Court File and Parties
Court File No.: CV-22-88514-CP Date: 2023/07/27 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 JANZEN, JASON LAFACE, TOM MARAZZO, RYAN MIHILEWICZ, SEAN TIESSEN, NICHOLAS 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, Counsel for the Plaintiffs James Manson & Hatim Kheir, Counsel for the Defendants, Lich, Marazzo, Barber, Tiessen, Gasior, Bulford, Mihilewicz, Enns, Freedom 2022 Human Rights and Freedoms, Jonker, Jonker Trucking Inc., and Howland Jim Karahalios and Daniel Naymark, Counsel for the Defendants, GiveSendGo LLC, Wells, Garrah, St. Louis, Dichter, and Belton Shelley Overwater, Counsel for the Defendants, King and Janzen
Heard: July 27, 2023
Case Management Order and Direction
[1]
Case Management Order and Direction
The case conference was convened at the request of Mr. Manson to discuss the scheduling of the “Anti-Slapp motion” which is to say, a motion pursuant to s. 137.1 of the Courts of Justice Act seeking to stay or dismiss the action as an action meant to unduly limit freedom of expression on a matter of public interest.
2Ms. Overwater’s clients wish to support the motion.
3Mr. Karahalios and Mr. Naymark may or may not obtain instructions to support the anti-SLAPP motion but their clients do wish to bring a motion for a change of venue from Ottawa to Toronto. Such a motion must be dealt with by the Toronto RSJ or his delegate in accordance with the Consolidated Provincial Practice direction dealing with inter-regional transfers.
4The change of venue motion will be opposed and it is focused on whether or not a fair trial can take place in Ottawa due to the number of Ottawa residents (including judges and lawyers) who may either be class members or potential witnesses. Counsel concede that the Act appears to require the anti-SLAPP motion to be dealt with before any other steps are taken and do not object to sequencing of the motions in that manner. For the record, I am not a member of any of the proposed plaintiff classes.
5The reason the S. 137.1 motion must be heard first is that S. 137.1 (5) of the CJA states that no further steps in a proceeding may be taken once a motion under s. 137.1 is made.
6S. 137.1 (2) of the Act provides that the s. 137.1 motion is to be heard within 60 days of the motion being filed. That has not technically occurred because at this point there is only a draft notice of motion and it was difficult to find a practical date for the hearing of the motion before October due to the schedules of the court and of all of the counsel who wish to be heard. I have therefore fixed the return date for the motion as October. The notice of motion will be filed as part of the motion record.
[7]
Order
The Court therefore orders and directs as follows:
a) The parties moving under s. 137.1 for stay or dismissal of the action shall make the motion returnable on October 11, 2023 at 10:00 a.m. 1 - 2 days will be set aside for the motion.
b) The motion record (s) for the moving parties shall be served no later than August 25th, 2023.
c) The responding record or responding affidavits shall be served no later than September 1, 2023 and any reply affidavit shall be served before cross examination takes place.
d) Cross examination, if any, shall be completed by September 15, 2023.
e) The moving parties factum(s) shall be served by September 25, 2023.
f) The responding parties factum shall be served no later than October 2nd, 2023.
g) If there is a reply factum, it is to be served no later than October 5, 2023.
h) All material for use on the motion shall be filed with the court in the usual manner and the motion shall be confirmed as required by the rules.
i) The parties shall also upload the material for use on the motion including a compendium or compendiums if any to Caselines no later than October 9, 2023.
j) The motion shall be heard in person in open court but counsel who wish to attend and present argument virtually, may do so. The mode of appearance for each counsel shall be identified on the confirmation form.
k) There shall be no further steps taken in this proceeding until this motion is dealt with unless with leave of the court.
l) This order is effective without further formality. It is a case management order under Rule 50.13 and under s. 12 of the Class Proceedings Act and is a timetable within the meaning of Rule 3.
Justice C. MacLeod Date: July 27, 2023