Thread by @glen_mcgregor

Beginning now: the hearing of motion for an injunction to stop protest truck noise, in the lawsuit filed against protest organizers and truck drivers by a downtown resident and, potentially, a class of 6,000 others.

In our last episode on Saturday, Justice Hugh McLean declined to issue an injunction and adjourned until today to give the respondents more time to prepare. He also suggested the parties work together to agree to limit truck air horns to a shorter period.

In an affidavit filed by the respondents, they asserted that the coordinated blowing of horns was limited to 8 am to 8 pm. (As anyone living downtown knows, it wasn't.) Since then, there has been substantially less horn use.

Justice McLean begins says he heard about the racial slur put into the hearing Zoom text chat on Saturday, says in open court he'd hold the person in contempt. Asks counsel to refer anonymous Zoom slur to the Crown.

Keith Wilson, representing three named respondents (Lich, Barber, Dichter), once again tells the court he didn't share the Zoom link with anyone.

Justice McLean says he has no way of identifying the person and allows there may not be a way. For today's Zoom hearing, chat has been disabled.

Now a discussion of the court record and materials submitted by both sides. (This is tedious but necessary housekeeping.)

We're going to take a break so Wilson can read an email he received moments ago from Ottawa Police lawyer. The police are seeking standing in this injunction hearing, Champ says. Right now, the police lawyer isn't in the hearing.

Justice McLean says he'll consider standing for police if and when he issues an injunction for relief. Champ is cool with it.

Champ begins: Explains injunction would stop any person who knows of the injunction from blasting air horns for 60 days. And McLean's take us back to the issue that the people to whom it applies would not be served. So it's an ex-parte injunction.

Champ says record has affidavit evidence from the plaintiff, another resident who recorded dB levels, and from a doctor, an an ENT (specialist in ear/nose/throat).

"He nerves are frayed, she can't sleep, she is siezed with anxiety," he says of plaintiff, because of 84 dB sound level in her apartment. It's worse outside. She complained to OPS 14 times and nada.

The other resident testified levels as high at 105 dB at Bank and Slater, and a train horn recorded at 120 dB.

The ENT doc gave affidavit evidence about permanent hearing damaging and tinnitus caused by sound at this 85 dB, Champ says. "Essentially Ms. Li has a lawn mower running in her living room, all day an all night."

Champ calls respondent evidence mostly irrelevant, about protesters having fun time and being nice, but notes that their affiant testified Freedom Convoy leaders agreed to honking between 8 am and 8 pm. Champ says this show they are controlling truckers using "horn tactic."

Champ says evidence from respondent about sound doesn't address dB levels. Says court must accept that levels reported by plaintiff side.

(Here's my dorky reminder: decibels, dB, are expressed on a logarithmic scale. So 110 dB is ten times as loud as 100 dB. Like the Richter scale that measures earthquakes.)

Champ wrapping up, "Clearly a serious issue to be tried has been made, on a strong prima facia case... irreparable harm is ongoing, every hour more is inflicting pain and suffering on the people of Ottawa."

Champ adds the ENT gave evidence many in Ottawa could have permanent hearing damage. Then to balance of convenience... Justice McLean wonders if Charter applies to litigation between parties. Champ politely reminds him it would, if an order is issued.

(This is Champ trying to head off respondents' expected assertion that an injunction against air horns could breach protesters' Charter right to free expression.)

For legal geeks: Champ is citing MacBlo case on weighing Charter right to protest in the context of injunctions.

Those Charter rights, Champ says, end when they interfere with the rights of others. (This is pretty much the whole protest in an nutshell.)

Champ now addressing to whom an injunction would apply, says it's reasonable to expect more truckers will arrive, so it can't apply just to named individuals (this is a big issue for McLean).

McLean: "The issue is where one right stops and another's begins," whether in common law or the Charter.

Champ walking court through case law on past injunctions against air horns, car horns and sirens, and also the use of dB testing as evidence of damage.

Summing up, the right of Ms. Li and other putative class members to enjoy their own homes, weighed against a narrow restriction on truckers, who can keep on keeping on with the protest.

Wilson up now, says the case is an attempt to use private civil litigation as a means of achieving policing of a local noise bylaw. McLean doesn't seem to think that should matter. "Nobody is above the law."

Wilson refers to this as "a private prosecution." McLean cuts him off when he gets into the issue of how it would be enforced, wants to get back to RJ Reynolds tests on whether the order should be issued before dealing with that.

McLean: "Does her rights (Li's) overcome your clients' right to protest."

Wilson explaining that two of his clients don't have trucks here, and the one who does (Barber) hasn't sounded his horn. No evidence that named parties are engaging in a nuisance in the first place, he says.

Wilson summarizing his evidence: the protests have peaceful, residents not impeded from moving, the only issue is the honking. McLean agrees, wearily. "It's the only issue."

(I have absolutely no clue has this is going to turn out, based on Justice McLean's interventions.)

Wilson says there has been no dialogue between his clients and city officials about the protests. McLean asking about whether his clients have function in organizing the group.

Wilson notes Tamara Lich has "moral suasion" on the protests. McLean suggests that could be a reason why she should be subject to the hypothetical order.

"If I do give an order, there are no sanctions against your clients, per se... I have no evidence they are breaching anything," McLean says.

Wilson on irreparable harm: the purported expert report (from the ENT doc) doesn't even attach a c.v. and does not comply with court rules on experts.

Wilson notes Li testified (in affidavit) she can still fall asleep with earplugs.

Wilson on balancing rights to free speech. "This is a spontaneous grassroots phenomenon... spreading around the world... in response to what we've all had to endure for the past two years."

Wilson says the intent of the protest -- against the COVID mandates -- should be considered in the balancing of rights.

"There is more evidence that downtown residents don't feel they are being harmed and support the right to protest," Wilson says. "The case is just lacking, in all due respect to my friend."

(It's now sounding more like McLean is going to side with plaintiff. "They can do other things than sound their horns.")

"Tooting a horn is not an expression of any great thought," McLean says. It's just to draw attention. "There could be artistic merit to it, but we are not debating that," he jokes.

Champ rebutting now, says SCOC has ruled on rights of private citizens to bring this kind of action (MacBlo again). Says the idea his client could wear earplugs is offensive.

Champ dismisses idea his expert was qualified to give opinion evidence, says much of her affidavit is fact-based about effect of high sound levels.

* wasn't qualified, I mean.

"My client is incredibly brave... My client has been subject to threats, vile abuse online. Her phone number was put online and people have been calling her," Champ says, calls it issue of contempt. Getting testy.

Wilson calls this "highly inflammatory... improper... I've received threats."

"Every hour this goes by there is harm to the people of Centretown," Champ concludes. McLean says he's going to rule on the record he has.

"It is this court's view the injunction, if it is granted, will only be for ten days," McLean says.

McLean recapping plaintiff evidence. Says the permanent hearing damage issue is "a maybe."

Justice McLean: "Clearly on these merits the court has not much difficulty finding... serious issue to be tried." (This is RJ Reynolds test.)

McLean says given importance of the issue, the court accepts the evidence of the doctor, and therefore nature of irreparable harm has been made out.

"When we consider this a whole, we are of the opinion that the balance of inconvenience has been made out... for the right of the citizens to quiet... over riding right."

Justice Hugh McLean says he will issue an injunction, but only for ten days.