Court File and Parties
CITATION: Lochner v. Workplace Safety and Insurance Appeals Tribunal, 2018 ONSC 3823
DIVISIONAL COURT FILE NO.: 168/17
DATE: 20180618
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY and SHEARD JJ.
BETWEEN:
LINA LOCHNER
Silvano Lochner spoke for Lina Lochner, unrepresented, Applicant
Applicant/Moving Party
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Andrew K. Lokan, for the Respondent
Respondent/Responding Party
HEARD at Toronto: June 18, 2018
Oral Reasons for Judgment
C. HORKINS J. (Orally)
[1] The applicant, Lina Lochner, brings a motion pursuant to Rule 59.06(2)(a) of the Rules of Civil Procedure. She asks this court to set aside the November 16, 2017 decision of the Divisional Court in Lochner v. WSIAT, 2017 ONSC 6657. Pattillo J., for the Court, dismissed Ms. Lochner’s application for judicial review of the May 31, 2016 decision of the Workplace Safety and Insurance Appeals Tribunal (“Tribunal”). The Tribunal had rejected Ms. Lochner’s request to have her NEL benefit, which had been paid as a lump sum years earlier, converted to a monthly payment retroactive to 1993.
[2] Ms. Lochner states that she has fresh evidence to prove that the Tribunal knowingly and willfully made fraudulent misrepresentations to the Divisional Court.
[3] The so-called “new evidence” is a prior decision of the Tribunal, No. 2214/09, that Ms. Lochner located after the release of the November 16, 2017 Divisional Court decision. She argues that this prior decision is inconsistent with the Tribunal’s decision in her case. Tribunal decision No. 2214/09 is not evidence nor is it new.
[4] Ms. Lochner has had many days in court arguing the same issue. I rely on the review of Ms. Lochner’s unsuccessful attempts to challenge the Tribunal’s May 31, 2016 decision that is set out in the Respondent’s factum.
[5] The “fraud argument” that Ms. Lochner seeks to argue came before Swinton J. in Lochner v. WSIAT, 2018 ONSC 1432. Swinton J. considered and rejected the “fraud argument”. In her reasons, Swinton J. noted that Ms. Lochner had issued three applications seeking judicial review of the May 31, 2016 Tribunal’s decision. In each application, she was seeking to overturn the same Tribunal decision.
[6] Ms. Lochner abandoned Application 552/17. Application 168/17 was dismissed by the Divisional Court on November 16, 2017. Ms. Lochner’s motion for leave to appeal the November 16, 2017 decision was dismissed by the Court of Appeal on April 6, 2018. Ms. Lochner issued a third application, 718/17, and Swinton J. dismissed it as an abuse of process and an improper collateral attack on the November 16, 2017 Divisional Court decision.
[7] Swinton J. found that Ms. Lochner’s conduct in launching the three applications was vexatious. She also found that there was “no merit” to Ms. Lochner’s argument that there was fraud in the original proceeding.
[8] Ms. Lochner raised Tribunal decision No. 2214/09 before Swinton J. and the Court of Appeal. She seeks to argue, yet again, that this decision justifies re-opening her judicial review of the Tribunal’s decision. The issue has been decided. I recognize that Ms. Lochner does not like the result but she is not entitled to continue her attack on the Tribunal’s decision. There is nothing in the supplementary motion record provided to the Court today that changes this result.
[9] The motion before us today is yet another example of Ms. Lochner’s continuing abuse of the Court’s process and her vexatious conduct. The three cost orders that have been issued against her remain unpaid.
[10] The Applicant’s son, Silvano Lochner, was given permission to speak on his mother’s behalf. This was allowed on the undertaking that he behave in a civil manner. Silvano Lochner did not honour his undertaking. When the panel attended in court to deliver oral reasons, the Lochner family became verbally abusive with the panel. They announced that they were leaving the courtroom. The family was clearly told that the reasons for decision would be delivered orally in their absence and they nevertheless chose to leave.
[11] The Tribunal seeks costs on a full indemnity basis in the amount of $5,500 all inclusive. This is a case where such costs are clearly warranted.
[12] Mr. Lokan, counsel for the Tribunal, sent the Applicant and her son, Silvano Lochner, a letter dated March 8, 2018. This letter documents their continuing and unacceptable conduct and the Tribunal’s intention to seek full indemnity costs. Three previous cost orders remain unpaid. Given the ongoing abuse of this Court’s process, the vexatious conduct and the unsupported allegations of fraud, full indemnity costs must be ordered.
[13] The Applicant shall pay the Respondent its full indemnity costs fixed at $5,500 all inclusive, payable in 30 days. The letter of March 28, 2018, together with the costs outline, is marked as a lettered exhibit and will form part of this Court’s record.
[14] I have endorsed the back of the motion record of the moving party as follows: “This Motion is dismissed. The Applicant shall pay the Respondent costs fixed at $5,500 all inclusive. Oral reasons have been delivered today.”
___________________________ C. HORKINS J.
I agree
CONWAY J.
I agree
SHEARD J.
Date of Reasons for Judgment: June 18, 2018
Date of Release: June 20, 2018
CITATION: Lochner v. Workplace Safety and Insurance Appeals Tribunal, 2018 ONSC 3823
DIVISIONAL COURT FILE NO.: 168/17
DATE: 20180618
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HORKINS, CONWAY and SHEARD JJ.
BETWEEN:
LINA LOCHNER
Applicant/Moving Party
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent/Responding Party
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: June 18, 2018
Date of Release: June 20, 2018