Update on Anti-SLAPP Motion in Class Action Lawsuit against Freedom Convoy Participants

In June 2023, lawyers in the Justice Centre network launched what is known as an “anti-SLAPP” motion. This is a preliminary motion that can only be used by defendants in a proceeding. This mechanism was introduced into Ontario law by the Ontario legislature in 2015, in response to a growing number of lawsuits that are in fact 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. 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, have become known as “SLAPP” lawsuits – “Strategic Lawsuits Against Public Participation”. 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.

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. It was decided that the motion will be heard by Justice MacLeod on October 11 and 12, 2023. 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.

“I look forward to presenting our clients’ position on this motion in Court in October;” says lawyer James Manson. “Our clients have a number of arguments to make in their defence, and the time is quickly approaching when those arguments will start to be made. I remain very confident in our justice system here in Canada. At the end of the day, justice will prevail.”

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