This is an update to the Proposed Class Action filed in Ottawa in February 2022, against protesters demanding an end to lockdown measures. While the case has dragged on, there has been no shortage of activity.
The lawsuit was filed alleging Defendants had been involved in nuisance activity, including:
- blocking streets and sidewalks
- incessant honking of horns
- flooding neighbourhoods with diesel fumes
***There is, of course, the absurd irony of the Plaintiffs filing a Class Action against others who were protesting in favour of freedom — and theirs included. Perhaps they would have preferred that martial law measures continue indefinitely.
After more than 3 years, it seems that certification hearings may soon be coming. Despite numerous attempts to get the case thrown out, it has survived so far.
Anti-SLAPP Laws Not Meant For This Type Of Case
Previously, the Defendants had attempted to strike the claim, arguing that it wasn’t something that (assuming that even if the facts were true) could proceed to Trial. The Judge rejected attempt.
Afterwards, an anti-SLAPP Motion was brought, on the basis that the protests amounted to “public expression”. If granted, it would allow the Court to dismiss the case if it was brought to silence that expression. However, that effort failed as well. The Defendants weren’t being sued for their expression, but for alleging committing a nuisance while exercising that expression.
[62] Yet, by bringing a s. 137.1 motion against the background of the Rouleau Report and taking the position that their interactions over several weeks could not amount to concerted action, the appellants (several of whom filed no evidence) are trying to use a light-touch screening mechanism to get rid of a case for which any determination on the merits patently will require a deep dive into the evidence and the making of extensive findings of credibility. In sum, the appellants are trying to use their s. 137.1 motion for purposes for which it is not designed or appropriate.
The Court of Appeal upheld to decision to allow the case to proceed. This isn’t to justify the Class Action filed, but the Court did make a valid point: anti-SLAPP laws weren’t designed for this type of case.
Interestingly, the Defendants also seemed to be denying that they were involved in causing these specific nuisances, while simultaneously justifying them as “expression”.
The Court of Appeal rejected several arguments about how the Superior Court had erred in applying the anti-SLAPP test. Bottom line: laws meant to protect expression didn’t apply to the tort of nuisance.
Motion For Change Of Venue Denied
The Defendants requested that the case be moved, arguing that it would be difficult, if not impossible, to get a fair Trial. Unsurprisingly, Plaintiffs filed a Motion Record and Factum in opposition to it.That Motion was dismissed as well.
Justice Glustein commented that this should have been brought much sooner, not the 3 years that it has been. Since the case began, the Defendants have filed: (a) filed a Motion to Strike; (b) filed an Anti-SLAPP Motion; and (c) appealed the Anti-SLAPP decision.
The judge also noted the defendants could have brought a change of venue application much earlier given that the lawsuit is now more than three years old. The court has already issued more than a dozen pre-certification decisions in the case, Glustein said, including rulings on Mareva orders, escrow funds and dismissal motions.
This was reported by the Ottawa Citizen as well. While not on CanLII, the decision is publicly available.
Brief Timeline Of Major Events In Case
It’s worth noting that there was been no movement in terms of hearing the case on the merits. The vast amounts of paperwork all have to do with administrative steps within the case.
February 4th, 2022: Statement of Claim (original version) is filed.
February 17th, 2022: The Court hears a request for a Mareva Injunction ex parte, meaning that the opposing side was not given notice, and not able to present a case on their own behalf. The purpose was to put convoy funds under control of the Court until a final outcome could be determined.
February 22nd, 2022: The Court granted the Injunction.
March 10th, 2022: The Court extends the Mareva Injunction until March 31st, 2022.
April 1st, 2022: The Court adjourns competing Motions until May 2nd. The Plaintiffs wanted to continue the Mareva Injunction, while the Defendants wanted it dissolved.
November 7th, 2022: The Motion to amend the Statement of Claim was supposed to have been heard. However, due to scheduling conflicts, it’s adjourned until January 2023.
November 15th, 2022: The Court hears a Motion from Chris Garrah and Benjamin Dichter, attempting to access $200,000 from the frozen funds. The stated purpose was to be able to finance a defence to this lawsuit.
December 6th, 2022: The Court denies the Motion to free up the money, but allows for the possibility to revisit the issue if circumstances change. Parties are told to try to settle the issue of costs themselves.
January 24, 2023: The Court hears arguments on 2 overlapping Motions. The Plaintiffs wanted to further amend the pleadings, while the Defendants wanted them struck for not having a Cause of Action. The decision is reserved until later.
March 13, 2023: The Court rules on the January 2023 Motions. In the end, it was about the same thing: is the pleading acceptable? It’s decided that the Statement of Claim may be changed to accommodate deficiencies.
June 9th, 2023: Court refuses to award any costs at all over 2 competing Motions. This stems from the earlier March 13th, 2023 ruling.
July 27th, 2023: The Ottawa Court sets dates for various steps within the proposed anti-SLAPP Motion. This is Section 137.1 of the Courts of Justice Act.
August 25th, 2023: Moving Party Motion Record (document collection) is served.
September 15, 2023: Cross-Examinations of various parties happened.
November 30th, 2023: Defendants file volumes I and II of their supplementary evidence.
November 30th, 2023: Defendants file their anti-SLAPP Factum (arguments).
December 7th, 2023: Responding Factum (Plaintiffs) is filed.
December 14th, 2023: Anti-SLAPP Motion is heard.
February 5th, 2024: The Ottawa Court refuses to dismiss the case under “anti-SLAPP” laws. Rather than accept the ruling, the Defendants chose to appeal it.
April 3rd, 2024: Appellants’ arguments are submitted to the ONCA.
October 15th, 2024: Respondents’ arguments are submitted.
October 28th, 2024: Ontario Court of Appeal hearing takes place, with Justices Lauwers, Brown and Coroza presiding. Defendants argue that the Superior Court should have dismissed the case under anti-SLAPP laws. The Plaintiffs counter that the correct decision was made.
March 6th, 2025: Ontario Court of Appeal dismisses anti-SLAPP Appeal.
March 18th, 2025: Court of Appeal issues a cost order of $20,000.
June 22nd, 2025: Motion for a change of venue is denied.
While Pat King was initially noted in default, that was set aside on consent. Since then, he and Joseph Janzen have filed their Statement of Defence.
This Class Action differs from most because it has yet to identify all of the Defendants who would be named, not just the Plaintiffs. After all this time, it would seem a daunting task.
It’s worth mentioning that the Plaintiffs here have put more effort into their lawsuit than virtually any of the “freedom lawyers” so far. They seem committed to see this through. Now, if only they valued their individual liberties that much.
COURT DECISIONS:
(1) Li et al. v. Barber et. al., 2022 ONSC 1176 (CanLII)
(2) Li et al. v. Barber et. al., 2022 ONSC 1543 (CanLII)
(3) Li et al. v. Barber et al., 2022 ONSC 2038 (CanLII)
(4) Li et al. v. Barber et al., 2022 ONSC 6304 (CanLII)
(5) Li et al. v. Barber et al., 2022 ONSC 6899 (CanLII)
(6) Li et al. v. Barber et al., 2023 ONSC 1679 (CanLII)
(7) Li et al. v Barber et al., 2023 ONSC 3477 (CanLII)
(8) Li et al. v. Barber et al., 2023 CanLII 67728 (ON SC)
(9) Li et al. v. Barber et al., 2024 ONSC 775 (CanLII)
(10) Li et al. v. Barber et. al., 2025 ONCA 169 (CanLII)
(11) Li et al. v. Barber et. al., 2025 ONCA 216 (CanLII)
(12) Zexi Li Reasons For Decision Change Of Venue
COURT DOCUMENTS:
(1) Zexi Li Statement Of Claim (February, 2022)
(2) Zexi Li Horn Injection (February, 2022)
(3) Zexi Li Horn Injection (February, 2022)
(4) Zexi Li Amended Statement Of Claim (February, 2022)
(5) Zexi Li Motion To Strike Defendants Factum (January, 2023)
(6) Zexi Li Fresh As Amended Statement Of Claim (March, 2023)
(7) Zexi Li Anti-SLAPP Defendants Sup. Motion Record Vol I (November, 2023)
(8) Zexi Li Anti-SLAPP Defendants Sup. Motion Record Vol II (November, 2023)
(9) Zexi Li Anti-SLAPP Moving Parties Factum (November, 2023)
(10) Zexi Li Anti-SLAPP Responding Factum (December, 2023)
(11) Zexi Li Anti-SLAPP Defendants Book Of Authorities (December, 2023)
(12) Zexi Li Anti-SLAPP Plaintiffs Book Of Authorities (December, 2023)
(13) Zexi Li Anti-SLAPP Signed Order Dismissing (March, 2024)
(14) Zexi Li APPEAL Anti-SLAPP Appellants Factum (March, 2024)
(15) Zexi Li APPEAL Anti-SLAPP Respondents Factum (October, 2024)
(16) Zexi Li Responding Motion Record Change Venue (May, 2025)
(17) Zexi Li Change Of Venue Respondents Factum (April, 2025)
(18) Zexi Li Consent Set Aside Default Judgement (June, 2025)
(19) Zexi Li Statement Of Defence King Janzen (June, 2025)
Note: this is by no means all the Court documents, just a handful of them. There’s also a website supporting the lawsuit that posts more of them.
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just lawyers in a feeding frenzy over other people’s money…
Wasn’t it shown that the main plaintiff is a federal govt employee? Would this explain the efforts of their lawyers? They would have access (directly or indirectly) to a huge bucket of money…