Professor Erik Knutsen, an expert in tort law and civil procedure, shares his insight on the role private citizens may play by filing lawsuits against those disrupting their lives in the “Freedom Convoy” that continues in Canada.
Sometimes, the civil litigation system is able to be responsive in a fashion that the political or law enforcement processes are, for a variety of reasons, unable to match. The now two-week gathering dubbed the “Freedom Convoy” involves large transport trucks parked in downtown Ottawa in apparent protest over COVID-19 pandemic government mandates. A person who lives near the events downtown just started a class action lawsuit on behalf of all people disturbed by the gathering. The lawsuit asks for compensation for private nuisance as well as for a monetary award of punitive damages.
The claim for the lawsuit reports that the repeated honking of very loud truck horns is a real disturbance to the quiet enjoyment of one’s property, as well as one’s health. People report not be able to sleep or concentrate. People report babies being wakened. There are reports of some people blocked and unable to go where they wish to go. Others are frightened to leave their homes, for fear of interactions with those attending the gathering.
An individual can bring a lawsuit against another individual using the tort of private nuisance if that person suffers a substantial and unreasonable interference with the use and enjoyment of their property. The court can order money compensation for those who suffered the interference, which would be paid by the individuals who caused the nuisance. A claim for punitive damages is an award a court can make that is designed to punish and deter socially undesirable behaviour. The bar for proving punitive damages is high: the alleged wrongdoer must act with malicious, oppressive, or high-handed conduct.
Bringing a civil lawsuit using the tort of private nuisance can allow some quick responses to harms happening to people in real time. Prime among the advantages is control over the process itself. The civil litigation system is controlled by the parties in the lawsuit, not by the political process. The parties themselves choose whether or not to sue, what to sue for, and whether or not to settle the case and for how much, if anything at all. Civil litigation relies on the adversary system whereby each party has legal representation to advance each’s private interests. Much of the communication between parties is then filtered through lawyers who provide legal advice to the parties. The lawyers well understand the procedural rules and consequences for failing to follow the rules.
A nimble option in a private nuisance lawsuit is the injunction. One can request that a court issue an injunction to order someone to stop making the nuisance. In this case, the Ontario court issued an initial 10-day injunction to stop the horn honking, until the court hears more evidence at a later date. Failing to obey a court order comes with enforceable sanctions that have real teeth (i.e. risks of jail and monetary penalties). This is not treated in a minor fashion, like a parking ticket because, if one fails to follow an injunction, one is essentially thumbing one’s nose at the court system itself (and through it the very fabric of the rule of law).
The tort system acts as a rough and ready compensation system for those who suffer harm at the hands of others. It also deters socially undesirable behaviour by making those who hurt others pay money for those injuries they cause. In short, the threat of money damages can curb loss-causing behaviour. Insurance coverage for many of the alleged harms may not be available in all instances because insurance only covers liability for accidents and not intentional conduct. There is thus the additional spectre of any lawsuit damages having to be paid from the personal assets of those engaged in creating the nuisance.
A tort lawsuit also triggers the informational exchange of the discovery process. As part of bringing the lawsuit, all parties must produce all information relevant to any matter at issue in the case. That includes the identities and communications of who is involved in bringing about the alleged harm and probably the details of how the gathering came to be organized and is financed. The civil litigation system demands a rather sweeping disclosure of information so parties can fully understand the case they have to meet. Again, failure to abide by the court’s rules of disclosure has real consequences.
This particular case was brought as a class action. A class action is a type of lawsuit where a single representative plaintiff brings a case on behalf of an entire class of people who have suffered similar harm from a similar source. It is sometimes more expeditious, efficient and just to have a court allow one lawsuit to proceed than risk having multiple lawsuits proceed that may come to different factual findings or legal conclusions when the facts about how people have been hurt are essentially very similar. Class actions save time and money.
Class actions serve a special purpose in allowing individually non-viable claims to proceed in the civil justice system. Sometimes, it may not make sense to bring a lawsuit to seek redress for an individual harm to one person if the money value of the harm, standing alone, is relatively small. The money value of one person’s interference with their own property may not be large, but if one looked at the aggregate harm a person or group caused to many people living near the gathering, the total harm taken together may be very large. Class actions thus help prevent wrongdoers to continue to harm others simply because the harm they create is small on an individual basis.
In a private nuisance class action case such as this, if the class members suffer similar harms in a certain geographic area, the court may well certify the lawsuit as a class action and allow it to proceed. Therefore, anyone who suffered harm as part of the class would be entitled to recover damages if the lawsuit is successful. A single representative plaintiff acts in the interests of the entire class of people. Those damages can add up on a group basis, making the financial consequences loom large for those targeted by the lawsuit.
More than 95 per cent of lawsuits settle in some form or another and do not ever reach a courtroom door – people organize themselves in the “shadow of the law,” keeping an eye on where they might be “if” they were unsuccessful at a trial. This particular class action came with an offer to be dropped if the gathering dispersed. Sometimes holding a hammer above another’s head means that one may never have to drop that hammer to get what one wants.
Access to the law of tort through use of the civil litigation system is an apolitical, non-legislative mechanism that comes with timely consequences a private citizen can exercise to seek potential redress for harm and hopefully affect changes in the behaviour that is causing the harm. One freedom that no one is entitled to in Canada is the opportunity to injure other private citizens without consequence.
Whether or not the case is ultimately successful, the whole exercise underscores the use of the civil litigation system as a way for private citizens to get fast results when backs are against the wall. The lawsuit brought an injunction quite quickly to stop the horn honking, after days of political and law enforcement paralysis failed to have any effect. There is remarkable potential in the civil justice system to empower citizens to call attention to harms they face. We often revert to the political process or law enforcement for curbing issues like disruptive demonstrations. But sometimes those are just too slow. Sometimes, with those mechanisms, individual voices – like those living in downtown Ottawa who have to live with the disruption – are lost, drowned out, or frankly thrown under the bus (or truck, as the case may be). The use of a lawsuit as one tool to simply get things done when no one else seemed to be able to should not be forgotten as we remain in a tumultuous age of fractious societal debate. Lawsuits have spurned great societal change in the past, from seatbelts to car seats down to making sure fast-food coffee isn’t liquid magma in a cup. We should be grateful we have this system. One brave soul, armed with a tort lawsuit, can indeed stand up to a Mack truck.
Professor Erik Knutsen specializes in insurance law, tort, accident law, medical malpractice, civil procedure, and the civil litigation system. Among his leading co-authored publications are Canadian Tort Law, a leading Canadian tort treatise, and The Civil Litigation Process, a casebook on Canadian civil litigation. His articles have appeared in top-ranked Canadian, American, and international journals, and his work has been cited by Canadian, American, and European appellate and trial courts.
Professor Knutsen’s insight is the third in a three-part series.
Read Professor Beverley Baines’ insight “Being ‘fed-up’ is not a constitutional right.”
Read Professor Cherie Metcalf’s insight “‘Freedom Convoy’ – the good, the bad, and the ugly constitutional aspects.”