New trial not ordered despite error, as evidence shows consent to sexual contact
While acknowledging that the trial judge erred by reversing the burden of proof on consent in a sexual battery action, the Ontario Court of Appeal found no substantial wrong or a miscarriage of justice meriting a new trial.
In Smith v. Nagy, 2026 ONCA 545, the parties were the respondent ex-husband – an artist, tabletop role-playing game creator, and adult film performer with a notable online presence – and the appellant ex-wife, an Ontario resident.
Residing primarily in New York City and Los Angeles, the parties remained married for about a decade in a polyamorous relationship. They separated in 2017.
Nearly two years after their separation, the appellant publicly posted the following allegations on Facebook:
The appellant attached two other women’s accounts to the post.
On his blog, the respondent denied the appellant’s claims as false and attributed them to her alleged borderline personality disorder.
The respondent brought a defamation action against the appellant. In her counterclaim, the appellant alleged sexual battery and defamation through his denial posts.
On Aug. 11, 2025, Justice Marc Labrosse of the Ontario Superior Court of Justice dismissed the appellant’s defamation action and sexual battery action in her counterclaim.
The trial judge determined that the appellant failed to prove, on a balance of probabilities, that she did not consent to the sexual activity at the time and that the respondent knew or should have known about the lack of consent.
Next, the judge granted the respondent’s defamation action based on the appellant’s allegations that the respondent had sexually and physically abused her, and that abuse or trauma, without “reprieves of loving or sweet acts,” strictly characterized their relationship.
According to the judge, the justification and/or fair comment defences did not apply to:
The judge did not consider the appellant’s other allegations defamatory because the justification and/or fair comment defences applied to her claims of emotional and psychological abuse and of sexual assault involving other women.
Ultimately, the judge awarded the respondent general damages of $40,000. In fixing this amount, the judge considered the respondent’s failure to prove monetary loss and his “already failing or inconsistent public reputation” before the Facebook post.
In her appeal, the appellant challenged the dismissal of her sexual battery claim against the respondent and the defamation judgment against her, which required her to pay general damages and to delete her “defamatory” online statements.
The Court of Appeal for Ontario dismissed the appeal and declined to order a new trial. The appeal court ordered the appellant to pay the respondent $15,000 in costs, including disbursements and taxes.
The appeal court ruled that the trial judge did not err by:
The Ontario Court of Appeal addressed the partial justification defence under s. 22 of Ontario’s Libel and Slander Act, 1990, which should allegedly cover the claims that the trial judge found substantially true on their face.
The appeal court accepted that the appellant would only be liable for an unjustified charge if it resulted in additional, independent, or “qualitatively different” material injury beyond the damage due to the justified charges.
However, the appeal court held that s. 22 would not assist the appellant, as the judge determined that the unjustified charges caused additional material damage beyond the damage arising from the justified charges.
The appeal court confirmed that the unjustified charges were more serious than the justified charges and would cause additional, independent material injury beyond the reputational injury arising from the justified charges.
Justice David M. Paciocco wrote that “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.”
Regarding the appellant’s argument that the trial judge erroneously reversed the burden on consent in the sexual battery action, the Ontario Court of Appeal acknowledged that the judge mistakenly believed that the appellant bore the burden of proving non-consent.
The appeal court referred to Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 SCR 551.
Pursuant to Scalera, if a defendant in an action for the tort of battery did not dispute that contact occurred, the defendant would bear the burden of proving that the plaintiff consented or that a reasonable person in their position would have perceived consent.
However, the appeal court saw no substantial wrong or a miscarriage of justice, given that the judge found on the balance of probabilities that the respondent’s evidence affirmatively established that the appellant had consented to the sexual contact.
Here are some recent injury-related decisions by the Ontario Court of Appeal.
The Ontario Court of Appeal issued a June 18 decision dismissing a woman’s action for damages for her post-concussion syndrome arising from a motor vehicle accident upon determining that she commenced her claim beyond the relevant limitation period.
In proceedings arising from injuries due to a slip-and-fall accident in a parking lot, the Ontario Court of Appeal made a June 16 decision denying the property owner’s and the winter maintenance provider’s appeal against a decision in the injured party’s favour.
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