Court File and Parties

Court File No.: CV-20-00648598-00CP Date: 2024-09-11 Superior Court of Justice - Ontario

Re: MARTIN JEFFREY, Plaintiff – and – INTERIM POLICE CHIEF JAMES RAMER, FORMER POLICE CHIEF MARK SAUNDERS, TORONTO POLICE SERVICES BOARD, POLICE CONSTABLE J. BLAIR, OFFICER JOHN DOE AND OFFICER JANE DOE, Defendants

Before: Justice E.M. Morgan

Counsel: Kevin McGivney, David Elman, and Sunny Kim, for the Defendants cc: Glyn Hotz and Darrel Hotz (not present), for the Plaintiff

Heard: Motion in writing

Dismissal for Delay

[1] The Defendants move for an Order dismissing the within proceeding for delay pursuant to section 29.1(1) of the Class Proceedings Act, 1992, SO 1992, c. 6, as amended (“CPA”).

[2] A Notice of Action on behalf of the Plaintiff was issued on September 30, 2020. The Notice alleged “police profiling of Blacks by the defendants” and was issued against the Defendants named herein. A Statement of Claim with the same style of cause and making the same allegation, adding further supporting facts and details, was issued on October 30, 2020 by Gyln Hotz and Darrel N. Hotz of Hotz Lawyers. The Statement of Claim was served on the Defendants on March 21, 2021.

[3] Since serving the Statement of Claim, Plaintiff’s counsel have not communicated in any way with Defendants’ counsel. Likewise, Plaintiff’s counsel have taken no steps to advance the action.

[4] Section 29.1 of the CPA, enacted on October 1, 2021, provides:

29.1 (1) The court shall, on motion, dismiss for delay a proceeding commenced under section 2 unless, by the first anniversary of the day on which the proceeding was commenced,

(a) the representative plaintiff has filed a final and complete motion record in the motion for certification;

(b) the parties have agreed in writing to a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;

(c) the court has established a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; or

(d) any other steps, occurrences or circumstances specified by the regulations have taken place.

[5] None of the steps specified in ss. 29.1(1) (a) through (d) have taken place. No certification record has been served, no timetable has been agreed upon or ordered, and no other steps or occurrences have transpired. The Plaintiff and his counsel have gone silent. In fact, Plaintiff’s counsel have not responded to this motion despite having been served on August 2, 2024.

[6] A new proposed class action, Farah v. Toronto Police Services Board et al., Court File No, CV-23-00704364-00CP, has been commenced by McCarthy Tetrault making the same or similar claims as the within action. It would appear that any potential member of the proposed class here will likewise qualify as a member of the proposed class in the Farah case.

[7] Section 29.1 of the CPA requires that the present case be dismissed for delay. Given the existence of the Farah claim, I am also willing to dispense with any need, pursuant to section 29.1(2)(a) of the CPA, for Plaintiff’s counsel to publish notice of this dismissal on a website.

[8] However, I do require that, pursuant to section 29.1(2)(b) of the CPA, Plaintiff’s counsel, Gyln Hotz and Darrel N. Hotz, send a copy of this endorsement to any potential class member who has contacted them to express an interest in this proceeding. Counsel assume responsibility to the potential class when they commence an action pursuant to the CPA and cannot simply ignore the matter thereafter. I am copying Messrs. Holtz on this endorsement so that they will be reminded of their obligations.

[9] Anyone interested in this action who wishes to learn more about the parallel action in Farah, is advised to refer to the McCarthy Tetrault website devoted to that case for relevant information: https://www.mccarthy.ca/en/carding-class-action.

[10] This action is dismissed.

Date: September 11, 2024 Morgan J.