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Torts - Burden of Proof. 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 extensively considers seemingly-related issues of burden of proof, standard of proof and issue estoppel.
Firstly, the court considers the burden of proof in a defamation justification defence (ie. a defence of 'truth') which lies on the defamation defendant (here the alleged battery victim), here complicated by the sexual battery context of the defamation where the burden of proving sexual consent lay on the alleged batterer [considering the sexual battery case of Non-Marine Underwriters, Lloyd’s of London v. Scalera (SCC, 2000)]:B. Did the trial judge err by requiring Ms. Nagy to prove non-consent in Mr. Smith’s defamation action?
[32] In a defamation action, where the plaintiff proves that words are defamatory in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person, those words are presumed to be false where they have been communicated to a third party: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28. The burden falls to the defendant to prove that the sting of the words is substantially true if they wish to defend the lawsuit using the defence of justification: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 107. These rules operate in defamation cases involving allegations of battery: see Vanderkooy v. Vanderkooy et al., 2013 ONSC 4796, 366 D.L.R. (4th) 108, at paras. 156, 158 and 163; A.T. v. D.C., 2026 BCCA 250, at paras. 4, 53.
[33] The general underlying policy basis for requiring defendants to establish that their words are substantially true is obvious. Simply stated, “Those who give currency to a defamatory report are responsible for its truth”[4]: Vanderkooy, at para. 157, citing Raymond E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1994), at pp. 10-19 to 10-27. Put simply, people should generally[5] not make statements that will damage the reputation of others unless they know those statements to be true.
[34] The trial judge respected this body of law in his decision by imposing the burden on Ms. Nagy to prove her sexual battery allegations were true. Although the record before us is incomplete, there is no suggestion that he was asked to do otherwise. He found that Ms. Nagy had not discharged her burden because she failed to prove on the balance of probabilities that her claims of non-consent were true. She therefore did not have a defence of justification for the prima facie defamatory comments she communicated alleging that Mr. Smith sexually and physically abused her.
[35] Ms. Nagy now submits, seemingly for the first time on appeal,[6] that there is what I would call a partial exception to this rule where the prima facie defamatory statements allege battery. Ms. Nagy appears to accept that to enjoy the defence of justification for communicating an allegation of battery, the defendant must prove that the allegation of intentional touching is true. But she argues that the burden is on the plaintiff to prove consent on the balance of probabilities if they wish to defeat the defence of justification and succeed with their defamation claim. In effect, she suggests that contrary to the usual rule in a defamation action, a defendant’s claim of non-consent is presumed to be true, not false.
[36] Ms. Nagy offers no authority for what appears to me to be a novel proposition. She argues that it is supported by the reasoning applied in Scalera and the principles against inconsistency and absurdity. I am not persuaded that she is correct, and I would deny this ground of appeal. In my view, the trial judge was correct to proceed as he did.
1. The reasoning in Scalera does not support the proposed change
[37] The rule affirmed in Scalera is long-standing. As noted above, it holds that in any battery action, sexual or otherwise, once the physical contact is established, the defendant must prove consent: Scalera, at paras. 2, 6. This rule is anomalous[7] because “a plaintiff generally must prove all elements of the tort she alleges”: Scalera, at para. 18. Exceptionally, the rule affirmed in Scalera reverses the onus on the issue of consent. That rule exists, in part, because where the plaintiff has presented a prima facie case of direct interference, reversing the burden provides an incentive to the defendant, who “is in a position to say what happened”, to testify: Scalera, at para. 13. After noting this rationale for the rule, McLachlin C.J. then went on in Scalera, at para. 15, to emphasize what I would characterize as the primary reason for reversing the burden on consent in battery cases:The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. [38] Neither of these rationales apply with full force in defamation actions where the impugned charge alleges battery. It is necessary to give an alleged abuser an incentive to testify in a battery action if they can otherwise sit back and rely on the plaintiff’s burden of proof to avoid liability. In contrast, there is no need to give the alleged abuser an incentive to testify in a defamation action because, as the plaintiff, they are required to establish that the defamatory statements were made, and they are already incentivized to counter a defence of fair comment or justification if it is raised since it will put their action at risk.
[39] Meanwhile, the primary reason for the rule, quoted in para. 37 above, depends entirely upon the nature of the tort of battery. It is inextricably linked to the fact that the contact element of the tort of battery is a prima facie violation of the personal autonomy of the plaintiff. This, and the high interest in personal autonomy in one’s body, warrants the creation of an exceptional rule for battery actions that facilitates the ability of plaintiffs to obtain compensation.
[40] The tort of defamation is different. It is not about the protection of personal autonomy and does not provide compensation for battery. Its function is to protect people from the communication of statements by others that will unjustifiably damage their reputations: Torstar, at para. 2. Providing alleged victims of sexual assault with procedural assistance in resisting liability for communicating damaging allegations of battery to non-authorities will do nothing to vindicate their personal autonomy. Put simply, the policy interest undergirding the rule affirmed in Scalera would not be advanced by applying a similar rule in defamation actions.
[41] Indeed, the proposed extension of the rule affirmed in Scalera to defamation cases would turn the rule on its head. In a battery action, the alleged abuser is the defendant, and the alleged victim of the abuse is the plaintiff — i.e., the party who needs to establish a prima facie violation of their right to trigger the reverse onus. But in a defamation action, the alleged abuser is the plaintiff, and the alleged victim of the abuse is the defendant, who would get the benefit of the reverse onus without having to establish anything. Indeed, the rule would be triggered against the defamation plaintiff after the plaintiff has established a prima facie violation of their right to be free from the communication of defamatory statements. A plaintiff’s tool designed to vindicate a prima facie right would become a defendant’s tool for impeding the vindication of a prima facie right. And the presumption of falsity that the law now recognizes would be turned into a presumption of truthfulness.
[42] In support of her submission that the rule recognized in Scalera should apply in defamation actions, Ms. Nagy also raises considerations arising from the sexual nature of the battery allegation in her case. She presents the concern that putting the onus of proving consent on sexual battery complainants would raise the risk of victim-blaming, put complainants in the difficult position of having to address the alleged abuser’s belief in consent, and resurrect the myth of the “marital rape exception”. These are serious concerns, but I am not persuaded that they provide meaningful support to the extension of the rule recognized in Scalera to defamation cases.
[43] First, these concerns are particular to sexual battery cases, with the third concern being confined to defendants who are married to their alleged sexual abusers. Yet Ms. Nagy is not asking us to recognize the exception for prima facie defamatory statements alleging sexual battery alone. She asks us to recognize its application in all battery-based defamation actions. I am not persuaded that concerns affecting a subset of cases should drive a general exception in this way.
[44] Second, applying the rule recognized in Scalera to defamation cases would result in different procedural rules operating for different kinds of defamatory statements, with a presumption of falsity operating for all other prima facie defamatory statements and a presumption of truth operating for prima facie defamatory statements alleging non-consensual contact. In Scalera, the majority rejected the invitation to treat sexual battery cases differently from other battery cases, unless this was necessary to do justice: Scalera, at paras. 28-29. The same must hold true with defamation cases. Different forms of defamation should not be treated differently unless it is necessary in the interests of justice.
[45] I am far from being persuaded it is necessary to recognize this exception to the usual treatment of prima facie defamatory statements to do justice. The concerns Ms. Nagy raises can be addressed using the familiar tools of excluding irrelevant evidence, preventing abusive cross-examination, disallowing reliance on myths, and disregarding the possibility of mistaken belief in consent where it lacks an “air of reality” or rejecting it where such belief would not be reasonable because it is not supported on the objectively discernable facts.
[46] More importantly, it is not necessary for complainants to communicate prima facie defamatory allegations to non-authorities to protect their personal autonomy to control who touches their bodies. It is enough that they can make such allegations to the authorities under the shelter of qualified privilege[8] and pursue criminal prosecutions and compensation in battery actions.
[47] Although not developed in argument before us, I have considered in this regard whether the Scalera exception should be applied in defamation cases to discourage the abusive use of defamation allegations by abusers to intimidate complainants from reporting abuse. In my view, while the potential for such abuse doubtlessly exists and needs to be addressed, it does not support reversing the onus of proof on consent. The law of qualified privilege can address this concern, as can Ontario’s anti-SLAPP regime: see Courts of Justice Act, s. 137.1. The latter tool allows for the pre-trial dismissal of even meritorious defamation claims where the harm to reputation is outweighed by the public interest in expression on sexual violence, including the chilling effect such claims may have on those who allege they have been victimized: Hansman v. Neufeld, 2023 SCC 14, [2023] 1 S.C.R. 519, at paras. 5, 75-77. Adapting a rule that is founded on bodily integrity to ease the path to defending defamation allegations where the impugned communication is not made to others for the purpose of protecting bodily integrity is both unnecessary and ill-advised.
[48] I am therefore persuaded that it is not necessary in the interests of justice to treat prima facie defamatory allegations based on battery differently than other defamation allegations by extending the rule affirmed in Scalera to defamation actions. Indeed, doing so would be contrary to the interests of justice by lowering the legal restraints on the unnecessary communication of allegations damaging to the repute of others where the allegation is about battery. Next, the court considers apparent inconsistencies that can arise where - within different causes of action - 'shifting' burden (and standard) of proof situations can arise:2. The principles against inconsistency and absurdity do not support the proposed change
[49] Ms. Nagy offers the separate submission that unless the rule in Scalera imposing the burden of proving consent on the alleged batterer is applied in defamation cases involving claims of battery, inconsistent factual findings and absurd outcomes could occur. Specifically, in cases where the issue of consent cannot be affirmatively resolved one way or the other, the alleged batterer could be found liable for battery, yet the complainant could be liable for defamation for communicating a claim that he committed battery. In such cases, both parties would lose (the “hypothetical outcome”).
[50] She also argues that under the conventional approach to assigning burdens, if the suits were brought separately and the alleged abuser failed to prove consent during the sexual battery action, this would create an issue estoppel problem for him in proceeding with the defamation action (the “issue estoppel argument”). In oral argument, Ms. Nagy’s counsel submitted that it is arbitrary to stop a subsequent defamation action on this basis yet apply different burdens if the actions are tried together. She appears to be offering the alignment of the burdens of proof as the solution.
[51] I would not accept either of these submissions. The inconsistency that Ms. Nagy raises is not concerning, and the principles of res judicata, including issue estoppel, would not apply if the actions proceeded successively in the hypothetical proposed.
a. The inconsistency relied upon is not concerning
[52] First, with good reason, the law is not troubled by different outcomes that result from the operation of different rules of proof that apply in different actions arising out of the same factual allegations. The rules of proof vary according to the policy demands that are engaged in the litigation in question and where different rules of proof apply, it is to be expected that they may produce different outcomes in some close cases.
[53] This general point can readily be illustrated by the fact that individuals found not guilty in criminal prosecutions can subsequently be found civilly liable for the same factual conduct. In Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, 90 O.R. (3d) 630, for example, a judge dismissed a tort action brought by Ms. Polgrain’s estate against a nurse for allegedly sexually abusing her prior to her death because he found it to be abusive re-litigation, as the nurse had previously been acquitted after a criminal trial involving the same allegation. This court overturned the dismissal, finding that the civil suit was not abusive. Rosenburg J.A., who wrote the judgment, concluded that the mere inconsistency arising from the application of what he called different “burdens of proof”[9] will not diminish the authority or credibility of the judicial process or undermine the aim of finality: Polgrain Estate, at paras. 23-24.[10]
[54] The underlying reasons for this conclusion are obvious. Because of the juridical nature of the burden in a criminal case, the verdict of acquittal was not an affirmative finding that finally determined whether non-consensual sexual contact had occurred: Polgrain Estate, at paras. 33, 35-36. The acquittal was nothing more than a finding that the Crown had not proved the nurse’s guilt beyond a reasonable doubt: Polgrain Estate, at paras. 33, 36. Therefore, even if the estate were to prevail in the civil lawsuit after securing a finding the sexual abuse did occur, the respective verdicts would not conflict.
[55] Nor would the discrepant results be arbitrary. Any apparent disparity in the verdicts would be the natural result of the application of different rules of proof crafted for different purposes. The cautious criminal standard of proof beyond a reasonable doubt is insisted upon where liberty is at stake, while the less cautious civil standard of proof on the balance of probabilities best suits loss allocation.
[56] Ms. Nagy argues that cases such as Polgrain Estate are distinguishable because they deal with outcomes driven by standards of proof, whereas the outcomes of concern that she raises would arise from different burdens of proof. This is not a material distinction. What matters is that, just as a verdict of acquittal is not an affirmative finding that the alleged sexual abuse did not occur, a verdict upholding a sexual battery claim in a tort action is not an affirmative finding that the complainant did not consent. This is because the law does not require an affirmative finding of non-consent for liability to follow. A failure by the defendant to disprove non-consent is enough. Since a successful sexual battery verdict means no more relating to the issue of consent than that the defendant failed to prove consent, a subsequent finding in a defamation action that the complainant could not prove non-consent is not inconsistent with that verdict. Instead, the disparate outcomes are consistent with the fact that both parties were unable to marshal sufficient evidence to meet their respective burdens.
[57] Nor would the civil liability of both parties be arbitrary. Finding each of them liable for different torts would be an anticipated result of the operation of procedural rules that differ because the interests being protected in a battery action differ from the interests protected in a defamation action. In sexual battery actions, the law chooses to give the complainant the benefit of the uncertainty on the question of consent because the action concerns a prima facie violation of their personal integrity through sexual touching by a party who is conceived to be capable of presenting material evidence on the issue of consent: see Scalera, at paras. 11-13, 15 and 22. In defamation actions, the law chooses to give the plaintiff the benefit of the doubt on whether a prima facie defamatory statement is true so that it can more effectively protect personal reputations from the communication of damaging statements that the defendant should not communicate unless they know them to be true or which can otherwise be defended: Erika Chamberlain, Karen Eltis and Raymond E. Brown, Law of Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto: Carswell, 1994) (loose-leaf updated April 2026, release No. 2), at § 10:2, §3.8 (note 1). The different outcomes result from considered policy choices, and not from any discreditable failings in the law that require correction. Next, the court considers a similarly-directed respondent argument grounded in issue estoppel:b. Issue estoppel would not apply
[58] As indicated, Ms. Nagy also raises what she sees to be a related but different objection to the way the law currently allocates burdens of proof in defamation and battery cases. Specifically, she argues that if an alleged batterer failed to prove consent in a sexual battery action that had been tried first, issue estoppel would operate to defeat the alleged abuser’s subsequent defamation claim because the issue of consent had already been decided against him. If this were true where the actions proceeded sequentially, but not if they were tried together, it would discredit the operation of the law.
[59] However, the premise of this argument, that issue estoppel would apply at the subsequent defamation action, is false. I will offer the technical explanation for this conclusion, but before doing so, I would simply point out that the principles of res judicata, including issue estoppel, are “designed to advance the interests of justice”: Patrick Street Holdings Ltd. v. 11386 NL Inc., 2026 SCC 15, at para. 36. It would not advance the interests of justice to defeat the plaintiff’s defamation action by using issue estoppel, as the effect of doing so would be to relieve the defendant of the burden of proof the law assigned her, to the prejudice of the plaintiff. The plaintiff would lose the defamation action not because the defendant/complainant proved non-consent, as the law requires, but because the plaintiff failed to prove consent in a different action.
[60] Fortunately, this unfairness is avoided because the law of issue estoppel does not apply. It does not operate because the preconditions for its operation are not satisfied. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 25, those preconditions were described as requiring:(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. [61] It is the first precondition that is not met. Although both actions address the issue of consent, the same question relating to consent is not being decided in both actions if the battery claim is successful. In Heynen v. Frito Lay Canada Ltd. (1999), 1999 CanLII 1386 (ON CA), 45 O.R. (3d) 776 (C.A.), at para. 20, leave to appeal refused, [1999] S.C.C.A. No. 56, Goudge J.A. explained how to identify whether the same question has been decided:Although at a high level of generalization, two proceedings might seem to address the same question, this requirement of issue estoppel is met only if on careful analysis of the relevant facts and the applicable law the answer to the specific question in the earlier proceeding can be said to determine the issue in the subsequent proceeding. [62] A careful review of the applicable law shows that the issue of whether the complainant consented does not have to be determined in either action. It is enough for liability in a sexual battery action for the defendant to fail to prove consent affirmatively. And it is enough for liability in a defamation action arising from the communication of a battery allegation for the defendant to fail to prove non-consent affirmatively. Therefore, a failure to prove consent or non-consent does not decide whether the complainant consented or not.
[63] In contrast, if the alleged batterer had prevailed at the sexual battery action, a “careful analysis of the relevant facts” would show that the issue of consent had been resolved. Given the juridical nature of the burden, such a verdict would require an affirmative finding of consent. This decision would satisfy precondition (1) to the operation of issue estoppel at a subsequent defamation action against the complainant for communicating the same sexual assault allegation.
[64] It can therefore be seen that, depending on the verdict arrived at, differences in the burden of proof can preclude the operation of issue estoppel. In Kennedy v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 1196, at para. 65, for example, an acquittal in a Criminal Code unlawful importation case did not result in issue estoppel in an action to challenge a civil Crown seizure order arising from the same transaction. One of the explanations given was that “the onus of proof is different” between the proceedings.[11] The factual question relating to the alleged importation arising in the seizure action was not decided by the acquittal because the Crown bore the onus of proving unlawful importation (and thus the validity of the seizure) in the criminal action, while Mr. Kennedy bore the onus of proving that the seizure was unlawful in the civil action: Kennedy, at paras. 59, 65.
[65] Similarly, in Fawson Estate v. Deveau, 2016 NSCA 39, the appellant argued that issue estoppel prevented the respondents from arguing that the testator had capacity to execute beneficiary designations because the verdict at an earlier proceeding invalidated the testator’s proposed will based on her incapacity. The court disagreed after concluding that the first proceeding did not decide the capacity question that was now before it, in part because of the different burdens operating in the two proceedings: Fawson Estate, at para. 28. The case is correct. The reason the will was not approved at the earlier proceeding was that the respondents could not discharge their burden of rebutting the presumption of incapacity which arose from the circumstances of suspicion: Fawson Estate, at para. 21. Hence, the earlier proceeding did not decide the factual question of the testator’s capacity at issue in the second proceeding where the burden remained on the appellant throughout. The verdict simply meant that the respondents had failed to rebut the presumption of incapacity that operated at the first proceeding.
[66] And in British Columbia (Chief firearms officer) v. Donnelly, 2001 BCSC 724, 155 C.C.C. (3d) 183, the issue was whether issue estoppel arising from the earlier failure by the Crown to secure a firearms prohibition against Mr. Donnelly under the Criminal Code applied in a subsequent s. 74 Firearms Act reference before a provincial court judge to determine whether the denial of a firearms licence could be justified based on the same factual allegations. It was held that it did not, again because of differences in the onus of proof between the two proceedings: Donnelly, at paras. 28-30. The finding in the first proceeding that the Crown had failed to prove the risk Mr. Donnelly posed did not amount to a finding that he did not pose a risk. Therefore, it did not foreclose the issue from being tried in the subsequent proceedings where Mr. Donnelly bore the burden.
[67] In support of her position to the contrary, Ms. Nagy relies upon two decisions where judges used findings made in a sexual battery action to dismiss the related defamation action. These decisions do not support the application of issue estoppel in the circumstances under consideration.
[68] In Whitfield v. Whitfield, 2016 ONCA 720, 133 O.R. (3d) 753 (“Whitfield ONCA”), rev’g 2014 ONSC 2745 (“Whitfield ONSC”), leave to appeal refused, [2018] S.C.C.A. No. 83, Roberts J.A. relied upon the disposition of the sexual battery action as resolving the truth of the defamation action: Whitfield ONCA, at paras. 58-59. But this case did not involve the issue of consent: Whitfield ONSC, at para. 38. The sexual battery action failed because the complainant could not prove that the sexual events she alleged had occurred: Whitfield ONCA, at paras. 22-38, 58. This was the same issue that arose in the defamation action, where the burden was also on the complainant to prove that this allegation was true. Both actions concerned the same question of whether the alleged victim had proved that the alleged sexual contact occurred. Moreover, Whitfield was not an issue estoppel case. It simply involved the application of the material factual finding to both issues to which it applied in the same proceeding.
[69] The decision in Vanderkooy is similar. It also involved a trial judge finding that the battery plaintiff had not proved that the alleged sexual contact had occurred, and if it did, had not established that the contact was perpetrated by the battery defendant: Vanderkooy, at paras. 150-52, 223. He then applied this same finding in holding that the defence of justification was not made out in the opposing defamation action: Vanderkooy, at paras. 165, 224. Again, this is not an issue estoppel case, as the actions were tried together. Nor is it a case where a trial judge’s finding on consent in the battery action determined the outcome on the defence of justification. Rather, like Whitfield, it was a case where the sexual battery complainant failed to establish the elements of battery on which she bore the burden of proof and thus failed to establish justification in the related defamation action, where she bore the same burden of proof.
[70] For these reasons, I would not accept Ms. Nagy’s argument that the rule she opposes is discredited because issue estoppel would defeat the defamation action had the two actions proceeded sequentially.
c. Conclusion
[71] In my view, it does not offend the principles against inconsistency and absurdity to impose the burden on the defendant to prove non-consent in a defamation action that is based on an allegation of sexual battery. I would not accept this ground of appeal.
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