CITATION: Lochner v. Ontario Civilian Police Commission, 2020 ONSC 944
DIVISIONAL COURT FILE NO.: 096/19
DATE: 20200213
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SILVANO LOCHNER
Mr Lochner, self-represented
Applicant
- and -
ONTARIO CIVILIAN POLICE
COMMISSION
Respondent
Read at Toronto: February 11, 2020
DECISION
D.L. Corbett J.
[1] In my endorsement of May 17, 2019, I sentenced Silvano Lochner for contempt of court and, in the exercise of the court’s inherent jurisdiction, made an order restricting Mr Lochner’s access to the courts in respect to the events surrounding the tasering by police of his disabled brother George in 2006. My description of the facts giving rise to this order was as follows:[^1]
Vexatious Abuse of Process
Mr Lochner’s intellectually disabled brother, George, was tasered in the Lochner home by members of the Toronto Police Service in 2006. Mr Lochner and other members of his family have sought redress for these events since 2006. They commenced a civil suit on behalf of George Lochner. George’s representation was taken over by the Public Guardian and Trustee, over the objections of the Lochner family. That case was then settled subject to judicial approval, again over the objections of the Lochner family. Judicial approval was obtained for the settlement from D. Wilson J., again over the objections of the Lochner family. That decision ended up in the Court of Appeal where the lawyer for the Public Guardian and Trustee was physically assaulted, leading to criminal charges against Mr Lochner’s brother Paul.
The Lochner family has sought to have criminal charges brought against officers involved in the tasering. When those efforts were unsuccessful, they sought to prosecute privately, again unsuccessfully. They sought to persuade the Chief of Police to institute disciplinary proceedings against officers involved, without success. They sought an investigation from the Ontario Civilian Police Commission, also without success.[^2]
I understand that the Lochners are upset and angry about what happened to George Lochner. I also understand that they are sincerely dissatisfied with the results of the civil litigation and with decisions not to prosecute, discipline or further investigate the events surrounding George’s tasering. But these events have now been considered and decided, and the matter is at an end. The Lochners do not have to agree with how this has been handled by authorities, but they have to accept, now, that they have done everything that they can do. It is time for them to move on. And it is time that they understood that the court’s restraint in the face of misconduct in the courtroom is at an end.
Mr Lochner has made it clear that he will not cease his efforts to litigate issues relating to the tasering of his brother in 2006 unless he is restrained from so doing. His four faxes are focused on how he believes his claims are meritorious and that there are still avenues available for him to pursue these issues in court. His intemperate statements about jurists who disagree with him are eloquent evidence that he will continue, unabated, without the constraints of rationality or civility to constrain his behaviour. Wantonly accusing a judge of impropriety because he disagrees with the judge’s decision is a clear hallmark of an irrational litigant, one who, in this case, is ungovernable even in the face of an immediate risk of incarceration. Even a cursory review of past decisions related to these matters makes it clear that Mr Lochner has been carrying on as an unreasonable, ungovernable litigant for quite some time. And it is time for that to end.
In my capacity as a Justice of the Superior Court of Justice, in the exercise of the court’s inherent jurisdiction to control its own process, I am making an order restraining Silvano Lochner’s access to the courts….[^3]
[2] For the reasons quoted above, I then made the following order:
It is ordered that:
(a) Silvano Lochner, on his own behalf or on behalf of anyone else, is prohibited from commencing or pursuing in the courts of Ontario (including the Small Claims Court, the Superior Court of Justice and the Divisional Court, but not including the Court of Appeal) (i) any proceeding against the Ontario Civilian Police Commission, or (ii) any proceeding in which he seeks relief of any kind in relation to the police incident in 2006 involving his brother, George Lochner, without first obtaining permission from the case management judge.
(b) To seek permission, Mr Lochner shall, without notice to any other proposed party, provide the case management judge with a letter of no more than eight pages in length explaining:
(i) why the proposed proceeding has potential merit;
(ii) why the proposed proceeding is reasonable procedurally; and
(iii) whether he has paid all outstanding costs orders against him, and if not, advising of all such orders and the amounts owed on them.
(c) For the purposes of this order, the “case management judge” is Justice D.L. Corbett, or such other judge as is hereafter designated by court order.
(d) Silvano Lochner not apply for or receive a fee waiver for any proceedings or any steps in any proceedings in any court in Ontario (including the Small Claims Court, the Superior Court of Justice and the Divisional Court, but not including the Court of Appeal) without first obtaining permission from the case management judge. To obtain such a fee waiver, Mr Lochner shall provide the case management judge with an affidavit (a) establishing that his financial circumstances justify granting a fee waiver; and (b) showing that it is in the interests of justice that he be granted a fee waiver, given his litigation history.
(e) Silvano Lochner (a) not communicate directly or indirectly with any judge outside the courtroom in any way except (i) to seek permission from the case management judge in accordance with this order; or (ii) with the express prior written permission of the judge.
(f) Silvano Lochner is granted permission to pursue any appeal or review rights he may have in the Divisional Court from this decision and from my decision dated May 6, 2019.
(g) This order does not restrict Silvano Lochner’s access to the Ontario Court of Appeal.[^4]
[3] Mr Lochner writes to me, as the “case management judge” for the purposes of my order of May 17, 2019, seeking permission to commence proceedings in the Superior Court of Justice for an order in the nature of mandamus in respect to a private prosecution initiated by Mr Lochner (the “Request”). For the reasons that follow:
(a) Mr Lochner’s Request for permission to commence proceedings in the Superior Court is denied; and
(b) Mr Lochner is cautioned that, under this court’s order of May 17, 2019, he may not commence a private prosecution in Ontario in respect to matters related to the tasering of his brother in 2006 without first obtaining permission from the case management judge.
1. Permission to Commence Proceedings Is Denied
[4] In his Request, Mr Lochner describes the background for his Request as follows:
By way of background, I laid a private information on December 23, 2019 alleging that the above-named Emergency Task Force police officers with the Toronto Police Service did willfully attempt to obstruct, pervert or defeat the course of justice as follows:
ACTUS REUS By practicing deception, including making a false or misleading account of events in their memorandum books, preparing of police records that contain misleading or false information, AND/OR testifying falsely.
MENS REA In order to conceal the fact the above named officers deployed three M26 Tasers, including M26-19421, on August 11, 2006 at the Lochner residence when arresting George Lochner.
[5] The Attorney General appeared by counsel at the pre-enquete hearing before the Justice of the Peace and asked the Justice to enter a stay of the prosecution, which the Justice did.
[6] In the private prosecution, Mr Lochner again seeks redress for the events surrounding the tasering of his brother in 2006. In so doing he provides further evidence for this court’s finding in May 2019 that “Mr Lochner has made it clear that he will not cease his efforts to litigate issues relating to the tasering of his brother in 2006 unless he is restrained from so doing.” Permission to bring proceedings in the Superior Court are refused.
2. Silvano Lochner Restrained from the Proceedings Below
[7] My order of May 17, 2019 was made in the context of a proceeding brought in Divisional Court, through the exercise of the inherent jurisdiction of the Superior Court of Justice. On its face, that order prohibits Silvano Lochner “from commencing or pursuing in the courts of Ontario… any proceeding in which he seeks relief of any kind in relation to the police incident in 2006 involving his brother, George Lochner, without first obtaining permission from the case management judge.”
[8] This order was intended to encompass proceedings in the Ontario Court of Justice, or before a Justice of the Peace, including the laying of a private information. However, it is possible that the failure to reference these courts and these steps may have led Mr Lochner to the erroneous conclusion that the order applied only to civil proceedings. To be clear, Mr Lochner may not commence a private prosecution in respect to the events surrounding or related to the tasering of his brother in 2006 and/or any legal proceedings related to those events, without first obtaining permission from the case management judge.
3. Frivolous Request to Bring Proceedings
[9] This Request was frivolous. I have provided these reasons so that there will be a record available publicly of this frivolous request. However, there is a limit to the time and resources that the court should devote to frivolous proceedings brought by Mr Lochner. Mr Lochner should understand that future requests of this nature will likely be decided peremptorily.
D.L. Corbett J.
Released: February 13, 2020
CITATION: Lochner v. Ontario Civilian Police Commission, 2020 ONSC 944
DIVISIONAL COURT FILE NO.: 096/19
DATE: 20200213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SILVANO LOCHNER
Applicant
- and -
ONTARIO CIVILIAN POLICE COMMISSION
Respondent
DECISION
D.L. Corbett J.
Released: February 13, 2020
[^1]: Lochner v. Ontario Civilian Police Commission, 2019 ONSC 3048, paras. 10-14 (footnotes included).
[^2]: See Lochner v. Toronto Police Services Board, 2013 ONSC 4387, Lochner v. Toronto Police Services Board, 2014 ONSC 2137, Lochner v. Toronto Police Services Board, 2014 ONSC 3563, Lochner v. Toronto Police Services Board, 2013 ONSC 2137, Lochner v. Callanan, 2015 ONSC 617, Lochner v. Callanan, 2015 ONSC 2464, Lochner v. Callanan, 2015 ONSC 3628, Lochner v. Callanan, 2015 ONSC 4386, Lochner v. Callanan, 2015 ONSC 5598, Lochner v. Toronto (Police Services), 2015 ONCA 626, Lochner v. Toronto (Police Services), 2015 ONCA 703, Lochner v. Callanan, 2016 ONSC 591, Lochner v. Callanan, 2016 ONSC 1614, Lochner v. Callanan, 2016 ONSC 1705, Lochner v. Callanan, 2016 ONSC 3379, Lochner v. Callanan, 2016 ONSC 4136, Lochner v. Callanan, 2016 ONSC 4561, Lochner v. Callanan, 2016 ONSC 5384, R. v. Lochner, 2017 ONSC 1235, Lochner v. Callanan, 2016 ONCA 283, Lochner v. AG Ontario, 2018 ONSC 2994, AG Ontario. v. Lochner, 2018 ONCA 910, Lochner v. AG Ontario, 2019 ONCA 52.
[^3]: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806; Chavali v. The Law Society of Upper Canada, 2007 ONCA 482; Peoples Trust Company v. Atas, 2018 ONSC 58, aff’d 2019 ONCA 359
[^4]: Lochner v. Ontario Civilian Police Commission, 2019 ONSC 3048, para. 15.