In January and February 2022, thousands of peaceful Canadians gathered on Parliament Hill to protest federal Covid vaccine mandates. Some Ottawa residents did not appreciate their presence in the nation’s capital and were upset by alleged nuisances, including horn honking and idling.
In February 2022, Ottawa residents Zexi Li and Geoffrey Delaney, Happy Goat Coffee Company, and a local union (the plaintiffs) commenced a $290 million class-action lawsuit against Chris Barber, Tamara Lich, and other Freedom Convoy participants (the defendants). Their lawsuit seeks damages from the people they alleged organized the Freedom Convoy – the truckers who parked their trucks in downtown Ottawa and who honked their horns. Their lawsuit even seeks damages from all those who donated to the Freedom Convoy after February 4, 2022. They argue that every donor “knew or ought to have known” by that time that their donations would be used to commit the alleged harms to the plaintiffs.
In defence of freedom of expression and peaceful assembly, lawyer James Manson filed a motion to strike all or part of the lawsuit on December 20, 2022. In his factum, Mr. Manson argued that the lawsuit has been improperly pleaded by “lumping together” all protestors who were in Ottawa in January and February 2022 and by treating them as a single unit. He also argued that the plaintiffs had 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. This motion argued that it is improper for the plaintiffs to point to a general group of people and say that they should be held responsible without specifying who did what, what caused the alleged harm, and when.
In his motion, Mr. Manson also argues that the members of the so-called “donor class” of defendants should not be “lumped together” in this way. After all, to determine the intentions of every donor, the court would have to examine evidence with respect to every individual donor’s particular circumstances. Zexi Li and the other plaintiffs would have to prove that the intention of each donor was for the truckers to cause a nuisance. This, of course, 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, our lawyers attempted to have the lawsuit dismissed outright, launching what is known as an “anti-SLAPP” motion on behalf of Chris Barber, Tamara Lich, and the other defendants. “SLAPP” actions, or “strategic lawsuits against public participation,” are designed to intimidate and/or bankrupt critics by burdening them with the costs of a legal defence. In the words of the Supreme Court of Canada, “In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.” Defendants can, however, protect themselves via an anti-SLAPP motion, which is designed to strike down a SLAPP action and to protect the expression of critics. Anti-SLAPP motions are available to any defendant in any proceeding against them.
- Defendants using an anti-SLAPP motion need to demonstrate that their lawsuit arises from their “expression” that “relates to a matter of public interest.”
- If the defendants can do this, the plaintiffs then need to demonstrate that their lawsuit has “substantial merit” and that the defendants have no valid defences against the lawsuit.
- If the plaintiffs can demonstrate this, a judge must then weight the importance of the defendants’ expression against the importance of the plaintiffs’ allegations of harm.
- If the judge concludes that the plaintiffs’ claim is, overall, worth more than the value of protecting the defendants’ expression, then the anti-SLAPP motion will be dismissed, and the case will continue. If the judge concludes that the value of protecting the defendants’ expression is more important than the plaintiffs’ claim, then the judge will determine that the lawsuit is, in fact, a SLAPP action – a strategic lawsuit against public participation, designed to silence expression.
In their Notice of Motion, our lawyers have argued that the allegations of nuisance (e.g., horn honking, fumes, donations) do, in fact, arise from the defendants’ collective expression. The defendants, by arriving in Ottawa, by donating to the Freedom Convoy, and by participating in its activities, were all expressing in their own way strong support for the Freedom Convoy movement and strong disagreement with the federal government’s response to Covid. Our view, therefore, is that this $290 million nuisance claim does, in fact, arise from the defendants’ expression and that that expression relates to “a matter of public interest.” Further, we believe that the case of Zexi Li and the other plaintiffs contains factual and legal weaknesses; in other words, their case does not have “substantial merit,” and they cannot demonstrate that Chris Barber, Tamara Lich, and the other defendants have “no valid defences.” Finally, we believe that the value of the defendants’ expression at issue outweighs the value of the allegations of nuisance. After all, the Supreme Court of Canada has confirmed many times that political expression lies at the very core of the concept of freedom of expression. While the rights and interests protected by the legal concept of “nuisance” are also important, they are outweighed in this case by the value of the expression of the Freedom Convoy protestors.
On December 14, 2023, our lawyers proceed to oral argument at the Ontario Superior Court of Justice, arguing that lawsuit of Zexi Li and the other plaintiffs is, in fact, a SLAPP action disguised as a nuisance claim. Their lawsuit is merely intended to punish the defendants for participating in the protest. 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.”
Unfortunately, Justice Calum MacLeod dismissed the anti-SLAPP motion at the Superior Court of Ontario on February 5, 2024. This dismissal is being appealed.
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.”
