Did the protesters mean harm? That's at the heart of bid to toss convoy class-action

A $300-million proposed class-action lawsuit filed against convoy protesters, donors and organizers on behalf of people who live or work in Ottawa is facing another challenge, with lawyers arguing the case seeks to unfairly limit fundamental freedoms.

Superior Court Justice Calum MacLeod heard arguments on Thursday for and against a motion brought under anti-SLAPP (strategic lawsuit against public participation) legislation.

The legislation serves to protect people from vexatious lawsuits filed to silence opponents through legal and financial intimidation.

In January 2022, people calling for an end to all COVID-19 mandates arrived in Ottawa for a protest that would last for several weeks and spark the federal government to invoke the Emergencies Act.

"All of the activity here, all of the expression is political expression, which is naturally fundamentally important to our society," argued lawyer James Manson, who represents protest organizers Tamara Lich, Chris Barber and others.

"All of that has to be very, very, very protected by the court."

He argued alongside Shelley Overwater, the lawyer for organizer Patrick King, that what came to be known as the Freedom Convoy represented an important public debate.

But Paul Champ, the lawyer who is bringing forward the class-action claim, argued that was "not what's at issue here."

"It's about honking. It's about parking on the street, not for an afternoon for a protest or even a weekend for a protest, but weeks. And then idling semi-tractor trucks for prolonged periods, with the diesel fumes they emit next to residences."

Trucks lined streets in Ottawa for weeks. A judge is now deciding whether a proposed class-action case against protesters, organizers and donors should be squashed. (Adrian Wyld/The Canadian Press)

Disputed details

The judge's decision will likely hinge on weighing the intent behind the protests with their impact.

Civil servant Zexi Li, who became a prominent figure in the case after fighting for an injunction to stop the honking, is at the forefront of the lawsuit, alongside businesses Union Local 613 and Happy Goat Coffee Co. and a local server named Geoffrey Devaney.

The case has not reached the certification phase, but Champ has said thousands of people have expressed interest.

The civil arguments centre on allegations of nuisance and are playing out alongside various criminal cases alleging organizers committed mischief and obstructed police.

The day's arguments focused on both the mechanics of the protest and its effects.

Manson did not dispute that truckers gathered to protest, honked their horns or occasionally idled their vehicles. But he denied those activities were part of a "master plan" to cause distress to those living downtown.

"That is what we take issue with," he said. "Nobody can deny that there were lots of vehicles on the street. Impassable? I think that we can dispute that."

He also argued the plaintiffs cannot prove their assertions that trucks idled 24 hours per day, their allegations of damages resulting from incessant horn honking, or their characterization of the protest as an occupation.

Counter-protesters gather in response to an anti-government protest in Ottawa on Feb. 12, 2022. Residents and businesses in Ottawa are arguing that the protest caused them harm. (Patrick Doyle/The Canadian Press)

The judge himself outlined how the case might move forward along these lines.

"Although there's protected speech, are you entitled in the name of that to engage in various other activities without consequences?" MacLeod said. "What is reasonable when it comes to private nuisance?"

No chill on donors, plaintiffs argue

Champ argued that it's difficult to discuss the anti-SLAPP motion without an admission of exactly what the protesters did when they took to the streets, while Manson argued the case shouldn't move forward without evidence.

The collected affidavits touch on a number of potential ramifications from the protest, including hearing damage, lost business and health risks from diesel fumes.

All of those are too speculative, according to Manson.

But MacLeod noted that this sort of motion does not require plaintiffs to provide all of their evidence upfront. It only requires "examples of the type of evidence" they will be able to collect if the case goes forward, he said.

Protesters gather on Parliament Hill in Ottawa to demonstrate against vaccine mandates on Jan. 29, 2022. Lawyers differed Thursday on how best to define the aims of the convoy protest and its methods. (Alexander Behne/CBC)

Manson used much of his time to argue that in order for the different categories of defendants — protesters, organizers and donors — to all be held liable for the alleged nuisance, there must be a common plan to commit the offence.

One particular concern related to those who donated to the political cause, with Manson saying a decision against them would have a "profound chilling effect" on anyone who might consider giving money to future protests.

"Who would donate money to a cause knowing they could be saddled with indeterminate blanket liability for things that happened at a protest they have no idea about?" Manson said. "I wouldn't. Would you?"

Champ argued that the class-action case would only implicate people who gave donations after the GoFundMe account was suspended, with the company saying law enforcement provided evidence that the "previously peaceful demonstration has become an occupation."

By that point, people should have known what was going on, Champ said. The court should also not be considering how losing a class-action case would affect future protests, he added.

MacLeod will now deliberate on whether or not the case should be allowed to proceed to the next step. He's reserved his decision for a later date.