents that there was a newspaper publication or broadcast at issue.
[30] The motion judge erred in finding that the Letter was subject to compliance with the notice required under s. 5(1) on the evidentiary record before him. It follows that it was not open to him to conclude that the defamation claim should be struck on this basis.
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