then, basically with joint motion records with all of my friends, affidavits and cross examination. We've already got the two motion records we've got to practice and we've got to close it
so
I don't think
certainly everything has been our factor. I don't think that I get much pushback from my friends. A lot of a lot of a lot of well your article turned into our
don't worry about whether.
And I
I think the bottom line is, our contention is that, you know, this is proceeding does indeed arise out of expression. It would be difficult to argue otherwise. And I think it obviously relates to a matter of public interest. That is also very difficult to argue against. Your Honor. At this point, I would be happy of course, to go through all of the various classes of people who fit into this expression. I'm not sure that that's necessarily your honor. I think for my friends factum, my friend does, I think mostly agree that in fact, there is this proceeding does arise out of expression relating to a matter of public interest, but he has a he has an objection which I can turn to naturally, very briefly, the donors, they donated money, right. They express themselves through donations. I think. When you look at the evidence, we've got Mr. Holland's evidence. He's the only one putting any evidence about the donors. And he said, Well, I believe it because I was supporting the Congress supporting the project. I think that's fairly clear. We take a look at the truckers as well. There's lots of evidence. Sorry, lots of allegations in the Statement of Claim as pertaining to the truckers with respect to you know what the truckers did. When they were in Ottawa, Mr. Juncker? Mr. John Green's affidavit is again the only real evidence that standard on this motion with respect to the trackers. And he says that he missed talking and he was there to participate in the process. Your Honor, I think it's also worth noting that all of the happier in this case. Also admit that there was in fact colleges on this case, and they all swear by the fact that it was part of the oppressive nature of being. The organizers as well, Your Honor. many instances in the statement, were alleging various things that the organizers did, participating in fundraising and participating in media interviews, participating in press conferences, having meetings, you know, all of the things that one might do kind of protest to keep the wheels turning. So, in my submission, there's really very little doubt that this is all relating to expression, remembering as well that the expression the definition of expression in the spirit legislation is very broad. We've also got, of course, the Libman. The Harper cases that we've cited in our fact, which speaks to the importance of financial donations, put money monetary donations being part of political speech, for purposes of Section Two B of the charter. We've also got a friend cited back in about a year ago, in my case, with respect to horizontal even has been a means of expression. And so I kind of rush through this park, Your Honor, of an interest of time, I think, but also because I don't think my friends really objected. I think that my friend's point is that we have denied somehow that the expression, in fact, took place from their fact, what I gained from the fact that anyway, is the objection that somehow we haven't properly accepted the characterization of the expression as as characterized by my friends in in their Statement of Claim and therefore somehow the dependencies the benefit of slack. I think that is where we should probably move forward to now. If you look Your Honor, at paragraph 24 of my friends back.
Okay, so paragraph 24 is where the argument, I think is, and you'll see there that my friends are suggesting for instances that we've denied that that ought to result in us I think, losing the benefit of this anti slap mechanism. The first one, of course, that that the defendants deny that the streets for blockaded by vehicles or that it was impossible to pass through downtown, so yes, that is denied. That's denied in spades. By the way, I don't know if you have the draft statement of defense, handy and maybe better, Your Honor, if I just ended up a copy. I think just a second we have
great so
that's just for everybody's benefit. That's also the affidavit of Salinas bird, agent or affidavit which is in the motion anyway for your honors benefit.
So if your honor would like to take a look at paragraph one.
Of the defense
paragraph 100 of the defense simply says that the defendants admitted the vehicles were located in downtown Ottawa. And so that is the that is that's our position. And I think that's borne out through basically all of the affidavits where everybody says yes, I did. But they do carry on your honor to paragraph 1011.
A one of the defense carries on simply to say that the defendants deny that the freedom convoy was constituted a quote blockade, or that it was impossible or almost impossible for the vehicles to pass through. The downsides for that is not the same as denying your honor that there weren't any vehicles there at all. And my friend is citing case I've been called Chrisman from the DC Court of Appeals. As in that case, you had a defendant who deny that any expression was made whatsoever. I think that was a defamation action. And I believe that the defendant denied ever making the expression at all. But even if he did, he said that the anti slap mechanism is not that this isn't what we're talking about. We're not suggesting that there won't be a natural. We are simply suggesting that it wasn't. It wasn't impossible to pass through. And I think that, Your Honor, Your Honor, would if your honor, then please turn to the Beaufort now that's located right so Your Honor, if I can take you to task five our motion detector that's reporting for
forecast by Mr. Gold for example, data now visible for it as Your Honor Mayor wasn't the best protest and his evidence was that basically, he was a liaison between the police forces can gather and digest information
within half an hour.
And I think that was what he ended up doing. I think he was supposed to start off by doing some kind of security work but anyway, that's what ended up happening. So Mr. Beaufort in his
paragraph 20.
This is his this is what he says in paragraph 28. In response to the allegations in paragraph nine, five I denied that the freedom convoy vehicles constituted a blockade or that it was impossible or almost impossible for other vehicles to pass through the downtown Ottawa core. Safety was a priority for both me and the other, so called organizer defendants, and we worked very hard to ensure that safety and emergency vehicles could pass through with one or two limited exceptions. This was always cheap.
Your Honor, after that, I'd like you to then turn to the affidavit of Mr. Moran so.
Mr Ross's affidavit, sir, is that paragraph 10 Sorry, tab 10 of the same motion record.
And if you look at paragraph seven of Mr. Morales this affidavit what he says is sort of halfway halfway down. He said my role during the protests chiefly consisted of three main activities first, I tried my best to stay in constant communication with the Ottawa Police Service, and the opp and efforts to ensure that safety lanes were always open in the protest area, so that emergency vehicles could respond to an emergency over the page. That to me was a critical task because I and my family are most dangerous to health emergencies. I have a son who suffers from a congenital heart defect and he had been hospitalized for myocarditis in Toronto only five weeks before the conflict and he also had to open heart surgery by this time, by the time I entered for aware of how important it is for emergency vehicles to be able to access it. You're on down to paragraph 26 says again the same as this I denied at three and convoy of vehicles posted that it wasn't possible. As I explained above, safety was an important priority for both the so called Organizing defendants and I worked very hard to ensure that safety and emergency vehicles could pass so that Mr Wolford was the only other wildlife words I would put in front of your honor is again if we take them turn to this gas you're at it also in the motion record. This time at pair tab seven
and that's paragraph 13.
Paragraph 13. This is Miranda this gas er and Mr. Tyson. So your honor name a call from the evidence that Mr. Miss gassy or Mr. Tyson became sort of a security detail of sorts and they took it upon themselves to strike out in the evenings or overnight and wander around Ottawa to just make sure everybody was okay. And so, I won't take it Minister Tyson's affidavit, it is the same. Basically, they both say the same evidence. And they both paragraph but But anyways, what what Miranda says here is that Shawn and I decided to try to do what we can to keep the protest area secure at night. I hasten to add three observations. One that was almost entirely quiet too. I don't recall seeing any trucks with their engines idling all night long. And third, there at the bottom is Shawn and I could always generally pass freely down the streets in the protest areas. There was no gridlock as claimed in the claim. So
I'll just pause there. All right.
Beyond these paragraphs and these affidavits, there's also I think virtually every affidavit has a passage where the happines on our side gives evidence about the Ottawa, the Ottawa police. And this is something we'll probably hear about in the coming days and months. But anyways, there's this evidence of the plan having been to park outside of downtown that there had been communications with Mr. Volker sec. I think we ought to go to record again we're back at Mr. Goldberg by motion and.
Paragraph 20
and Mr. Volkers affidavit says, I won't read all of it. But basically, he says, To the best of my knowledge, none of the defendants had originally expected to park any freedom vehicles on the streets of downtown Ottawa. Rather, everyone had been expecting the freedom humbler vehicles to park in a staging area, located away from residential downtown Ottawa, and that shuttle throughout other forms of calcification would carry protesters from those staging areas to Parliament Hill. He's talking about those sketches, Mr. Johnny McDonald Parkway, as it was then known also Sir George HTN party and Parkway, and a third staging area. And then he says in paragraph 21, is talking about these maps and instructions that the Ottawa police provided about where these trucks were supposed to park and what routes they were supposed to take to arrive at the staging locations and that this was a plan that had been communicated to the protesters in advance. So at paragraph 22, Your Honor, that's where we come to the exhibit a and, you know, since I've got it here, let's maybe scroll down to exhibit A which is located at page one or page 74 of 172. bundle the document anyway, this is an email from constable Isabel Hickok. Here is the updated copy with maps and we can scroll down and you can see these maps and the staging areas and these arrows that indicate can street Wellington Street how to get here how to get there. I don't want to belabor this point right now, Your Honor, this isn't the trial and just stand up I'm simply suggesting that this is not congruent with the suggestion that there were no trucks downtown in Ottawa and that it was impossible to pass through. Everybody admits that there were trucks in Ottawa in fact, there was a plan in terms of course, the plan was somehow changed, and that will be corrected that day. But
this is the evidence so I also will highlight Ms. Lee's affidavit
as in the supplementary supplementary motion record has two volumes to your honor, just so you're aware and there's Lee's affidavit is found.
And the only thing I'd like to point out here is these affidavit at paragraph five leaves Africa. It leaves on evidence towards the end of paragraph five is she says I observed vehicles parked in the middle of arterial and residential roadways as well as in bicycle lanes and on sidewalks. This made it difficult for pedestrians, cyclists vehicle city buses and register services to navigate the affected streets. I don't get for this reason affidavit that it is impossible or almost impossible to do. So that is the extent of it. I also would make the point, your honor. But Mr. Flynn, in his application, also talks about roaming around the streets of downtown Ottawa during protests and he doesn't mention that he wasn't able to get it. So I think that those pieces of evidence answer the objection. I think that perspective. Again, nobody's denying that there will be Ottawa, we're simply denying in Haskell, also, that's not really the expression. I mean, I think we have to step back and realize it wasn't made in the streets. It's possible. If that's too narrow a characterization and if it's an incorrect characterization of the expression wasn't.
Moving on, Your Honor to the second point of rejection and the argument there is that our side denies that there was vehicles remaining, I believe, 24 hours per day. Meaning Yes, again, that is I don't think that that is a fair characterization was additions that were going on down to downtown Ottawa. I don't think there's any denial that there were trucks down, there would have been idling this agenda but to suggest that the trucks were idling 24 hours. I think immigration Your Honor, if I could take you to Mr. Jonkers cross examination which is in the supplemental motion record. This one is to have 15.
This record,
Your Honor, what I what I learned is that if you take a look at Volume Two, document number 27. That one does have some hyperlinks that will be helpful. Yeah, I can do that too. If we needed that. I think you might be able to go to Documents 47 That's what I've been doing. Revised court justices Page
tool for
any event, Your Honor, where I'm likely to turn to a former board member.
Okay, so this is Mr. Jonkers cross examination So, Mr. My friends was was asking Mr. Juncker about about trust in Ireland, and I'm looking at question 42 And the question picks it up here it says and I gather when you guys were on Queen Elizabeth, when you guys parked up there and you were staying in the trucks and Mr. Doctor says yes we would have been staying and the trucks correct. And given how cold it was. I gather the trucks would have been idling for a good portion of the time you were sitting there answering no. They wouldn't have been idling too long. We have bunk heaters, so they keep us warm. You pump heaters, Bunk heaters, little bunk heaters. And so that is Mr. Jonkers evidence on cross. Then if we carry on your honor, in the same cross examined trip for cross examination down to question 54.
Question 54 Again, this is my friend. Yes. You indicated you didn't think trucks were idling 24 hours a day. And that's fair. No single truck would have been idling 24 hours a day. But you were walking around this to junk or you would have observed some trucks idling for a prolonged period of time. Answer No. I was with two trucks idling yes to recharge their batteries to warm up the engine but not for I didn't notice trucks running long, long periods of times. And like I said earlier, they had their bunk heaters and that kept their bunks. So the way I read that evidence, Your Honor, is that we're not just using the fact that there were there were trucks idling downtown. It's that they were not idling 24 hours a day. And again, if I could take your honor to miss gas, yours cross examination
it'll be in the same record same supplementary record. This time we're at 12 the supplementary record
Yes, I will. Get there and I'll get to you.
Primatte page A 4364
This is Miss gaseous cross examination. I believe. We're talking at this point in the cross about shuttle you're going out at night with Mr. Tyson anyway. Questions 50 and 51. The question is some trucks were idling at times to keep the occupants warm. You observed that answer? I didn't observe a lot of that at night. No, especially in the middle of the night. I did not see that. If you want. You wouldn't see the trucks piled on the right times though. Right? Correct. Answer Yes. At times. Yes. So that's the evidence that Your Honor, if I could ask you then to go back to the statement of defense. And I'm at
paragraph one two and one, three
of the defense
might not people might be the other one. Just right in front.
I hope I'm not going to be way too loud. Now. Your Honor paragraphs one, two and one, three. That's really what what these two paragraphs are trying to do is simply to say, you know that denying that the trucks remain running all night and all day 103 Denied 97 in its entirety. 97 in its entirety says the Statement of Claim 97 says these large vehicles. And so he's referring to 96 which says that trucks remain running all day and it refers back to 94 which talks about several 100 vehicles remaining camped out in Ottawa so several 100 vehicles remaining. The dust trucks remains running all day and night. That's 96 Paragraph 97 says these large vehicles were made idling 24 hours per day for the duration of the Freedom public protest hitting noxious diesel fumes. Particulate gas. And really, I think the main point of all of our evidence and all of our you know all of the allegations is simply to say that, you know, this is really a gross exaggeration of what was going on
trucks and
I understand that my brain is perfectly fine. We had that motion back in February. But now it's of course it's kind of just start putting evidence in to support those out. As this is, of course, where we're part of the company. And and I don't think that there is any evidence to support that allegation. And certainly I don't suggest I don't admit that in order to avail oneself anti slap mechanism, it might be bullied to invade viability characterized by I don't think that that's your honor. The next two paragraphs at paragraph 24. Now going back to the objections made by the friends with respect to depression, these other objections at CMD. Again, we're at 24. Are we talking about forums, that the forums were being used as a tactic or the common design and also that we denied that the forums for several hours? Certainly.
I think it's very clear that everybody on this side of the table
that there was talking
to tonight The problem is that my friends are characterizing the hobby as part of the design sometimes the master plan or master tackle. That is what we take. That is what it doesn't mean it didn't happen. The point is simply that we want you to come and basically, liability in order to avail itself. I think that what my friends are trying to inject to their grasp is that they simply pay take issue with the fact that characterization, expression I think it's perfectly entitled. While
nobody can deny it
save for the island waiting for Step. Remember it 24 hours a day seven days a week. That's the allegation and honking going on as part of a common design. That's the allegation for several hours every day.
My friend again, I'm sure you've you've read in fact in your honor, the Christmas cases of the christening case in BC, my submission would be that the correct color corollary Excuse me, would be where the defendant in this case simply say that the protest never happened, or that there were no harm at all, or that there was no donation that were done, or that there was no diesel fumes at all produced by any of the engines. We would have to deny the entirety of the protest for us to be within the crystallin situation. I don't necessarily disagree with the idea that if you deny that the expression happened at all, you may be removed from consideration. But I think that my friend is is not comparing like what when he talks about injection
again, I don't want to belabor this, Your Honor. But Mr. Sorry, my friend is talking about Mr. Goldberg at paragraph 27. And he's suggesting I think that my that Mr. Volker, it ought to be removed from consideration because in his in his affidavit, he resigns from a position where, where it is in his affidavit for this motion, he says while playing an important critical role in foreign policy attacking take me out to delete it already seen basically what Mr. Volker was, which was that he was security
between the police
and the protesters. So yes, he denied that he played an important role in horn honking tactics because that's that's that was his experience. But it doesn't mean that he wasn't expressing himself by being at the protest, and that this proceeding arises
out of that project.
So, Your Honor, I think that that really sort of drinks my submissions on the first point. Like to then proceed to step two points. I note the time. I mean, your honor stands of course, whatever, you know. I'm not suggesting you do that now. But somewhere short break it. Okay. So your honor, the second step with respect to the points test is Canada canvas, I think in detail sort of in our factory I'm at paragraph 36 of our factory now.
Thank you.
I don't again, intended to belabor all of the points here. I think they're fairly well known at this point. But a couple of just a couple of highlights one naturally a claim in order to pass the second step must be legally tenable. And it must be supported by evidence base. And Justice potez speaks of more than an arguable case.
I do accept that. This is not the trial.
But we need more than an argue and
it's also not a motion to strike. It's halfway through. But all allegations are not sufficient. And the court does not contain evidence at face value. So what I where I come up with your honor, is that the the plaintiffs at this point need to start actually coming up with some cogent prototype.
Now turning to the law, just very quickly, Your Honor, about private nuisance. Can I send the data back? I don't want to dwell on it. I don't think there's too much that's unclear. For the purposes of this motion, you've got the Antrim case. And you've also got summarizes it a bit easier. The leading case and that's
paragraph 38.
That's footnote 49 that we in case, Your Honor, which links us to category there is a paragraph eight through 10. A private nuisance is made out where the defendant interferes with his neighbor's use or enjoyment of land in a way that is both substantial and unreasonable. The interference may come from either causing physical injury to the property or by interfering with the use or enjoyment of interests. And you know, it goes on once you find something more than a trivial annoyance, substantial annoyance. Paragraph 10 talks about a balancing balancing test, where you balance the gravity of the harm against the utility of the of the contract. So I think
about that, then I will
go to a similar vein, the public nuisance cases, your honor and of course the Locust Orion case which is on the same page of our
paragraph to
arrive and the court says partway through it says a public nuisance has been defined as activities that are reasonably in the public's interest. In questions of health safety, morality, comfort or convenience, etc down the line and it says an individual an individual may bring a private action in public nuisance by pleading and proving special damage. So think that I think that part of this case will turn on that on that requirement of proving special stamps and I I'd like to turn to the sign and that beginning paragraph well it's in our back room on the same page and it was noted
they are able to call up
okay, pardon me and what I'm doing here is I'm in the document 45.
Okay, very good.
That's right. So this is justice McLaughlin's case, back in the day when she was a lower court judge.
This case, I think is instructive.
This case is all about prostitution. So not every case but apparently there was a business for prior to that up with the prostitutes and prostitution activity going on in their area. And they brought an action seeking an injunction. Paragraph one it says junction. And essentially, what Justice McLaughlin was both to figure out what to do with a couple of the defendants actually taught counsel as dependents. So wherever you were, I'd like to pick up the analysis here is around paragraph 10 and 11 judgment. Were just talking about what is the federal data that is alleged to have been suffered grounding us in public? And that paragraph 10. Her honor says I turned into the second question whether the plaintiffs have suffered special in particular damages as a result that conduct entitling them to sue notwithstanding public character. What is meant by special in some cases put the requirement generally stating that a member of the public can sue can maintain an action quote only if he has sustained some substantial injury beyond that suffered by the rest of the public. Other states other stated The question is whether the plaintiff is demonstrating the violation of rights because to a violation of rights is right in common with other members of pub, etc. At paragraph 11, she says the common thread that runs through the authority is that private citizens cannot maintain actions to the public, where the suffering and inconvenience is shared by the public or a recognizable class of the public. The ultimate question is simple is the damage suffered by the plaintiff different from that suffered by other members of the community thus, plaintiffs have been held to have suffered special damages entitled to privately were a public nuisance industry with their right of ingress or egress to their private property. And I think this is a typo here. It says but have not been denied. I think it should be but have been denied. The right to sue where the interference with the right was shared by other members. So carrying on to paragraph 12, Your Honor, she carries on in the case of bar it is not alleged that the defendants are interfering with the use of their property. There is no suggestion that ingress or egress to their property has been blocked. The essence of the plaintiffs complaint is that the neighborhood has deteriorated as a result of the defendants activities in the streets and alleys surrounding their premises, making their premises less desirable. 13 does this constitute damage different than that suffered by other members of the community or our class? I know many other citizens carry on business in the area which the plaintiff operator established. There is no suggestion today like plaintiffs will not suffer losses as a consequence of the increase in prostitution in the neighborhood. The onus is on the plaintiffs to demonstrate that their loss especially we need this, they have failed to do that, Your Honor. She carries on at paragraph 14 and 15. And she talks about a case called Hickey, which without a Newfoundland before obviously this case and the plaintiff Hickey was apparently a fisherman and he was complaining about discharging poisonous materials in the waters where he was fishing, which was destroying the fish life. And he wasn't entitled to maintain his action in public nuisance because it says it said here in paragraph 14 Towards the end of the court stated that quote where the damage is common to all persons of the same class, then a personal right of action is not maintainable. The fact that the plaintiff might have suffered greater damage than other members of the public who did not attempt to dish in the area was immaterial. So, ultimately, then at paragraph 16, paragraph 15. I won't read through all all the way but I recommended to you the paragraph 16 finishes by saying the plaintiffs have failed to establish either private nuisance or special damages entitling them to sue for public nuisance follows that their action to enjoy the conduct complaint cannot be maintained only the Attorney General can bring such an action. And then at paragraph 17 Just the cloth and carries on and says she says I find it to be supported by important considerations and policy. paring down she says while she's talking about basically the policy being that the attorney general is supposed to be the defender of rights in a product and the issue is whether or not that should be served. So in my submission, Your Honor, that's an important case because I think it really illustrates the idea that in order to bring a public nuisance claim as a private citizen, whether it's his leave or whether it's happy, or whether it's local 613 company, you need to prove special damages and those damages simply cannot be business losses when they get to a second position that I'm just not accepting business losses by themselves can be I don't think that's quite right. I think that the issue is that the damage has happened. And they have to be suffered uniquely. And when you have an entire class of people, whether it's in downtown Ottawa or little Placentia bay or whether it's downtown Vancouver it's not it doesn't lie to Greg and claim, only claiming the same damage and everybody else when you got a public nuisance claim in this case, you will see that at the end of the Statement of Claim the only claim is for loss of wages and loss of loss of wages for the employee class. Loss of business income.
So in my submission, it's categorically impossible to have a class that is that is alleging public nuisance damages that are all the same. You can do that and not go to the legal legal tenability of the so that is the Stein case. Hopefully the next point about public and private use, Your Honor is all about causation. And the case is often say that naturally. causation. You need to at the end of the day to show that the conduct that there was some conduct from some defendant that caused the plaintiff to suffer losses. So what we're asking is for there to be evidence linking
the conduct of the defendants with lost
profits. And again, Republicans were asked within the evidence, especially damage that takes us through that sky threshold. And my submission then is that they're really on this motion. Again, mindful of the of the standard of what we're not here to prove it on ballots. Nevertheless, this is the time when the plaintiffs are supposed to start to put in my submission is that there isn't enough to get us through the second step. I think that we take for example, I don't know idling trucks. My suspicion is that there needs to be some evidence that would show islanded trucks I think it's probably best characterized. Well, I don't know how to characterize it is private or public. I'll leave that my friends but but there would need to be some evidence that that demonstrated that there was that first of all trucks were Island
24 hours.
Then there would need to be evidence that there was human we need to know what were we looking at what the concentrations weren't able to know where that happened? Because it couldn't we need to know that it would, that actual plaintiff in any of the classes actually were harmed, or suffered some kind of a nuisance because of and I paused to know for example, this lead,
lead lead that is really the only affidavit where I think anybody talks about that might not be true. I don't want to I don't want to but let's talk about
it leaked that when she left her home, walking around downtown Ottawa when she finally left she was that horrible smell as
well, again,
this Lee wouldn't have been at home when she apparently testifies about so it would not have anything to public being out and about. But again, I simply make the submission that that cannot round a public nuisance claim because if it was a mislead to complain about ease of use while walking around outside then So can everybody else in Ottawa and that's that's something that the attorney general would have had to institute and ask for an abatement or an injunction or to get everybody out or whatever. I don't know why that didn't happen. It didn't happen.
But that's not
I'm sorry that that's just not that doesn't mean it's okay to establish a public nuisance. So, those are the kinds of evidence I mean, give me similar evidence in my submission for horn honking evening, similar evidence for blocking streets.
And what evidence is there? So I think at this point, your honor, what we need to do is just take a quick look at the evidence that the plaintiffs have so if you take a look at now, I think we're in the supplemental motion record, you're on it here. But I printed these out for myself. My friends talk about Mr. Flynn's affidavit in support of the nuisance position, as you know, again, I don't want to belabor the point. I have put in some detail all of my objections to the evidence in our packet. But just to recap a little bit, Mr. Flynn's affidavit, of course, is in my submission, not really productive. He doesn't have any idea about any of the plaintiffs or defendants in this case. He's simply wandering around Ottawa and he sees what he sees that's fine at the times that he sees them, but certainly as your plate is on audition, and he you know, I think he took some readings with his smartwatch. You know, I don't know how accurate that is. There's not but apparently what he did was he put his smartwatch right up beside the truck. Well, that's not appropriate. I mean, nobody was experiencing truck points right outside, in their homes to ground the private nuisance claim. With a truck one foot away, the truck wasn't getting the home. I don't mean to be facetious or deliberate, but it was so a decibel reading of whatever it might have been. This watch is simply not impossible, your honor that every person in downtown Ottawa suffered that exact decibel level part. Certainly there is evidence on this record. That it had. So my submission is Mr. Flynn's evidence, I suppose is probative of what he saw and what he experienced when he was there. I don't think that it's enough to grounds a private nuisance claim or a public nuisance claim. He doesn't talk to any special damages. He doesn't talk about anything. Right, my friends that talked about Mr. Guests this afternoon. So Mr. Getz, again, Your Honor. Business owners of the Union 613 restaurant. Mr. Getz doesn't support any of his
I go back to Justice Cote.
She says default allegations are sufficient unsubstantiated records are sufficient and it would have been very easy for Mr. Getz to produce a profit and loss statement. Or perhaps the revelation book from restaurants to say, here's all we can afford, which needs to happen. Here is a year on year summary of profits. And losses or revenues. Here's the employee payroll but they haven't paid out because this is talking about you know having to pay a staff because he believes it's important. And you know he doesn't say anything about any say anything about actual dollars that he suffered with respect to do anything and then of course, he later goes on to talk about giving explanations why this happened and of course that's all speculation we have no idea exactly why.
It was apparently bitterly cold in Ottawa that I don't know whether that had anything to do with it. Also, apparently,
the COVID restrictions. I think it's that at that point you could only be 50% capacity. So COVID is still very very cool. So I don't know. But also, he's talking about you know, he's giving several layers of hearsay with respect to you know, I heard from my partners that they heard from the clients that this is the reason why they weren't coming in my submission. Your Honor. That's that's that's unacceptable.
And again, Your Honor, we've got to remember that Mr. Getz is being put forward as a proposed representative of a business class and the business class is only praised in public nuisance. So any evidence that Mr. Getz puts forward can only ground a claim in public nuisance. And in that case, there needs to be special damage. And in this case, there isn't any damage. That is the best use first of all, but it's also not special. Again, the only thing that the restaurants are claiming is loss of profits, which is the same as every other restaurant or business in the business. Nobody is saying that a semi truck to be a little bit tongue in cheek. Nobody is suggesting that a semi truck drove through the restaurant window and ended up in in the lobby. Maybe we could talk if that were the case. I don't know. So the point is simply that
there's no precedents
that in my submission that is a serious problem for the public. So then my press talks about
the affidavit
Your Honor may recall as Miss Alyssa Kia is she was apparently what they call a commissioner of what they call the Ottawa people's commission. I understand that this was a group of citizens who got together essentially and you know, talked about their experiences during the convoy. They seem to have been almost invariably negative. And, and that's what it did. That's fine, but the point is simply that this evidence is COVID. There is no indication that any of the testimony here talking about was sworn there doesn't appear to have any cross examination as per example and so when you take a look at the actual report that was attached to this affidavit, it simply basically is a whole bunch of sound bites from a whole bunch of random people. They don't even give their last name. They just simply say you know, Sean says there was more of a pious his life or whatever, obviously, I'm paraphrasing, but some of the some of the some of the people that are listed as anonymous. Well, I naturally, Your Honor, that's undefined hearsay, and there's just no way to test the viability and so, you know, I appreciate that my friend may may say, Look, this isn't really actual evidence to get that we're gonna get some of these people as witnesses for trial and what will happen. But my point is that where why didn't they do that? We've been here we've been on all the two years in the plant. And this is really all my submission. That's enough for
the test. There's not any more that'd be more for me to this then we've got the
My friends are also talking about the reload report, which was attached to my parents. And I take the position, your honor, that that that evidence cannot be admitted to the Justice Courts is not admissible for any reason on this proceeding, but certainly
to the extent that my friends are trying to suggesting that COVID is my motivation, then we've got the other two affidavits we've got MS. Laroche. Sorry, Mr. Andrew. Your Honor. The Russians evidence in my submission is also not probative. I understand she may be apparently accomplished hearing scientists that's fine. But she doesn't she wasn't downtown artwork. She wasn't there. She had no idea what actually happened, and she didn't Apparently, she says somewhere in your affidavit that she did not examine anybody. She didn't she didn't talk to you. So how is Dr. The rush to know that anybody
in Ottawa whether caused by coup or sacrifice,
I did. Talk to the rush excuse me makes the point. That, you know, exposure to loud sound can cause temporary and lasting health impacts including hearing loss and tinnitus. Yes, okay. Then she says truck and train boards produce sound levels in excess of 100 decibels. Well, okay. But so what I mean, I don't mean to be glib about this, but I don't see how that advances. The only conclusion that she says that may be might get us somewhere would be Russia says during the freedom conjoin indoor noise levels were sufficiently high. This is sorry, Your Honor. This is paragraph 12 of a doctor the affidavit what she's saying is indoor noise levels were sufficiently high as to interfere with residents daily activities, including work
and outdoor the light level for specially high temporary hearing loss.
I don't think that that is something that Dr. LaRoche properly testified where she was ever there. No idea of every single corner and every single person. It is simply the electoral strategy because not
to anything that actually happened.
And then we have Mr. Andrade. Evidence, Your Honor, and Mr. Andres evidence in my position is also not probative. I do commend that. Yeah. Your Honor, because I really find it to be really unhealthy. What the evidence is on. I mean, we've got we've got Dr. Sorry, Mr. Andrade, saying point blank and his affidavit that he didn't. He didn't talk to anybody. He hasn't talked to any businesses. He has no idea of any actionable. That is the exact point of this procedure. And he says quite candidly in his affidavit that if he ever does talk to somebody that is completely worthless. I mean, what we've got is, is Mr. Andrews talking about top level GDP figures and somehow calculating it all that this is the level of GDP that must go to wages and profits. And all of a sudden, here's the number of people that must have been affected or probably were affected by the protests in downtown Ottawa. You can't do it by statistical analysis. I mean, even if you could, it is so completely speculative. It is not in my
back level required.
Is examples of the kind of evidence we expect we will
not
satisfied for this purpose that such evidence is probably available so, that they don't have to show me that it's tenable.
Your Honor, in my submission, what you're talking about, could possibly be achieved by saying here is here are five affidavits from business owners in the downtown Ottawa court. Here are their profit and loss statements. And they all swear to having lost X dollars. And naturally, we can put all 20,000 businesses or whatever in the in the record, but here's the fun or for that matter, when we're talking about diesel fumes or other things with respect to this, where are the five or 10 affidavits from all the different corners of the occupation zone to lend support to the idea that this is a this is not an arbitrary occupation zone. In fact, this is a correct delineation of the correct boundary and here's people from all over the place with more or less the same evidence is more or less the same. Not be suggesting that that would be I don't think that would be the order as this was coming. And you know, we're a year and nine months into the truck. My group from what I understand Your Honor, this mystery, hundreds affidavit was put into the record, I think, for the injunction back in February last year, which means and I think Mr. Andrade also says so in this affidavit, he hasn't changed it. Nothing has been done. Nothing has been changed in a year and nine months. And, you know, this is a $290 million claim on paper. And I would think that it would behoove the plaintiffs to start to actually prove that this claim is worth that amount of money. And I don't think it's a stretch for the defendant in this case to have to expect some level of evidence that goes
against what the certification issue.
Specific Absolutely, it would be very much I agree with that. Your honor. Your honor, Bill, appreciate having read the materials that I think both of us are. We haven't really hit the class, the class action component of all of this. Really head on I think that is probably best left. But I think so again
my friend, I think at some point, is this the O'Neill case, there's an old case from Nike 13 I think it is. And I believe my friend is trying to suggest that somehow my argument is that business losses by themselves can't ground a claim in public nuisance. I don't believe that's what I'm saying. I think it might be difficult to do that. Not impossible. But you'd have to it would have to be unique, not suffered by the class of the people in the community. So I don't really take issue with the principles outlined in the Neil case such as they are used. I rather go back to the sign case that I read direct from you minutes ago. Again, I think that that case, even though it's from the Navy
I think it's I think it's instructive in this case.
So that is really the the point I tried to make about about the nuisance evidence is that with the exception maybe of this i I don't want to overlook this leads evidence. I haven't haven't come to that yet. My my friends, of course, you put Ms. Lee's evidence forward as an example of private nuisance. Well, that may be your honor. My, my argument would be that this lease, also not really supported by anything, but if the court chooses to believe it, then then that could be evidence of church suffering, loss of use. Dropping she doesn't really put in any monetary value to it, which I understand necessary on this motion. But my point is this though, is that certainly there's no evidence from me about anybody else. Natural I mean, I'm not really criticizing How could she know what other people experienced or didn't experience and I think is really a big problem with this entire proceeding. But not only that, though, but she really doesn't also talk about any special damages that we've found a claim public In fact, she talks about being outside and having experienced the, whatever she experienced outside, but again, those would be exactly the same things that everybody else was
where they team members and that's not special. It just simply isn't.
At another point, I haven't met your honor. This business of Mr. devayne Jeffrey today, and happy coke Coffee Company. Your honor. Those are two plaintiffs. In this action. And there's no appetite. Nothing. So Mr. Delaney is supposed to stand up for all of the employees. Employees. And how is the court generalize Mr. Delaney in public nuisance when there isn't any evidence at all? My friend may say, well, listen, we've got Mr. Andres evidence, which is enough and we've got as my rochers evidence because we have that in my submission, Mr. Andrade and Miss Laroche. Talk to the Welsh don't help. Okay, anything about Mr. DeMaio? How much money where he worked, what He suffered, what days you do the work? I don't. And furthermore, our discussion a few minutes ago, where are the five or six other affidavits from employees around downtown suffered the same? thing with the happy Coffee Company? Your Honor, it's the same, it's the same. My position really is that these two plaintiffs cannot continue as plaintiffs in this action because they don't meet the second step. There's just nothing to the ground there.
I accept that they don't have to prove their case. At this point, but there's got to be some.
Your Honor, I'd like to then move forward to the common design aspect of play is a level 20 Shall I carry on? Okay. So another than the other important aspect of the claims is this notion of promises
overlooked California. This is a, you know, it's a derivative theory of liability, which exists. Of course, I understand that.
But this is the theory of liability by which the plaintiffs are seeking to basically add 1000s I think it's fair to say 1000s of defendants to this proceeding. And by that, I mean, most of them like all of the donors, who've donated money to in conflict and also the Oregon right, so just so that we're on the same page. My view is that the truckers know people who honk their horns or engage their engines,
including Mr. Donkor. I talked to trucking
are not in the common design. We're only talking about the donors. My understanding is that there is no allegation that the organizers so that's just the barber, you know, Mr. King, all these people. Nobody's suggesting that those people actually honked the horn, or actually fired up a truck. But instead, they did other things to support and, you know, I believe my friends were it's already a site or encourage facilitate things like that. So we really need to, I think slow down and understand what it is that my that the claim is, in this case. My friends.
Paragraph 51 You're on
So, my friend says
the courts have held that other parties may be joint tortfeasors ally over the tortious activity, where they have knowingly are encouraged to connect in furtherance of a common desire for that's how my current characterizes a common sign by if I could also turn to justice.
So, Your Honor, I know that my friend I think referred to your endorsement from last February. The motion strike and your honor also referred to common purpose as follows a paragraph 34. The court says it has been found that where two or more individuals agree on a common purpose that is unlawful or tortious in itself and in furtherance of that purpose, what is the compensatory that all may be jointly liable. It will vary but what we need to do is we need to ask ourselves what is this common purpose that is being relaxed? And that is in the state of mind? I'd ask you to turn to paragraph 48. Of the statement of claim.
The claim in the materials will be in the supplemental motion record towards the end of 18.
In fact, it's time start 19.
Paragraph 48.
Right, so this is where the where the plaintiffs are describing what is this harm? What is this harm that is supposed to be arrived at in common which then results in a tort So, the defendants engaged in a common design to occupy downtown blockade the road to create excessive noise and other disturbances to substantially interfered with and caused distress to everyone who lives works or runs a business in downtown Ottawa with the primary objective of compelling the Government of Canada, blah, blah, blah to drop all the health measures. That is the description of the problems is not as clear as I can find. And so that is not the same as definitely going to a protest. That is a very specific and very clear description of what's the harm that is alleged to go to Ottawa to create noise to create, basically to cause havoc to the citizens of downtown Ottawa to the citizens of downtown Ottawa and in my submission, that is very important. Because there there needs to be evidence. It is not going to be enough to simply say that the people happen to be in downtown Ottawa. There needs to be evidence of this plan. There needs to be something to link the donors, for example, and the truckers or the organizers and it needs to be some evidence on this motion. And this record that goes to commonality of so when we're talking about I mean, Your Honor, before we we get into that, I'd like to just also situate us here at the Rutland case, which I think you
were aware of that.
And there's also the ice out of the Stanley Cup, right and I'd asked you to turn that up, your honor.
It's in our factory here paragraph
what a 344 effect in which is not a three two and so let me click on the ICBC, the Alexandria case. Paragraph 21.
And I rely also, your honor on basically paragraphs 21 through 30. And I'd like to just start with paragraph 28. Below case, which is what's being cited here. I don't want to I don't want to lose you, Your Honor. Are you are you there? Okay, great. The ICBC case. So this is where the judge in the ICBC case talks about the loca and they quote paragraph one and four and towards the end or sorry, rather halfway down that paragraph before the Supreme Court. While the required connection between the common design and the tort actually committed has been expressed in different ways. In the authorities, the cases relied on by the appellant stand for the proposition that the tort in this case the murders must be committed in direct furtherance of the college. So I think that's I think that's important. And the other the other portion of I think it's important, Your Honor is paragraph 30 where the court is talking about the ability to see the Sea Shepherd case out of the UK. But anyways, this is a deal breaker says the basis of tortious liability must be kept within reasonable bounds and the principal concern of the law in this area is to recognize the liability for the primary actors of a tour while ensuring the facilitation of the tour will not give rise to liability. Even when combined with knowledge of the primary actors. So I think it's important to also remember that this is a derivative theory of liability. It's just not simply something that anybody can trot out. willy nilly remembering the ICBC case, Your Honor, I don't want to get into much detail and I do. I'm mindful of the time. The ICD 10 case was about people rioting in the streets of course in Vancouver after the riots back a few years ago. What happened was ICBC had to pay up girl a bunch of damaged and destroyed vehicles, and then they subrogated And they ended up suing all these people for conversion. And one of the arguments that ICPC lawyers made was that everybody out there right everybody should be viable, totally liable for everything simply because they were at the protest. And in my submission that is really pretty close to what I think are the allegations or the the argument in terms of theory of liability in this case and the quarterback case said no, that's far too broad. We must take a step back here. And in that case, they had to go car by car, and they had to analyze with respect to each car that was damaged. Who was there and whether each of those people were had enough of a hand in its to be either directly liable or liable on theory. And everybody turned on. And in my submission what we're talking about in this case is
it had to can't be any less.
We need it. At this case we need we need evidence of this common what was who was who were the people involved. who agreed to do what in furtherance.
Take the donors
they never went to Ottawa. Okay, Mr. Howard went to Ottawa apparently for one night he really talked to me. So Mr. Howard admits he made a donation but he denied that it had anything to do with any of this color design paragraph he says quite categorically I had I did not intend this money to go to supporting the common design forums and island views and
zero evidence.
And in my submission, Mr. Howard's cross examination offered to do anything to shape it. And also the other all of the other. Organizing, defending them with evidence with respect to that they all categorically deny any of the things that they did was in order to further
distract by my friends.
So the life condition, this is an important point. We need something a period of time I know that back in February, we had a discussion, Your Honor. Puts in your endorsement that you know that theoretically, such a claim exists. Fair enough.
That was enough to claim but now we're at the point where we have to start
again from my friend side, and I'll close on this we've got really no evidence at all going to college Zion and we've got Mr. Wooster. He is affidavit that's not helpful. Is leave affidavit doesn't talk with economic design this year get to that today but doesn't talk about common wind affidavit neither. You've got Jared King, you've got Mr. Kings affidavit. Your Honor, energy King is a private investigator who's talking I think he's talking in this case above, having downloaded some some Facebook posts from the defendant and the defendant. He says we're not properly broadcasting the the fact that the injunction had been granted and everybody was supposed to stop. Well, you know, that might be I don't know what that has to do with common. complaint about in this case, that would probably that might be something that claim who granted the injunction maybe there's I don't know that's not the point for a common design. And the only other the only other have David is this board that, again, worked with in a whole bunch of documents. In my submission, leaving aside the fact that those documents in many instances are really not properly authenticated probative, of evidence of a common design, to do the things that were described in paragraph 48 Which then led to the commission of tour. So that is the
central allegations materialized once it definitely they were organized part of that. I think it'll be disrupting the city
once again, the organization.
What I'm suggesting, Your Honor, is that all of the evidence that these people showed up, to participate in a demonstration that was the common design, if there is a common design that was not to pass mark. There is no evidence that that was the that is what my friends can edit. That's what they characterize it and that's what they have to show. Certainly, it would be, I think it would be fairly silly for us to suggest that people spontaneously arrived in Ottawa, I understand that there was some degree of organization to get the convoys here. I don't know what the evidence would ultimately show it every single person that arrives because of what Tamir Leach, for example, tweeted out, I
don't know.
But I don't know that that gets us very far. But I say that, if you're alleging common design, the law has very strict. The law is very narrow here. And I think it's very narrow for good reason. Because we don't just put blanket liability on people for showing up or doing something. When they when when there's no evidence that that was actually the reason that they were there. I mean, take for example, the donors who works, right none of this applies to them. They just got the phone and click on our website. If we're talking about making donors liable for whatever happens in Ottawa, there would need to be a lot of that has to demonstrate that these donors knew what they were doing and had the intention of helping whatever happened in paragraph 40. And Mr. Howard says that that is not the case. He's the only one that has evidence about anything with respect to the donors. And that's it. That's the evidence. I don't think the court can take judicial notice of any of this division that is nowhere near what judicial notice is supposed to be. And also, I don't think we're in a situation where anything was obvious. I mean, that is really what judicial notice is, isn't it's about something to be obvious. I don't believe that. I don't believe that this case can determine with respect to somebody saying something. I think there's a claim of nuisance technical claim. And there has to be evidence common design is even more technical, and there's got to be good evidence. So anyway, Your Honor, that is that is where I think I'd stop on the second part of the test and I see it's 1140 and I come back to part three and now conclude
