Superior Court of Justice – Ontario Divisional Court

Citation: Lochner v. Callanan, 2016 ONSC 4561 Court File No.: DC-153/16 Date: 2016-07-14

Re: Lina Lochner, Paul Lochner and George Lochner by his Litigation Guardian the Public Guardian And Trustee, Plaintiffs And: PC Gordon Callanan, Sgt. Mark Armstrong, PC Domenico Bruzzese, PC David Bragg, PC William Shikatani, PC Gissa Waters, PC Stephen Carmichael and Toronto Police Services Board, Defendants

Before: Conway J.

Counsel: Lina Rochner and Paul Rochner, self-represented Robert L. Love and Laura M. Day, for the Defendants/Responding Parties

Heard: In Writing

Endorsement

[1] Lina Lochner and Paul Lochner seek leave to appeal the decision of McEwen J. dated March 23, 2016 refusing their request for an adjournment of their trial scheduled for April 18, 2016.

[2] This case has a long procedural history. Briefly, the plaintiffs’ claim relates to the execution by Toronto Police Services of a warrant to enter the plaintiffs’ residence on August 11, 2006. Three previous trial dates had been scheduled and adjourned by the time the matter came before McEwen J. in Civil Practice Court on March 23, 2016.

[3] One of the plaintiffs, George Lochner, is a party under a disability and is represented by the Public Guardian and Trustee as his litigation guardian. On March 9, 2016, D. Wilson J. approved a Rule 7.08 settlement between George and the defendants. The other plaintiffs, Lina and Paul (George’s mother and brother) want to challenge the settlement for a variety of reasons and sought to adjourn the trial scheduled for April 18, 2016 to permit them to do so.

[4] Justice McEwen denied the adjournment as he held that this was a long standing action, it had been adjourned many times before, Lina was elderly and in poor health and “the matter needs to proceed to trial”. He questioned whether Lina and Paul even had standing to challenge the settlement. He reasoned that Lina, Paul and George had individual (and different) damage claims and concluded that there was no prejudice in Lina and Paul proceeding to trial while still moving to challenge George’s settlement. He cautioned them as to the serious risk of not attending the trial and stated that his order “is, of course, subject to any further orders that the trial judge might make.”

[5] On April 18, 2016, the trial came on before Dunphy J. Lina and Paul did not attend or seek an adjournment from him as the trial judge. They explain that this was because they had already filed their notice for leave to appeal McEwen J.’s order at that point.

[6] At trial, the defendants moved for judgment dismissing their claim under Rule 52.01(2)(c), which Dunphy J. granted. On June 21, 2016, Lina and Paul brought a motion before Dunphy J. seeking to set aside his judgment. He dismissed their motion.

[7] Lina and Paul submit that leave to appeal McEwen J.’s order should be granted as they satisfy both branches of the test under Rule 62.02(4). In my view, neither branch is met.

[8] Lina and Paul submit that the decisions of Matheson J. (who refused to consolidate the settlement approval motion with the trial) and D. Wilson J. (who approved the settlement and sealed her reasons until after the trial) (the “Settlement Decisions”) conflict with McEwen J.’s order. The Settlement Decisions simply sought to ensure that any evidence and materials related to the settlement not be disclosed to the trial judge. Those decisions do not state that the settlement itself was prejudicial to Lina and Paul’s position at trial. Accordingly, the Settlement Decisions do not conflict with McEwen J.’s order that Lina and Paul would not be prejudiced if the trial proceeded as scheduled.

[9] There is also no good reason to doubt the correctness of McEwen J.’s order. He specifically noted that George’s claim was based on the police defendants subduing him with a taser and that this differentiated it from Lina and Paul’s claim. He explained that because of this difference in the claims (and the potential damages to the various plaintiffs), there was no prejudice to Lina and Paul proceeding to trial while continuing to challenge the approved settlement with George.

[10] In any event, I am not satisfied that the appeal involves matters of such importance that leave should be granted. While the matters at issue may be important to the parties, they do not relate to matters of public importance and matters relevant to the development of the law and the administration of justice: Comtrade Petroleum Inv. v. 490300 Ontario Ltd., 1992 7405 (ON SC), [1992] 7 O.R. (3d) 542 (Div. Ct.), at p. 3.

[11] The motion for leave to appeal is dismissed. I see no reason to award costs on a substantial indemnity scale as requested by the defendants. I order costs payable by Lina and Paul to the defendants on a partial indemnity scale in the amount of $3,000, all inclusive.

Conway J.

Date: July 14, 2016