Pursuing legal action against protesters a 'prohibitive exercise' for business owners, lawyers say

Craig O'Brien

Businesses that have shut their doors or suffered a steep decline in sales due to the ongoing protest in the city’s downtown core will likely face an uphill battle if they turn to the civil courts to pursue financial redress, a pair of prominent Ottawa lawyers say.

While the “Freedom Convoy” that converged on the capital last Friday has led to widespread disruptions and triggered the closure of the Rideau Centre and scores of other downtown businesses, it’s not a slam dunk that a court would award significant damages to plaintiffs who claim to have suffered financial losses, lawyer Craig O’Brien told OBJ on Wednesday.

For one thing, O’Brien said, it’s often difficult for plaintiffs to pinpoint exactly who to target in a lawsuit.

Seeking damages is more straightforward if an easily identifiable person is clearly caught on video smashing a storefront window, he said, but singling someone out of a crowd of thousands of demonstrators who blocked access to a sidewalk is another matter.

Commercial lawyer Aaron Rubinoff, a partner at Perley-Robertson, Hill & McDougall, agreed.

“If you’re an individual (business owner), who are you going to take a run at?” he said.

'Significant tolerance' for protests

Canadian courts generally have a “significant tolerance” for such protests, O’Brien noted, adding courts “have a difficult time” balancing demonstrators’ right to freedom of speech against business owners’ right to operate their establishments unimpeded.

“I don’t think we’re at the threshold yet that would cause a judge to impose liability against the protesters,” O’Brien, who specializes in commercial litigation, said. 

The costs of taking protesters to court would likely be “very high,” he added, because civil suits generally require a “significant amount” of evidence proving a plaintiff’s lost revenues were a direct result of a defendant’s actions. 

The economic impacts of the ongoing pandemic would also complicate efforts to assess financial damages caused by protesters, Rubinoff added.

"This type of litigation, it’s incredibly complicated. For it to make any sense for a business to go down this road, the damages (awarded) would have to be high."

“How do you establish that?” he said. “It would be very difficult, especially right after all the lockdowns we’ve had due to COVID. Businesses have been suffering already, and how do you distinguish between the suffering as a result of COVID versus suffering as a result of the protest? It’s a prohibitive exercise.”

O’Brien estimated the legal bill for a business owner seeking to sue a protester for damages could easily exceed $100,000 by the time the case is settled, meaning many smaller retailers would need to suffer continued losses for weeks or months for legal action to be worth the cost.

“This type of litigation, it’s incredibly complicated,” he said. “I would not engage in that lightly. For it to make any sense for a business to go down this road, the damages (awarded) would have to be high.”

Even if a court were to award a hefty settlement to a business, there’s no guarantee the plaintiff will ever see the money, Rubinoff noted, since many of the protesters currently sitting in rigs on Ottawa streets likely have limited financial resources.

“You’re not going after somebody with deep pockets here,” he said. “No matter how you look at it, it’s not a great picture from the perspective of the individual (business owner).” 

O’Brien and Rubinoff said plaintiffs in similar situations in the past have had some success winning damages from protest organizers, adding the city or the police could become potential targets of legal action should the demonstrations drag on.

GoFundMe a target?

The veteran lawyers also said they wouldn’t be surprised if GoFundMe, the crowd-sourced donations platform that is hosting the “Freedom Convoy” fundraiser, also becomes the target of a lawsuit.

“There may be some class-action groups thinking about, ‘How do we get after that money?’” said Rubinoff, referring to the campaign that’s raised more than $9.5 million to help fund the protest. 

“Because there’s so many millions there, it’s not beyond the pale that a class-action team from an experienced law firm might find a representative plaintiff and say, ‘Let’s go after this and see what we can do.’”

He said any lawsuits would likely be tied up in court for “years and years.” Rubinoff suggested business owners might be better off lobbying the city to create a fund to compensate them for protest-related losses.

“The hope should be that the city says, ‘Nobody needs to sue us. We’re going to create a fund, you fill out some forms, you make a request and you prove that you suffered, and we’re going to do our best to help you out.’ That would be a sensible outcome.”

O’Brien advised entrepreneurs mulling potential legal action to first check whether their business interruption insurance would cover any losses. 

While many policies stipulate that payouts are voided in the case of protests, filing a claim is much cheaper and easier than turning to the courts right off the bat, he said.

“As a starting point, if I were a business, that’s where I would look,” O’Brien said.

Still, he said the odds of lawsuits hitting the courts will become more favourable the longer the demonstrations stretch on.

“If this lasts another week, I would suggest there’s a decent likelihood. I would be quite interested in seeing the outcome if anybody were to pursue it.”