$290-million class action against Freedom Convoy participants

Zexi Li et al v. Chris Barber et al

[Featured image by Josh Pringle/CTV News Ottawa]

$290-million class action against Freedom Convoy participants

Zexi Li et al v. Chris Barber et al

[Featured image by Josh Pringle/CTV News Ottawa]

In February 2022, Ottawa residents Zexi Li and Geoffrey Delaney, Happy Goat Coffee Company, and a local union commenced a $290 million class-action lawsuit against Chris Barber, Tamara Lich, and other Freedom Convoy participants, seeking damages against peaceful protesters for allegedly causing a nuisance through honking or idling of vehicle engines during the Freedom Convoy protest that took place in Ottawa during the winter. This lawsuit also seeks damages from citizens who donated to the peaceful protest.

The class plaintiffs seek damages against people they allege organized the Freedom Convoy, truckers who parked their trucks in Ottawa and honked their horns, and donors who supported the Freedom Convoy.

On December 20, 2022, lawyer James Manson filed a motion to strike all or part of the ongoing class action proceedings against “Freedom Convoy”.

In his factum, Mr. Manson argues that the class action has been improperly pleaded by “lumping together” all protestors who were in Ottawa in January-February of 2022 and treating them as a single unit. It also argues that the plaintiffs have not named a specific defendant that was alleged to cause harm to a specific plaintiff, nor have they named defendants that have a reasonable chance of success at trial.

The motion put forward by Mr. Manson argues that it is improper for the plaintiffs to point to a general group of people and say they should be held responsible, without specifying who-did-what that caused the alleged harm, and when.

The plaintiffs have also named as defendants all those who donated money to the Freedom Convoy after February 4, 2022, arguing that all those donors “knew or ought to have known” by that time that their donations would be used to commit the alleged harm to the plaintiffs. Manson argues that the so-called “donor class” of defendants also cannot be “lumped together”; rather, to determine every donor’s intention, the court would have to examine evidence with respect to every individual donor’s particular circumstances. The plaintiffs would have to prove that the intent of each donor was for the truckers to cause the alleged nuisance. This would be impossible to determine.

“It is critical in every lawsuit for a plaintiff to properly plead his or her claim, so that defendants, and the court, understand the allegations and the issues raised,” said Manson on January 24, 2023. “Our view is that this lawsuit, as currently pleaded, fails to achieve that important goal. Accordingly, the court should exercise its supervisory powers and strike out the claim as currently drafted. We are confident that our arguments today will give the judge a lot to think about.”

In June 2023, lawyers in the Justice Centre network launched what is known as an “anti-SLAPP” motion (explained below). This is a preliminary motion that can only be used by defendants in a proceeding.

In order for a defendant to be successful on an anti-SLAPP motion, he or she will need to demonstrate, first, that the proceeding in question arises from the defendant’s “expression” that “relates to a matter of public interest”. If so, then the plaintiff will need to demonstrate, in return, that his or her lawsuit against the defendant has “substantial merit” and that the defendant has no valid defences to the claim. If so, then the final step of the test involves a balancing exercise where the judge must weigh the importance of the “expression” at stake in the proceeding against the importance of the plaintiffs’ allegations of harm. If the judge concludes that the lawsuit, overall, is worth “more” than the value of protecting the defendant’s expression that is at issue, then the motion will be dismissed and the case will continue. If the judge concludes the other way, then the action will be dismissed.

In Zexi Li et al v. Chris Barber et al, we have determined that the allegations of nuisance (i.e. that the horn honking, diesel fumes, monetary donations to the Freedom Convoy, and the organizational activities by various named defendants in this proceeding all amounted to a private and/or public nuisance, for which all of the defendants are jointly liable to all of the plaintiffs) in fact do arise from the defendants’ (ie: Chris Barber, Tamara Lich et al) named in the collective expression. By showing up in Ottawa, donating money to the Freedom Convoy, participating in the protest (whether by organizing food and gas, doing media interviews, honking horns, etc.), and the like, all of the defendants in their own way were expressing their strong support for the Freedom Convoy movement and their strong disagreement of the federal government’s Covid responses.

Our view in this case is that, therefore, this gigantic nuisance claim “arises from” the defendants’ expression that relates to a matter of public interest. We believe that the plaintiffs’ (Zexi Li, Happy Goat Coffee Company et al) case contains a number of factual and legal weaknesses, such that it cannot be said automatically that it has “substantial merit” as required by the anti-SLAPP test. We believe further that the plaintiffs cannot demonstrate that the defendants in this case have no valid defences.

Finally, we also believe that the value of the defendants’ expression at issue in this case outweighs the value of the allegations of nuisance that the plaintiffs have made. The Supreme Court of Canada has confirmed many times that political expression lies at the very core of the concept of freedom of expression that all Canadians enjoy. While the rights and interests protected by the legal concept of “nuisance” are also important, in this case they are outweighed by the fundamental political expression in which the defendants were engaging in this instance.

Hence, in June 2023, lawyers within the Justice Centre network commenced an anti-SLAPP motion by presenting the plaintiffs and the other defendants with our Notice of Motion, seeking a dismissal of this proceeding outright.

On July 27, 2023, the Ontario Superior Court of Justice convened a case conference with the parties’ counsel to discuss the matter and to set a hearing date for the anti-SLAPP motion. Justice MacLeod is the appointed “case management judge” in this proceeding, meaning that His Honour’s role is to shepherd this case through all of its preliminary steps (including hearing preliminary motions) up to trial, at which point another judge will conduct the trial.

“Our clients have a number of arguments to make in their defence,” said lawyer James Manson. “I remain very confident in our justice system here in Canada. At the end of the day, justice will prevail.”

On November 29, 2023, Tamara Lich and the other defendants  filed an application to dismiss Zexi Li’s $290 million class action as a Strategic Lawsuit Against Public Participation (SLAPP)–a lawsuit designed to silence the expression of peaceful protesters.

Anti-SLAPP legislation serves to protect defendants against “Strategic Lawsuits Against Public Participation” (SLAPP) and refers to lawsuits that are intended to coerce, intimidate, censor, or bankrupt critics by burdening them with the cost of legal defence with the goal that they abandon their criticism or opposition, and/or are financially impacted.. Anti-SLAPP motions are designed to end such lawsuits and are available to a defendant in any proceeding against them. Once an anti-SLAPP motion has been filed, the defendant must demonstrate that the proceeding against them arises from their expression that “relates to a matter of public interest.” If the defendant can demonstrate that their expression does relate to a matter of public interest, the plaintiff must then demonstrate that their lawsuit has “substantial merit” and that the defendant has no valid defence. A judge must then weigh the importance of the expression at stake against the importance of the plaintiff’s allegations of harm.

The anti-SLAPP mechanism was introduced into Ontario law by the Ontario legislature in 2015 in response to a growing number of lawsuits that are being brought by plaintiffs for ulterior motives.  More and more, plaintiffs are suing defendants in an effort to silence them, or otherwise interfere with their freedom of expression. A classic example of such a situation would be where someone fairly criticizes or makes a fair comment about another person. In retaliation, that other person launches a defamation lawsuit in an effort to silence the first person or make them afraid of speaking out for fear of further legal trouble. Such lawsuits, which are not brought for legitimate reasons but simply to “shut down” a defendant’s freedom of expression. Thus, the “anti-SLAPP” motion is designed to target and end such lawsuits. Anti-SLAPP motions are available to defendants in any proceeding, not just defamation lawsuits.

Lawyers in the Justice Centre network argue that the proceedings against Tamara Lich, Chris Barber and others do, in fact, arise from their expression. Donating to and participating in the Freedom Convoy amounted to an expression of support for the protest, and of disagreement with the Government of Canada’s response to Covid–matters of public interest. Further, lawyers argue that Zexi Li’s class-action lawsuit contains factual and legal weaknesses; it is not obvious that the proceeding against the defendants has “substantial merit.” Finally, lawyers argue that the defendants do have valid defences and that the value of the expression at issue outweighs the allegations of nuisance against them.

On Thursday, December 14, 2023, the parties will proceed to oral argument at the Ontario Superior Court of Justice, arguing that the plaintiffs’ entire class-action lawsuit is, in fact, a SLAPP action disguised as a nuisance claim and that the lawsuit is merely intended to punish the defendants for participating in the 2022 Freedom Convoy protest. If successful, all or part of the class-action lawsuit will be dismissed.

Lawyer James Manson stated, “Zexi Li’s lawsuit engages the very purpose that ‘anti-SLAPP’ legislation was designed to address: an attempt to silence peaceful expression, and the right of defendants to participate in public debate.”

John Carpay, President of the Justice Centre, stated “The fundamental Charter freedoms of expression, association and peaceful assembly must be vigorously protected and defended, whether they are attacked directly by government or indirectly through a misguided civil action.”

[Featured image by Josh Pringle/CTV News Ottawa]

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