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Torts - Defamation - L&SA - Justification. 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.
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