By Richard C. Owens, April 28, 2022
Invocation of the Emergencies Act to end the truckers’ protest in Ottawa shocked civil libertarians here and around the world. A proposed class action started by Ottawa residents Zexi Li and Geoffrey Devaney and the Happy Goat Coffee Company may be just as disturbing.
All class actions, in which plaintiffs make a civil claim for damages on behalf of a larger group, must be court-certified to go ahead; this one isn’t yet. Even so, in preliminary hearings beginning February 17, the plaintiffs got an extraordinary “Mareva” injunction, named after a ship-owning company that long ago chased after the charter fee for a ship, then far away on its contracted journey. It is a court order not to move or use identified assets such as money or ships or other property pending trial. Cryptocurrency donations to the Freedom Convoy were frozen — a private seizure, not made under the Emergencies Act.
Mareva orders are typically used against non-residents with few assets at risk in the jurisdiction. They are a drastic, “extraordinary”, remedy designed for emergencies. Yet this one came easily, after an ex parte hearing in which the defendants weren’t present or even notified of the risks they faced.
Normally, a Mareva injunction requires plaintiffs to give undertakings to the court to pay damages if the injunction proves to be wrongly issued on the plaintiff’s one-sided representations. But Justice Calum MacLeod of the Ontario Superior Court of Justice waived the undertaking, citing cases with a human rights or public interest dimension. In this case, however, the human rights and public interest dimensions should protect the defendant-protestors, not the plaintiffs, and require an undertaking to be given, not waived.