CITATION: Farah v. Toronto Police Services Board, 2026 ONSC 41
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AYAAN FARAH, JAMES MARGARIT and ARTEL AULD, Plaintiffs
– and –
TORONTO POLICE SERVICES BOARD, WILLIAM BLAIR, IN HIS CAPACITY AS TORONTO CHIEF OF POLICE, MARK SAUNDERS, IN HIS CAPACITY AS TORONTO CHIEF OF POLICE, JAMES RAMER, IN HIS CAPACITY AS TORONTO CHIEF OF POLICE and MYRON DEMKIW, IN HIS CAPACITY AS TORONTO CHIEF OF POLICE, Defendants
BEFORE: Justice E.M. Morgan
COUNSEL: H. Michael Rosenberg, Stephanie Willsey, Solomon McKenzie, Sabih Ottawa, Atrisha Lewis, Demar Hewitt, Rick Frank and Safia Thompson, for the Plaintiffs
Kevin McGivney, David Elman, and Katelyn MacFadyen, for the Defendants
HEARD: October 27-29, 2025
CERTIFICATION motion
I. Carding
1The Plaintiffs seek to certify their claim pursuant to section 5(1) of the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”).
2The Defendants collectively represent the Toronto police. The Plaintiffs represent a proposed class of persons who, during the class period from 2011 to present, have been subject to street checks by the Defendants – i.e. the practice of demanding and collecting personal identification and other information from persons encountered on the street. The police carry on this practice ostensibly under authority of O. Reg. 58/16 and its predecessors, which authorizes the collection of identifying information under certain circumstances. The Plaintiffs seek declaratory relief and damages for breach of sections 15(1), 7, 8, and 9 of the Canadian Charter of Rights and Freedoms (the “Charter”), as well as damages for systemic negligence and intrusion upon seclusion in respect of this practice.
3The Toronto police practice of street checks has become generally known as “Carding”. The practice has been identified, defined, and labelled by Chief Justice Michael Tulloch in his Report of the Independent Street Checks Review (2018), at p. xi (the “Tulloch Report”):
Carding. Situations in which a police officer randomly asks an individual to provide identifying information when there is no objectively suspicious activity, the individual is not suspected of any offence and there is no reason to believe that the individual has any information on any offence. That information is then recorded and stored in a police intelligence database.
4The Plaintiffs submit that not only is the process of Carding arbitrary – i.e. unrelated to any relevant police investigation – but it is for the most part race-based. The Plaintiffs have produced an expert affidavit by Jonathan Rudin, the program director of Aboriginal Legal Services, a faculty member in York University’s Law and Society program, and the author of a number of studies about Indigenous people and their encounters with the Canadian legal system. His uncontroverted evidence is that 2.4% of those reported being Carded in Toronto were Indigenous, whereas Indigenous people make up only about half that portion of the city’s population.
5The record also contains a report co-authored by Dr. Scot Wortley, a professor in the Centre for Criminology and Sociolegal Studies at the University of Toronto whose expert testimony on policing and data analysis has been relied on by courts in Ontario, Quebec, Nova Scotia, and the Federal Court, and Dr. Akwasi Owusu-Bempah, an Associate Professor of Sociology at the University of Toronto who has written extensively on race relations, racial discrimination, and racial profiling. Drs. Wortley and Owusu-Bempah have concluded that the Carding practice reflects racial profiling by the Toronto police. The relevant portions of Dr. Wortley’s findings are summarized by Plaintiffs counsel [citations omitted]:
(b) Black people were disproportionately the target of Carding without an investigative purpose. Between 2008 and 2013, 410,018 Black individuals were Carded on the basis of ‘general investigation.’ This means Black people in Toronto were Carded for investigation’ at a rate that was 3.3 times greater than for white people;
(c) Publicly available data for 2014 show that both Black and Indigenous people were disproportionately Carded. Indigenous people had the highest rate of Carding (27.4 per 1,000), followed closely by Black people (26.9 per 1,000). These rates were more than three times higher than the rate for white people (8.6 per 1,000);
(d) From 2008 to 2013, Black people were Carded 461,468 times, which exceeds the total population of 217,360 Black people living in Toronto. Black people were 3.09 times more likely to have been Carded than their percentage of the population would predict, and 25.0% of all people who were Carded between 2008 and November 2013 were reported as ‘Black.’ By comparison, census data show that only 8.08% of Toronto’s population was Black or African Canadian.
(e) The disproportionality of Carding was even more acute for Black male youth aged 15 to 24. Although census data show they represented only 0.5% of Toronto’s population, they accounted for 10.3% all Carding between 2008 and 2013. In other words, Black male youth were 20.6 times more likely to be Carded than their representation in the general population would predict. The rate of Carding for Black male youth (8,709.7 per 1,000) was 4.3 times higher than the city average for males in this age group (2,044.8 per 1,000) and 6.2 times higher than the Carding rate for young white men (1,415.6 per 1,000). Between 2008 and 2013, the Defendants’ Officers conducted 8.7 stops for every Black male youth living in Toronto.
6On the other hand, Defendants’ expert, Dr. Victoria Systma, a professional criminologist and Associate Professor in the Department of Sociology at Queen’s University, has opined that the evidence provided by Plaintiffs’ experts is either incomplete or methodologically flawed. It is Dr. Systma’s view that, among other things, the statistics put forward by Dr. Wortley rely excessively on self-reporting by survey respondents.
7In addition, Dr. Systma points out that that global statistics of this nature do not adequately take account of the individualized context of each respondent’s encounter with the police. As she puts it, the record “does not tell us how likely a person is to come into contact with police when race is not a contributing factor in the police officer’s decision to interact with someone.”
8In other words, it is the Defendants’ view that the rightfulness or wrongfulness of any given street check, or instance of Carding, must be determined in light of the individual circumstances of the person questioned by the Police. It is for the most part on this issue of commonality that the parties join issue – i.e. can the practice of Carding can be analyzed on a collective or universal basis, or does it require an individualized analysis of each instance of contact between putative class members and the Toronto police?
II. The section 5(1) criteria
9It is by now trite law that the Plaintiffs’ onus for certification under section 5(1) of the CPA is to establish “a minimum evidential basis for a certification order”: Hollick v Toronto (City), 2001 SCC 68, [2001] 3 SCR 158, at para. 24. More specifically, the Plaintiffs must “show some basis in fact for each of the certification requirements,” other than for section 5(1)(a) where a “plain and obvious” standard applies: Ibid., at para. 25.
a) Section 5(1)(a) – Cause of action
10The Plaintiffs plead causes of action under sections 15(1) (equality), 7 (life, liberty and security of the person), 8 (security against unreasonable search and seizure) and 9 (freedom from arbitrary detention) of the Charter. They also advance claims framed in systemic negligence and intrusion upon seclusion.
i) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) claims
11The Charter claims are certainly not plainly and obviously destined to fail. In fact, the policing activity in issue has already been found to be constitutionally invalid.
12In R. v. Le, 2019 SCC 34, [2019] 2 SCR 692, at para. 10, the Supreme Court described two police officers as having “simply entered the backyard through the opening in the fence. Cst. Teatero asked them ‘what was going on, who they were, and whether any of them lived there’… Each of the young men were asked to produce identification. This common police practice of asking individuals who they are and demanding proof of their identities for no apparent reason has its own name. It is known as ‘Carding’ (Justice M. H. Tulloch, Report of the Independent Street Checks Review (2018), at p. xi).”
13The majority opinion in Le states, at para. 5, that “This was serious Charter-infringing police misconduct... Indeed, it was precisely this sort of police conduct that the Charter was intended to abolish.” The Court held that the police had conducted both an arbitrary search and an unlawful detention, and for the purposes of the criminal trial any evidence thereby obtained was to be excluded. It stands to reason that since the persons’ rights “have been deprived for no valid purpose”, the same logic would have found that proceeding on the basis of evidence so obtained violated fundamental justice under section 7 of the Charter: see R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571, at para. 90.
14As for the claim under section 15(1) of the Charter, arbitrary police actions that focus on Indigenous persons and/or African Canadians have previously been found to be discriminatory and to offend against the Charter’s guarantee of equality: Canada (Attorney General) v. B.W., 2025 FCA 199. In the parallel Carding litigation in Quebec, this finding has been made not only at the authorization stage – which is acknowledged to have a lower threshold test than certification under Ontario’s CPA – but at a common issues trial on the merits of the claim: See Ligue des Noirs du Québec c. Ville de Montréal, 2019 QCCS 3319 (authorization); Ligue des Noirs du Québec c. Ville de Montréal, 2024 QCCS 324 (merits).
15For their part, the Defendants argue that, in fact, Carding does not entail discriminatory policing. However, since at this stage of the certification analysis I am to take the facts as pleaded, the Statement of Claim provides an adequate basis for finding the cause of action under section 15(1) to be recognizable and valid.
16Plaintiffs’ counsel have summarized the specific Charter allegations pleaded, all of which pass the section 5(1)(a) test, as follows [citations omitted]:
(a) s. 15(1) on the enumerated ground of race, national or ethnic origin and colour. The Defendants have interfered with the Class members’ basic liberties, and subjected them to surveillance, criminalization, and invasion of privacy. The Defendants’ policies and procedures perpetuate historical disadvantages of the Class members and reinforces prejudice and stereotypes concerning the Defendants. These have caused harm to the Class members;
(b) s. 7 by interfering in their liberty and security of the person, including by restricting their movements, invading their privacy, and causing serious psychological distress. In some cases, the Defendants’ Officers further harmed Class members’ physical and mental health. None of this conduct was in accordance with the principles of fundamental justice, as these impugned actions were arbitrary, overbroad, and grossly disproportionate;
(c) s. 8 by unreasonably conducting searches and seizures of personal information with no reasonable basis. The Defendants’ wholesale collection and retention of the private information of the Class members was particularly egregious, given the disclosure to third parties. These actions had far-reaching impacts on the Class members. This conduct was either not prescribed by law, or was the product of unreasonable legislation, regulations, policies and procedures.
(d) s. 9 by arbitrarily detaining Class members to extract their private information. Class members were psychologically and/or physically detained, and this detention was discriminatory, arbitrary, and unlawful.
17While I make no judgment at this stage as to whether civil liability would also flow on a collective basis from similar police conduct, there are certainly sufficient grounds for the Plaintiffs to proceed with a civil claim relating to the alleged “Charter-infringing” activity. I also note that where, as pleaded, a Defendant shows a “clear disregard” for the Charter rights of an identifiable segment of the public, it may be open to a court to assess Charter damages in the aggregate or damages that reflect a minimum common experience: Good v. Toronto (Police Services Board), 2016 ONCA 25; Brazeau v Canada (Attorney General), 2020 ONCA 184, at para. 67.
ii) Systemic negligence
18Turning to the systemic negligence claim, the courts have previously held that “systemic negligence is a viable predicate claim that can be advanced against a government as a class action”: Davidson v. Canada (Attorney General), 2015 ONSC 8008, at para. 55. The Plaintiffs plead that the Defendants “failed to have in place management and operations procedures that would reasonably have prevented the abuse.”
19Police officers owe a duty of care to the members of the public with whom they interact while on duty: Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129. And the standard of care imposed on police conduct toward the public specifically requires officers to act with “sensitivity to the pluralistic, multiracial and multicultural character of Ontario society”: Police Services Act, RSO 1990, c. P.15, section 1.
20There is an arguable case that the allegedly discriminatory treatment experienced by proposed class members at the hands of the Defendants breached that duty and fell below the requisite standard of care. Furthermore, the pleading sets out a claim for harm caused by this systemically negligent conduct.
21The elements of a systemic negligence claim have therefore been pleaded, with adequate allegations of material facts to support the cause in action.
iii) Intrusion upon seclusion
22Finally, the Plaintiff has pleaded a cause of action in intrusion upon seclusion. As the Court of Appeal outlined in Jones v. Tsige (2012), 2012 ONCA 32, 108 OR (3d) 241, at para. 71, “The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”
23Intrusion upon seclusion can form the basis of a class proceeding if intention on the part of the police can be established: Owsianik v. Equifax Canada Co., 2022 ONCA 813, at para. 60. The element of intention can be established “if the defendant meant to intrude upon the privacy of the plaintiff or knew that it was a substantially certain consequence of the act which constitutes the intrusion: see Piresferreira v. Ayotte, 2010 ONCA 384, at paras. 72-75, leave to appeal ref’d, [2010] SCCA No. 283. It can also be established by showing recklessness, provided that there is “a realization at the time the prohibited conduct is being done that there is a risk that the conduct will intrude upon the privacy of the plaintiffs, coupled with a determination to nonetheless proceed with that conduct: see Demme v. Healthcare Insurance Reciprocal of Canada, 2022 ONCA 503, at paras. 62-64.
24The Plaintiffs’ pleading states that the Defendants’ collection of private information from the proposed class members, without a reasonable suspicion of criminality, intruded on the Plaintiffs’ seclusion and was highly offensive. As the Supreme Court has found with respect to random automobile stops, “an administrative scheme to validate random discretionary intrusions upon individual liberty…cannot be characterized as other than arbitrary… [Even a] laudable social purpose is not enough to clothe the exercise with legality”: Dedman v. The Queen, 1985 41 (SCC), [1985] 2 SCR 2, at para. 32.
25On top of that, Plaintiffs’ counsel submit that this must be understood from within the historical context of societal discrimination against Black and Indigenous people. From the perspective of communities historically accustomed to oppressive policies and policing, arbitrarily seizing relatively commonplace personal information from Black and Indigenous people may be sufficient to make out the tort.
26Given the low threshold that a pleaded claim must pass in order to qualify as a cause of action under section 5(1)(a) of the CPA, the Plaintiffs’ claim of intrusion against seclusion qualifies as a certifiable claim.
b) Section 5(1)(b) – identifiable class
27It is well established that the Plaintiff must define the proposed class by reference to objective criteria, and that any given class member must be capable of being identified without reference to the merits of the action: Hollick, supra, at para. 17. Moreover, the proposed class definition must be rationally related to the common issues and must not be over or under-inclusive: Ibid., at para. 21.
28The Plaintiffs have proposed the following class definition:
The Class consists of all Black, First Nations, Inuit and Métis persons who:
(i) were stopped by officers of the TPS without a reasonable suspicion of their involvement in criminal, activity. For example, if the officer of the TPS recorded the reason for the stop as a ‘general investigation’, or other similar or equivalent terms;
(ii) were subject to the collection and recording of personal information, for example, on a ‘208 Card’, in a ‘Field Information Report’, in ‘Community Safety Notes’, in the records of a police officer, or in some similar form, such as in a ‘General Occurrence Report’;
(iii) had their personal information the Defendants or the Defendants’ Officers entered in a database, including the Criminal Information Processing System, Versadex, or similar database accessible to the TPS, including successor and predecessor databases, for example, the Historical Contact Card Database, or the Canadian Police Information Center (or ‘CPIC’) (together, the ‘Defendants’ databases’); and
(iv) had their personal information retained in one of the Defendants’ databases after December 5, 2011;
Where:
(i). ‘Black persons’ are individuals who identify as Black, including but not limited to, Black, African-Canadian, Caribbean-Canadian and mixed-raced individuals; and
(ii). ‘First Nations, Inuit or Métis persons’ are individuals who identify as First Nations, Inuit, or Métis persons.
29Plaintiffs’ counsel submit that the racial categories relating to Black and Indigenous people that are utilized in the proposed definition are well recognized and not unduly vague. In fact, other courts have recognized that these categories are sufficiently well defined and understood to be workable in the context of class action discrimination claims: see, e.g., Ligue des Noirs du Québec (authorization), at para. 66; Nasogaluak v. Canada (Attorney General), 2021 FC 656, at paras. 85-86.
30What is perhaps more controversial than the description of the class is the class period. The Defendants submit that any police practice of Carding ceased in 2016, if not earlier, and that the class period should end there.
31For their part, the Plaintiffs propose that a class member will be within the class period if the Defendants retained their seized Carding data after December 5, 2011. That commencement date reflects the two-year limitation period prior to the issuance of the predecessor to the present claim on December 5, 2013. The limitation period has been tolled since that issuance date.
32There is little doubt that the practice of discriminatory policing, including Carding and other forms of arbitrary police stops, goes back at least as far, and in fact pre-dates, the 2011 commencement of the proposed class period. In 2003, the Ontario Human Rights Commission (“OHRC”) held an inquiry into this and other aspects of racial profiling in police practices, finding that the practices had a negative impact on racialized communities: Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling (Toronto: Ontario Human Rights Commission, 2003. Adjudications by the Ontario Human Rights Tribunal (“OHRT”) in 2009 and 2011 found police Carding to be discriminatory against Black and Indigenous individuals, respectively: Phipps v Toronto Police Services Board, 2009 HRTO 1604; McKay v Toronto Police Services Board, 2011 HRTO 499.
33The Plaintiffs state that there was insufficient information available to the public to properly compile a claim on a class-wide basis until the Defendants were ordered by the Court to make their record collection public: Toronto Police Services Board v. Ontario (Information and Privacy Commissioner), 2009 ONCA 20. The practice was ongoing and fully operational in 2014, at which time the Chief Commissioner of the OHRC issued a report identifying Carding as rights infringing and calling on the police to cease the practice: Ontario Human Rights Commission, “Letter to the Toronto Police Services Board regarding the practice of Carding” (13 January 2014).
34In 2016, Ontario introduced a regulation entitled the Collection of Identifying Information in Certain Circumstances – Prohibition and Duties (“O Reg 58/16”). This regulation requires the Chief of police to report annually on the number of regulated interactions between the police and the public, and to segregate historical data obtained through Carding so that it can no longer be easily accessed. Defendants contend that this regulatory reform put an end to the impugned practice of Carding.
35Plaintiffs’ counsel complain, however, that the practice continues apace. They also point out that, among other things, O Reg 58/16 does not require the Defendants to determine if any of the historical data had been transferred to other law enforcement databases such as that of the RCMP where there are no such restrictions on access. Accordingly, the Plaintiffs contend that the records collected by the police at the height of the carding policy prior to O Reg 58/16 are still readily accessible through other police forces.
36In 2018, Chief Justice Tulloch issued his Report. His findings emphasized the discriminatory nature of Carding and the negative impact on Black and Indigenous communities. The Tulloch Report found the practice to still be ongoing a full two years after the enactment of O Reg 58/16.
37Chief Justice Tulloch’s recommendations included the destruction of historical data collected by Carding, the end of random and arbitrary police stops for the purpose of requesting personal identification, and an end to the recording of information told to the police in non-investigative interactions with the public: Tulloch Report, pp. 83-90. These recommendations provide a basis in fact for the allegation that while O Reg 58/16 may have modified and limited the practice of Carding, that the practice was still ongoing subsequent to the regulation’s enactment.
38Notwithstanding the Defendants’ position that Carding has disappeared, the OHRC’s multi-year public inquiry into anti-Black racism reported in 2023 that community members continue to experience random Carding: Ontario Human Rights Commission, From Impact to Action: Final report into anti-Black racism by the Toronto Police Service (2023). Moreover, the TPS Information Security Manager, Jarrod Dore, confirmed in cross-examination that the majority of the personal information records collected in recent years do not pertain to any identified investigation, but rather are “General Occurrence Reports.” This generic labelling pertains to data collection that contains the same personal information that was stored on the contact cards used prior to O Reg 58/16.
39Mr. Dore also indicated in his testimony, and Staff Sergent Neil Rambharack confirmed in an affidavit in the present record, that the General Occurrence Reports that continue to be generated include the identified individual’s ethnicity. In addition, the evidence indicates that General Occurrence Report data also continues to be collected in the context of vehicle stops, which are outside of the scope of any restrictions on Carding imposed by O Reg 58/16.
40The record therefore contains ample basis in fact for the class period as proposed by the Plaintiffs, commencing December 5, 2011 and going until the present day – i.e. the end of the opt-out period in the event that the claim is certified.
c) Section 5(1)(c) – Common issues
41The Supreme Court held in Hollick, at para. 18, that the common issues must reflect essential elements of the proposed class members’ claims. Counsel for the Plaintiffs submit that the list of common issues that follows has been formulated with a view to that instruction.
42Plaintiffs’ counsel further point out that similar lists of common issues have been authorized by the Quebec Superior Court in that province’s parallel Carding action: Ligue des Noirs du Québec (authorization), at paras. 36, 41. In addition, the proposed common issues mirror the common issues certified by the Federal Court in Araya v. Canada (Attorney General), 2023 FC 1688 with respect to anti-Black policies toward prison inmates and in Nasogaluak v. Canada (Attorney General), 2021 FC 656 with respect to mistreatment of Indigenous people.
43The Plaintiff’s proposed common issues are:
(a) By their operation and management of the Carding practice from 2011 to the present, did the Defendants breach the Class members’ rights under section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”)?
(b) If so, were their actions saved by Section 1 of the Charter?
(c) By their operation and management of the Carding practice from 2011 to the present, did the Defendants breach the Class members’ rights under section 8 of the Charter?
(d) If so, were their actions saved by Section 1 of the Charter?
(e) By their operation and management of the Carding practice from 2011 to the present, did the Defendants breach the Class members’ rights under section 9 of the Charter?
(f) If so, were their actions saved by Section 1 of the Charter?
(g) By their operation and management of the Carding practice from 2011 to the present, did the Defendants breach the Class members’ rights under section 15 of the Charter?
(h) If so, were their actions saved by section 1 of the Charter?
(i) In their planning, operation and management of the TPS’ policies and practices regarding Carding, did the Defendants owe a duty of care to the Class members?
(j) In their planning, operation and management of the TPS and their formulation and implementation of Carding policies and practices, did the Defendants breach the standard of care owed to the Class members?
(k) In implementing the Defendants’ policies and practices regarding Carding, did the TPS intentionally intrude upon the Class members’ seclusion?
(l) Did the Defendants have lawful justification to intrude upon the Class members’ private affairs?
(m) Would a reasonable person regard the Defendants’ invasion of the Class members’ private affairs highly offensive causing distress, humiliation or anguish?
(n) Did the Defendants discriminate against the Class members under the Ontario Human Rights Code by targeting them for Carding based on prohibited grounds, including on the basis of their race, ancestry, and creed?
(o) If the answer to (b), (d), (f) or (h) is no or if the answers to any of the preceding questions are yes, can the court make an aggregate assessment of damages?
(p) Did the Defendants collectively or individually engage in conduct in respect of their policies and practices regarding Carding that would prima facie justify an award of punitive damages?
(q) In view of the Court’s findings on the common issues above, should declaratory relief, a supervisory order, or an injunction be issued to monitor the Defendants’ practices with regard to Carding and ensure compliance with their obligations to Class members?
44Counsel for the Defendants submit that the required commonality is missing from these questions. In their view, the Court conducting a common issues trial on the basis of these questions would be pressed to consider the specific and unique circumstances of each step leading to the collection of any individual’s personal information.
45The Defendants argue that without examining the entire context, including a review of all records surrounding the stop, a re-creation of the circumstances leading up to the questioning of a person, and an interview with the police officer who made the stop, the proposed common issues questions cannot be answered with accuracy. They also contend that the category denoted on a police record as “general investigation” or a “General Occurrence Report” cannot be used to convey that the questioning of the person was a random act, and that there may be a specific investigative reason for the stop that does not show up in the information recorded by the officer.
46Counsel for the Plaintiffs reply that the Defendants’ position in effect invites the Court “to miss the forest for the trees.” That is, it demands a focus on particular details of any one police stop and averts its gaze from the overall Carding policy and societal impact of that policy.
47In addition, the Plaintiffs argue that a focus on individualized contexts would be unworkable and pointless. In support of this view, Drs. Wortley and Owusu-Bempah explain in their Report that there is often a pretext for an otherwise random police stop, and that a random police stop is easily cloaked as an investigative inquiry.
48That point is well illustrated in the record by a transcript of a recorded interaction between an officer and a Black motorist who is subjected to a traffic stop despite having done no identifiable driving infraction. The ease with which the officer paints a random stop as a purposive one is, frankly, disconcerting. When asked the reason for the stop, the officer states that the driver was in a vehicle with the markings of a rental car, and that there are many criminals driving rental cars. When pressed by the driver, the officer goes so far to say that he (and, he suggests, all police officers) stops and questions the driver of every rental car he sees.
49The officer’s explanation for the stop and the Carding strains credulity. In fact, the idea that all rental cars are routinely stopped by police no matter how safely they are being driven, or where they are located, or who is driving them, borders on the preposterous. But it graphically demonstrates the Plaintiffs’ point that “driving while Black”, as the expression goes, or perhaps ‘walking or driving while Indigenous’, is never the express reason for what otherwise appear to be random police stops. It is easily disguised.
50The problem identified in the Plaintiffs’ claim is a systemic, top-down problem that requires a class-wide perspective if it is to avoid getting lost in an endless stream of possible justifications. Plaintiffs’ counsel explain that, as evidenced in the Wortley-Owusu-Bempah Report, the systemic issues raised in this claim are only visible by “stepping back” – i.e. viewing the phenomenon from the perspective of a class of persons that are disproportionately subject to police stops and information inquiries, regardless of the proffered explanation for the police action. This perspective on the overall pattern of police action rather than with the specific details of any one encounter is in keeping with the Supreme Court’s understanding of adverse impact discrimination: Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3SCR 113, at paras 57-61.
51There are, of course, some proposed class actions where “stepping back” does not provide clarity to the impugned conduct, and the claim is such that the particular facts override the general problem, and a common analysis is unworkable: see Carcillo v. Canadian Hockey League, 2025 ONCA 652; Cirillo v. Ontario, 2021 ONCA 353. But that is not the case where a discernable pattern of discriminatory conduct is patent in the overall evidence.
52The common issues here are constructed so that the Court focuses not on the specifics of any one interaction between the police and a class member, but on the Defendants’ systemic conduct as a means of explaining the statistically disproportionate impact of Carding on Black and Indigenous people (as described in Part I above). As the Supreme Court of Canada has observed, this top-down view of the impugned policy is what fosters a perspective on whether there has been “arbitrariness, prejudice, and stereotyping” – the hallmarks of impermissible state action: R. v. Sharma, 2022 SCC 39, [2022] 3 SCR 147, at para. 53.
53Drs. Wortley and Owusu-Bempah use survey evidence to support their opinion that the Defendants have negligently used Carding without providing officers with the training needed to correct conscious and unconscious bias. The minimalist nature of any training provided by the Defendants to officers who carry out the Carding policy is also acknowledged in the testimony of TPS manager Aly Virji, who explained that in rolling out the changes made to the Carding program in 2016, time was of the essence.
54There is also evidence from Drs. Wortley and Owusu-Bempah that while the mechanics of Carding may have been modified, the Defendants never took any real steps to eliminate racial profiling. Accordingly, their study finds that Carding was, and is, utilized disproportionately in racially identified neighbourhoods.
55The record therefore contains some basis in fact for the Plaintiff’s proposed common issues that probe the systemic nature of police policy and conduct. Plaintiffs’ counsel accurately state that if there is a finding of discriminatory policies and the existence of unaddressed discriminatory practices, that finding would touch all class members. The top-down systemic issues are relevant to all the class members’ claims, regardless of the specifics of each incident, and the answers to the proposed questions will advance the litigation considerably.
56“The responsibility for systemic negligence must be shown to move from top down, not from bottom up…”: Pugliese v. Chartwell, 2024 ONSC 1135, at para. 56. The common issues questions find their factual basis in the evidence in the record, and are designed to bring out precisely that kind of systemic, top-down analysis.
57In a similar way, the focus on class-wide awards required by the proposed questions regarding aggregate and punitive damages is appropriate in the context of this claim. The Supreme Court of Canada has already determined that, among other things, “the over-policing of racial minorities and the carding of individuals within those communities…contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization”: R. V. Le, supra, at para. 95. It is appropriate to raise the issue of class-wide remedies in a case that centres on issues of community and class-wide harms.
d) Section 5(1)(d) – Preferable procedure
58The Defendants contend that a class action is not the preferable procedure for the Plaintiffs and class members to pursue, and they suggest a number of alternatives. With the greatest of respect, none of those alternative suggestions appear designed to advance the claim more efficiently; rather, they all appear aimed at increasing the odds that no claims will be pursued by class members at all.
59The Defendants suggest two types of alternative forums for the Plaintiffs and class. The first type are adjudicative forums where the class members’ claims can potentially be adjudicated one at a time. These include the OHRT, civil litigation in the Superior Court of Justice, and Small Claims Court actions. Citing two instances where individual class members have previously brought claims in those forums, counsel for the Defendants submit: [c]ases like Elmardy [Elmardy v. Toronto Police Services Board, 2017 ONSC 2074] and Phipps [Shaw v. Phipps, 2012 ONCA 155] demonstrate the availability of venues like individual civil actions and the Ontario Human Rights Tribunal.”
60To say that those alternative forums are available, however, is to say close to nothing. If a proposed class action has a cause of action, individual civil litigation for each class member is by definition available. The same is true with a Small Claims action if the plaintiff is prepared to limit the monetary recovery being sought. Likewise, an OHRT claim is always available for cause of action that embodies a discrimination or equality-related subject matter. But the section 5(1)(d) question is not whether an alternative to a class proceeding is “available”, but whether it is “preferable”. As any head coach looking to recruit a new player would know, those are two very different concepts.
61The Defendants’ three adjudicative alternatives each require every individual class member to mount the case on their own. The individual claimant would thereby assume the entire cost burden of counsel fees, expert reports, evidence gathering, and other substantial disbursements. This suggestion by the Defendants is more than a bit inconvenient or impractical; it places an insurmountable barrier on virtually all claims.
62The Defendants’ suggestions would also impose a change in perspective on the class members’ claims. Individual litigation would inevitably restrict the adjudicative focus to the circumstances of each specific encounter with the police, when, as discussed above, the essence of the claim is the society-wide pattern of discriminatory treatment. The Quebec Superior Court observed precisely that point in Ligue des Noires du Quebec, at para. 35:
Le profilage racial systémique pratiqué par les policiers du SPVM et les moyens mis en œuvre par la Ville pour le contrer sont au cœur du débat.
63Without meaning to overuse the Quebec court’s metaphor, the litigation forums suggested by the Defendants would take aim at the furthest extremities of the claim and would thereby miss the heart of the debate.
64The Defendants’ other suggestions for preferable procedures include bringing complaints to the Law Enforcement Complaints Agency or the Inspectorate of Policing, pursuing TPS disciplinary hearings or the TPS Local Responses to Complaints process, or seeking to instigate criminal indictments and/or SIU investigations. While these processes take place in public institutions and therefore do not consume a complainant’s resources, they are regulatory or punitive in nature and so do not afford the complainant any compensation. It is difficult to envision many class members seeking that kind of regulatory or criminal justice without achieving any token of relief for themselves or their community.
65Indeed, even if there are a few class members motivated to pursue a public complaint process, those processes are so inherently different than a class action that they cannot be said to be preferable in any meaningful sense of the term. The Plaintiffs’ chosen avenue of redress would lead to monetary compensation for the class, while the Defendants’ suggested avenues would lead to sanctions for the Defendants. The regulatory/punitive processes and the present class action are not mutually exclusive options such that pursuing one replaces the other.
66The two forms of legal process are as distinctive as they are societally important; neither is in any realistic sense ‘preferable’ to the other. Asking whether it is preferable to see perpetrators punished or to see victims made whole is a question that ordinary legal theory cannot answer. They are both integral to the legal system, and they stand together rather than as alternatives to each other. Class members cannot be made to choose the punitive route over the compensatory route in order to pass the ‘preferable procedure’ test.
67The present claim on its own passes that preferable procedure test, and the Defendants’ alternative suggestions are more obstacles than analytically sound proposals.
e) Section 5(1)(e) – Representative plaintiff and litigation plan
68The representative Plaintiffs all appear to be capable people. They each had encounters with the police that fall within the overall definition of Carding and that are within the time frame of the claim. They have each deposed as to the negative impact of this experience on them. Their encounters were all characterized as “general investigation” in the police records.
69There is no indication that any of the representative Plaintiffs have a conflict of interest with the class. There is also no indication that any of them are unable to properly instruct counsel on behalf of the class.
70The Defendants’ complaint about the representative Plaintiffs is that there were instances in their testimony where they did not recite the details of their various encounters with the police in the way that those encounters were recorded in the police records. The incidents all took place years ago, and the Plaintiffs did not have access to the records to review them.
71The Defendants’ expectation of performance from representatives of the class is too high. They are lay persons who had an unexpected encounter with the police; they are not litigation professionals who stand back and take note of the salient details of their own experience. By analogy, car accident victims may not recall the details of their mishap in the same way as a traffic officer who was present and took notes. Likewise, a medical malpractice claimant may not recall the details of their treatment in the same way as an attending physician who recorded the matter in the patient’s chart.
72The question for representative Plaintiffs is whether they are willing and able to fairly and adequately represent the class. It is not whether the Plaintiff is the best possible witness, or the most knowledgeable about the claim, or the most clever spokesperson that the class can produce. The present representative Plaintiffs all pass the section 5(1)(d) hurdle.
73The Defendants also register complaints about the Plaintiffs’ litigation plan. They contend that, like the claim itself, the plan calls for too much individualized litigation.
74In my view, the litigation plan is appropriate to the proceeding as it now stands. In any case, it is well settled that a litigation plan is a work in progress. As the Supreme Court of Newfoundland has said, a “litigation plan may grow and evolve as the case progresses”: Jane Doe (#7) v Her Majesty in Right of Newfoundland and Labrador, 2019 NLSC 170, at para. 46.
III. Disposition
75The Plaintiffs’ claim is hereby certified pursuant to section 5(1) of the CPA.
76The class definition is as set out in paragraph 28 above. The common issues are as set out in paragraph 43 above.
77The Plaintiffs are the representative Plaintiffs for the class. Plaintiffs’ counsel are hereby appointed class counsel.
IV. Costs
78Counsel may make brief written submissions addressing costs. Counsel for the Plaintiffs are requested to send their brief submissions by email to my assistant within two weeks of today, and counsel for the Defendants are requested to send their equally brief responding submissions within two weeks thereafter.
Morgan J.
Date: January 8, 2026