Court File and Parties

COURT FILE NO.: CV-22-88514-CP DATE: 2023/06/09 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: Paul Champ and Christine Johnson, for the Plaintiffs James Manson & Jorge Pineda 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 and the Proposed Defendants/Moving Parties, Harold Jonker, Jonker Trucking Inc. and Brad Howland Brigitte Belton, in person

HEARD: In writing

Costs Endorsement

[1] On March 13, 2023, I released a decision in relation to two competing pleadings motions (see 2023 ONSC 1679). I have now received written submissions on costs.

[2] By way of preliminary observation, I note that the plaintiff was seeking a series of significant pleading amendments including a change to the named parties. The addition and deletion of parties requires leave of the court and accordingly some kind of motion would have been required. In recognition of that fact, the plaintiff is not seeking costs of the pleading amendment motion even though it was opposed.

[3] The defendants who wished to be heard on the motion (including certain of the proposed named defendants) chose to bring a parallel motion to strike some or all of the statement of claim.

[4] It is fair to say that the plaintiff was substantially successful on that motion because most of the proposed amendments were permitted and few of the paragraphs of the existing or proposed pleading were found to be inappropriate. Nevertheless, I found in favour of the defendants in relation to certain paragraphs and I did require the plaintiff to make some changes.

[5] The plaintiff is requesting costs of $16,965.00 on a partial indemnity scale. While that is a relatively modest cost request in routine civil litigation, the defendants raise several considerations for what they describe as “a massive piece of public litigation disguised as a private action”. Without accepting that description of the litigation uncritically, I do agree with the defendant that this litigation may require the court to explore the boundaries of legitimate constitutionally protected rights to protest on the one hand and the rights of individual citizens whose rights and lives are disrupted to seek compensation on the other. Moreover, the potential reach of the litigation as now framed in which thousands of Canadians who donated to the cause may be found to be liable means that this is litigation of public importance.

[6] As such, given the importance of the motion and the significant amendments that were under consideration, I agree with the defendant that in this instance, on this motion, this is not a case for costs. I note that a very similar argument was made by Mr. Champ when I relieved the original individual plaintiff (Ms. Li) from an undertaking in damages at the time of the injunction.

[7] I hasten to add that this should not be taken as a finding that costs on any future motions or at any other phase of the litigation will be inappropriate. The awarding of costs is a matter for the discretion of the court.

[8] In this particular instance, there will be no award of costs for either motion.

Justice C. MacLeod Released: June 9, 2023