March 26, 2022

By Brian Babcock

You probably had not heard of the criminal offence of  “mischief” prior to the Freedom Convoy blockade in Ottawa. You now may have learned that in law the word “mischief” has a different meaning that in everyday conversation.

The same is true of the term “nuisance”, although as with civil matters generally when compared to criminal law, it got less media attention.

To grant an injunction respecting the Freedom Convoy, the judge hearing the motion had to be satisfied that the blockade went beyond freedom of expression and constituted an unlawful act. For the purposes of the injunction, that would be a claim in law for damages based upon a wrong. In Canadian law, we call that a tort [one of those ‘law words’ with Latin roots].

In this case, the torts in question were public and private nuisance.

From a tort lawyer’s viewpoint, one of the things that is notable about this case is that it does an exceptional job of clearly defining and describing what nuisance means in law in terms that most people could understand. The judge put it this way:

The law of tort permits a private right of action whenever an individual suffers damage due to activities of another individual which are actionable.  Under the law of nuisance, the common law imposes liability against a tortfeasor (defendant) when the activities of a defendant unreasonably and substantially interfere with the plaintiff’s occupation or enjoyment of land.  In tort law, it is the impact on the plaintiff and not the intent of the defendant which makes it actionable.

That last sentence is particularly important to understanding the injunction. Nuisance is what we call a strict liability tort. The protesters can have all of the good intentions in the world, but if their activities cause substantial and unreasonable damage to other individuals, that is a tort.

As the judge goes on to point out, “although the question of whether the defendant’s activity is lawful or illegal factors into the question of whether the interference is reasonable, it is not determinative. Even lawful activity may be torts measured against this standard.”

That means that even if the defendants are ultimately not found to have committed a criminal offence and are found to be lawfully exercising constitutional rights of protest, they may still be responsible for damages to private citizens. Along with rights come responsibilities. Civil liability is not the same as guilt under criminal law.

Public nuisance is not concerned with private property, but it has to do with the interference with the right of the public to use and enjoy public areas such as streets and sidewalks. It is the impact of the public, not the intent of the defendant, which creates the responsibility in tort.

To obtain an injunction, you do not have to show that you will win your case at trial. You merely have to show that you have a serious issue to be tried. The judge in Ottawa had no difficulty seeing that there was a serious issue of nuisance.

To obtain an injunction, the plaintiffs also must show the damages would not be an adequate remedy, and that the balance of convenience favors the granting of the injunction. In the initial hearing before awarding a temporary injunction for a maximum of 10 days, the judge did not spend much time analyzing those issues. The opposing parties will have an opportunity to be heard, which will allow the court to make a better, more fully reasoned decision.

The injunction granted in this case is a special form of injunction called the Mareva injunction which also freezes assets. The test for a Mareva injunction is stricter and more difficult then the test for an injunction to simply prevent a nuisance. The freezing of assets is an extraordinary remedy that only happens in the most serious of cases, such as fraud. Typically we see them in cases where there are allegations of fraud that involve absconding with money or transferring money overseas to attempt to hide it.

The facts of the Freedom Convoy situation are very different than the typical situation, and it will be interesting to see how the judge handles the continuation of the Mareva injunction in the future. Perhaps that will lead to a future article on our website.

Nuisance does not just happen only because of political protests in Ottawa. It can happen in your backyard in Thunder Bay or Dryden or Kenora or anywhere in northwestern Ontario. Even literally in your backyard if someone interferes with your enjoyment of your property.

Several of the members of the litigation team at Weilers Law have experience relating to Mareva injunctions – whether obtaining them, complying with them, or enforcing them. Whether your issue arises from a nuisance, or from fraud, our experience with junctions generally, and Mareva injunctions in particular may make us the lawyers that you need.