The Freedom Convoy 2022 was a defining moment in recent Canadian history. It ignited passionate debate about the intricate balance between fundamental rights such as freedom of speech, the freedom to protest, the rule of law, and the administration of justice. Much has been written about the cases involving individual Convoy leaders, such as Tamara Lich’s bail hearings, but there has been a case bubbling in the background that deals directly with the entire protest and whose ultimate outcome will have a profound impact on Canadian freedom of speech and protest for years to come. That case is Li v. Barber, and the Ontario Court of Appeal (ONCA) made an important procedural decision in the case.
The original plaintiff, Zexi Li, is a resident of Ottawa, who sued for damages related to the disruption caused by the Freedom Convoy. Her claim expanded to include three classes of plaintiffs: Residents within the protest zone, businesses in the protest zone, and employees in the protest zone.
The Justice Centre for Constitutional Freedoms (JCCF) is defending Chris Barber, Tamara Lich, and other participants in the Freedom Convoy regarding this $290 million class-action lawsuit. The lawsuit seeks damages from those involved in the Freedom Convoy and their donors, alleging that they contributed to harm during the protests against federal Covid vaccine mandates in early 2022.
The March 6, 2025, ONCA decision in Li v. Barber focused on the application of s. 137.1 of the Courts of Justice Act. That section is known as the “Anti-SLAPP” which is designed to protect individuals from strategically abusive litigation. It is not uncommon for individuals and organizations to sue those who express opinions they do not agree with to shut them up. The “Anti-SLAPP” tool is meant to allow for freedom of speech by allowing defendants an opportunity to dismiss cases that stifle free expression and intimidate critics.
The defendants in the Li v. Barber case filed an Anti-SLAPP motion to dismiss the lawsuit on the basis that the case relates to expressions made on matters of public interest which was their right. However, the lower court dismissed the motion in February 2024. The defendants appealed to the Ontario Court of Appeal.
Balancing the legal complexities of this case is vitally important to ensure that justice is not only done but also demonstrably seen to be done. That is the only way to ensure that the people respect the Courts and their role in the rule of law. The ONCA’s procedural decision provides a critical lens through which to examine these complexities.
The convoy’s participants, many ordinary citizens, felt profoundly unheard and misunderstood. It is important not to forget that while their actions, though disruptive, stemmed from a deep-seated sense of injustice and government overreach during the COVID-19 pandemic that saw government lockdowns and vaccine mandates against the will of the people. This human element—the frustration, anger, and fear—is crucial to understanding the event’s significance. The inherent tension between the fundamental right to protest and the need to minimize harm to others demanded careful consideration.
On appeal from the lower court the Ontario Court of Appeal (ONCA) ruled that the lower court properly dismissed the defendants’ motion. The ONCA emphasized the importance of “a real prospect of success” in assessing the merits of the case. The ONCA was not saying that the plaintiffs’ case would be successful or that it would likely be successful but that it had “a real prospect of success.” As the ONCA noted, the Anti-SLAPP “motion is nothing like a trial. It does not reach a determinative adjudication of the merits of a claim or defence.” Instead, s. 137.1 “acts as a special pre-trial screening mechanism that enables a certain type of proceeding – those arising from public interest expression – to move along to a trial if it survives scrutiny under the s. 137.1 test.”
The ONCA was not at all passing judgement on the Freedom Convoy 2022 but was making a procedural decision that was not merely technical but recognized that justice must be visible and accessible. In other words, the Court was ruling that as much as possible everyone should have their day in court to make their case. The ONCA was meticulous in scrutinizing the evidence and legal arguments, underscoring its commitment to procedural fairness in the Anti-SLAPP motion.
Concerns regarding potential political bias within the judicial system also arose from public comments made by prominent figures during the Freedom Convoy controversy. While the ONCA did not directly address these concerns, its emphasis on procedural fairness and its thorough review of the lower court’s decision implicitly underscore the need to safeguard the judiciary from undue political influence. The very act of judicial review serves as a crucial check against potential bias or overreach. The court noted, for example, that the attempt to saddle legal liability to donors to the Convoy is perhaps better argued at a later certification motion than at this Anti-Slapp motion. The point is this case is far from over and there are many opportunities for the defendants to argue their case against the plaintiffs’ claims.
Canadians and indeed people around the world are watching the legal battles arising from The Freedom Convoy 2022. These cases navigate the complex intersection of freedom of expression, the rule of law, and the pursuit of justice. Procedural motions, such as the Anti-SLAPP motion is but one in a series that will be undertaken as this case winds its way through the judiciary.
The Ontario Court of Appeal’s decision, while focused on the specific procedural motion, offers a powerful reminder of the fundamental principles underpinning a just and fair society. The court’s careful attention to detail, its emphasis on procedural fairness, and its acknowledgment of the inherent complexities of balancing competing interests demonstrate a commitment to ensuring that justice, in all its forms, is not only done but is also demonstrably seen to be done. This commitment remains essential for maintaining public confidence and trust in the judicial system.
The defendants Lawyer Chris Fleury noted the disappointment of this outcome “but will continue vigorously defending our clients in this proceeding, including at any certification motion, and at a trial if necessary.”
