Alayne McGregor
An attempt by convoy organizers to get $200,000 of the funds being held for a class action to compensate Centretowners for what they suffered in the convoy occupation was rejected last week.
Justice Calum MacLeod rejected the motion from Benjamin Dichter and Chris Garrah to release the funds in order to fund their defense against the class action. In his ruling, MacLeod noted that these funds were not their own, but were rather held in trust for convoy participants: “there is no evidence that the funds were intended for the personal use of the convoy organizers or the fundraisers themselves.”
MacLeod also concluded that the defendants had not shown that they had no other means by which they could retain counsel or defend themselves: “Neither of the moving parties have made the kind of frank financial disclosure that might be necessary to make a finding of impecuniosity.”
He also noted that, even if the defendants said they did not honk horns or block streets themselves, as organizers they could still be liable for the actions of others in the occupation. The province of Ontario is seeking forfeiture of any escrowed funds beyond those for the class action as it contends the occupation was a criminal activity, the ruling noted.
The money in escrow – about $5.3 million – was donated to support the convoy occupation. It was frozen last spring as part of the class action lawsuit against the convoy occupation and its organizers and major participants, pending the result of the lawsuit.
The class action was filed on behalf of Zexi Li and others by Ottawa lawyer Paul Champ. It seeks damages for those residents and businesses most affected by the incessant honking and engine noise, air pollution, and other effects of the trucks which blocked downtown streets for more than three weeks this winter.
Champ opposed the release of funds to Dichter and Garrah. “They didn’t have any solid claim to access the money. We’re going to do everything we can to ensure those funds are preserved until the end of this action. If we’re successful, the funds should go towards compensating the people of downtown Ottawa.”
He said that a previous attempt to release funds to pay for convoy organizers’ appearance before the Public Order Emergency Commission had been abandoned.
Class action to be amended to replace John Doe’s with representatives of defendant classes
In November, Champ applied to amend the class action to replace the “John Doe” placeholders with five specific names: the GiveSendGo fundraising platform and its president Jacob Wells; New Brunswicker Brad Howland, who donated $75,000 to the convoy; and Jonker Trucking and its president Harold Jonker.
Champ said Howland and Jonker were representative of the “donor” and “trucker” class of defendants respectively. He said Jonker gave numerous interviews expressing his support for the convoy cause, while Howland is a “sophisticated businessman” who made comments on social media supporting the tactics of the trucker protest and even flew to Ottawa for a couple of days to take part.
GiveSendGo not only “took up the torch” to keep money flowing to those truckers who were engaged in illegal activities, Champ said, but when the convoy protesters were having difficulty opening bank accounts for the donations, Wells signed a guarantee and an agreement with the protesters that he would personally hold some of the funds in trust separate from GiveSendGo.
“That company and its president were really going out of their way to try to provide material support to those trucker protests. We think they provided signal substantial assistance to the illegal trucker activities and therefore should also be liable.”
Action to also cover more residents and workers
The amendment also slightly expands the zone covered by the class action to include another 2-3,000 residents, for a total of 15,000, he said, as well as adding people working within the zone. The zone would now include Parliament Hill and the construction workers restoring the Centre Block who were laid off for weeks because of the occupation.
The hearing for the amendment will be held in late January. Champ hoped for a decision on that within two months, and then a hearing on certifying the class action in late 2023.