An Ontario court has rejected a request from two āFreedom Convoyā organizers to release $200,000 of frozen funds to pay for lawyers to defend a lawsuit launched on behalf of Ottawa residents and businesses.
B.J. Dichter and Chris Garrah are among a long list of defendants named in the potential class-action lawsuit filed in February, seeking damages for ācivil nuisanceā caused by truck horns, diesel fumes and other disruptions to residents and local businesses during the protest in January and February.
In a motion, Dichter and Garrah asked for access to some of the money donated to the convoy through crowd-funding platform GiveSendGo, cryptocurrency transfers and other sources, so they could mount a defence.
But Justice Calum MacLeod on Tuesday denied that request, saying it would violate the agreement between the plaintiffs and other defendants to move about $5 million in donated funds into escrow, pending resolution of the lawsuit.
āAccess to the frozen funds should not be granted lightly because it would effectively subject the frozen funds to the ādeath of a thousand cutsā and would risk undoing the effect of the agreement reached between the parties,ā MacLeod wrote in his decision.
The Ontario government has also filed a claim on the donated funds, as potential compensation should on-going criminal proceedings against several of the defendants result in convictions.
Both Dichter and Garrah claimed in court that they had limited income and minimal assets and were unable to pay a $200,000 retainer for lawyer Jim Karahalios to defend them.
Dichter, a truck driver and podcaster, said he had income of approximately $10,000 in 2021, with an additional $7,000 in corporate net income. He said he couldnāt earn material income for six months this year because of a broken foot.
Garrah also claimed only limited income of $15,000 in 2021 from his work as a general contractor, selling windows and doors, according to the court filing.
But Judge MacLeod said they hadnāt provided adequate evidence to show they were so impoverished they were unable to pay for their lawyers.
āNeither of the moving parties have made the kind of frank financial disclosure that might be necessary to make a finding of impecuniosity,ā he wrote in the decision.
Karahalios told Ā鶹“«Ć½ his clients were still reviewing the decision but were disappointed by the outcome.
āHow do you defend yourself in a class action without lawyers?ā he said.
āAccess to justice is a fundamental principle.ā
Karahalios said the agreement to put the funds into escrow allowed defendants to draw on them for their legal expenses. His clients, he said, were left without representation when they were removed from the board of Freedom Corporation, which is represented by the Judicial Centre for Constitutional Freedom.
Judge MacLeod added that, despite claims from the defendants that the protest was legal, they are not shielded from civil litigation over it.
āIn their affidavits, the defendants seem to conflate these ideas just as they assert that if they themselves did not honk horns or block streets, they cannot be liable for the actions of others,ā he wrote.
āIn point of fact, however, the plaintiffs argue that the āoccupationā was both illegal and tortious. They are not alone in that point of view.ā
None of the allegations in the civil suit have been proven in court, and MacLeod did not rule on the substance of the lawsuit.
Convoy organizers Tamara Lich, Chris Barber, Pat King and Tom Marazzo are also among the defendants. Freedom Corporation, the not-for-profit established by protest organizers, is being defended by lawyer Keith Wilson of the Justice Centre for Constitutional Freedom, an Edmonton-based charity that has taken on several cases arguing against vaccine mandates.
The lawsuit was brought by Ottawa public servant Zexi Li and was later joined by Happy Goat Coffee Company, restaurant Union 613, and restaurant worker Geoffrey Devaney.
Lawyer Paul Champ intends to seek class certification to sue on behalf of all downtown residents, businesses and employees.
Champ also intends to seek certification of a defendant class that, if approved by the court, would make potentially liable all donors to the convoy, as well as truckers and other individuals who participated in the three-week protest against COVID-19 mandates and the federal government.
A hearing on certification isnāt expected until the fall of 2023.
