From: Vlad Tepes <donotreply@wordpress.com>
Date: Mon, Mar 17, 2025 at 8:38 AM
Subject: 290M$ Suit against freedom convoy by Zexi Li approved to go ahead by Ontario Appeals court
To: <david.raymond.amos333@gmail.com>
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The Ontario Court of Appeal has ruled in favor of advancing a $290 million lawsuit targeting Freedom Convoy participants
The lawsuit stems from the Freedom Convoy protest, which began on January 28, 2022, and lasted about three weeks in downtown Ottawa. Truckers and supporters gathered to oppose COVID-19 public health measures, parking trucks on public streets and causing frequent horn honking and engine idling, according to reports. The plaintiffs claim this disrupted residents, businesses, and employees in the area. Zexi Li, an Ottawa resident, filed the initial claim on February 4, 2022, which later expanded to include Happy Goat Coffee Company, 7983794 Canada Inc. (operating as Union: Local 613), and Geoffrey Devaney, representing affected residents, businesses, and employees.
Named defendants include individuals such as Chris Barber, Tamara Lich, and Patrick King, identified by the plaintiffs as key organizers, along with other participants, truckers, and donors accused of supporting the protest. The plaintiffs seek $290 million in damages for private and public nuisance, including $60 million for general damages, $70 million for business losses, $150 million for lost wages, and $10 million in punitive damages.
Several defendants, including Barber, Lich, and others, sought to dismiss the lawsuit under section 137.1 of the Courts of Justice Act, a provision that allows courts to end proceedings limiting expression on matters of public interest. They argued their convoy involvement was political expression protected by this law and that the lawsuit aimed to suppress their rights. On February 5, 2024, Justice Calum MacLeod dismissed the motion, concluding the plaintiffs met the legal threshold to proceed. The defendants appealed, asserting the motion judge erred in assessing the case’s merit, their proposed defenses, and the balance of public interest.
The appeal was heard on October 28, 2024, by Justices Peter Lauwers, David Brown, and Steve A. Coroza. In a unanimous decision written by Justice Brown, the Court of Appeal upheld the lower court’s ruling, addressing the defendants’ main arguments. The court reviewed evidence suggesting the defendants may have acted together to disrupt Ottawa’s downtown through street blockades, horn honking, and engine idling. This evidence included affidavits from residents and businesses, expert reports estimating economic losses, and findings from the Public Inquiry into the 2022 Public Order Emergency (Rouleau Report). Although the defendants denied a coordinated plan, the court found enough evidence to suggest the claims had a “real prospect of success” under section 137.1, without fully deciding their validity at this stage.
For claims against donors, represented by Brad Howland, the court noted that most funds raised were refunded or held in escrow, complicating liability questions. It deemed it premature to rule on this group, deferring the issue to a future certification motion. On the public nuisance claims, the defendants argued the plaintiffs lacked evidence of “special damages” unique to them. The court cited prior rulings and evidence of specific harm within the protest zone, finding it sufficient for this preliminary stage.
The defendants also raised defenses, including compliance with police directions under the Highway Traffic Act. The court found no evidence that police directed the prolonged parking, horn honking, or idling central to the claims, suggesting this defense may not hold. While the motion judge’s wording of the “no valid defense” test differed from Supreme Court precedent, the Court of Appeal concluded it did not alter the legal standard, which requires plaintiffs to show defenses lack a real prospect of success.
Section 137.1(4)(b) requires weighing harm to the plaintiffs against the public interest in protecting expression. The court recognized the convoy as political expression but highlighted evidence of disruption to residents and businesses. It determined that the legal questions—balancing protest rights with community impacts—warranted further judicial review, affirming the motion judge’s decision to let the case proceed.
This ruling does not resolve the lawsuit but permits it to advance, likely to a certification motion under the Class Proceedings Act, 1992. That step will determine if the case can proceed as a class action and clarify the scope of plaintiff and defendant classes. The court emphasized that section 137.1 serves as a screening tool, not a final judgment, reserving deeper factual disputes for later stages.
https://ottawaconvoyclassaction.ca/
The Lawsuit
This is a proposed class action lawsuit seeking compensation for the serious harms and losses experienced by the residents, businesses, and workers in downtown Ottawa due to the Freedom Convoy occupation.
Why?
The Defendants deliberately planned and coordinated tactics to block all the streets and roadways around Parliament Hill and the surrounding neighbourhoods, and to make as much noise and air pollution as possible to cause discomfort and distress to Ottawa residents, business, and workers to coerce governments to comply with their demands.
The non-stop blaring horns, diesel fumes, unexpected fireworks, and loud sound systems blasting music have caused the residents unbearable torment in the sanctity of their own homes.
The Defendants are aware or ought to be aware that these tactics can cause permanent physical damage and psychological harm. The Defendants have acted with wanton disregard towards the residents, businesses, and workers of Ottawa.
Canada is a free and democratic society with a long tradition of peaceful protest and assemblies. The Defendants have abused those freedoms to cause serious harm to others, innocent bystanders to the Defendants’ pursuit of their misguided political goals.
Details
Damages Claimed
The damages claimed are
- $60-million for pain and suffering and psychological distress
- $70-million for business losses
- $150-million for loss of wages
- Disgorgement of all funds raised by the Defendants to faciliate the tortious conduct
- $10-million as punitive damages
- Injunctive relief prohibiting the continuation of the tortious behaviour
- Interest
- Legal costs, including HST
Defendants
The defendants are
- Harold Jonker, West Lincoln, Ontario, as representative of all drivers who operated semi-tractor trucks and used those trucks in the tortious activities
- Jonker Trucking Inc, as representative of all owners of semi-tractor trucks that were used for the tortious activities
- Brad Howland, Kars, New Brunswick, as representative of all those who donated to the Freedom Convoy after February 4, 2022
- Chris Barber, Swift Current, Saskatchewan
- Benjamin Dichter, Toronto, Ontario
- Tamara Lich, Medicine Hat, Alberta
- Patrick King, Red Deer, Alberta
- James Bauder, Alberta
- Brigitte Belton, Wallaceburg, Ontario
- Daniel Bulford, Ottawa, Ontario
- Dale Enns, Winkler, Manitoba
- Chad Eros, Moose Jaw, Saskatchewan
- Chris Garrah, Ottawa, Ontario
- Miranda Gasior, Lloydminster, Saskatchewan
- Joe Jansen, Winkler, Manitoba
- Jason LaFace, Sudbury, Ontario
- Tom Marazzo, Amherstview, Ontario
- Ryan Mihilewicz, Prince Albert, Saskatchewan
- Sean Tiessen, Grand Forks, British Columbia
- Nicholas St. Louis (a.k.a. “@NobodyCaribou”), Ottawa, Ontario
- Freedom 2022 Human Rights and Freedoms Inc.
- GiveSendGo LLC
- Jacob Wells, Virginia Beach, Virginia
Representative Plaintiffs
The representative plaintiffs and subclasses they represent are
- Zexi Li, for all persons residing in the Occupation Zone
- Happy Goat and Union: Local 613, for all businesses operating in the Occupation Zone
- Geoffrey Devaney, for all employees working within the Occupation Zone who lost wages due to the Defendants' tortious behaviour
Those who contributed to or actively supported the Freedom Convoy are excluded from the class.
See in ClaimOccupation Zone
The proposed class includes the residents, businesses, and employees working in the area of downtown Ottawa referred to as the “Occupation Zone”, as shown on the map below.
If you live, work or do business in this zone, you will automatically be part of the proposed class action unless you contributed to or actively supported the convoy, or if you choose to opt out of the class action.
All addresses and properties on either side of Wellington Street from Booth Street to MacKenzie Avenue, MacKenzie Avenue from Wellington Street to St. Patrick Street, St. Patrick Street from MacKenzie Avenue to Sussex Drive, Sussex Drive from St. Patrick Street to Boteler Street, Boteler Street from Sussex Drive to King Edward Avenue, Kind Edward Avenue from Boteler Street to Murray Street, Murray Street from King Edward Avenue to Beausoleil Drive, Beausoleil Drive from Murray Street to Friel Street, Friel Street from Beausoleil Drive to Laurier Avenue East, Laurier Avenue East from Friel Street to Waller Street, Waller Street from Laurier Avenue to Nicholas Street, Nicholas Street from Waller Street to Laurier Avenue, Laurier Avenue from Nicholas Street to the Queen Elizabeth Driveway, Queen Elizabeth Driveway from Laurier Avenue to Somerset Street West, Somerset Street West from Queen Elizabeth Driveway to Bay Street, Bay Street from Somerset Street West to Lisgar Street, Lisgar Street from Bay Street to Bronson Avenue, Bronson Avenue from Lisgar Street to Slater Street, Slater Street from Bronson Avenue to Albert Street, Albert Street from Slater Street to Booth Street, Booth Street from Albert Street to Wellington Street.
Contact
For inquiries regarding the lawsuit please email convoyclassaction@champlaw.ca.
CITATION: Li et al. v. Barber et al., 2024 ONSC 775
COURT FILE NO.: CV-22-88514-CP
DATE: 2024/02/05
SUPERIOR COURT OF JUSTICE – ONTARIO
Proceeding under the Class Proceedings Act, 1992
RE: ZEXI LI, HAPPY GOAT COFFEE COMPANY INC., 7983794 CANADA INC
(c.o.b. as UNION: LOCAL 613) and GEOFFREY DELANEY, Plaintiffs
AND:
CHRIS BARBER, BENJAMIN DICHTER, TAMARA LICH, PATRICK KING,
JAMES BAUDER, BRIGITTE BELTON, DANIEL BULFORD, DALE ENNS,
CHAD EROS, CHRIS GARRAH, MIRANDA GASIOR, JOE JANZEN, JASON
LAFACE, TOM MARAZZO, RYAN MIHILEWICZ, SEAN TIESSEN,
NICHLOAS ST. LOUIS (a.k.a. @NOBODYCARIBOU), FREEDOM 2022
HUMAN RIGHTS AND FREEDOMS, GIVESENDGO LLC, JACOB WELLS,
HAROLD JONKER, JONKER TRUCKING INC. and BRAD HOWLAND,
Defendants
BEFORE: C. MacLeod RSJ
COUNSEL: Paul Champ, for the Plaintiffs (Responding Parties)
James Manson for the Defendants, Tamara Lich, Chris Barber, Tom Marazzo,
Sean Tiessen, Miranda Gasior, Daniel Bulford, Dale Enns, Ryan Mihilewicz, Brad
Howland, Harold Jonker, Jonker Trucking Inc. and Freedom 2022 Human Rights
and Freedoms (Moving Parties)
Shelley Overwater for defendants King & Janzen
HEARD: December 14, 2023
DECISION AND REASONS
Introduction
[1] This is the proposed class proceeding by downtown Ottawa residents, business owners and
employees against the protestors, organizers and funders of the “Freedom Convoy” that took place
in January and February of 2022.1
1 See 2022 ONSC 1176, 2022 ONSC 1351 and 2023 ONSC 1679 amongst other decisions for the factual
background and history of the litigation.
2
[2] The litigation pits the rights of individuals to use of their property and public streets, to
carry on business and to earn a living, against the rights of protestors to make their grievances
heard and to utilize pressure tactics against the government in the national capital. As a civil case,
centred on questions of liability and damage, it has little or nothing to do with the various criminal
cases making their way through the courts and is not in any way affected by the recent decision of
the Federal Court about the use of the Emergencies Act by the Government of Canada.2
[3] The motion now before the court is a motion by certain of the defendants to halt the class
proceeding pursuant to s. 137.1 of the Courts of Justice Act (CJA)3. This provision is usually
referred to as the “anti-SLAPP legislation” and these motions are referred to as “anti-SLAPP
motions”.
[4] The defendants argue that this litigation is subject to s. 137.1 and does not cross the
threshold that is required for actions arising out of expression on a matter of public interest.
Accordingly, they ask the court to stay or dismiss the action.
[5] For the reasons that follow, I decline to do so.
The anti-SLAPP legislation in Ontario
[6] In Canada, criminal law and procedure is within the exclusive jurisdiction of the Parliament
of Canada but property and civil rights and therefore the right of citizens to sue each other civilly
is within the exclusive jurisdiction of each province.4 Furthermore, although the Canadian Charter
of Rights and Freedoms5 informs the interpretation of common law rights, the Charter applies to
legislation and government action and does not regulate the rights of individuals to sue each other.6
This action is therefore governed by Ontario law and Ontario civil procedure.7
[7] Section 137.1 of the CJA was enacted in 2015 to protect freedom of expression and
discourse on matters of public interest. While most frequently associated with “libel chill”, the
legislation is not limited to defamation actions. The purpose of the amendment was to inhibit the
use of litigation to shut down debate on matters of public interest. That purpose is articulated in
subsection (1) of s. 137.1 as follows:
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
2 Canadian Constitution Foundation v. Canada (Attorney General), 2024 FC 38
3 R.S.O. 1990, c.C.43, as am.
4 Constitution Act, 1867, 30 & 31 Victoria, c.3 (UK), s. 91 (27) and s. 92 (13) & (14)
5 Constitution Act, 1982 enacted by the Canada Act, 1982, 1982, c.11 (UK), Schedule B
6 Charter, s. 32
7 Specifically, the Courts of Justice Act, RSO 1990, c. C-43 as amended, Rules of Civil Procedure, RRO 1990, Reg.
194 as amended and the Class Proceedings Act, 1992, S.O. 1992, c.6 as amended.
3
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters
of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public
interest will be hampered by fear of legal action. 8
[8] The Supreme Court of Canada has described the phenomenon which gave rise to the
legislation as follows:
“Strategic lawsuits against public participation (“SLAPPs”) are a phenomenon used to describe
exactly what the acronym refers to: lawsuits initiated against individuals or organizations that
speak out or take a position on an issue of public interest. SLAPPs are generally initiated by
plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona
fide claim, but as an indirect tool to limit the expression of others. 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.”9
[9] The Ontario legislation requires the court to apply a screening mechanism to an identified
category of cases. The mechanism is intended to “weed out litigation of doubtful merit which
unduly discourages and seeks to restrict free and open expression on matters of public interest.”10
If such a motion is brought and the case is found to relate to protected freedom of expression, the
action will only be allowed to proceed if the plaintiff can meet the statutory test. If it does not, the
action cannot proceed, and the court is obligated to stay or dismiss it.
[10] It is critical to understand the structure of the legislation. Once it is determined that the
proceeding arises from an expression that relates to a matter of public interest, the court is required
to dismiss or stay the action unless it meets the saving provision in s. 137.1 (4). This is a statutory
screening mechanism and not a determinative adjudication of the merits of the proposed action.11
[11] Section 137.1 (4) reads as follows:
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party
satisfies the judge that,
(a) there are grounds to believe that,
8 S.O. 2015, c. 23, s. 137.1 (1)
9 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 SCR 587 @ para. 2
10 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685
11 See Bent v. Platnick, 2020SCC 23 @ para. 4 and see Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023
ONCA 129 @ paras 38 & 39
4
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the
moving party’s expression is sufficiently serious that the public interest in permitting the
proceeding to continue outweighs the public interest in protecting that expression.
[12] In summary, the questions raised by the motion are firstly whether s. 137.1 is available to
the defendants against this proposed class proceeding, secondly if the plaintiff can show that the
action is a serious action to which there may be no valid defence and thirdly whether the issues
raised by the action are of sufficient importance that they outweigh any chilling effect of allowing
the litigation to continue.
[13] There has been a considerable amount of jurisprudence in relation to these provisions
including guidance from the Supreme Court of Canada. The leading authority is Pointes
Protection. 12 In Pointes, the Supreme Court observed that once the statute is engaged, the burden
of proof on this motion is more than on a motion to strike pleadings, but less than a motion for
summary judgment.
[14] The operative words of the saving provision are “grounds to believe” that the proceeding
has substantial merit and there is no valid defence. These words must be interpreted in light of the
nascent stage of the litigation when such motions will typically be brought.
[15] Paragraphs 38 and 39 of the Pointes decision read as follows:
“[38] Section 137.1(4)(a) may therefore be interpreted by distinguishing a motion
made under s. 137.1 from a motion to strike and a motion for summary judgment, both of
which are tools that remain available to parties notwithstanding the existence of s. 137.1.
The very fact that the legislature created s. 137.1 as a mechanism indicates that a s. 137.1
motion was meant to fulfil a different purpose than these other motions. While a summary
judgment motion allows parties to file a more extensive record and a motion to strike is
adjudicated solely on the pleadings, s. 137.1 contemplates that the parties will file evidence
and permits limited cross-examination. This suggests that the parties are expected to put
forward a record, commensurate with the stage of the proceeding at which the motion is
brought, that lends itself to the inquiry mandated under s. 137.1(4)(a). Thus, although the
limited record at this stage does not allow for the ultimate adjudication of the issues, it
necessarily entails an inquiry that goes beyond the parties’ pleadings to consider the
contents of the record (the extent of such consideration will be explored further in the next
section).
12 Supra @ note 8
5
[39] Accordingly, I conclude that “grounds to believe” requires that there be a basis in
the record and the law — taking into account the stage of litigation at which a s. 137.1
motion is brought — for finding that the underlying proceeding has substantial merit and
that there is no valid defence.”
[16] “No valid defence” at such a preliminary stage of the litigation cannot mean that the court
should determine definitively that there are no defences. It does however mean that simply
showing that the action has substantial merit is not enough. The plaintiff will not meet the test
unless he or she can also show it is reasonably possible that none of the available defences will
succeed. Conversely, if it appears that one of more of the defences will probably succeed, the
motion must be granted, and the action halted.13 This assessment requires an evidentiary basis,
but it does not require certainty.
Analysis & Decision
[17] It is not necessary in applying the statute to compartmentalize the steps or to examine them
in formulaic order because if the section is engaged (Step 1), the plaintiff must clear both the
“grounds to believe” test (Step 2) and the balancing exercise (Step 3).14 This motion turns
primarily on s. 137.1 (4). (Step 2)
[18] There can be no doubt that a protest against COVID-19 mandates or other policies of public
authorities or simply protesting to show displeasure with the government of the day are expressions
on matters of public interest. This is generally conceded by the plaintiffs, and they also concede
that the manner in which the protesters chose to express themselves would also engage freedom
of speech.15
[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.16
[20] At the other end of the analysis, (Step 3), it appears beyond doubt that the question at the
heart of this litigation is a serious question. To what extent does exercise of the right to protest
protect those involved from liability to residents whose lives were disrupted? To put this another
way, is it reasonable for denizens of downtown Ottawa to anticipate a certain level of disruption
because of their proximity to the seat of government? It is likely these rights overlap. Even Charter
13 Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 OR (3d) 211 @ para. 33
14 Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129 @ paras 56 & 57
15 In that regard, see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 and Canadian Broadcasting
Corp. v. Canada (Attorney General), 2011 SCC 2
16 Walsh v. Badin, 2019 ONSC 689 cited with approval Christman v. Lee-Sheriff, 2023 BCCA 363
6
protected rights are not absolute.17 It may be, however legitimate the activities of the protesters
may be determined to be by courts, the participants remain liable to those who suffered damage as
a result of the manner those activities were carried out. It is in the public interest for those
questions to be determined by the courts.
[21] In general, the analysis should not be affected by the fact that this is a proposed class
proceeding.18 Firstly, as mentioned, the action has not been certified. Secondly, class proceedings
are procedural devices to efficiently permit multiple tort victims to claim damages but they do not
alter the substantive law. Thirdly, if a class proceeding is not certified, the plaintiffs may elect to
continue the action as an ordinary proceeding. It is worth noting, however, that one of the purposes
of the Class Proceedings Act is to provide access to justice for individuals who may individually
have suffered small losses but who collectively have a right to a remedy.19 It may therefore be
unimportant whether individual plaintiffs can prove they sustained substantial damages. It is the
public interest in justice for the plaintiffs which must be weighed against the public interest against
restrictions on freedom of speech through threats of litigation.
[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.
[23] The question then is whether the evidence on this motion demonstrates grounds to believe
the plaintiff’s claims have merit and there is unlikely to be a complete defence. An unusual aspect
of this motion is the fact that I have already ruled on a previous motion that the statement of claim
disclosed reasonable causes of action against the defendants.20 I will not repeat that analysis here.
[24] The prior ruling is not challenged by the defendants. It was not appealed, and they concede
that it is theoretically possible to assert liability against certain defendants based on torts such as
private and public nuisance.21 They argue, however, that the evidence put forward by the plaintiff
is insufficient to show the case has substantial merit against each category of defendant. Recall
17 Hamilton (City) v. Loucks, 2003 CarswellOnt 3663, [2003] O.J. No. 3669, 232 D.L.R. (4th) 362, 40 C.P.C. (5th)
(SCJ) @ para 52
18 Hudspeth v Whatcott, 2017 ONSC 1708 is one of the few instances where a s. 137.1 motion has been brought in
the context of a class proceeding. While the decision provides a helpful analysis of class proceedings in the context
of defamation action, it does not deal with this point directly.
19 Hollick v. Toronto (City), 2001 SCC 68
20 See 2023 ONSC 1679, supra @ paras 7 - 12
21 While an individual suing for public nuisance without the involvement of the Attorney General must show special
damages, the case of O’Neil v. Harper, (1913) 13 DLR 649 (SCO, AD) and the English authorities cited therein
appear to remain good law. Substantial loss occasioned by a person by a blockage of a road that prevents or impairs
access to a business may be sufficient.
7
that in addition to seeking to certify classes of plaintiffs, the plaintiffs are also seeking to certify
classes of defendants. The plaintiffs claim against participants, organizers, fundraising platforms
and donors.
[25] A central requirement to fix liability against a group without showing who specifically
caused damage to each plaintiff, is the theory of joint or collective responsibility. This is critical
to the plaintiffs’ case because the plaintiffs do not assert that all of the defendants were directly
engaged in tortious activity. They rely on the principle of concerted action in which parties who
knowingly assist or encourage others to engage in tortious activity may be held jointly and
severally liable for the damage.22 As set out in the cases, it may not be necessary for all parties to
be aware that the proposed action is tortious so long as they acted in concert in furtherance of the
wrong.
[26] On my view of the evidence, there is sufficient basis to conclude that the plaintiffs have a
meritorious case. There is evidence that certain plaintiffs were subjected to what they contend to
have been extreme amounts of noise, horn honking, incessant diesel fumes and other pollution,
blockage of the streets and intimidation. There is evidence that plaintiffs had difficulty accessing
their properties and that business was disrupted, reservations cancelled, and revenue negatively
impacted.
[27] While I recognize that the defendants have denied a common intention to block the streets
or to put pressure on the government by creating hardship for residents of Ottawa, there is evidence
by which a trier of fact could conclude that disrupting daily life in the city, blocking the streets
indefinitely and making as much noise as possible were precisely what the organizers and
participants were intending. Indeed, some of them are facing criminal charges based on just such
evidence. It remains to be seen how many of those other proceedings end in convictions but
evidence that is insufficient to justify a criminal conviction may nevertheless be sufficient to show
joint or concerted action in a civil tort case. The elements of tort liability are not the same as the
elements of a criminal offence and the standard of proof is a balance of probabilities rather than
proof beyond a reasonable doubt as is the case in a criminal prosecution.
[28] The most tenuous claim advanced by the plaintiffs may be the claims against funding
platforms and donors. Here, it is the plaintiffs’ position that after it became apparent the protestors
were planning to remain in the city and to engage in unlawful activity, in particular after Go Fund
Me halted the initial crowdfunding campaign, those who continued to donate knew or ought to
have known that they were promoting the impugned harm to the plaintiffs. Indeed, the plaintiff
argues that the named fundraising platforms and the individual donors who used those platforms,
knew perfectly well that the funds were being used to prolong a protest that had become an
occupation and therefore must share liability. There are videos and text messages available which
22 See Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, @ paras. 74-77 and Fullowka v. Royal Oak
Ventures Inc., 2010 SCC 5, [2010] 1 SCR 132 @ para. 152 @ 154
8
urge protestors to “hold the line”, to “stay for as long as necessary” and to donate funds in ways
that “cannot be obstructed”.
[29] I agree with the defendants that not every individual donor may be impressed with the
necessary knowledge and I also agree there may be policy reasons that weigh against finding
individual minor donors jointly liable with the principal tortfeasors (if there are found to be any).
No doubt these arguments will also figure in the certification motion but it is premature to consider
them on this motion. There is evidence by which a court could conclude that the named defendants
share liability with the organizers and protesters.
[30] There are defences which the defendants may advance. At this point I do not believe any
of them have filed statements of defence. The evidence shows however that some of the defendants
will deny any concerted plan or any intention to cause harm. Some will deny that they engaged in
any tortious activity. They will deny that the plaintiffs suffered any significant damage and will
require the plaintiffs to prove their claims. There are allegations that all activities were lawful and
were in furtherance of the right of peaceful protest.
[31] It is plausible that some of these defences may be successful for some defendants and of
course it is always possible that the plaintiffs will fail to prove their case once their evidence is
tested under cross examination at a trial. Speculation about potentially successful defences is not
what the analysis under s. 137.1 demands.23 There is no “slam dunk defence”. Despite the
extremely thorough arguments of Mr. Manson on behalf of his clients, I am not persuaded that this
action should be halted under the anti-SLAPP provisions. It cannot be said on the limited
evidentiary record available on this motion that any of the potential defences are likely to prevail.24
Conclusion and Decision
[32] In conclusion, the defendants’ motion to stay or dismiss the action is dismissed.
[33] I have not dealt with costs. I encourage counsel to review s. 137.1 (8) of the Act and to
agree on a costs order. If they are unable to do so and wish to make costs submissions, they are to
contact my office for further direction. I may either convene a further hearing or I may be prepared
to accept submissions in writing. If I do not hear further on this point by March 5, 2024 there will
be no order as to costs.
Justice C. MacLeod
Date: February 5, 2024
23 See Hudspeth v Whatcott, 2017 ONSC 1708
24 Yates v. Iron Horse Corporation and St. Martin, 2023 ONSC 4195 @ para 100
CITATION: Li et al. v. Barber et al., 2024 ONSC 775
COURT FILE NO.: CV-22-88514-CP
DATE: 2024/02/05
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ZEXI LI, HAPPY GOAT COFFEE
COMPANY INC., 7983794 CANADA
INC (c.o.b. as UNION: LOCAL 613) and
GEOFFREY DELANEY, Plaintiffs
AND:
CHRIS BARBER, BENJAMIN
DICHTER, TAMARA LICH, PATRICK
KING, JAMES BAUDER, BRIGITTE
BELTON, DANIEL BULFORD, DALE
ENNS, CHAD EROS, CHRIS GARRAH,
MIRANDA GASIOR, JOE JANZEN,
JASON LAFACE, TOM MARAZZO,
RYAN MIHILEWICZ, SEAN TIESSEN,
NICHLOAS ST. LOUIS (a.k.a.
@NOBODYCARIBOU), FREEDOM
2022 HUMAN RIGHTS AND
FREEDOMS, GIVESENDGO LLC,
JACOB WELLS, HAROLD JONKER,
JONKER TRUCKING INC. and BRAD
HOWLAND, Defendants
COUNSEL: Paul Champ, for the Plaintiffs
(Responding Parties)
James Manson for the Defendants,
Tamara Lich, Chris Barber, Tom Marazzo,
Sean Tiessen, Miranda Gasior, Daniel
Bulford, Dale Enns, Ryan Mihilewicz,
Brad Howland, Harold Jonker, Jonker
Trucking Inc. and Freedom 2022 Human
Rights and Freedoms (Moving Parties)
Shelley Overwater for defendants King
& Janzen
DECISION AND REASONS
Released: February 5, 2024 C. MacLeod RSJ
CITATION: Li v. Barber, 2023 ONSC 1292
DIVISIONAL COURT FILE NO.: 23-057-ML
DATE: 20230303
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ZEXI LI, HAPPY GOAT COFFEE COMPANY INC., 7983794 ONTARIO INC.,
(c.o.b.) as UNION: LOCAL 613 and Geoffrey Devaney Plaintiffs (Respondents)
AND: CHRIS BARBER, BENJAMIN DICHTER, TAMARA LICH, PATRICK KING,
JAMES BAUDER, BRIGITTE BELTON, DANIEL BULFORD, DALE ENNS,
CHAD EROS, CHRIS GARRAH, MIRANDA GASIOR, JOE JANSEN, JASON
LAFACE, TOM MARAZZO, RYAN MIHILIEWICZ, SEAN TIESSEN,
NICHOLAS ST. LOUIS (a.k.a. @NOBODY CARIBOU), FREEDOM 2022
HUMAN RIGHTS AND FREEDOMS, JOHN DOE 1, JOHN DOE 2, JOHN DOE
3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 6, JOHN DOE 7, JOHN DOE 8,
JOHN DOE 9, JOHN DOE 10, JOHN DOE 11, JOHN DOE 12, JOHN DOE 13,
JOHN DOE 14, JOHN DOE 15, JOHN DOE 16, JOHN DOE 17, JOHN DOE 18,
JOHN DOE 19, JOHN DOE 20, JOHN DOE 21, JOHN DOE 22, JOHN DOE 23,
JOHN DOE 24, JOHN DOE 25, JOHN DOE 26, JOHN DOE 27, JOHN DOE 28,
JOHN DOE 29, JOHN DOE 30, JOHN DOE 31, JOHN DOE 32, JOHN DOE 33,
JOHN DOE 34, JOHN DOE 35, JOHN DOE 36, JOHN DOE 37, JOHN DOE 38,
JOHN DOE 39, JOHN DOE 40, JOHN DOE 41, JOHN DOE 42, JOHN DOE 43,
JOHN DOE 44, JOHN DOE 45, JOHN DOE 46, JOHN DOE 47, JOHN DOE 48,
JOHN DOE 49, JOHN DOE 50, JOHN DOE 51, JOHN DOE 52, JOHN DOE 53,
JOHN DOE 54, JOHN DOE 55, JOHN DOE 56, JOHN DOE 57, JOHN DOE 58,
JOHN DOE 59, JOHN DOE 60, JANE DOE 1 AND JANE DOE 2 Defendants
BEFORE: D.L. Corbett, Lococo and Trimble JJ.
COUNSEL: Paul Champ, for the Plaintiffs (Respondents)
Dimitrios (Jim) Karahalios and Daniel Z. Naymark, for the Defendants Chris
Barber and Benjamin Dichter
James Manson, for the Defendants Tamara Lich, Tom Marazzo, Chris Barber,
Sean Tiessen, Miranda Gasior, Daniel Bulford, Ryan Mihilewicz, Dale Enns, and
Freedom 2022 Human Rights and Freedoms
HEARD: In writing
ENDORSEMENT
Page: 2
[1] The motion for leave to appeal the order of Regional Senior Justice MacLeod dated
December 6, 2022 (2022 ONSC 6899) is dismissed without costs.
Lococo J.
Trimble J.
Released: March 3, 2023
CITATION: Li et al. v. Barber et al., 2022 ONSC 6899
COURT FILE NO.: CV-22-88514-CP
DATE: 2022/12/06
SUPERIOR COURT OF JUSTICE – ONTARIO
Proceeding under the Class Proceedings Act, 1992
RE: ZEXI LI, HAPPY GOAT COFFEE COMPANY INC, 7983794 CANADA INC.
(c.o.b. as UNION: LOCAL 613) and GEOFFREY DEVANEY, Plaintiffs
AND:
CHRIS BARBER, BENJAMIN DICHTER, TAMARA LICH, PATRICK KING,
JAMES BAUDER, BRIGITTE BELTON, DANIEL BULFORD, DALE ENNS,
CHAD EROS, CHRIS GARRAH, MIRANDA GASIOR, JOE JANSEN, JASON
LAFACE, TOM MARAZZO, RYAN MIHILEWICZ, SEAN TIESSEN,
NICHOLAS ST. LOUIS (a.k.a. @NOBODYCARIBOU), FREEDOM 2022
HUMAN RIGHTS AND FREEDOMS, JOHN DOE 1, JOHN DOE 2, JOHN
DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 6, JOHN DOE 7, JOHN DOE
8, JOHN DOE 9, JOHN DOE 10, JOHN DOE 11, JOHN DOE 12, JOHN DOE
13, JOHN DOE 14, JOHN DOE 15, JOHN DOE 16, JOHN DOE 17, JOHN DOE
18, JOHN DOE 19, JOHN DOE 20, JOHN DOE 21, JOHN DOE 22, JOHN DOE
23, JOHN DOE 24, JOHN DOE 25, JOHN DOE 26, JOHN DOE 27, JOHN DOE
28, JOHN DOE 29, JOHN DOE 30, JOHN DOE 31, JOHN DOE 32, JOHN DOE
33, JOHN DOE 34, JOHN DOE 35, JOHN DOE 36, JOHN DOE 37, JOHN DOE
38, JOHN DOE 39, JOHN DOE 40, JOHN DOE 41, JOHN DOE 42, JOHN DOE
43, JOHN DOE 44, JOHN DOE 45, JOHN DOE 46, JOHN DOE 47, JOHN DOE
48, JOHN DOE 49, JOHN DOE 50, JOHN DOE 51, JOHN DOE 52, JOHN DOE
53, JOHN DOE 54, JOHN DOE 55, JOHN DOE 56, JOHN DOE 57, JOHN DOE
58, JOHN DOE 59, JOHN DOE 60, JANE DOE 1 and JANE DOE 2, Defendants
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jim Karahalios and Daniel Naymark for the defendants, Dichter and Garrah
(Moving Parties)
Paul Champ for the Plaintiffs (Responding Parties)
Norman Groot as agent for Keith Wilson for Freedom 2022 Human Rights and
Freedoms
Melissa Adams and Susan Keenan, for the Attorney General of Ontario
Brigitte Belton (in person)
James Manson (observing as potential counsel for certain defendants or proposed
defendants)
HEARD: November 15, 2022
2
DECISION AND REASONS
[1] This is a motion brought by the defendants Chris Garrah and Benjamin Dichter for access
to $200,000.00 of the funds frozen by orders of this court and currently in the hands of an escrow
agent (“the escrow funds”). The moving parties argue that they need access to the escrow funds
to retain counsel and defend against the action. This includes certain currently scheduled motions
relating to the pleadings.
[2] The motion to release the funds is opposed by the plaintiffs and the Attorney General for
Ontario. Freedom Corporation1 does not necessarily oppose the motion but argues that it is
premature. The motion is supported by Brigitte Belton who is a named defendant and appeared in
person. None of the other named defendants appeared or filed materials.
[3] As I will discuss, while the escrow funds were previously in the possession of certain of
the defendants affected by a Mareva injunction, they are funds which were raised to support the
participants in the self styled “Freedom Convoy” and do not represent personal assets of the
moving parties. There is no order that now freezes their personal or business bank accounts or any
other property belonging to the defendants.
[4] Under those circumstances, the court should require robust evidence that access to the
frozen funds is the only practical way to fund a defence. In this case, the evidence falls short and
the motion is denied. My reasons are as follows.
Background
[5] The background to this litigation is well known and has been discussed in previous
decisions. A brief outline is necessary to put this decision into context. I will describe the instant
litigation and the nature of the escrow fund. I will then outline the procedural history of the action
and describe the circumstances which now motivate these defendants to seek funding.
[6] The action in which this motion takes place is a proposed class proceeding brought on
behalf of citizens of Ottawa against the organizers, participants and fund raisers involved in the
“Freedom Convoy” and the associated “occupation” of downtown Ottawa earlier this year. At a
preliminary stage in the litigation, I granted a Mareva injunction, freezing assets of certain of the
defendants who were in possession of funds raised on social media platforms to support the
participants in the Convoy. 2
[7] The escrow funds consist in part of the funds frozen by the injunction which I granted
initially on an ex parte basis on February 17, 2022.3 The escrow fund also includes funds from
other sources. The fund was augmented by amounts that had also been frozen by an order made
under the Criminal Code of Canada. A “restraint order” had been granted pursuant to s. 490.8 (3)
1 FREEDOM 2022 HUMAN RIGHTS AND FREEDOMS was incorporated under the Canada Not-for-profit
Corporations Act on January 30, 2022. Its registered address is the home address of Mr. Garrah.
2 See 2022 ONSC 1176
3 Note 2, supra
3
of the Code by Associate Chief Justice McWatt on February 10, 2022. There are also funds that
were paid into the trust fund by the TD Bank which had brought an interpleader application and
funds paid into trust at the request of the Royal Bank.
[8] The fund therefore consists of Canadian currency and cryptocurrency transferred to the
escrow agent and derived from a number of different sources. For purposes of this motion, the
moving parties only seek to access the Mareva funds and not the other “buckets” of funds described
in a chart prepared by Mr. Naymark and partially reproduced at Schedule A to these reasons. The
figures in the chart have not been verified with the escrow agent, but it is useful for descriptive
purposes.
[9] The action itself may or may not be appropriate as a class proceeding. That will be
determined at a certification motion.4 Before that motion is argued, the pleadings must be
amended, the claim must be served in some fashion on all of the defendants and the parties must
be given an opportunity to retain counsel and defend against it. Assuming the action is certified,
it will ultimately pit the right of the plaintiffs to seek tort damages against the rights of the
defendants to engage in what they assert to have been a lawful and constitutionally protected
exercise of freedom of speech and freedom of assembly.
[10] I do not have to resolve that tension today, but as I have previously observed, just because
an activity may be legal or even constitutionally protected does not mean that the manner in which
the activity was conducted cannot also be tortious. In their affidavits, the defendants seem to
conflate these ideas just as they assert that if they themselves did not honk horns or block streets,
they cannot be liable for the actions of others. In tort law, facilitating the injurious actions of
others will sometimes result in joint liability. Criminal law enforced by the state concerns itself
with concepts of guilt and punishment. Tort law enforced by individuals concerns itself with
reasonableness, foreseeability, causation and compensation. In point of fact, however, the
plaintiffs argue that the “occupation” was both illegal and tortious. They are not alone in that point
of view.
[11] The Province of Ontario, in separate proceedings, also takes the position that the activities
of the defendants constituted criminal activity and the funds raised to support the protestors
constitute “offence-related property” under the Criminal Code of Canada and “proceeds or an
instrument of unlawful activity” pursuant to the Civil Remedies Act, 2001.5 The province in other
words, seeks forfeiture of the escrow funds (or portions thereof) pursuant to both criminal and civil
statutory remedies.
[12] The parallel criminal and civil forfeiture proceedings relate to different portions of the
frozen funds and for that reason both Crown Law Office (Civil) and Crown Law Office (Criminal)
on behalf of His Majesty in Right of Ontario are affected parties. On an earlier date, at the request
of counsel for the Attorney General, I directed that the Attorney General be notified of any motions
to deal with the escrow funds and would be entitled to be heard.
4 See s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 as amended to November 22, 2022
5 Restraint order granted in Court file no. 22-23355MO and Application for civil forfeiture in court file no. CV-22-
88880.
4
[13] As discussed in my reasons for granting the injunction, the Mareva injunction was an
injunction granted only against the defendants Dichter, Lich, Garrah, St. Louis, King and Freedom
Corporation who were believed to be controlling funds raised on fundraising platforms to support
the participants in the Freedom Convoy. The manner in which the injunction was granted and the
process of converting the injunction into an escrow order and a freezing order requires a brief
review.
[14] At the time of the ex parte motion, I was persuaded on the evidence put before me by
counsel acting for the plaintiff that funds raised to finance the activities of the Convoy had been
transferred to the Mareva defendants and were about to be dissipated in a manner that would have
made them difficult to trace or recover.6 I was also persuaded that the order was properly sought
without notice despite the fact that the plaintiff was aware the Mareva defendants (except for Mr.
King) were represented by Keith Wilson, an Alberta lawyer who had appeared before this court to
oppose an earlier injunction motion brought by Mr. Champ and granted by Justice McLean (“the
anti-honking injunction”).7
[15] Some of the funds frozen by the Mareva injunction were held in bank accounts and some
were held in the form of crypto-currency. The decision attracted significant attention because it
may have been the first time a Mareva injunction had been granted at the behest of a plaintiff in a
non fraud tort action class proceeding and was one of very few such injunctions involving crypto-
currency.
[16] In the normal course, an injunction granted without notice expires at the end of ten days.
The usual result is then a motion on notice in which the plaintiff argues for an extension of the
injunction and the defendant argues that it should be dissolved or should not have been granted in
the first place. Frequently such motions turn on the question of full and frank disclosure to the
court by the party which moved without notice, on the strength of the plaintiff’s case and on the
balance of convenience.8
[17] That is not what occurred here because the motions to extend the injunction and to dissolve
the injunction were never argued on their merits. On February 28, 2022, Mr. Groot appeared as
agent for Mr. Wilson representing the Mareva defendants. Several other counsel and parties who
were affected by, or interested in, the injunction also appeared. The Mareva defendants proposed
the appointment of an escrow agent to whom the funds would be transferred and the adjournment
of the motion.
[18] At that time, it was anticipated there would still be a hearing to challenge the injunction
but the consent order provided for certain funds and crypto-currency wallets (along with keys and
passwords) to be transferred to the escrow agent. On consent, the injunction was continued in
6 See note 1, supra
7 See 2022 ONSC 1037 and 2022 ONSC 1513. Mr. Champ and Mr. Wilson had also appeared before me in order to
obtain an urgent date for that motion.
8 See O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 cited in my original decision.
5
modified form and the motion was adjourned to March 9, 2022.9 Subsequently this date was
extended to March 31, 2022 (also on consent).
[19] On March 31, 2022, I received a report from the Escrow Agent, but adjourned the motion
at the request of the plaintiff due to the volume of material that had just been served on behalf of
the Mareva defendants.10 It was still assumed that there would be a contested motion about
whether or not the injunction should have been granted and whether or not it was overly broad.
[20] Ultimately the parties – that is the plaintiffs and the Mareva defendants - and the Attorney
General reached agreement on the continuation of the escrow fund subject to a detailed
preservation order. The Mareva injunction was then dissolved against all Mareva defendants
except Patrick King (who never appeared and was not represented). I now understand that besides
settling the motions before me, this also resolved a potential appeal to the Divisional Court.
[21] The ultimate result of the consent order was to escrow all funds that had been collected by
the Mareva defendants or transferred to them by one of the fundraising platforms and which had
remained in their hands at the time the freezing orders were granted. Any restriction on the Mareva
defendants dealing with their own personal bank accounts or assets was lifted or dissolved.
[22] As discussed above, the escrow fund now consists of monies originally frozen by the
Mareva injunction as well as funds frozen by the restraint order and transferred to the escrow agent
by agreement between the Mareva defendants and the Attorney General.
[23] It is worth mentioning that there is a motion pending on behalf of the plaintiff to make
further amendments to the statement of claim and to amend the title of the proceedings to name
proposed representative defendants. At a case conference on November 3, 2022, I fixed the date
for that motion for the end of January. The moving parties wish to bring a concurrent motion to
strike certain portions of the existing statement of claim and /or of the proposed amended statement
of claim. It is in part for this step that the release of funds is sought to retain counsel.
[24] On behalf of Freedom Corporation (and as agent for Mr. Wilson), Mr. Groot filed a factum
although he did not file affidavit evidence. The purpose of this factum was to bring the court up
to date on certain events that had occurred and to explain the position of Freedom Corporation.
Counsel for the moving parties consented to the introduction of the factum and also consented to
Mr. Groot appearing on November 15, despite he (and Mr. Wilson) now having an apparent
conflict of interest.
[25] The conflict of interest arises not because Freedom Corporation and the remaining Mareva
defendants are necessarily opposed in interest in defending against the class proceeding, but
because there has been a falling out between the corporation and the other defendants. Mr. Groot
originally acted for all of the Mareva defendants including Mr. Garrah and Mr. Dichter (and
Tamara Lich who was not present or represented on this motion). At the time, those defendants
9 See 2022 ONSC 1351
10 2022 ONSC 2038
6
were members of the board of directors. I am advised that while Mr. Garrah and Mr. Dichter along
with Ms. Lich are still shown as directors of the corporation on its corporate profile registered with
Corporations Canada, in fact these directors have now resigned from the board or have been
removed. I am not privy to the details. Mr. Garrah and Mr. Dichter agree that they have been
“kicked out” of the corporation.
[26] Apparently, the corporation had been created to receive funds that were in the process of
being raised on the GiveSendGo platform after the GoFundMe campaign had ended and
GoFundMe had decided to return funds to donors. At the time the injunction was granted, Freedom
2022 had not yet completed its banking arrangements and it agreed to alternative banking
arrangements where certain of the Mareva defendants would hold funds on its behalf. The
corporation has now produced an agreement between Freedom Corporation and Jacob Wells of
GiveSendGo signed by two of the directors on behalf of the corporation on February 9, 2022. That
was one day before the restraint order was granted and just over a week before the injunction was
granted.
[27] It is the position of the corporation that all funds raised through the GiveSendGo
fundraising platform and placed with any of the Mareva defendants under the “alternative banking
arrangements” should revert to the corporation if they are ultimately released from escrow.
[28] Clearly, the corporation is now in a partially adverse relationship with the other Mareva
defendants. In addition, Mr. Wilson was recently a witness before the federal inquiry. It appears
likely he may be a witness in this proceeding. The corporation will shortly be seeking new counsel.
It is for this reason that Mr. Manson was present, but counsel for the moving parties did not want
to adjourn. He agreed on behalf of his clients to waive any conflict for the purpose of arguing the
motion and also agreed that I could receive the facts described above and set out in the factum.
[29] On behalf of the corporation, Mr. Groot stated that the corporation was not opposing the
motion, but (as he described it) as a friend of the court believed the information about the corporate
status and the banking arrangements should be disclosed to me. Mr. Groot submitted that the
motion is premature and it should await the determination of the pleading amendment motion.
Needless to say, the moving parties disagree with this.
[30] Counsel for the Attorney General on the criminal side does not oppose the requested order
provided the order does not affect the buckets of funds that relate to the restraint order. Counsel
has served notice that she will be seeking forfeiture of the funds frozen by the restraint order
pursuant to the Criminal Code in the event that certain of the defendants are convicted of criminal
offences at their upcoming criminal trials.11
[31] Counsel for the Attorney General on the civil side has served notice that the Crown seeks
civil forfeiture of the funds originally frozen by the Mareva injunction and has amended the
11 A restraint order simply imposes a temporary freeze on “offence related property” that appears to be used to
facilitate criminal activity. By contrast, a forfeiture order permanently vests those assets in the Crown in right of
Ontario. See s. 490.8 and s. 490.2 of the Criminal Code of Canada.
7
application under the Civil Remedies Act, 2001 to make that clear.12 This forfeiture claim is
intended to rank behind the claims of the plaintiff classes if they are ultimately successful in the
claim for compensation and are entitled to payment out of the frozen funds. The Attorney General
therefore supports the plaintiff in opposing the relief. In her submission, counsel for the Attorney
General argues that the funds should be preserved for the potential benefit of the plaintiffs or of
the Crown and not eroded by multiple requests for funding.13
Discussion and Analysis
[32] A leading case cited by all parties in relation to access to frozen funds following a Mareva
injunction is Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business &
Technology.14 In that case Justice Molloy distinguished between proprietary injunctions which
purport to freeze or preserve assets or property over which the plaintiff claims ownership and
Mareva injunctions which are an exception to the rule that execution is not available prior to
judgment.15 In the latter case, where the injunction freezes assets or property belonging to the
defendants, it is usual to give the defendant access to the frozen property for ordinary expenses of
daily living including reasonable legal expenses. Indeed, as counsel for the moving party points
out, there is a specific paragraph in the standard form order (including that granted by me
originally) which provides for this possibility.
[33] In the original decision of the Supreme Court of Canada which confirmed the availability
of Mareva injunctions in Canada, the court drew a slightly different distinction. In that case, the
Supreme Court held that the power of the court to freeze or protect assets that were the very subject
matter of the litigation was not only clear but was reflected in various statutes and rules of court.
The question before the court was whether injunctive relief should be available to freeze the assets
of a litigant who appeared to be moving his assets out of the jurisdiction to avoid possible judgment
and execution.16 The Mareva injunction is an intervention to prevent a defendant from defeating
the court process and, despite requiring the plaintiff to show a strong case, it is not designed to
prejudge the case or to put the plaintiff in a superior position to other creditors. Evidently, it is not
intended to be a tactical weapon to impoverish a defendant and deny the defendant the means to
oppose the litigation itself.
[34] Mr. Champ argues that the distinction made by Justice Molloy in the CIBC case must be
modified in the context of this action. He submits that the frozen funds, although seized from the
Mareva defendants are not their property or their assets. He argues that they are trust funds owned
not by the Mareva defendants but held by them on behalf of the convoy participants. Mr. Naymark
12 The Civil Remedies Act, 2001, S.O. 2001, c. 28 is provincial legislation whose purpose is preventing criminal
activity and providing remedies to victims of crime. See s. 1 of the Act.
13 It should be noted that there is no interim freezing order in the civil application because the injunction and the
subsequent agreement made that unnecessary. The AG is asserting a civil claim for forfeiture against the portion of
the frozen funds which the moving party defendants seek to access through this motion.
14 2003 CarswellOnt 35, [2003] O.J. No. 40 (SCJ)
15 See paras. 15 & 16, supra. In the former case, it is not always necessary to rely on injunctive relief as such. S.
104 of the Courts of Justice Act provides for interim recovery of personal property and Rule 45 provides for interim
preservation orders. Both of these orders are within the jurisdiction of an Associate Judge as well as a Judge.
16 Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2, [1985] S.C.J. No. 1, 15 D.L.R. (4th) 161 (SCC)
8
disputes that they are trust funds because they lack the “three certainties” required to establish a
legal trust.17 As noted above, Mr. Groot argues that the funds are actually the property of Freedom
Corporation which was to hold them for the purpose of supporting the convoy.
[35] I agree with Mr. Champ that the funds in question are in a different category from funds
seized from the defendant’s personal bank accounts because they can be clearly identified as funds
raised through a fundraising campaign. I do not find it necessary, in this analysis, to determine
whether they are legally impressed with a trust or which of various competing defendants might
be entitled to control those funds if they were to be unfrozen. Although the plaintiff cannot assert
a proprietary interest in the frozen funds, it appears the moving parties cannot do so either. Some
of the affidavits put before the court manifest an intention to distribute the funds or to return them
to donors. While there is evidence that the purpose of the funds raised for donors may have
included legal protection for participants in the convoy, there is no evidence that the funds were
intended for the personal use of the convoy organizers or the fundraisers themselves.
[36] At the time I granted the injunction, the plaintiff persuaded the court that the funds raised
on the GiveSendGo platform and subsequently paid to any of the Mareva defendants were no
longer under the control of the fund raising platform or of the original donors. I concluded that
they were in the possession and control of the Mareva defendants and were exigible. The issue of
whether or not the funds were impressed with some kind of trust in favour of the convoy
participants was not argued. What was clear was that the funds were being rapidly disbursed at
least in part to avoid government or court action to freeze those funds. There were clearly
identifiable funds in the hands of the Mareva defendants raised for the support of the convoy
participants and in the process of dissipation.18
[37] A second important point is this. There is no longer a Mareva injunction freezing the assets
or property of the Mareva defendants.19 As a consequence of the settlement of the injunction and
the agreement with the Attorney General, the fundraising funds were paid to the escrow agent and
the injunction was lifted. The trade off was to freeze the fund raising funds and to lift restrictions
on the personal assets and bank accounts of the defendants.
[38] I therefore agree with counsel for the plaintiff and with counsel for the Attorney General
that to lightly permit access to these funds by individual defendants runs the risk of similar repeated
requests by the moving parties and other defendants. This motion is brought by only two of the
named defendants and the affidavits clearly state that their new counsel require an initial retainer
of $200,000.00 which may be followed by further requests. Access to the frozen funds should not
be granted lightly because it would effectively subject the frozen funds to the “death of a thousand
cuts” and would risk undoing the effect of the agreement reached between the parties when the
injunction was lifted and the escrow fund established.
17 Certainty of intention, certainty of subject matter and certainty of objects – see for example Duca Financial
Services Credit Union Ltd. v. Bozzo, 2011 ONCA 455 @ paras. 2 & 5
18 Besides the named defendants who controlled the funds, the other convoy participants who blocked the streets or
engaged in alleged tortious activities are unidentified defendants.
19 With the possible exception of Mr. King who has never appeared or been represented.
9
[39] This alone might be insufficient reason to deny the defendants access to the funds if that
fund was the only practical way to permit the defendants to retain counsel. In the CIBC case,
Justice Molloy accepted the English precedents to the effect that a threshold requirement in
granting the relief requested was a showing that the defendant had no other assets. Access to
frozen funds is not required if the defendants have other means by which they could retain counsel
or defend themselves.
[40] In instant case, I am not satisfied that the moving parties have met that bar. Both are self
employed. Mr. Dichter is a truck driver and a producer of podcasts. He deposes that he is not
independently wealthy and has limited income but provides little in the way of details other than
deposing to his declared income for last year. Mr. Garrah is a general contractor. He too deposes
that he is not independently wealthy and that he cannot afford to retain counsel and he similarly
deposes to a modest declared income but provides little else in the way of details as to his personal
finances. In earlier affidavits, now reaffirmed by the moving parties and attached as exhibits to
their affidavits, they each declare that one of the reasons for agreeing to transfer the escrow funds
was to be relieved from the requirement in the original order that they prepare an affidavit of assets
or be cross examined.20
[41] Neither of the moving parties have made the kind of frank financial disclosure that might
be necessary to make a finding of impecuniosity.
[42] “Impecuniosity” has become something of a term of art and something of a battleground
in security for costs cases and has generated decades of jurisprudence. Without endorsing that
term of art as part of the test for access to frozen funds, the jurisprudence is helpful to this extent.
In the security for costs cases, the party relying on impecuniosity bears the burden of proving it
and is required to “do more than adduce some evidence of impecuniosity and, rather, must satisfy
the court that it is genuinely impecunious with full and frank disclosure of its financial
circumstances and its incapacity to raise the security”.21 I am not suggesting that a defendant
seeking to defend himself is in the same position as a plaintiff seeking to avoid posting security
for costs but the word “impecuniosity” was used in argument. There is no doubt that on this motion,
the moving parties have the onus. I must be satisfied that they cannot defend the action without
access to the frozen funds.
[43] I am conscious of the need for fairness. It would be fundamentally unfair to permit the
plaintiff to freeze a defendant’s assets and then deny the defendant the means to resist the plaintiff’s
court action by denying the defendant the means to do so. The allegations against the defendants
are unproven and continue to evolve. The court must be alert to ensure the litigation is not simply
a means to terrorize, persecute or punish the convoy organizers. This motion for release of funds
to fund the defence must be taken seriously but the moving parties must demonstrate that their
access to justice is imperilled. This requires more than bald statements that they cannot afford
counsel and in my view the evidence falls short.
20 Paragraph 4 of the affidavits of February 27, 2022
21 See Chill Media Inc. v. Brewers Retail Inc., 2021 ONSC 1296
10
[44] A further difficulty with the motion is the absence of any kind of proposed bill of costs or
litigation budget. The moving parties simply assert that their counsel require a retainer of
$100,000.00 for each of them. This number appears to be based on the amount that was released
to Mr. Groot’s firm as part of the agreement establishing the escrow fund. Quite apart from the
fact that the earlier payment was part of the agreement and was therefore on consent, the work
done to devise an escrow structure, to negotiate a resolution and to obtain court approval was in
the interests of all parties and the administration of justice. Presumably, all parties felt that
settlement of the outstanding motions and appeals in this manner provided a net benefit. In any
event, simply because the court released an amount with the consent of all of the parties involved
does not mean that every party to the litigation is entitled to an equivalent amount when that relief
is opposed.
Conclusion and Decision
[45] For the reasons enunciated above, I find that the moving party defendants have not
demonstrated an inability to defend against the action without access to the frozen funds. As
discussed, they are parties to an agreement to lift the injunction against their personal assets and
property in favour of establishing an escrow fund.
[46] As shown in Schedule A, the source of the escrow fund is entirely from the fundraising
done to support the convoy and not from the personal assets of the defendants. Under these
circumstances, the defendants would have to demonstrate that they have no reasonable capacity to
retain counsel and that it would be fair to use some of the frozen funds for that purpose.
[47] As further discussed above, even if funds ought to be released, there is no justification for
simply picking an amount out of the air without a legal budget. In the CIBC decision and in other
cases, when funds were released, there was a requirement that other parties scrutinize the accounts
on an ongoing basis before they were paid.
[48] The motion is dismissed. This is without prejudice to renewing it if circumstances change.
Costs
[49] If counsel are unable to agree on costs, I will entertain written submissions. Given the
considerable uncertainty as to whether or not this action will become a certified class proceeding,
however, and the fact that the plaintiff was released from the requirement of an undertaking in
damages, I am inclined to the view that costs of this motion should await the outcome of the
motions to be argued in January.
December 6, 2022
_______________________________
Mr. Justice C. MacLeod
11
Schedule A – Defendants’ Position on Makeup of the Escrow Funds
“Bucket” Original Source of Funds Amount & Particulars* Moving parties
seeking access?
1 Adopt-A-Trucker campaign
on GiveSendGo platform
(Garrah)
$375,999.68 (from Garrah Stripe
account
+
$141,481.98 (from Garrah RBC
account
___________
$517,481.66
+ 0.052312520 BTC /
0.392300813 ETH / 0.047724040
LTC / 1.1400560130 ETC3
= ~ $1,850
Yes
2 HonkHonkHodl Fundraiser
(Dichter, St. Louis et al.)
7.85919518 BTC4
= ~ $175,000
Yes
3 Freedom 2022 campaign on
GoFundMe platform
$1,393,399.18
+ 3,000.00
$1,396,399.18
(from Lich bank accounts)
No – pending
determination
on full record
4 Freedom 2022 campaign on
GiveSendGo platform
$3,401,844.30 (from Stripe
customer account ****
No – pending
determination
on full record
5 Steinbach Credit Union
bank draft (from Garrah) $10,000.00 No – pending
determination
on full record
* Adapted from the Chart Uploaded by the Defendants –
Bank account numbers have not been reproduced
CITATION: Li et al. v. Barber et al., 2022 ONSC 6899
COURT FILE NO.: CV-22-88514-CP
DATE: 2022/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ZEXI LI, HAPPY GOAT COFFEE
COMPANY INC, 7983794
CANADA INC. (c.o.b. as
UNION: LOCAL 613) and
GEOFFREY DEVANEY, Plaintiffs
AND:
CHRIS BARBER, BENJAMIN
DICHTER, TAMARA LICH,
PATRICK KING, JAMES BAUDER,
BRIGITTE BELTON, DANIEL
BULFORD, DALE ENNS, CHAD
EROS, CHRIS GARRAH, MIRANDA
GASIOR, JOE JANSEN, JASON
LAFACE, TOM MARAZZO, RYAN
MIHILEWICZ, SEAN TIESSEN,
NICHOLAS ST. LOUIS (a.k.a.
@NOBODYCARIBOU),
FREEDOM 2022 HUMAN RIGHTS
AND FREEDOMS, JOHN DOE 1,
JOHN DOE 2, JOHN DOE 3, JOHN
DOE 4, JOHN DOE 5, JOHN DOE 6,
JOHN DOE 7, JOHN DOE 8, JOHN
DOE 9, JOHN DOE 10, JOHN DOE 11,
JOHN DOE 12, JOHN DOE 13, JOHN
DOE 14, JOHN DOE 15, JOHN DOE
16, JOHN DOE 17, JOHN DOE 18,
JOHN DOE 19, JOHN DOE 20,
JOHN DOE 21, JOHN DOE 22, JOHN
DOE 23, JOHN DOE 24, JOHN DOE
25, JOHN DOE 26, JOHN DOE 27,
JOHN DOE 28, JOHN DOE 29, JOHN
DOE 30, JOHN DOE 31, JOHN DOE
32, JOHN DOE 33, JOHN DOE 34,
JOHN DOE 35, JOHN DOE 36, JOHN
DOE 37, JOHN DOE 38, JOHN DOE
39, JOHN DOE 40, JOHN DOE 41,
JOHN DOE 42, JOHN DOE 43, JOHN
DOE 44, JOHN DOE 45, JOHN DOE
46, JOHN DOE 47, JOHN DOE 48,
JOHN DOE 49, JOHN DOE 50,
JOHN DOE 51, JOHN DOE 52, JOHN
DOE 53, JOHN DOE 54, JOHN DOE
55, JOHN DOE 56, JOHN DOE 57,
JOHN DOE 58, JOHN DOE 59, JOHN
DOE 60, JANE DOE 1 and JANE DOE
2, Defendants
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Jim Karahalios and Daniel Naymark for
the defendants, Dichter and Garrah
(Moving Parties)
Paul Champ for the Plaintiffs
(Responding Parties)
Norman Groot as agent for Keith Wilson
for Freedom 2022 Human Rights and
Freedoms
Melissa Adams and Susan Keenan, for
the Attorney General of Ontario
Brigitte Belton (in person)
James Manson (observing as potential
counsel for certain defendants or
proposed defendants)
DECISION AND REASONS
Regional Senior. Justice C. MacLeod
Released: December 6, 2022
Behind HonkHonk Hodl: The story of the trucker convoy's 'bitcoin team lead'
Ethan Lou: No matter how immune bitcoin is from governmental power, its value and utility will always be undermined by the fact that its users are not
Last year, I had a book out, and among my many media appearances was one on a podcast called Bitcoin Stoa, with a black-bearded man I knew only as Nick and the pseudonym “Nobody Caribou.” I didn’t think much about that interview until months later, in February, when thousands of so-called “freedom convoy” protesters paralyzed Ottawa and supply chains nationwide. I tuned in to a livestream of the protesters’ press conference that was later posted on the Bitcoin Stoa YouTube channel and was surprised to see a familiar face: Nick, who introduced himself as their “bitcoin team lead.”
Nick had started a bitcoin donation drive for the protesters. Unexpectedly, it went on to raise more than $1.1 million, its records show, as the convoy’s other sources of funding came under attack through freezes, court orders and the federal government’s Emergencies Act.
Support for Nick’s donation drive had surged because bitcoin is not like traditional currencies and can’t be frozen or seized in the same way. To many investors and advocates, that’s the source of its value and utility. Nick’s shepherding of the bitcoin donations became a public demonstration of that power.
But at the same time, it became a lightning rod, drawing criticism and specific government measures that put the same value and utility to the test. Nick, who despite being open about his fundraising on social media had never revealed his last name, eventually found himself outed in a lawsuit by Ottawa residents that identified him as Nicholas St. Louis, a local man. The pressure on him had become increasingly harsh.
St. Louis and I reconnected this week. While he wasn’t immediately available for an interview, he did briefly tell me, “I’ve witnessed some of the most beautiful things and also some of the darkest things in my life.”
St. Louis’s day job is as a physiotherapist, with degrees from Western University and the University of Ottawa. In late January, when the convoy came to Ottawa to protest pandemic restrictions and all manner of perceived injustices, he set up a donation portal for them within a day. It was simple and unambitious, a QR code on his Twitter account pointing to an address for a digital wallet.
“I thought it would be good if we could raise a few million sats,” St. Louis recounted in a recent public Twitter Spaces audio discussion, using the term for the smallest division of a bitcoin. A million sats, or satoshis, would be about $475. Bitcoin, with libertarian beginnings, seemed a natural match for a protest espousing individual freedoms. St. Louis said he simply wanted to introduce the cryptocurrency to more people.
But his efforts soon took on greater significance, as the protests grew disruptive and made headlines around the world. The crowdfunding site GoFundMe, Toronto-Dominion Bank and a court order sought by the Ontario government froze more than $20 million raised through more traditional methods. And Ottawa residents, fed up with the disruption, filed a class-action lawsuit against the protesters that also targeted their funding.
So, protest organizers officially embraced St. Louis and his donation drive. More bitcoiners joined in helping in him manage it, and it became more sophisticated and ended up with a name: “HonkHonk Hodl.”
Demonstrators continue to protest in Ottawa on Feb 19, 2022. Photo by ANDREJ IVANOV/AFP via Getty Images files
Jesse Powell, who heads the American Kraken cryptocurrency exchange, gave a whole bitcoin, then worth more than US$39,000. Bitcoin Magazine sold hats and donated the proceeds. It gained international attention.
But any help St. Louis received in managing the donation drive was short-lived, and he soon found himself largely alone at the centre of a gathering storm.
Bitcoin, the first cryptocurrency, does not have traditional intermediaries that can intercept transactions. Control depends solely on one’s private key, the equivalent of a password. But cashing out often depends on centralized exchange platforms that are beholden to laws and regulations. On top of that, all transactions are added to a publicly available blockchain ledger, making the guarding of one’s private key an essential and complicated task.
As the protest donation drive was happening, the U.S. Justice Department announced it had recovered US$3.6 billion in cryptocurrency seized from a 2016 hack of the exchange Bitfinex. Similarly, it had recovered millions from a ransomware attack on the Colonial Pipeline last year. In both cases, authorities had traced the funds and then obtained the private keys of alleged perpetrators.
With the protest donation drive burgeoning to 22 bitcoins — worth more than $1.1 million at the time — the gravity of the matter grew.
On Feb. 14, the Canadian government invoked the Emergencies Act, granting it broad powers to bar the protesters from fundraising and accessing banks. While short on specific rules and measures on cryptocurrency, it did single out digital assets for mention.
St. Louis had been in way over his head, he recounted. But the federal announcement also seemed to have invigorated him: he said on Twitter that the government was acting “illegally, unlawfully and improperly” in giving itself such powers. The next morning, he said he would “immediately” begin distributing the bitcoins to the protesters and publicly appealed to others for help.
With fresh aid from a man going by the pseudonym “JW Weatherman,” St. Louis split 14.6 bitcoins from the donated funds into 100 digital wallets, the two men recounted on Twitter. According to prices at the time, each wallet would have held roughly $7,500 in bitcoin. Credentials to those wallets were then printed out, along with relevant instructions. These were essentially what are known as “paper wallets” — in a demonstration of bitcoin’s flexibility, those printed sheets held tangible value. St. Louis got someone to video him as he walked the streets of Ottawa to hand them out.
As he was doing all that, though, local police were preparing to clamp down on the protesters, and news broke that the RCMP had sent a notice banning exchanges from touching cryptocurrency wallets linked to them. Then the Ottawa residents suing the protesters obtained an injunction on the bitcoins. That injunction not only specifically named St. Louis and ordered him not to move the funds, but also effectively forbade anyone receiving the paper wallets from moving them.
Of course, neither the Mounties nor the court has actual control over the donated coins. Blockchain data shows that coins have been moved from nearly all of the wallets blacklisted by the RCMP. The 14.6 bitcoins that St. Louis split into 100 wallets had also already been distributed — JW Weatherman said it was done before the Ottawa residents’ court order, which came only on Feb. 17.
The recipients of those funds, whom the order has not identified, have both the power to do with the funds as they please and the justification of not having received formal notice.
JW Weatherman said on Twitter that some have even moved them to exchanges, but with many exchanges having been put on notice by the RCMP, and with blockchain data publicly viewable, any coins tied to the donation drive would be difficult to cash out domestically.
Amid the crackdown, many of the bitcoin drive’s early supporters grew quiet, too. Even Kraken’s Powell said he would obey the law and not help protesters cash out through his exchange, which operates in Canada.
Now, with the protests now dispersed and the leaders facing charges, St. Louis finds himself in an uncomfortable spot, officially added as a defendant in the lawsuit by local residents.
And court documents revealed that the local residents hired a private detective and an expert to trace the cryptocurrency, suggesting that the donation drive’s recipients may never be able to comfortably use their coins.
St. Louis said of his experience: “I think it took five years off my f—ing life.” The lawsuit, he said, was the cost of supporting what he deemed to be “freedom-loving, law abiding, peaceful Canadians.” St. Louis started another bitcoin donation drive to fund his defence.
To JW Weatherman, who aided St. Louis, the operation was an “unmitigated success,” a demonstration of bitcoin’s value.
But in the end, the toll events took on St. Louis, the risks to other participants and difficulty spending the coins suggest that that no matter how immune bitcoin is from governmental power, its value and utility will always be undermined by the fact that its users are not.
Ethan Lou is a journalist and author of Once a Bitcoin Miner: Scandal and Turmoil in the Cryptocurrency Wild West.
Nicholas Normand St Louis
Resigned
Registration Number: XXX10 | Ottawa
Category: Independent Practice
Scroll down to learn more.
The Public Register provides information about all registered physiotherapists in Ontario.
We are happy to confirm the person you are looking for is a
registered physiotherapist or help you find what you need.
Contact the Registration Team:
registration@collegept.org
1-800-583-5885 ext. 222.
EMPLOYMENT HISTORY
| START DATE | END DATE | PRACTICE LOCATION | WORKS WITH A PHYSIOTHERAPIST ASSISTANT | ACCESSIBLE SPACE | AREA OF PRACTICE | CATEGORY OF PATIENTS |
|---|---|---|---|---|---|---|
| 7/1/2015 | 3/16/2020 | Optimize Physiotherapy & Sports Medicine 3771 Spratt Rd. Unit 4 Ottawa, Ontario K1V 2P3 +1 (613) 425-4211 |
Optimize Physiotherapist 🙌🏽
Student of the body
Stoic in training 📖
Foot Nerd 👣 TFC
3771 Spratt rd, Ottawa, Ontario K1V2P3
NICK ST LOUIS
FOUNDER
Nick St. Louis is the visionary founder of The Foot Collective. Nick’s work as a physical therapist in clinic led him to a profound realisation: the power of natural foot function and balance training in helping the body rewire itself.
This insight inspired him to create The Foot Collective and develop tools and training to help individuals take control of their health from the ground up.
Through in-person workshops and online programs, Nick has educated thousands of people around the world in TFC’s philosophy.
While he no longer works in clinic, he continues to lead and inspire as a key advisor, guiding TFC’s global team behind the scenes.
+613-729-8981 hello@solefreedom.ca
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