It’s been over 3 years since a Proposed Class Action lawsuit was filed in Ottawa. This was against the leaders of the infamous protest challenging lockdown measures. The case has essentially disappeared from the public consciousness, so it’s a good time to review it.
To summarize: the case hasn’t substantially moved forward. While several rulings have been handed down, they are primarily of a procedural nature.
***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.
Incidently, donations are still being sought.
As of now, the case is on hold pending the outcome of a Court of Appeal decision. The Defendants brought an anti-SLAPP Motion — which was dismissed — so they are trying again.
Mareva Injunction Against Protestors’ Asset
It wasn’t just Trudeau and Freeland who took the heavy handed approach of freezing assets. The Plaintiffs here also sought (and obtained) an ex-parte Order against the Defendants. They wanted to seize cash that could otherwise have been used to prolong the protests in Ottawa.
Justice MacLeod’s ruling was made without giving anyone the chance to make submissions on their own behalf.
Amending V.S. Striking Statement Of Claim
The Statement of Claim underwent various revisions. Successive changes typically require either consent, or a Judge to permit it. The Plaintiffs found that these were needed due to initial defects. Amending is quite common in such lawsuits.
There’s the original, amended, and fresh as amended versions.
Unsurprisingly, the Defendants moved to have the pleading struck entirely. However, Justice MacLeod had this to say about competing Motions.
[1] This motion deals with the form of the Statement of Claim in this proposed class proceeding which, for convenience, I will call the “Convoy Class Proceeding”. Technically, there are two motions, a motion by the plaintiff to amend the claim and a motion by a group of defendants to strike it. The issue is the same. Is the proposed Statement of Claim acceptable?
[35] If the parties agreed or intended that the Convoy participants would blockade the streets, disrupt the operations of the city and disrupt the normal activities of the citizens, they may be found to be joint tortfeasors. Extension of such liability to those who continued to donate funds once the nature of the activity in Ottawa became apparent may be novel but it is not impossible of success. Concerted action liability is a fact-sensitive and fact specific concept. It may be (as Ms. Belton suggests) that there are policy grounds for not extending liability to a class of donors even if the use or misuse of the funds was foreseeable. That is not an analysis that should be done at a pleadings stage.
[36] All of the necessary facts are pleaded. In some cases, they are pleaded more than once. The proposed statement of claim clearly discloses a plausible cause of action against all of the categories of defendants including the new defendants which the plaintiffs seek to name in place of the “John Doe” and “Jane Doe” defendants.
[37] There can be no prejudice in granting the amendments and adding or substituting parties for the John Doe and Jane Doe defendants. This is because no statements of defence have yet been filed and no limitation periods have expired. No one wants to be sued. Certainly no one wants to be named as a defendant in what may turn out to be protracted litigation but that is not a factor which precludes an amendment or the addition or deletion of parties.
Typically, Proposed Class Actions name a fixed number of Defendants, but allow for the possibility of many more Plaintiffs. This case was made more difficult by the possibility of including more Defendants at later dates. In a sense, it was something of a moving target.
Anti-SLAPP Motion Brought, Claiming Free Expression An Issue
The Defendants chose an interesting strategy in the Summer of 2023. They decided to bring an anti-SLAPP Motion, on the grounds that the lawsuit infringed on their right to free expression. On the surface, it seemed to be a reasonable option.
However, a serious problem faced the Defendants: anti-SLAPP laws only protect the expression if the parties are willing to admit to doing it. Justice MacLeod stated:
[19] At the first stage of the analysis, Section 137.1 is therefore engaged at least for those defendants who acknowledge having participated in the activity. I agree with the plaintiffs’ submission that the protection of s. 137.1 may not be available to a party who denies having made the expression at issue. A party cannot simultaneously claim protection for freedom of speech under anti-SLAPP legislation while denying involvement in the expression at issue.
[22] The plaintiffs represent the residents, business owners, and employees whose property rights, right to operate a business or right to pursue their livelihood were allegedly disrupted by the activities of the protesters. While the plaintiffs acknowledge the right of the protestors to make their views known to government and to seek support from the public, the plaintiffs allege that the ongoing noise, pollution, blocking of the streets and impeding use of their property and businesses was tortious or unlawful. This is a very significant issue for the exercise of rights in a free and democratic society.
Another problem the Defendants face is that many of the allegations — whether true or not — fall outside the realm of free expression, such as blocking off streets.
While the Judge agreed that the motivations behind the protest (anger of lockdown measures) was public interest, the conduct involved wasn’t necessarily protected. Ultimately, the anti-SLAPP Motion was dismissed.
Dismissal Of Anti-SLAPP Motion Appealed To ONCA
The Defendants then went to the Court of Appeal for Ontario. The Appellants’ and Respondents’ arguments are available.
Without getting into the weeds, the Appellants (Defendants) argued that Justice MacLeod didn’t apply the anti-SLAPP framework correctly. They stated that there was ample grounds within the law to dismiss the case altogether. The Respondents (Plaintiffs) countered that the Lower Court got it right, and that there was no reason to intervene. The hearing took place, but a ruling was deferred.
And that is where things remain today. As of now, the Court of Appeal has not yet handed down a decision. Of course, Leave to Appeal may still be sought by either side. It’s by no means over.
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.
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 v. Barber, 2023 ONSC 1679 (CanLII)
(7) Li v Barber, 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)
COURT DOCUMENTS:
(1) Zexi Li Statement Of Claim February 2022
(2) Zexi Li Horn Injection February 2022
(3) Zexi Li Horn Injection February 16 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
Note: this is by no means all the Court documents, just a handful of them.