Court File and Parties
Court File No. CV-22-00088514-00CP
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ZEXI LI
Plaintiff
-and-
CHRIS BARBER, BENJAMIN DICHTER, TAMARA LICH, PATRICK KING and
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 and JOHN DOE 60
Defendants
PROCEEDINGS
REMOTELY BEFORE THE HONOURABLE MR. JUSTICE H. MCLEAN
on February 5, 2022, for an OTTAWA proceeding
APPEARANCES:
IDENTIFIED AS ANNOTATED - PARTICIPATED VIA REMOTELY FROM UNKNOWN LOCATIONS
P. Champ, C. Johnson Counsel for Zexi Li
K. Wilson Counsel for Chris Barber
K. Wilson Counsel for Benjamin Dichter
K. Wilson Counsel for Tamara Lich
Table of Contents
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
ENTERED ON PAGE
PROCEEDINGS 1
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) – Indicates preceding word has been spelled Phonetically.
Transcript Information
Transcript Ordered:. . . . . . . . . . . . . February 9, 2022
Transcript Completed:. . . . . . . . . . . . February 10, 2022
Ordering Party Notified: . . . . . . . . . . February 15, 2022
Transcript of Proceedings
SATURDAY, FEBRUARY 5, 2022
PLEASE NOTE: PROCEEDINGS WERE RECORDED REMOTELY. PORTIONS OF THIS TRANSCRIPT CONTAIN A HIGHER THAN USUAL NUMBER OF [INDISCERNIBLE] NOTATIONS DUE TO TECHNICAL FAILURE AND POOR QUALITY OF THE AUDIO, AND SOME WORDS MAY NOT HAVE BEEN CAPTURED ON AUDIO DUE TO INTERMITTENT FADING AND/OR MUFFLING OF MICROPHONE.
SOME PARTIES ARE PRESENT IN COURT WHILE OTHERS
ARE PARTICIPATING IN THIS HEARING REMOTELY FROM DIFFERENT LOCATIONS. AT TIMES AUDIO RECORDING DOES NOT MEET REQUIRED STANDARD AS DULY NOTED HEREIN.
... WHEREUPON MATTER COMMENCES (2:04 p.m.)
CLERK REGISTRAR: Oye, oye, oye, [indiscernible...ZOOM interference on channel, audio is distorted] , in the Superior Court of Justice, [indiscernible...ZOOM interference on channel, audio is distorted] be heard. Long live the Queen.
Your Honour, I’ve also already cautioned everybody to not take any recordings, photos, screenshots, during this hearing.
THE COURT: Thank you. Thank you. All right.
I don’t know that I have everybody’s material ‘cause I just got another e-mail - excuse me, I’m using two computers.
MR. WILSON: My Lord, might I speak to that, sir? My name’s Keith Wilson.
THE COURT: Yes.
MR. WILSON: I’m counsel. I’m - the clerk inadvertently renamed me. That’s okay. I am Keith Wilson.
THE COURT: Okay. I’ll take your word for it.
MR. WILSON: Thank you, My Lord.
As I probably just illustrated, I’m a lawyer from Alberta. My understanding, sir - is it preferred to call you “Your Honour” or “My Lord”, sir?
THE COURT: Your Honour.
MR. WILSON: Okay, thank you.
THE COURT: I haven’t been “My Lord” for a long time.
MR. WILSON: Okay.
THE COURT: Yes, okay. Go ahead. I’m sorry to interrupt.
MR. WILSON: No, thank you, sir. I am legal counsel for three of the respondents/defendants: Chris Barber, Benjamin Dichter and Tamara Lich. I do not represent Patrick King or any of the Jane Doe or 60 John Does. I’m a lawyer with the Justice Centre for Constitutional Freedoms and we have been retained by the individuals I’ve just indicated.
I received correspondence from my friend last night at - first, at 5:22, putting me on notice that he was bringing this action - this class action lawsuit, as well as seeking an emergency interlocutory injunction. And at, I believe it was 10:30 last night, we received the motion record which included the affidavits and other important materials.
My colleague, with me, we worked through the night. I’m running on about two hours’ sleep, My Lord. And we have had over 100 residents of this area come forward and ask to give affidavit evidence. We have prepared - we’ve been able to prepare some. We have [indiscernible...ZOOM interference on channel, audio is distorted] the most basic affidavit evidence of our times, but we need to provide more.
My friend has, in the last hour, provided me with almost 300 pages of materials that I - I haven’t even had any chance to look at, read, or [indiscernible...ZOOM interference on channel, audio is distorted] . We’re working on a brief that is incomplete, but is important. And as the affidavit evidence that you may have already, but likely, you know, not able to read the material before you, you’ll see that the - the truckers have - have an accord amongst themselves that the horns will not sound between 8:00 p.m. and 8:00 a.m. And they have other restrictions that they, sort of, as a collective, [indiscernible...ZOOM interference on channel, audio is distorted] you could ever have that given that we’re dealing with independent truckers after all, from all over the place, that agreed to reduce and have structures as to when and how they [indiscernible...ZOOM interference on channel, audio is distorted] .
My Lord, this - the decision you’re being asked to make today is one of national importance. And one of - it’s our request that - or it’s our submissions rather, that you simply will not have the fullness of information of evidence, and legal argument before you, to make an informed and proper decision that our courts make in accordance with the rule of law and due process.
It’s - it’s our request that this application be adjourned for a number of days to allow us to complete our preparations, to allow us to review the materials, and to allow us to complete our - our factum. Keeping in mind the prejudice that arises to us in our ability to prepare proper case. And I would note, as the affidavit confirms, you know, one of the defendants doesn’t even own a truck or possess a truck. You can get - that’s in evidence that we’ve provided this morning. And another one doesn’t even have a truck here, and you have evidence before you, if my paralegal’s been able to get it into court, that the one person that’s named that has a truck, has testified that he’s never moved his truck and never sounded his horn. And I won’t take you into all the defects of, we think, the case ‘cause that would mean we’re hearing the case.
I’d simply request an adjournment. It’s prejudicial to proceed. It’s a case of national importance. I’m asking for a very brief adjournment of a number of days to allow me to get materials to my friend so he can see them, and that the court can have them to - to make a decision, sir.
THE COURT: Now, first, I guess the first comment I’d make is, you’re from Alberta, and you’re a member of the Alberta bar. Does that cause any impediment to your right to audience here?
MR. WILSON: My Lord, there’s an interprovincial agreement, and I believe it’s probably 10 years old now, probably more, and I can certainly have it provided to you, sir.
THE COURT: No, no. I’m just - I’m just asking the question. I’ll take your word for it.
MR. WILSON: Yeah, no, I’m allowed [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
THE COURT: You don’t have any comment about that, Mr. Champ?
MR. CHAMP: I can confirm, Your Honour, that - that to my understanding, and in fact, I exercise it, that there is limited practice rights for all members of the bar between provinces. There used to be a day, when I started out, Your Honour, that you would have to register with the provinces....
THE COURT: [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
MR. CHAMP: And that remains the case actually, in the territories. In the Yukon Territories and the North West Territories, and Nunavut, they still require you to get temporary practice rights, but as it stands now, depending - so long as your - so long as the practice is limited and I - I forget - I think it’s like 10 percent. It’s no more than 10 percent of your [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
THE COURT: [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
MR. CHAMP: And no more than three cases. It’s something like that.
THE COURT: I will [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
MR. CHAMP: I have no issues.
THE COURT: I will stand mute then on that point. I was just inquiring because I guess from the old days. Anyways, that’s fine.
Well, what’s your position on this request for an adjournment, Mr. Champ?
MR. CHAMP: Well, on the request for an adjournment, Your Honour, there’s no - no doubt that Mr. Wilson has not had much time to prepare; I fully understand that, him and his clients. In fact, we only were retained and started working on this matter early yesterday morning. So, we - we’ve also been working pretty [indiscernible...ZOOM interference on channel, audio is distorted] on that.
But our position, Your Honour, is that it would be more appropriate that we get an interim interlocutory injunction until the interlocutory injunction can be heard in full. The evidence that has been submitted to you, demonstrates that there is serious irreparable harm being caused to the plaintiff and the proposed class members.
I’ve seen the evidence that my friend has submitted. He’s got three to four affidavits. The only thing that’s in that evidence that [indiscernible...ZOOM interference on channel, audio is distorted] I think changes anything is the evidence that the truckers are coordinating to only do it - only do it between 8:00 a.m. and 8:00 p.m. So, we’ve got evidence that they are coordinated, they are doing it, they are planning it, but it’s for 12 hours a day, Your Honour, at 105 to 100 in decibels a day, on the street. And in the apartment, the evidence that we have is that it’s 84 decibels. That’s the evidence we had yesterday. In fact, it seems like - I don’t know if they’re raging against the end of the night here, but it’s been quite loud in downtown Ottawa. It seems that the - I’m getting e-mails from my client about now it’s over 100 in her apartment. So, it’s - it’s severe, it’s prolonged. By the respondent’s own evidence, they will be doing it for 12 hours a day. And under those circumstances, Your Honour, it’s - it’s our view we should argue this motion today on the basis of an interim interlocutory order, until....
THE COURT: An interim - an interim - interim interlocutory order.
MR. CHAMP: I’m unsure who that is that’s speaking.
THE COURT: I am. It’s an interim inter....
MR. CHAMP: Oh, sorry. I - sorry, I was distracted by the racist comment in the ZOOM chat.
THE COURT: Well, I don’t - I don’t see that, so it doesn’t make any different.
MR. CHAMP: Well, it’s totally offensive.
THE COURT: Well....
MR. CHAMP: It’s a - it’s a racist slur, Your Honour.
THE COURT: That’s fine, I - I - I don’t see it. So, I’m not - it’s not in court. I’m not gonna listen to it. So, don’t worry about it. Okay.
MR. WILSON: My Lord, just so you’re clear, the only people who have the link on our side are counsel. We have not provided to our client or any third parties. So, I don’t....
THE COURT: No, I - I don’t know - and I’m not gonna get into....
MR. WILSON: Yeah.
THE COURT: [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
MR. WILSON: [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
THE COURT: I just can’t police it. That’s my problem.
MR. CHAMP: I understand. I understand, Your Honour. Now I’m getting some nice comments there about what to do to myself. But in any event, Your Honour...
THE COURT: [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
MR. CHAMP: That’s fine - that’s fine. I - it’s fine, Your Honour.
What I’m more concerned about, quite frankly, Your Honour, is the well-being of our client and the class members. An interim order in these circumstances, Your Honour, when we’ve established a strong prima facie case of serious irreparable harm, you’ve got evidence before you of a doctor, Your Honour, who says that....
THE COURT: Yes, I - I recognize that. I recognize that. I’ve read the material. The problem I have is the fact that I haven’t read the responding material ‘cause I have just got it. So, that’s - that’s part of it.
The other thing about an - I have to be able to frame the injunct....
... AUDIO CUTS OUT
MR. CHAMP: Sorry, Your Honour, I can’t hear you. We were all muted there for a moment. We can unmute ourselves. I just unmuted myself.
THE COURT: There I - I unmuted myself.
MR. CHAMP: Okay.
THE COURT: The problem is, that is - because an injunction is in persona, it’s personal, it’s not a - I have to be able to frame it, first of all, that it’s enforceable because we all know that in equity, as by - if the injunction’s not enforceable than I shall not give it. And so, therefore, I need a complete record to frame even a - an interim interim injunction. Because I have to have - you know, obviously, the result of a breach of an injunction - an injunctive relief is a remedy against people in and of themselves, not - it’s not a fine, it’s not a - it could be a fine, of course, I’m not saying that, but it - it - it [indiscernible...ZOOM interference on channel, audio is distorted] on their person. And you know, it’s - at the end of the day it may end up with incarceration.
So, to be able to do that, I have to be in a position that I have a complete record that I can frame the court order properly. Because otherwise, I’m - I’m in a situation - a difficulty. You know, the easy one is that, you know, I make some order, you know, at [indiscernible...ZOOM interference on channel, audio is distorted] do not use your horn in the particular geographic area. The only problem is, who’s that order to enjoin? I don’t know.
And if it’s a blank order, first of all, it’s probably [indiscernible...ZOOM interference on channel, audio is distorted] because it’s - it’s uncertain, but more particularly, it can’t be enforced. I can’t enforce it because I don’t know in who - to whom it’s directed.
MR. CHAMP: What I can advise you, Your Honour, is that I have been - I’ve been contacted this morning by legal counsel for the Ottawa Police Service.
THE COURT: Yes.
MR. CHAMP: They have expressed an interest in this matter, which I believe the court is aware of. And they have provided some proposed language to us for a draft order that would make it amenable to enforcement based on prior orders that they have had with respect to injunctions.
I’ve provided a draft of that order to Mr. Wilson. Admittedly, just maybe 20 minutes before the hearing started.
THE COURT: Well, that’s the whole point. That’s - that’s...
MR. CHAMP: Yeah.
THE COURT: ...Mr. Wilson’s point, I think. It’s very difficult for him to say yes when he doesn’t know.
So, that’s fine. I can - I can dream up the words for an injunction myself, I don’t have a particular problem, but to whom am I enjoining?
MR. WILSON: My Lord, that’s - that’s one of our concerns too that - that we’ve identified significantly. This is not like employees of an organization.
THE COURT: No, it’s not a labour injunction. Labour injunction, you know, the - I - I - I’m old enough to remember when - before they amended the Act where if you were enjoining a picket line you had to name everybody on the picket line. That was how it worked and - because otherwise it was not certain. And if there was one person that wasn’t named then they could picket come what may. That’s - that’s what I’m trying to do.
If I’m to grant an injunction then I want to make sure that whatever order I make, if I do make an order, is a) enforceable and is enforceable against certain people, because otherwise it’s pointless.
MR. CHAMP: I - I totally understand the - the Court’s concern, Your Honour, and that’s why the - the proposed draft language that we have is - and based on other prior orders of - of the court, is all persons who have notice of the order. And it sets out different ways to ensure that individuals have notice of the order.
The respondents themselves have submitted an affidavit indicating those who are engaging in this activity that is tormenting the residents of downtown Ottawa, that they know how to coordinate and that they’re going to do it between 8:00 a.m. and 8:00 p.m. And you know, our fundamental submission, Your Honour, is that every hour that goes by there are individuals having irreparable harm.
THE COURT: That’s not the point. The point is, for example, if I give an order and some other people come along that are not comprehended in that order, how do I deal with that? I don’t know.
You see, it’s very easy if you block a road. I don’t have a problem because it’s anybody [indiscernible...ZOOM interference on channel, audio is distorted] on the road and they can simple be arrested or whatever, for being on the road. Here it’s not that simple...
MR. CHAMP: Well, Your Honour...
THE COURT: ...the way I see it.
MR. CHAMP: ...I understand - I understand the Court’s - the Court’s view, Your Honour. I would just say that there’s no doubt that if someone comes into the area and has no - is unaware of the order, they’re not a contemnor. But if those have notice - those who have notice of the court order choose to lay on an air horn or a train horn for hours of the day....
THE COURT: Well, they said they’re not gonna do that part of it, but that’s not the point....
MR. CHAMP: No, they are saying that, Your Honour. It’s - I apologize, Your Honour. I didn’t mean to interrupt.
THE COURT: No, no, it’s fine. Is the - the point is this, whether it is a class action or not, okay, whether it’s a class action or not really doesn’t make that much difference because interfering with the ability to enjoy one’s residence is a breach of the common law right to property, period. You know, that’s - that’s the way it works. And that’s where your nuisance law comes from and all kinds of other things too. But generally speaking, with that kind of thing, an interference with property, that’s deal with by the state. For example, you break into somebody’s house, that’s burglary and that’s dealt with under the Criminal Code. And that’s - that’s rather simply. Here it’s a little different. But because it is an important matter, and I’m not denying it’s an important matter, I think I have to give Mr. Wilson a chance to put documents in because I certainly have a chance to read them. Okay. I just haven’t because I haven’t been available and I think I started reading the - your material about 2:30 last night - this morning. So, it’s not for delinquency on my part.
But, you know, and I have to have a full record. So, what I’m going to do is, I’m going to adjourn....Yes?
MR. CHAMP: If I may, Your Honour?
THE COURT: Yes.
MR. CHAMP: I’ll just make two - two - two points...
THE COURT: Go ahead. Go ahead.
MR. CHAMP: ...if I may.
THE COURT: Yes.
MR. CHAMP: One is that I appreciate that the Court is not prepared to issue an order until you’ve seen the affidavit evidence that the respondents have put forward. So, on that front, I would submit that we - we adjourn this hearing for no more than two hours. Because on the evidence that they submitted, as I’ve read it, Your Honour, they’re not saying that they’re gonna stop blowing the horns, they’re saying they’re gonna do it between 8:00 a.m. and 8:00 p.m.; 12 hours a day. And the evidence that we have is that causes permanent damage.
Your Honour, since last night, I’ve been inundated with no less than 200 to 300 e-mails of people crying out with what they are suffering. People who have been hospitalized, people with newborns, people with disabilities, people....
MR. WILSON: There’s no evidence before the court of that.
MR. CHAMP: I agree. I agree. There’s no evidence of that, but this is what my friend is saying. So, what I’m trying to say, Your Honour, is, based on the evidence that you have before you, 105 to 120 decibels causes permanent damage within a very short period. That’s what you have before you. And on that basis - and here - on the balance of convenience, if we’re doing - if it’s - if this is just on an interim injunction, we still use the RJR test, what is the balance of convenience here? What’s the....
THE COURT: Well....
MR. CHAMP: ...what’s the - what the interfere - what’s the significant interference of the rights of those who would be enjoined?
THE COURT: The concern I have is this, how am I going to make an enforceable order? Because it has to do with - it’s not a – in rem (ph) order. It’s not an order saying, “Thou shalt be in a certain thing - a place”. It is an in persona order. It affects the person. And at this point, I’m at a loss to craft that order and I - and I - notwithstanding R.J. Reynolds , et cetera, et cetera, if I’m at a loss to crafting such an order, then I shall not give it. That’s the - that, in equity, that is the duty I have.
MR. CHAMP: I - I appreciate that, Your Honour. The courts across the country have little difficulty in crafting such orders involving those who are not named in other types of protests: environmental protests, protests at - you know, lands that people are claiming are - are theirs...
THE COURT: That’s....
MR. CHAMP: ...land defenders and so forth. Those - those orders can be crafted, Your Honour, where you’re not knowing the specific person you’re enjoining.
THE COURT: I didn’t say that, but those orders generally have to do with being on a certain piece of property or blocking road, okay. And if somebody’s on the road, it’s not too hard to prove that’s the person who’s blocking the property, right. Here, I have no idea, at the present time. I just don’t know on the fact of what I’ve got now.
Your friend is entitled to put in a factum and to deal with other materials that should be before the court. The only fair way I can deal with this and have a proper record, I think, is, I’m going to adjourn this until Monday at one in the afternoon and we’ll continue it at that point. But I - at that point, I want all the material before me. Then I can adjudicate it at that time and make a final - or not a final, an interim order, one way or another, granting the injunction or not granting the injunction, so we can deal with it.
If, also, it’s required that cross-examinations take place on the affidavits and should - they should be done before Monday at one o’clock. All right.
MR. CHAMP: Understood, Your Honour.
THE COURT: And with respect to the suggestion about the limiting the use of the air horns, I would suggest that it be limited to a short period of time, perhaps at noon, and that would be it. Not 12 hours.
And the - because the other - you know, the issue become then whether I issue the injunction against the four people that are named and what happens to them? Are they responsible? [Indiscernible...audio glitch]? I don’t know. I’m just saying that that definitely is a possibility too. So, my suggestion is you sort this out between the two of you.
But if that’s not the case then I will deal with it at one o’clock on Monday, all right.
MR. CHAMP: Thank you, Your Honour.
MR. WILSON: Thank you, My Lord.
THE COURT: Thank you. See you then.
MR. CHAMP: [Indiscernible...multiple speakers at the same time, unable to decipher words spoken] .
THE COURT: It’s all right. I’m not insulted either way. Thank you. See you on Monday at one.
MR. CHAMP: Yes, sir.
THE COURT: And I’ll talk to the registrar. You can - counsel are excused. I’ll talk to registrar because I’ve got to make an endorsement.
... MATTER ADJOURNED TO FEBRUARY 7, 2022 (2:27 p.m.)
Certificate of Transcript
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
I, Linda A. Lebeau , acknowledge the foregoing document of the court proceeding pertaining to the matter of Liv v. Barber et al held on FEBRUARY 5, 2022 with named participants conducted REMOTELY and live video feed from unidentified remote locations was produced to the best of my skills and ability. Produced from one channel and live video feed recorded on LIBERTY file number 3411_CR_20220205_125307__10_MCLEANH.dcr certified in Form 1 by court-monitor Patrick Shannon.
Date Linda A. Lebeau
Authorized Court Transcriptionist (ACT)
Secretary
The Ministry of the Attorney General has the sole responsibility of ensuring clear, concise audio recordings of court proceedings. Liberty recordings of Zoom/web conferencing/teleconferencing proceedings are a one-channel audio file that produces faulty audio, missing audio, warbly voices, and are a result of the in-court monitor not advising the court of deficiencies. Therefore, a court monitor certifying in Form 1 where there are these occurrences present, is doing so falsely.
An Authorized Court Transcriptionist is in no way responsible, or bears any liability for faulty audio, missing audio or warbly/non-existent audio, and will only acknowledge the transcript has been produced verbatim. The discrepancies/issues are noted within.