Common Ground? Class Action Updates

Court Considers Appropriate Pleadings in Class Action Context

Common Ground? Class Action Updates

Court Considers Appropriate Pleadings in Class Action Context

Date: March 16, 2023

In a recent development in Ottawa’s “convoy class action,” Justice MacLeod of the Ontario Superior Court provided a helpful review for litigants of what will be considered an appropriate pleading under the Rules of Civil Procedure particularly in the class proceedings context.


Li v. Barber is a proposed class proceeding commenced by an Ottawa resident and others against a number of participants, organizers, fundraisers, and donors of the anti-vaccine mandate convoy protest that occurred in Ottawa in early 2022. The plaintiffs claim damages based primarily on the torts of public and private nuisance on behalf of Ottawa residents, businesses, and employees in an area of Ottawa’s downtown core dubbed the “occupation zone.”

At issue in this matter was the plaintiffs’ motion to deliver a Further Fresh as Amended Statement of Claim (which included the addition of a number of named defendants), and a concurrent motion by the defendants to strike the claim on the grounds that it disclosed no reasonable cause of action.


Justice MacLeod granted leave for the plaintiffs to issue the Further Fresh as Amended Statement of Claim with amendments prescribed by the Court. In doing so, Justice MacLeod commented on the court’s responsibility to balance a plaintiff’s ability to frame the litigation and the need to avoid litigation “spin[ning] out of control” by allowing facts to be pleaded that are both highly contentious and irrelevant.


Justice MacLeod began his analysis by providing an overview of Rule 25.11 and the role of pleadings in the litigation. That is, a Statement of Claim is intended to set out facts that are material to: the causes of action, the damages suffered, and the remedies claimed. The decision confirmed that the court’s objective on a pleadings motion is not to rigidly enforce the technical rules of pleading, but to ensure that the pleading fairly outlines the case against the defendants in a manner that the defendants should reasonably be expected to respond to: “anything that can be proven and may have a role in determining the rights of the parties may be pleaded,” whereas “irrelevant facts, facts inserted solely for colour or facts which are marginally relevant but highly prejudicial may be struck out.”

Applying these principles, Justice MacLeod found that the amended Statement of Claim disclosed a clear cause of action in tort liability against all of the categories of defendants, including the proposed new defendants. 

Moreover, there was no prejudice to the defendants in allowing the plaintiffs to add and substitute additional parties. While “no one wants to be named as a defendant in what may turn out to be protracted litigation,” this did not constitute prejudice, particularly given that no limitation periods had expired and no Statements of Defence had been filed.

However, Justice MacLeod did acknowledge that the amended Statement of Claim (which was 245 paragraphs long) could “hardly be described as a concise statement of material facts,” and contained a number of extraneous facts. He went on to strike and edit a number of paragraphs in the Statement of Claim on the basis that they would require the defendants to marshal extensive evidence to dispute facts that were ultimately unnecessary to prove liability.

On the other hand, Justice Macleod disagreed that pleading certain defendants’ criminal charges was inflammatory and irrelevant. Moreover, defining the area where members of the proposed class lived as an “occupation zone” was not inflammatory, but was relevant to the claim for joint liability and punitive damages.

Ultimately, while some “judicious pruning” of the claim was necessary, the plaintiffs should not be unduly limited in how they choose to frame the litigation:

At the end of the day, however, the plaintiffs are seeking to pursue a novel claim in which they seek to certify both plaintiff and defendant classes. It is necessary for them to plead with robust particularity what role each named defendant played, what role each proposed class of defendants played and how exactly the plaintiffs seek to attribute liability to each. In these circumstances some flexibility is appropriate.

Key Takeaways

The Court’s analysis is a helpful reminder to defendants (including employers) of the parameters for appropriate pleadings in both the class proceedings context, and civil actions as a whole.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©