A Toronto judge has ruled that proceedings in the proposed class action lawsuit against the truckers’ convoy will be held in Ottawa — the city most affected by its mayhem.
In a recent ruling, Mr. Justice Benjamin Glustein dismissed a change of venue motion filed by the defendants, who wanted the proceedings transferred to Toronto to ensure procedural fairness.
Lawyers for the truckers argued that everyone who worked at the Ottawa Courthouse, including its judges, witnessed
the occupation of downtown
.
One of the defendants, Chris Garrah, filed an affidavit in which he suggested courthouse staff could potentially benefit from any settlement in the proposed class action.
“Given … the notoriety and divisiveness of the protest and its aftermath, including this action,” Garrah said, “I am concerned about the appearance of fairness if this case were to proceed in Ottawa.”
Justice Glustein, however, ruled that the simple assertion of unfairness is not enough to grant a change of venue motion. There must be a reasonable apprehension of unfairness, he said, supported by evidence.
“Even if court staff are part of a proposed class,” he said, “transfer of venue is not appropriate when there is a total lack of evidence that any potential class member employed at the courthouse would have any influence on a judge hearing either the certification motion or the trial.”
Glustein said that while Ottawa judges may have witnessed convoy events in Ottawa, it leaves them in no different a position than a Toronto judge who may have seen it in the media.
“Despite the notoriety of the Freedom Convoy, there is a presumption that the judge assigned to this matter would assess the evidence and arguments impartially,” said Glustein, who noted that a change of venue motion was rejected in criminal cases that flowed from the same protest.
Convoy organizers
James Bauder
and
Pat King
both lost bids to have their criminal trials moved from Ottawa.
The judge also noted the defendants could have brought a change of venue application much earlier given that the lawsuit is now more than three years old. The court has already issued more than a dozen pre-certification decisions in the case, Glustein said, including rulings on Mareva orders, escrow funds and dismissal motions.
Ottawa lawyer Paul Champ, who’s representing Zexi Li and other plaintiffs in the lawsuit, said the judge’s ruling affirms the importance of holding a case in the affected community.
“It’s more than three years ago, but the Freedom Convoy experience still hangs over the people of Ottawa,” Champ said. “There’s a strong interest in seeing it through.”
Champ said he’ll now request a case management conference so that a certification motion can proceed late this year or early next year.
The proposed class action seeks damages for personal harm and financial losses experienced by residents, businesses and workers in downtown Ottawa during the noisy, disruptive protest in February 2022.
The class action has yet to be certified by the court — a necessary step for it to proceed. If it does go ahead, the lawsuit promises to be complex.
As Justice Calum MacLeod noted in one of his pre-certification rulings: “Assuming the action in 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.”
The defendants have argued they cannot be held legally responsible for the actions of other protesters who may have blasted their horns.
Champ has argued the occupation was illegal, and was planned and conducted in such a way as to intentionally inflict harm on local residents, making organizers legally liable for those damages.
