Law students from the University of Ottawa are filing dispatches for JURIST on the “Freedom Convoy” protest in Canada’s capital that has paralyzed the city for over a week. Here, 1L Mélanie Cantin reports.
After a second straight weekend of “Freedom Convoy” protests in Ottawa, there seems to be no true end in sight. Ottawa Police Chief Peter Sloly has described the forced standstill in Canada’s capital as a “siege”. Amid struggles by the police to implement solutions addressing downtown gridlock caused by trucks and extreme noise levels from continuous honking, a group of Ottawa residents have decided to take matters into their own hands.
This group, spearheaded by Zexi Li, filed a statement of claim for a potential class-action lawsuit on Friday February 4th at the Ontario Superior Court of Justice. Following an initial meeting of the parties on Saturday, the matter was adjourned to Monday afternoon to give the defendants time to prepare.
The plaintiffs, represented by lawyer Paul Champ, are seeking an injunction to cease the excessive honking from the Convoy’s vehicles, as well as $4.8 million in damages for private nuisance and an additional $5 million in punitive damages.
As a law student at the University of Ottawa and a resident of the capital for the last four-and-a-half years, I’ve been following this story closely, because like most people who frequent downtown Ottawa, I’ve had to pay close attention to road and business closures, as well as safety recommendations from city officials and my university.
Indeed, the University of Ottawa stated in an email sent to the student body on Friday February 4th that it was going to close Tabaret Hall and some parking lots on the northern end of campus, near where protests had been taking place. With disturbances occurring for a second weekend in a row, the actions taken by Li and fellow Ottawa residents did not come as a surprise to many who have been living under these difficult circumstances.
Li’s statement of claim alleges that the incessant honking by the truckers often reaches a level of 105 to 120 decibels, which is enough to cause permanent damage to the human ear when suffered on a sustained basis. The statement contends that the horns are being used “continuously for 12 to 16 hours per day” in a way that has caused “unbearable torment” to downtown Ottawa residents, and that this constitutes a private nuisance that must be addressed quickly and swiftly.
Private nuisance is “interference” with someone’s “use or enjoyment of land that is both substantial and unreasonable” (Antrim Truck Centre Ltd. v Ontario (Ministry of Transportation) 2013 SCC 13 at para 18, my underlining). An “interference” can pertain to physical property damage, as well as to “the health, comfort or convenience of the owner or occupier” (para 23). In other words, private nuisance is an infringement of a person’s right to the enjoyment of their own property.
Based on the statement of claim, Li and her fellow plaintiffs seem to have a good case. If the information regarding the time and volume of the honking is proven, the substantial nature of the interference will almost certainly be recognized by the court. Even in the current absence of such evidence, dozens of stories and videos circulating on social media demonstrate firsthand how insufferable the noise and conditions downtown can be at the protest’s peak hours.
Elaine Tam is a first-year law student at the University of Ottawa and a downtown resident included in the plaintiff class covered by the class-action. She lives a few streets away from Parliament and said the following when asked to discuss the situation: “To be honest, I feel that the monetary compensation is wholly inadequate for the mental anguish we’ve suffered, but a successful class action suit would at least serve as a source of vindication for us residents who have been disproportionately affected by these protests.”
The noise residents are experiencing can certainly be deemed “substantial” and if the court agrees, this would fulfill the first element of private nuisance. When it comes to the “reasonableness” of such noise—the second element that must be proven to establish that the Convoy is causing a private nuisance—many factors must be weighed and examined based on the circumstances of the case.
According to the Supreme Court of Canada decision in Antrim, some of these factors include the severity of the interference with the plaintiff’s rights, the characteristics of the neighbourhood it is occurring in, and the utility of the defendant’s conduct (para 53). Not all of these factors are necessarily going to be relevant to the court’s assessment of whether the interferences on the plaintiffs’ properties were so unreasonable as to constitute a private nuisance, but many will. Although the protesters may claim that their honking is directly linked to protesting, a useful activity in a democratic society, its severity and duration may prove more powerful in a judge’s eyes, particularly in light of the densely populated location of the demonstrations and the severe impact it is clearly having on residents.
As for the injunction request, though it has yet to be properly examined in court, Judge Hugh R. McLean Saturday spoke to the possibility of limiting the honking to a specific hour every day. However, he also expressed concerns about the feasibility of enforcing an injunction like the one requested, since truckers have constantly been moving in and out of Ottawa, and most of the potential defendants currently remain unidentified. At this time, the statement of claim names four Convoy organizers—Benjamin Dichter, Patrick King, Tamara Lich, and Chris Barber—along with 60 currently unidentified truckers who are alleged to have been using their dangerously loud horns on a constant basis.
The matter is set to be heard this afternoon at 1pm.
