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Torts - Defamation - Justification [the Truth 'Sting']
MORE CASES
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. 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. . Teneycke v. McVety
In Teneycke v. McVety (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, this from a dismissed defendents' anti-SLAPP CJA s.137.1(3,4) motion.
Here the court considers the defamation defence of 'justification', being any sting of truth in the alleged defamatory statements:Issue 2: Did the motion judge fail to properly identify the “sting” of the expressions?
[54] The appellants submit that the motion judge failed to properly identify the “sting” of the comments when he considered the defence of justification. I disagree.
[55] To succeed on a defence of justification, a defendant to a defamation action “must establish the substantial truth of the ‘sting’, or main thrust, of the defamatory words”: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at para. 65, leave to appeal refused, [2023] S.C.C.A. No. 432. Even if the published words contain accurate facts, the defence of justification will fail if the “sting” of the defamation is untrue: Bent, at para. 107; Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at para. 23.
[56] The appellants suggest that the “sting” of Mr. McVety’s statements was that Mr. Teneycke was in a conflict of interest because of his work for Rubicon and as campaign manager for Premier Ford. The appellants further suggest that the truth of the sting is self-evident from Mr. Teneycke’s work for both Rubicon and the Premier.
[57] In the part of his decision dealing with the defence of truth, the motion judge did not explicitly identify the sting of Mr. McVety’s statements about Mr. Teneycke and Rubicon. However, earlier in his analysis, the motion judge said that “[t]he disparaging of the [respondent]’s business reputation, or the imputing of regulatory and/or criminal offenses committed by the [respondents], suffices to establish that the suit is a genuine claim in defamation”. This was clearly the “sting” of Mr. McVety’s statements; they suggested that Mr. Teneycke acted illegally and profited from combined work for the Premier and Rubicon.
[58] There was no evidence before the motion judge to support the truth of this suggestion. On the contrary, Mr. Teneycke’s evidence was that he was on a leave of absence from Rubicon in 2022 when he worked on the Premier’s campaign. In addition, his evidence was that, while Rubicon did some work for pharmaceutical companies including AstraZeneca, Rubicon did not lobby the Ontario government on behalf of pharmaceutical companies in relation to vaccine passports. On this basis, Mr. Teneycke denied that he or Rubicon profited from any of the Ontario government’s decisions related to vaccine passports. Other than pointing to the fact that Mr. Teneycke’s roles at Rubicon and in managing the Premier’s election campaign in 2022 could have given rise to a conflict of interest, the appellants presented no evidence that Mr. Teneycke or Rubicon acted illegally or that they profited from unlawfully lobbying the government to implement vaccine passports.
[59] In the circumstances, contrary to the appellants’ submission, the motion judge did identify the sting of Mr. McVety’s statements, which he described as being that the respondents acted illegally or corruptly in lobbying for vaccine passports. The motion judge made no error in concluding that there were grounds to believe that the defence of truth or justification lacked substantial merit. This does not mean that the appellants might not ultimately succeed in defending the claim based on justification, but on the record before him, the motion judge did not err in his conclusion on this issue. . Hamer v. Jane Doe
In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.
Here the court considers the defamation defence of 'justification':[81] To succeed on the defence of justification at trial, the burden is on the defendant to prove the substantial truth of the sting or main thrust of the defamation: Bent, at para. 107. In other words, “the defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true”: Bent, at para. 107, citing Peter A. Downard, The Law of Libel in Canada, 4th ed. (Toronto: LexisNexis, 2018), at §6.4. Partial truth is not a defence: Bent, at para. 108. In other words, justification is not available as a defence if part of the posts and comments are untrue. . Kohlenberg v. Canada (Attorney General)
In Kohlenberg v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses an appeal from a labour JR, which in turn dismissed an earlier defamation damages grievance.
In these quotes the court considered defamation law, here regarding 'justification':[25] Relying on Green v. Bush, 2017 MBQB 83, [2017] M.J. No. 135 (QL) at paragraph 38, and Jian v. Sing Tao Daily Ltd., 2014 ONSC 287, [2014] O.J. No. 3351 (QL) at paragraph 46, ADM Eid observed that establishing that a defamatory expression is substantially true is a defence to a defamation claim. As noted in Jian, it is not necessary to prove the truth of each word so long as the substance of the allegations is justified. In Bent v. Platnick at paragraph 107, the Supreme Court confirmed that to establish the defence of justification, a defendant must "“prove the substantial truth of the ‘“sting”, or main thrust, of the defamation’”" [citations omitted]. . Bell v. Amini
In Bell v. Amini (Ont CA, 2024) the Ontario Court of Appeal confirmed the defamation defence of 'truth':[12] Moreover, truth is a complete defence to a defamation claim: Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 32-33; Haskett v. Equifax Canada Inc. (2003), 2003 CanLII 32896 (ON CA), 63 O.R. (3d) 577 (C.A.), at para. 54. The motion judge concluded that the respondent’s statements to LAO were truthful and accurate. . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the defamation defence of 'justification':(1) The defence of justification
[65] Once a plaintiff makes a prima facie showing of defamation, the words complained of are presumed to be false. To succeed in the defence of justification, the defendant must establish the substantial truth of the "sting", or main thrust, of the defamatory words. “The sting of the words includes the expressed defamatory meaning of the words and any implication that is found to have been a correct defamatory meaning of them”: Peter A. Downard, The Law of Libel in Canada, 4th ed. (Markham: LexisNexis Canada, 2018), at paras. 6.2-6.3; CUPW, at para. 23; Bent, at para. 107; Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2nd ed., (Toronto: Thomson Reuters, 2017), at paras. 10-1, 10-47, 10-50, and 10-59. See also the Libel and Slander Act, R.S.O. 1990, c. L.12, s. 22.
[66] In assessing this defence, as well as the other defences the appellants have raised, it is important to keep in mind what was said that was allegedly defamatory, together with what reasonably would have been understood by the audience for the impugned statements. The defamation that is alleged in the Action is in relation to the words “thief alert”, “stolen” and “pay your drivers now” (in both English and Punjabi).
[67] The appellants contend that the impugned defamatory words were true because at the time they made their statements, an order existed for the respondents to pay the appellants a significant amount of money. They point to the fact that two of the appellants had received orders to pay, and decisions that they were employees and not independent contractors. In other words, they say that the “sting” of the impugned communication is properly understood to be that Cargo County was withholding money from them for work they had performed as drivers, and at the time they made their statements, that was, at its core, the true state of affairs. This is an argument that the impugned statements should not be taken literally, and that they should be understood in the context of the legitimate wage dispute the appellants were involved in with Cargo County.
[68] Whether the argument that the statements were true could prevail is informed by the interpretation given to the statements. Determining the defamatory meaning of the words complained of requires the court to ask: what would a reasonable member of the public who saw and heard the impugned statements at the time they were made understand them to mean? A statement that is alleged to be defamatory must be considered in the full context in which it is made, that is, in the context that was available and reasonably known to the intended and actual audience for the statement: WIC Radio v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420 (sub nom. Simpson v. Mair), at para. 56. The meaning of the impugned statements is determined on the basis of the record before the court and the court is not required to accept the interpretation proposed by the appellants: Catalyst, at para. 50. That said, in interpreting the words, the court “is to avoid putting the worst possible meaning” on them: WIC Radio, at para. 56.
[69] Words, even those that seem to impute a criminal offence, may be open to two meanings as different shades of meaning derive their colour from context: Brown on Defamation, at paras. 8-11. Here, the setting and background to the impugned words are the words on the banners, placards and pamphlets as well as the chanting at a protest over labour practices in a particular industry. Viewing the wider context, the ordinary listener might have understood the words “wage thief” to refer to wages wrongfully withheld. However, it is also reasonable to believe, at this stage of the proceeding, that the ordinary listener or reader could have interpreted the impugned statements quite literally: that Randeep Sandhu had committed a criminal or illegal act.
[70] Moreover, without taking too deep a dive into the record, there is evidence that the appellants did not communicate the context of the dispute that they were involved in, in particular that the CLC Proceedings were still underway, and that Cargo County had appealed the two orders to pay and had paid the full amount as a condition of its appeal. A reasonable trier of fact could conclude that the impugned words meant that either Cargo County did not owe any amounts to the appellants at that time, or it was withholding payment for good reason.
[71] To be clear, the meaning of the expression is something the court will need to determine at trial in assessing the defamation claim. However, at this stage, based on the defamatory meaning that could reasonably be given to the impugned expression, I am satisfied that there is a basis in the record and the law to support a finding that the statements that the respondents were “wage thieves” or had “stolen” the appellants wages were not substantially true. Accordingly, the defence of justification cannot be considered to weigh more in favour of the appellants such that it may be considered “valid” under s. 137.1(4)(a)(ii).
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