CITATION

CITATION: Chisholm v. His Majesty the King in Right of Ontario, 2026 ONSC 3512

COURT FILE NO.: CV-25-00744986-00CP

DATE: 20260616

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMAREY CHISHOLM

Plaintiff

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO

Defendant/Moving Party

Jamie Shilton, for the Plaintiff

Sarah Pottle and Ryan Ng, for the Defendant/Moving Party

HEARD: June 2 and 3, 2026

Counsel for Non-Party Respondents on the Motions to Stay in the Individual Actions

GROUP ONE: OPPOSING/ADJOURNING PLAINTIFFS

For Andrew Chrobak (CV-26-00000423-0000), Kok Diang (CV-26-00000422-0000), Artur Ivashinnikov (CV-26-00000419-0000), Wilder Gonzalez (CV-26-00000421-0000), Harris Mohamed, (CV-26-00000418-0000), Andy Persaud (CV-26-00000425-0000), Joshua Savory-Hutton (CV-26-00000420-0000), Joshua Michael Mason (CV-25-00757830-0000) and Michael Henry Vos (CV-26-00003006-0000):

Erika L. Tower, Andrew D. Elias and Madeleine T. Cleland; Erika L. Tower as agent for Ms. M. Bent, counsel to Mr. Mason and Mr. Vos

For Bryan Adams (CV-26-00000083-0000), Hardil Kanwal (CV-26-00000177-0000), and Andrew Lamore (CV-25-00751145-0000):

Nancy Sarmento Barkhordari & Nital S. Gosai

For Marlon Roberts (CV-25-00005231-0000):

Meaghan Coker

For Peter Bouctsis (CV-25-00757010-0000), Adam Derie (CV-25-00758309-0000), Jayden Elijah (CV-25-00757018-0000), Brian Gyeni (CV-25-00755667-0000), Michael Joseph (CV-25-00757007-0000), Aaron Martin (CV-25-00757006-0000), Zachary McDermott (CV-25-00758296-0000), Ammanieky Nixon (CV-25-00755670-0000), Kalib Rahi (CV-25-00755661-0000), Devon Salmon (CV-25-00757984-0000), Joshua Sotomayor (CV-25-00758328-0000):

And

For Adjourning Plaintiffs: Linval Ritchie (CV 25-00754482-0000) Mr. Tajinder Dhillon (CV-25-00755666-0000), Telique Ricketts (CV-25-00758332-0000) and Mr. Benjamin Owusu (CV-25-00758308-0000):

Atrisha Lewis and Richard De Almeida

GROUP TWO: UNOPPOSED/CONSENTING PLAINTIFFS

For “No Position” Plaintiffs: Pritpal Singh Dhaliwal (CV-25-00007333-0000), Javoi Elwood (CV-25-00007095-0000), Rayjon Hudson (CV-25-00006076-0000), Dylan Kingscote-Jones (CV-25-00007096-0000), Kyle Lapierre (CV-25-00006074-0000), Michael Mahadeo (CV-25-00006075-0000), and Ainsley Robinson (CV-25-00007097-0000):

Counsel of record not present

For “No Position” Plaintiffs: Jory Fourtounes (CV-26-00000344-0000), Matthew Hansen (CV-25-00757133-0000), and Darren Maddan (CV-25-00757061-0000):

Counsel of record not present

For Consenting Plaintiffs: Alexander Clermont (CV-26-00001416-0000), Joseph Etsub (CV-25-00006089-0000), Abdullah Kaddoura (CV-25-00006855-0000), Lance Lambke (CV-26-00001415-0000), Donnel Nduwayo (CV-25-00006092-0000), Rene Pearle (CV-25-00006091-0000), Andrew Wong (CV-26-00001417-0000):

Christine Johnson

For consenting plaintiffs, Skylawn Johnson and Elisha Johnson (CV-25-00754197-0000):

Counsel of record not present

For consenting Plaintiff Thamilarasan Velauther (CV-26-00000281-0000):

Counsel of record not present

For “no position” Plaintiff, Claude Simon (CV-26-00001270-0000):

Counsel of record not present

For “no position” Plaintiffs, Jason Pike (aka Mercuri) (CV-25-00746589-0000) and Sabir Abdellahi (CV-25-00735833-0000):

Counsel of record not present

lEIPER J.

REASONS FOR DECISION

(Motions to stay pursuant to the Class Proceedings Act, 1992)

I. INTRODUCTION AND OVERVIEW

1The defendant, His Majesty the King in right of Ontario (“Ontario”) brings this motion to temporarily stay fifty-four (54) individual actions related to this proposed class proceeding, until 30 days after the disposition of the certification motion or any combined certification/summary judgment motion.

2As case management judge in the putative class action, I have scheduled the certification motion to proceed in May of 2027, or if it is combined with a motion for summary judgment, in November of 2027.

3Ontario submits that the court’s discretion to temporarily stay proceedings should be exercised in this case because (i) the issues in Chisholm and the individual actions overlap substantially, (ii) the cases share the same factual background, (iii) stays of the individual actions will prevent judicial and legal resources being duplicated, and (iv) there will be no injustice to the parties who oppose the stays.

4Twenty-two plaintiffs in the individual proceedings have chosen to consent or take no position on Ontario’s motion to temporarily stay their proceedings.¹

5The remaining opposing plaintiffs submit that the motions should be dismissed. They seek to maintain their litigation autonomy, instruct counsel of their choice and move forward with their claims in personal injury for their ongoing injuries, both psychological and physical. The opposing plaintiffs have provided evidence of financial vulnerability as one example of the type of prejudice they fear from temporary stays which will delay their actions.

6The proposed representative plaintiff, Mr. Chisholm, takes no position on the motions to stay the individual actions.

7At the close of oral submissions, I informed the parties that for reasons to follow, I was granting Ontario’s motion to stay the actions for the consent/unopposed parties and dismissing Ontario’s motions to stay for the opposing plaintiffs.² There are four actions remaining that are not a part of this decision.³

8These are my reasons for those decisions.

II. BACKGROUND TO THE MOTIONS

9The proposed class action and the individual actions arise from events that occurred in December 2023 in Unit 8 at Maplehurst Correctional Complex (“Maplehurst”), a prison and pre-trial correctional center in Milton, Ontario. Ontario is the primary defendant in all of the actions.

10The plaintiffs and the potential members of the class comprise 181 former detainees on Unit 8, who allege that prison authorities brutally retaliated against them after a single detainee on Unit 8 assaulted a correctional officer. In response to that event the Maplehurst officials deployed the Institutional Crisis Intervention Team (“ICIT”) onto Unit 8. ICIT’s response has now been the subject of internal investigations and evidence tendered in several criminal proceedings involving Unit 8 detainees.

11The pleadings filed allege, among other things, that ICIT placed Unit 8 individuals on complete lock down, strip-searched and zip tied them, and held them at pepper-ball gunpoint. The plaintiffs allege that over a two-day period, their cells were searched, and they were deprived of clothing, toilet paper, religious items, medical treatment and other necessities. The heat was turned off and cold air let into the unit. Several plaintiffs allege additional assaults by beatings, pepper spray, and other humiliating maltreatment.

12Ontario moves to temporarily stay the actions of 24 opposing individual plaintiffs.⁴ Ten of these actions began in Central West Region where Maplehurst is located. The remaining 14 actions were initiated in Toronto. The 24 opposing plaintiffs are represented among them by four firms. The individual claims are for significant amounts of damages for injuries suffered by them and as described in their pleadings.

PROCEDURAL HISTORY

13Mr. Chisholm brought his proposed class proceeding on June 9, 2025. He alleges misfeasance in public office, negligence, and violations of sections 7, 8, 9, and 12 of the Canadian Charter of Rights and Freedoms (the “Charter”), in connection with the events at Maplehurst in December 2023.

14The Chisholm proceeding is at the pleadings stage and has not yet been certified. According to the court-approved timetable, the plaintiff was to deliver his motion record on May 30, 2026. Ontario is to deliver its responding record and its statement of defence by September 30, 2026.

15A certification hearing is planned for May 2027. Alternatively, the plaintiff may seek to have a combined hearing of the certification motion and a summary judgment motion. The parties have agreed to target dates in the event that both motions proceed, in November 2027. Mr. Chisholm must elect which form of procedure he proposes by December 13, 2026.

16The individual actions are also at the pleadings stage. Ontario has not yet served or filed a defence in any of the actions, opposed or not. For those actions that are to be stayed on consent or on an unopposed basis, Ontario proposes that they be temporarily stayed until 30 days following a decision on certification.

THE AFFIDAVIT EVIDENCE OF THE OPPOSING PLAINTIFFS

17While my task on these motions is not to make findings of fact, an understanding of the nature of these claims is necessary to consider the factors which may support a temporary stay of proceedings. I review here some of the affidavits tendered by the plaintiffs who resided on Unit 8, followed by a discussion of several judicial findings in criminal proceedings involving these events.

18None of the plaintiffs were cross-examined on their affidavits. Ontario did not tender any evidence to contradict their accounts or the bona fides of their expressed desire to have litigation autonomy and to avoid the delay that would result from a temporary stay pending this court’s decision on certification.

19The group of plaintiffs which include Andrew Chrobak, Kok Diang, Wilder Gonzalez, Harris Mohamed, Andy Persaud, Joshua Savory-Hutton, Joshua Michael Mason and Michael Henry Vos, all detainees on Unit 8, filed affidavits describing their treatment during the events of December 2023 at Maplehurst. Olga Zhadanova, the mother of Artur Ivashinnikov, swore an affidavit based on what she was told by Artur, including her attempts to obtain treatment for him after these events and her observations.

20This group of plaintiffs are represented by counsel from Lerners LLP. All allege harsh treatment, ongoing physical, psychological and emotional sequelae of these events and a desire to maintain their litigation autonomy by way of their individual actions. All of them resist a temporary stay and the delay that this could mean for their actions.

21Wilder Gonzalez explained in his affidavit why he wants to retain control of his litigation:

30. I have chosen my lawyers and I trust them. I want my case to proceed based on the strategy and advice I receive from them. I do not want my claim to be effectively paused or controlled by a process that I did not choose. I do not know the lawyers in the Chisholm proceeding, and I would not be comfortable having my claim effectively directed or controlled by lawyers with whom I have no relationship.

31. Since my release, it has been very important for me to rebuild my independence and take control of my life. What I experienced at Maplehurst took away my sense of control. Being able to make decisions about my own case, and to work directly with lawyers I trust, is part of how I am trying to regain that control and my sense of dignity.

32. This lawsuit is deeply personal to me. It relates to one of the most difficult and traumatic experiences of my life.

33. I find the legal system overwhelming at times, and I chose my lawyers because I feel comfortable with them and believe they understand what I went through.

34. For these reasons, it is very important to me that I be allowed to continue advancing my own claim.

22Among the Lerners’ group of plaintiffs, Harris Mohamed was on unit 8C and sleeping when ICIT was deployed. He described hearing a flash bang, and seeing lasers trained on his cell. ICIT officers entered his cell, ordered him to strip and get on the ground. During this, he was subjected to pepper spray causing him to vomit. He had difficulty breathing. As this was taking place, Mr. Mohamed heard the officers laughing. He was punched in the head and body and then dragged by the hair to the shower to ostensibly wash off the pepper spray. Mr. Mohamed said that his belongings were seized from his cell, and he was kept in freezing conditions with inadequate clothing and denied basic necessities, including food and medical care.

23Mr. Mohamed described the injuries he suffered from these events, including nerve pain in his hands, physical injuries to his body and ongoing psychological issues. He has also described his financially precarious situation and the fact that he has had to rely on his parents for shelter and support following his release from custody. He has been unable to access sustained treatment for his symptoms but wishes to seek treatment. As with the other plaintiffs represented by Lerners, Mr. Mohamed seeks to move his case forward with his counsel of choice, rather than be a part of the class proceedings in this action.

24Marlon Roberts was detained on unit 8F, when the assault on the correctional officer took place involving another detainee on unit 8C. Mr. Roberts described how all of unit 8 was put on lockdown, and then the heat was turned off. He described that in the morning after the incident, he heard threats, screams and “flashbang” noises from units 8C, 8B and 8A. Mr. Roberts suffers from high blood pressure, and he described his fear, his racing heart and his difficulty breathing as he anticipated what was coming to his part of unit 8 next.

25Mr. Roberts describes ICIT assaulting him with pepper spray, and striking him, being stripped, handcuffed and placed in a hallway line-up with other inmates. He was subject to threats, racial slurs and was humiliated by being stripped in front of other inmates. While being moved around, an ICIT officer dislocated his shoulder. He was denied eye medication for six days which led to a painful eye infection that lasted for two weeks.

26Mr. Roberts made notes of the events, which ICIT officers discovered in his cell. Shortly after, while his arm was still in a sling from his shoulder injury, Mr. Roberts was “jumped” by another detainee. He believes this was by way of retaliation and intimidation for having made notes. He was moved to another unit after this assault, where he was told by another inmate that he had been roughed up discourage him from complaining to the provincial ombudsman about his treatment. Mr. Roberts sent word that he would not complain to avoid further assaults.

27Mr. Roberts wishes to move forward with his litigation. He has worked previously as a landscaper but needs treatment to be able to return to work. He suffers from psychological injuries, including panic attacks, anxiety and difficulty sleeping. Although he has not yet received any disclosure from Ontario as to the evidence of the events of December 2023, he has been told by family and friends that he is recognizable in images circulating online of the detainees stripped to their underwear.

28Joshua Sotomayor swore an affidavit asserting prejudice. He testified that he wishes to proceed with his action now to address the physical, psychological and financial impact of his maltreatment. As a result of injuries suffered, Mr. Sotomayor gave evidence that he struggles to work in construction or do painting jobs, as he has done in the past. He described being subject to intermittent homelessness and being unable to support his four children. His financial position means that he is not able to treat his injuries. Mr. Sotomayor gave evidence that “as a direct result of the ICIT operation I have struggled to move forward with my life.”

29Aaron Martin gave affidavit evidence in which he describes wrist injuries arising from the ICIT intervention in December of 2023. After being released from custody he has been able to return to his construction job. He describes financial impediments arising from his injuries, which have exacerbated his inability to find employment including periodic homelessness, inability to afford a cell phone and inability to fund physiotherapy for his injuries. Mr. Martin described assaults at the hands of members of ICIT, including having his bare toes stomped on by officers wearing riot gear boots, and being head butted by officers wearing helmets. Mr. Martin claims damages arising from nightmares, insomnia, severe stress, anxiety, PTSD panic attacks, and pain, including chronic pain in his left wrist and nerve damage in his wrist and his toe. Arising from this are claims for loss of income and earning capacity.

30Ammanieky Nixon’s affidavit states that since his release from custody he has suffered from nightmares, insomnia, anxiety, paranoia, distrust of police or people in authority. He was not provided with medical treatment after these events but believes that his wrist was broken. He describes wearing a brace on his wrist for a year. During that time, he could not use the shower, cook, play with his children, or clean himself after using the washroom. In addition to the treatment in common with other inhabitants, he was assaulted by being kneed to the back and to his genitals during his return to his cell. He was placed in constant lock down, deprived of unsoiled laundry and was required to sleep on the floor. He is an asthma sufferer but was denied the use of his puffer. Mr. Nixon alleges that he was targeted based on race and religion. Although he is Christian, he was taunted by correctional officers and told to “scream for Allah”, he believes due to his race. In addition to his claims under similar causes of action to those in Chisholm, he brings a Human Rights Code Claim arising from his allegations of being targeted due to race. As with Mr. Martin and Mr. Sotomayor, Mr. Nixon wants to have counsel of his choice advance his claim, to control the timing of his action and to avoid the delay that would arise from a temporary stay pending the Chisholm action.

31Devon Salmon filed an affidavit, describing how the ICIT operation impacted him. He testified that he was strip searched without privacy, had his palms twisted, and was made to sit still while at gunpoint. He testifies that he was taunted and told he was a “strong “N-word” eh” because he sat so still. On returning to his cell after the events, he found that his prayer mat, headscarf and Koran had been taken. Mr. Salmon is awaiting his sentencing. He expressed concern that once he is released, his injuries may prevent him from returning to the work he has performed in the past as a diesel mechanic. Mr. Salmon described his desire to move his litigation ahead to prove his damages and seek recompense to support himself after his release.

32Brian Gyeni testified that he is awaiting a bail hearing. He used to work in construction but due to his injuries he believes that it will be difficult for him to return to that form of employment. Mr. Gyeni described being punched in the ribs, having his meals thrown on the floor, being subjected to racial slurs, denied pain and anxiety medication and the loss of his mat, Koran and headscarf. He advances Human Rights Code violations in addition to his other causes of action. Mr. Gyeni claims of damages arise from his nightmares, insomnia, severe stress, anxiety, paranoia, panic attacks, and pain, which serve to aggravate his pre-existing PTSD and anxiety. Mr. Gyeni claims that his right wrist has permanent scars, and he suffers from chronic pain in both wrists.

33For several of the opposing plaintiffs, counsel Mr. De Almeida swore an affidavit describing the difficulty in obtaining their signatures and providing his evidence on information and belief. Mr. De Almeida confirmed in his affidavit that all of the unavailable clients for signature have given him instructions to oppose Ontario’s motions to stay. Mr. De Almeida was not cross-examined on his affidavit. The unsworn attached affidavits which are the source of Mr. De Almeida’s information and belief are from Mr. De Almeida and Ms. Lewis’s clients, Kalan Rahi, Jayden Elijah, Peter Bouctsis, Michael Joseph, Adam Derie, and Zachary McDermott.

34Mr. De Almeida described on information and belief, the account of Kalan Rahi who described the treatment in common with other inhabitants of Unit 8, but in addition an individual experience of being taken to segregation where he was sexually assaulted by an officer who slapped his buttocks and punched him in the genital area. Mr. Rahi’s injuries following these events were described as nightmares, insomnia, severe stress, anxiety, PTSD, paranoia, panic attacks, and pain, which aggravates his preexisting PTSD. Mr. Rahi’s claim includes damages for aggravated pain in his left kneecap, chronic rash, permanent scars on both wrists, and a fractured thumb that incorrectly healed and needs surgery to re-break and re-set it.

35Mr. De Almeida also attached an unsworn affidavit from his client Jayden Elijah describing his psychological and physical injuries, including the intentional breaking of his finger intentionally and confiscation of his spiritual items related to his Oneida heritage. Mr. Elijah claims damages for his ongoing nightmares, insomnia, severe stress, anxiety, paranoia, panic attacks, and pain, which serve to aggravate his pre-existing depression. He alleges that his right wrist has a permanent scar, and both wrists are affected by chronic pain.

36In similar unsworn affidavits from Mr. Joseph, Mr. McDermott, Mr. Derie and Mr. Bouctsis, attached to Mr. De Almeida’s affidavit on information and belief, each describes similar treatment, including the experience of ongoing pain and injury to their wrists and hands, psychological and physical injuries and a similar expression of a desire to direct their own litigation and not to face delays that would arise from temporary stays pending a decision on certification. All of these plaintiffs stated they wish to have counsel of choice for their claims.

37Although the evidence from Mr. De Almeida’s clients who were not available to sign and swear their affidavits is in the form of hearsay, I am satisfied that it is admissible on this motion. Rule 39.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits affidavit evidence based on information and belief if the source of the information and the fact of the belief are stated in the affidavit. Mr. De Almeida has done so. He has described why those clients were not available to sign their affidavits: some are currently incarcerated and in court daily, and not able to have visits from counsel. In the case of Mr. Bouctsis, he has been transferred to an institution in Donnacona, Quebec.

38Ms. Barkhordari who acts for opposing plaintiffs Adams, Kanwal and Lamore tendered similar affidavit evidence from her clients.

39Mr. Adams described the “painful and direct memory” of the Maplehurst ICIT events while he was on remand there. He testified that after the assaults and maltreatment he suffered during the ICIT operation he was not able to walk for two months. He hired the Gosai firm as his counsel of choice, stating he does not want to work with counsel in the class action. He explains that during his incarceration he accrued debt, his benefits have been terminated, and he seeks to move forward with his action toward resolution, including by receiving Ontario’s defence, documents and by participating in discovery to put these incidents behind him.

40Mr. Kanwal’s affidavit also expresses his desire to work with counsel of choice. He has accumulated debt and relies on Ontario Works to survive. Mr. Kanwal described the steps he wishes to take in his individual litigation so that he can move past the memories of the ICIT events. As with Mr. Adams, Mr. Kanwal wants a statement of defence, an opportunity to give and receive evidence and to testify on discovery.

41Mr. Lamore gave similar affidavit evidence. In his case, not only does he describe his personal financial challenges, and the pain of these events, but he has three children who he needs to support, who live with disabilities.

42Ontario objects to evidence found in the plaintiff affidavits which describe their hope of participating in discovery and mediation as a pathway to resolving their claims. Ontario submits that this evidence amounts to lay legal opinion evidence as to what might take place if the individual opposing plaintiffs’ actions are not stayed. For this reason, Ontario asks that I give no weight to the affidavit evidence which express a desire to mediate their claims as part of the litigation process.

43I disagree with this characterization of that evidence. For example, in Mr. Adams’ affidavit, he provides a list of steps he “wants to demand” including a defence and a list of documents. Mr. Adams swears that he wants to schedule discovery, schedule and attend mediation and direct a settlement. While I agree that some of these steps will require the participation of the defendant, this is admissible evidence as to Mr. Adams’ wishes. His preferences are relevant to the question of whether there is evidence of a desire for litigation autonomy. Similar evidence from other plaintiffs describe available steps in the civil litigation process, in the context of what those plaintiffs hope to achieve in their litigation against Ontario.

44I decline to give this evidence reduced weight simply because it refers to procedural steps in the litigation process. It is probative evidence of each plaintiff’s desire for autonomy. I receive this evidence as an expression of each plaintiff’s hoped-for next steps in their individual actions. Given the context and findings in other matters, which I discuss next, this is highly probative evidence relative to the fourth prerequisite in the test for a temporary stay.

JUDICIAL FINDINGS OF THE EVENTS AT MAPLEHURST IN DECEMBER OF 2023

45During submissions on behalf of her clients, Ms. Lewis reviewed several decisions of judges in criminal proceedings that have been the subject of evidence, concessions from the Crown and judicial findings arising from the events at Maplehurst in December of 2023.

46Ontario submitted that there are no instructions to confirm for the purposes of the individual actions, any of the concessions made in the criminal proceedings. Ontario submitted that prior findings are not relevant to the issues in the stay motions.

47I disagree. Extracts from the parallel criminal litigation may inform the question of overlap and the risk of conflicting findings as between the individual actions and the proposed class action. Counsel for the opposing plaintiffs rely on some of these prior findings, including those not subject to appeal, to demonstrate that the areas of true factual dispute may reasonably be limited. Although my task is not to make findings of fact on these motions, the litigation context is relevant to what may reasonably be anticipated to be in dispute. I provide two examples from litigation involving two of the plaintiffs on the stay motions.

[48] In sentencing proceedings involving Linval Ritchie, (one of the plaintiffs whose motion to stay is being adjourned), the Crown and defence tendered an agreed statement of facts about the Maplehurst events. The Crown also conceded a s.8 Charter breach. In reasons reported at R v. Ritchie, 2025 ONSC 4580, 583 C.R.R. (2d) 186, at para. 126, Woolcombe, J. wrote:

126Much of the evidence relating to the December 2023 ICIT deployment is undisputed. The Agreed Statement of Facts filed as Exhibit 9 helpfully sets out areas of agreement as to what happened respecting the ICIT deployment.

172The Crown concedes that at a more general level, the manner in which the search of Mr. Ritchie’s cell was conducted, with the deployment of ICIT for all inmates in unit 8, was unreasonable.

179I accept the Crown concession that the manner in which the search of the cells was carried out was unreasonable and in breach of s. 8 of the Charter.

49The Crown has not appealed the decision in R. v. Ritchie.

50In a lengthy, detailed decision released on April 27, 2026, McLeod, J. stayed robbery charges against opposing plaintiff, Harris Mohamed, based on findings of multiple Charter breaches arising from the ICIT deployment at Maplehurst.: R. v. Mohamed, 2026 ONCJ 253.

51Justice McLeod concluded that the abusive treatment that Mr. Mohamed endured at the hands of corrections officials, “undermines the integrity of the justice system”: R. v. Mohamed, at paras. 284 and 286. She described his treatment by the ICIT officers as “horrific torture.”

52Six days into the hearing before Justice McLeod, and following the release of the reasons of Conlan, J. in R. v. Whitlock, 2025 ONSC 6006, the Crown provided the following prepared statement:

The Crown is appealing the decision in R. v. Whitlock et al. and will be taking issue with both factual findings and legal conclusions of Justice Conlan in that case.

In the interest of judicial economy, the Crown accepts that it is not practical to contest the factual findings made at paragraphs 41-407 of Whitlock for the purposes of this stay application. To be clear, the Crown reserves its right to challenge those factual findings on any appeal that arises from this Court’s decision. That said, the Crown accepts that it is open to this Court to make findings of fact based on Justice Conlan’s conclusions.

Justice Conlan found breaches of ss. 7, 8, and 12. In light of the principle of horizontal stare decisis, the Crown agrees that this Court can also find breaches of s. 7, 8, and 12. The Crown is appealing the findings of breaches of ss. 7, 8 and 12 in R. v. Whitlock et al. The Crown reserves its right to appeal the findings of breaches of ss. 7, 8 and 12 in this case as well.

The Crown reserves its right to call additional evidence on this application and argue that the appropriate remedy is a reduction in sentence.

R. v. Mohamed, at para. 16.

53Justice McLeod declined to accept the Crown’s invitation to adopt the factual findings and breaches found by Justice Conlan in Whitlock. Justice McLeod determined the facts based on the evidence tendered before her, reasoning that Mr. Mohamed deserved to have those findings made: R. v. Mohamed, at paras. 17-18.

54In her reasons, Justice McLeod made findings of fact as to what had happened to Mr. Mohamed:

The events described by Mr. Mohamed and documented in the video surveillance clearly reveal the appalling treatment of him. The use of pepper spray twice in the face, the disallowance of Mr. Mohamed to use his hands to try and get the pepper spray from his eyes and body in the shower, the manipulation of his arms to a position that is clearly designed to cause great pain, surrounded by numerous officers, amounts to nothing less than torture, The mandated positioning of all prisoners in the hallway with only their underwear, and of Mr. Mohamed soaking wet from a shower where he was not even permitted to dry himself, the lack of clothing and bedding for at least 2 days, with exhaust fans open to the December air, all amount to cruel, degrading and inhumane treatment.

R. v. Mohamed at para. 63.

55Justice McLeod found no credible justification for the treatment of Mr. Mohamed which she described as:

a. to receive two blasts of pepper spray while dressed only in boxer shorts,

b. to be punched while pinned down on the pepper spray ridden floor,

c. to be asked to sing Jingle Bells while in that position,

d. to be forced to shower with his hands tied behind his back so that he was unable to remove the pepper spray from his face, the focus of the discharge,

e. to have a pepper spray gun pressed against his naked back while in front of the nursing staff,

f. to be forced to sit in a cross-legged position in boxer shorts with other inmates for the best part of 2 plus hours,

g. to have and be aware of, while cross-legged, a pepper spray gun pointed to his head as an object of intimidation,

h. to be taken to A & D for an intrusive body scan in only his boxer shorts and bare feet for no justifiable reason,

i. be left with only wet boxer shorts as clothing for 2 days,

j. to be left in a cell in cold temperatures with an exhaust fan running which is open to the December elements without any other clothing, blankets or covering for warmth,

k. to lose all of his meagre possessions from the cell including personal papers, double canteen in the amount of $180, photos and all clothing.

R. v. Mohamed at para. 273.

56The Crown has not appealed the decision in R. v. Mohamed.

57These findings provide helpful context. The prior findings fortify a conclusion that the underlying events are well documented, including by photographic and video evidence, such that there are likely to be background facts to the injuries alleged that will not be in serious dispute. There may also be future concessions concerning Charter breaches that are consistent with Ontario’s prior positions.

58I turn now to the legal framework for motions to stay proceedings under the Class Proceedings Act, 1992, S.O. 1992, c. 6, (the “Act” or “CPA”).

III. LEGAL FRAMEWORK: STAYS OF PROCEEDINGS PURSUANT TO THE CLASS PROCEEDINGS ACT

59Pursuant to section 13 of the CPA:

The court, on its own initiative or on the motion of a party or class member, may stay any proceeding related to the proceeding under this Act before it, on such terms as it considers appropriate.

60The court also has the authority to stay proceedings under ss. 106 and 107(1)(e)(i) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) and Rule 6 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. These orders provide the court with the power to make orders that will avoid a “multiplicity of proceedings:” CJA, s. 138.

61Where a plaintiff initiates a class proceeding alongside individual proceedings, a defendant may seek temporary stays of those proceedings until certification is decided: Singh v. RBC, 2020 ONSC 5368, at para. 131, leave to appeal refused, 2021 ONSC 3881 (Div. Ct.).

62The courts may find that a temporary stay is a valuable procedural response where success in the other proceeding could render the issues in the case to be stayed, “substantially moot” or where that decision could have a “material” impact on the case: Singh v. RBC, at para. 131; Bank of Montreal v. Ken Kat Corporation, 2010 ONSC 1990, 66 C.B.R. (5th) 249, at para. 69; Hollinger International Inc. v. Hollinger Inc., 2004 CanLII 7352 (ON SC), at para. 5, leave to appeal refused, 2005 CanLII 4582 (ON SCDC).

63However, once a class proceeding is certified, individual plaintiffs may choose to opt out of the class proceeding: CPA, s. 9. The CPA contemplates freedom of litigation choice despite the multiplicity of proceedings that may arise from the same event: Durling v. Sunrise Propane Energy Group Inc., 2011 ONSC 266, at paras. 17-20; Vaeth v North American Palladium Ltd., 2016 ONSC 5015, at para. 45.

64An individual’s unqualified right to opt-out of a class proceeding is a procedural response to the value of individual litigation autonomy: Johnson v Ontario, 2022 ONCA 725, 164 O.R. (3d) 573, at para. 37; Johnson v. Ontario, 2021 ONCA 650, 158 O.R. (3d) 266, at paras. 16, 17, and 25. The courts recognize litigation autonomy to be a legitimate reason to oppose a motion to temporarily stay proceedings pursuant to s. 13 of the CPA: Herold v Wasserman, 2022 SKCA 103, 473 D.L.R. (4th) 281, at para. 93; Workman Optometry v. Aviva Insurance, 2021 ONSC 3843, 156 O.R. (3d) 793, at paras. 19 and 24.

65The Saskatchewan Court of Appeal in Herold, at para. 93, cited Belobaba, J.’s approach in Workman at para. 9, finding that “the court should begin from the perspective that the right of an individual to pursue a claim outside of the proposed class action will generally be recognized if it is being pursued for legitimate reasons.”

66The Saskatchewan Court of Appeal also emphasized the importance at the fourth step of the test, to consider and balance the potential for prejudice arising from the granting or the refusing of a stay, and to consider all alternatives short of a stay to manage the competing interests at stake: Herold, at paras. 56, 61-63.

67As a matter of policy and recognizing that one of the underlying goals of this legislation is access to justice, the courts have recognized that the CPA is “not intended to prevent, or impede, actions by individuals for no other reason than they are, or may be, members of a putative class in an action commenced by another party. This includes an individual not wanting to wait for the outcome of a class action proceeding”: Workman Optometry Professional Corporation et al. v. Certas Home and Auto Insurance Company et al., 2022 ONSC 597, 21 C.C.L.I. (6th) 77, at para. 22, citing Dumoulin v. Ontario (Ontario Realty Corp.), 2004 CanLII 1285 (ON SC), at para. 8; Vaeth v. North American Palladium Ltd., 2016 ONSC 5015, at para. 56.

68Recently, the Court of Appeal for Ontario considered the question of litigation autonomy and its importance for individual claimants in Johnson v Ontario, 2021 ONCA 650, 158 O.R. (3d) 266. Writing for the panel, Justice Lauwers stated:

16Our society places a high premium on a person’s ability to initiate and participate in litigation as an incident of personal autonomy. Along with it goes the right to appoint counsel of one’s choice, the right to participate meaningfully in the development of litigation strategy, to participate in settlement negotiations, and to settle the action. The legislative right to opt out of a class proceeding recognizes these significant rights.

25The purposes and advantages of class proceedings are realized for litigants with relatively modest claims who are prepared both to be patient during the long and involved class action process and also to sacrifice a good deal of their potential recovery to finance the legal costs. For an individual with a major claim like Mr. Parker, a class action is self-evidently not the preferable vehicle. Apart from his inability to control the litigation, he is unlikely to be able to achieve anything like the measure of damages he is seeking for the personal injury he suffered.

Johnson v. Ontario, at paras. 16 and 25.

69In deciding whether to issue a temporary stay of individual claims pending certification, the court is guided by the unique circumstances of the proceedings before it: Pavlioglu et al. v. FinanceIt Canada Inc, 2026 ONSC 1416, at para. 57.

70In Vaeth, at para. 56, Perell, J. distinguished the case before him from individual actions such as in the case of a “personal injury claim where an individual plaintiff with a substantial claim may actually need the compensation sooner than the later of a class action that requires certification before it can progress.”

71With these policy considerations in mind, the courts have applied a set of “prerequisites” to the issue of whether to grant a stay that were articulated in Hollinger International Inc, at para. 5. The court will consider:

i. whether there is substantial overlap of issues in the two proceedings;

ii. whether the two cases share the same factual background;

iii. whether issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources; and

iv. whether the temporary stay will result in an injustice to the party resisting the stay.

Workman at para. 13; Pavlioglu et al. v. FinanceIt Canada Inc, at para. 40; TransAsia Private Capital Ltd. v. Export Development Canada, 2022 ONSC 7126, at para. 39.

72In each of these decisions, including in Hollinger, every factor is considered and the factors are worded as a conjunctive test. Ontario submitted that these are merely factors which may be considered but that they are not conjunctive. I disagree. A plain reading of the list of issues, as described in Hollinger, and applied in Workman, Pavlioglu and TransAsia shows that they are listed individually and separated by the word “and” between the third and final factor. They read as conjunctive and I apply them here as such. I proceed next to the analysis and applying it to the record on these motions.

IV. ANALYSIS: SHOULD ORDERS FOR TEMPORARY STAYS BE GRANTED IN THE INDIVIDUAL ACTIONS?

A. The Consent and Unopposed Motions to Stay

73For those plaintiffs in the individual actions who have either consented or take no position on Ontario’s request to stay their actions, I conclude that the stays should be granted.

74I have considered the factors from the caselaw and conclude as follows. First, there is substantial overlap in the issues as among these individual actions and the action in the proposed class proceeding. Each action involves state conduct at Maplehurst in December of 2023 and whether that conduct amounts to civil liability on the part of the defendant in tort or for Charter damages. While the injuries, claims in damages and differences in treatment alleged by some plaintiffs means that there is not a complete overlap, this factor requires only “substantial overlap.” Further, given the scrutiny already given to these events in prior proceedings, and in some cases concessions and agreements on certain facts relevant to the background, it may be that many of the background facts will not be in dispute at the civil trials.

75Second, the actions arise from the same factual background. Each of these actions concerns the ICIT deployment in December 2023 and an alleged mass punishment and mistreatment of the detainees in Unit 8 of Maplehurst. This is the triggering event to each claim, even if the individual outcomes and details of each claim are individual to each plaintiff.

76Third, on the question of whether issuing a temporary stay will prevent unnecessary duplication of judicial and legal resources, given that twenty-two plaintiffs have consented or do not oppose these orders, twenty-two fewer actions will require management, timetabling or possibly motions during the discovery process, and as the class proceeding moves ahead to the certification motion. This will reduce Ontario’s litigation resources for those twenty-two actions during the latter period.

77There may be economies involved as well for counsel to the consenting/unopposed clients. Those plaintiffs may prefer to await certification and to consider staying within the class if this action is certified. They may prefer to use the time to amass their own evidence, seek treatment or even consider whether they wish to continue. Every litigant will have their own reasons for taking a position.

78Fourth, by consenting or choosing not to oppose Ontario’s motion, this group of plaintiffs is exercising litigation autonomy. Unlike the opposing plaintiffs, this group has tendered no evidence of injustice. They have not expressed concerns about delay. They have signalled that they are prepared to await developments in the proposed class proceeding. Some of these plaintiffs may choose to stay a part of the class, if certified. If not, they may opt out after, if applicable, after the certification motion is completed.

79I find that the circumstances favour exercising my discretion to grant Ontario’s motions for temporary stays for the group of twenty-two consent/unopposing plaintiffs. There is no reason to override the litigation autonomy expressed by this group, nor is there any apparent prejudice to the plaintiffs, the defendant or to the administration of justice.

80I grant Ontario’s motions to temporarily stay the proceedings for the unopposed and consenting plaintiffs.

B. The Opposing Plaintiffs

81In contrast, there is an overwhelming record in support of dismissing the motions for a stay of proceedings for the opposing plaintiffs, based on the evidence in support of the fourth factor.

82The record before me reveals circumstances similar to those found in Workman. There, Belobaba, J. found that the individual plaintiffs had tendered evidence that they believed they had substantial insurance claims, they needed faster judicial determinations than offered by the class action process, they wanted control over all aspects of their lawsuit including any settlement discussions and they desired to work with counsel of their choice. Belobaba, J. found on the other side of the equation, that there was scant prejudice to the defendants, and the class proceeding could be case managed alongside the individual claims. Each of those features are part of the claims asserted by the opposing plaintiffs.

83In the case at bar, the opposing plaintiffs have tendered undisputed persuasive evidence on the fourth ground which amply support their position. The opposing plaintiffs have provided evidence as to their belief in a well-founded claim in personal injury for the actions of the state. Each have set out their desire and needs, financially, emotionally, psychologically and physically, for a faster resolution than if their actions are put on hold pending a certification hearing. They have expressed a legitimate fear that evidence relevant to their individual claims could be lost or memories could fade with the passage of time.

84The opposing plaintiffs have connected the nature of the alleged injuries and damages to their expressed need for litigation autonomy. They have alleged, and judges in other proceedings have found, that their autonomy was stripped from them during the events at Maplehurst and that the impact of those events have had severe impacts on their well-being. These plaintiffs allege trauma from the triggering event. I conclude that their desire for litigation autonomy is genuine. This is an important factor in the context of the allegations of the trauma inflicted upon the plaintiffs. Declining a stay will limit further damage related to the delay that a temporary stay could cause.

85I echo Belobaba, J.’s words from Workman, at para. 20, quoting his earlier observation from the carriage motion in that action: “This is that rare class action where real people are sustaining real harm in real time.” Given the evidence before me, some of which is extracted above, this observation can be said to apply to this action as well. Many of the individual opposing plaintiffs have given evidence of their injuries, precarious financial situations, and the ongoing damage to their well-being by not being able to afford treatment. This is uncontradicted evidence of real time damage in these proceedings.

86Ontario will not suffer any substantial prejudice if these proceedings are not stayed. Given that the opposing plaintiffs have signalled their intention to opt out of the class, individual statements of defence will need to be prepared in any event. The parties will need to proceed to discovery. They will have to make documentary production. The only variable is the timing, which overwhelmingly presents an injustice to the opposing plaintiffs, and is a neutral factor for Ontario.

87Further, case management is a viable response to Ontario’s concerns. The opposing plaintiffs are divided between actions initiated in Toronto and the others in the Central West region. A prior motion to transfer the Central West matters to Toronto did not proceed, but that does not mean that this option is unavailable now. The Toronto matters can be case managed alongside the class proceeding to reduce unnecessary duplication of effort and to coordinate discovery where possible. The prior judicial findings also suggest that the extent of overlap and/or risks of inconsistent findings may be mitigated by agreed statements of fact in these proceedings or similar cooperation/concessions from Ontario as been seen in some the criminal proceedings discussed earlier in these reasons.

V. SUMMARY OF FINDINGS AND CONCLUSION

88I stay the consenting/not opposing plaintiffs’ actions pending the motion for certification and/or for summary judgment in this action.

89I decline to temporarily stay the claims for the opposing plaintiffs. At the close of the oral hearing, I informed counsel that I will convene a case conference for all opposing plaintiffs and counsel in the proposed class proceeding for the purpose of exploring transferring the Central West matters to Toronto and ongoing case management of the proceedings to avoid prejudice or unnecessary duplication of these proceedings and to pursue available efficiencies. A case conference has been scheduled for those purposes on July 9, 2026.

VI. COSTS

90Ontario does not seek costs against those plaintiffs who consented to the motions to temporarily stay their proceedings. None are ordered.

91The parties rely on their costs outlines in respect of the opposed motions. The plaintiffs here coordinated and took care to avoid overlapping or duplicative submissions. The issues were moderately complex, with the bulk of extra work arising from the logistical challenges for counsel in communicating with their clients, many of whom are incarcerated and in obtaining affidavit evidence in support of their position.

92The range of costs awards sought by each counsel on behalf of their client or client group reflects the division of labour and added demands.

93In general, I apply the principles of costs following the event, in a set of motions that were important to all parties given my comments on litigation autonomy, the personal injury context and the broader public interest in such claims moving ahead without unnecessary delay. I also have considered the truncated timetable proposed by Ontario and accepted by the plaintiffs. I note that two groups of plaintiffs had markedly different amounts of time spent preparing for the motion, which far outstrip the time spent by Ontario as the moving party against all plaintiffs. However, I have considered the significance of the motion to the opposing plaintiffs, the relatively thin record offered by Ontario and the detailed affidavits prepared by counsel from their clients. All told, I have awarded costs to each group as requested, with a reduction imposed to the outlying group of plaintiffs.

94I award partial indemnity costs in favour of the opposing plaintiffs and payable by Ontario within 30 days in the following amounts:

a. Plaintiff Marlon Roberts: $6,996.96

b. Plaintiffs Peter Bouctsis, Adam Derie, Jayden Elijah, Brian Gyeni, Michael Joseph, Aaron Martin, Zachary McDermott, Ammanieky Nixon, Kalib Rahi, Devon Salmon, Joshua Sotomayor: $33,111.15

c. Plaintiffs Bryan Adams, Hardil Kanmore and Andrew Lamore: $9,440.501

d. Plaintiffs Andrew Chrobak, Kok Diang, Artur Ivashinnikov, Wilder Gonzalez, Harris Mohamed, Andy Persaud, Joshua Savory-Hutton, Joshua Michael Mason and Michael Henry Vos (reduced from the requested amount of $67,719.66): $50,000.

Leiper J.

Released: June 16, 2026

CITATION: Chisholm v. His Majesty the King in Right of Ontario, 2026 ONSC 3512

Footnotes

1. 1Thamilarasan Velauther (CV-26-00000281-0000) Claude Simon (CV-26-00001270-0000) Jason Pike (aka Mercuri) (CV-25-00746589-0000) and Sabir Abdellahi (CV-25-00735833-0000): Alexander Clermont (CV-26-00001416-0000), Joseph Etsub (CV-25-00006089-0000), Abdullah Kaddoura (CV-25-00006855-0000), Lance Lambke (CV-26-00001415-0000), Donnel Nduwayo (CV-25-00006092-0000), Rene Pearle (CV-25-00006091-0000), Andrew Wong (CV-26-00001417-0000): Jory Fourtounes (CV-26-00000344-0000), Matthew Hansen (CV-25-00757133-0000), and Darren Maddan (CV-25-00757061-0000) Pritpal Singh Dhaliwal (CV-25-00007333-0000), Javoi Elwood (CV-25-00007095-0000), Rayjon Hudson (CV-25-00006076-0000), Dylan Kingscote-Jones (CV-25-00007096-0000), Kyle Lapierre (CV-25-00006074-0000), Michael Mahadeo (CV-25-00006075-0000), and Ainsley Robinson (CV-25-00007097-0000).
2. 2In correspondence from the Crown received following the submissions on the motion, Ontario advised that in an action brought by an additional plaintiff who does not oppose a temporary stay, and who named the Halton Police Board and Officer John Doe as defendants in Bolton v. Ontario et al. (Court File No. CV-25-00746592-0000), the defendants do not oppose a stay. Thus, I add this action to the list of proceedings to be temporarily stayed in these reasons.
3. 3Four additional plaintiffs (Linval Ritchie (CV 25-00754482-0000) Mr. Tajinder Dhillon (CV-25-00755666-0000), Mr. Telique Ricketts (CV-25-00758332-0000) and Mr. Benjamin Owusu (CV-25-00758308-0000)) represented by Ms. Lewis, had not yet provided instructions. On consent, those motions are adjourned to be heard on October 20, 2026.
4. 4Andrew Chrobak (CV-26-00000423-0000), Kok Diang (CV-26-00000422-0000), Artur Ivashinnikov (CV-26-00000419-0000), Wilder Gonzalez (CV-26-00000421-0000), Harris Mohamed, (CV-26-00000418-0000), Andy Persaud (CV-26-00000425-0000), and Joshua Savory-Hutton (CV-26-00000420-0000), Joshua Michael Mason (CV-25-00757830-0000) and Michael Henry Vos (CV-26-00003006-0000) Bryan Adams (CV-26-00000083-0000), Hardil Kanwal (CV-26-00000177-0000), and Andrew Lamore (CV-25-00751145-0000): Marlon Roberts (CV-25-00005231-0000): Peter Bouctsis (CV-25-00757010-0000), Adam Derie (CV-25-00758309-0000), Jayden Elijah (CV-25-00757018-0000), Brian Gyeni (CV-25-00755667-0000), Michael Joseph (CV-25-00757007-0000), Aaron Martin (CV-25-00757006-0000), Zachary McDermott (CV-25-00758296-0000), Ammanieky Nixon (CV-25-00755670-0000), Kalib Rahi (CV-25-00755661-0000), Devon Salmon (CV-25-00757984-0000), Joshua Sotomayor (CV-25-00758328-0000)