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Fridays with Rogers Partners

At our weekly Friday meeting, Katrina Taibi discussed the recent decision of the Ontario Superior Court in Li v. Barber, 2023 ONSC 1679.


A motion by the plaintiffs to amend the Statement of Claim, and a motion by a group of defendants to strike the Statement of Claim for no cause of action and offending the rules of pleadings.

Facts and Pleadings History:

This proposed class action arises from the Freedom Convoy that occupied the City of Ottawa from January 28, 2022 to February 21, 2022 in protest of the COVID-19 public health measures.  The protestors surrounded Ottawa with large tractor trailers, blocked the streets, and made continuous noise.

This action was commenced on February 4, 2022 to seek an injunction restraining the continuous use of horns.  On February 17, 2022, the plaintiffs were permitted to amend their original Statement of Claim to add representative plaintiffs and propose three plaintiff classes: a resident class, a business class, and an employee class.

This motion seeks to further amend the Statement of Claim, including identifying 18 previously unknown defendants and naming a further 62 John/Jane Doe defendants.

Relevant Rules of Civil Procedure:

Material Facts

25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

General Power of Court

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

Proceeding not to be Defeated

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated by costs or an adjournment.[1]

On a combined motion, Rules 26.01 and 5.04(2) must be read together.

Causes of Action:

The Court described the purpose of pleadings as follows:

A statement of claim should give the defendant notice of the case against him or her.  The pleading should “define with clarity and precision the question in issue between the litigants,” give “fair notice of the precise case that is required to be met and the precise remedies sought” and should “assist the court in its investigations of the truth and the allegations made in the pleading.”[2]

The defendants argued that the Statement of Claim does not articulate a cause of action against the named defendants.  The plaintiffs claim both private nuisance and public nuisance against the defendants.  To establish private nuisance, the defendant must have unreasonably interfered with the plaintiff’s rights to use and enjoy their land.  To establish public nuisance, the defendant must have unreasonably interfered with the plaintiff’s public rights such as the use of roads and sidewalks.  The Court found that both private nuisance and public nuisance were plausible causes of action.

The plaintiffs argued the theory of common purpose, which the Court describes as follows:

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 one of them commits a tort, then all may be held jointly liable.  This requires a joint unlawful objective on the one hand and a reasonably foreseeable tortious activity on the other.[3]

The theory of common purpose is not new – if the defendants agreed or intended for the defendants to create a public nuisance or a private nuisance, they may be found liable as joint tortfeasors.  The Court found that applying this concept to those who donated to the cause may be novel, but it was not an impossible cause of action.

Further, the Court stated that there is no prejudice in granting the Statement of Claim amendments pursuant to Rule 26.01 or permitting the adding/substituting of John/Jane Doe defendants pursuant to Rule 5.04(2) because no Statements of Defence have been filed and the limitation period has not expired. 

Rules of Pleadings:

The defendants argued that the Statement of Claim, which was 245 paragraphs in length, was not a concise statement of facts pursuant to Rule 25.06(1).  Further, they argued that the Statement of Claim contained extraneous facts they should not be required to respond to.

The Court agreed that the Statement of Claim was lengthy and somewhat repetitive.  However, since the plaintiffs are seeking to pursue a novel claim and certify both plaintiff and defendant classes, some flexibility is appropriate.

In terms of extraneous facts, the Court stated the following:

Striking pleadings must be approached with caution.  Anything that can be proven and may have a role in determining the rights of the parties may be pleaded.  Irrelevant facts, facts inserted solely for colour or facts which are marginally relevant but highly prejudicial may be struck out. […] It is not to be drafted as a political manifesto.[4]

The Court agreed with the defendants that certain paragraphs should be struck from the Statement of Claim.  The paragraphs in question were opinion-based, plead evidence, or were very difficult and unnecessary to prove in the context of the litigation (e.g., the amount of people who suffered prolonged effects from COVID-19).


The Court allowed the plaintiffs to file an Amended Statement of Claim, without certain paragraphs.  The plaintiffs were also permitted to add additional named defendants and additional John/Jane Doe defendants.

[1] Rules of Civil Procedure, under Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 25.06(1), 26.01, & 5.04(2).

[2] Li v. Barber, 2023 ONSC 1679 at para 27 [Li], citing Fridman’s The Law of Torts in Canada, 4th Edition, Thomas Reuters Canada Limited, 2020 at p. 206 [Fridman].

[3] Li, supra note 2 at para 34, citing Rutman v. Rabinowitz, 2018 ONCA 80 and Fridman, supra note 2.

[4] Li, supra note 2 at para 43-44.