Court File and Parties
Court File No.: 07-CV-331980 Date: 2016-06-22 Superior Court of Justice - Ontario
Re: Lina Lochner, Paul Lochner and George Lochner by his Litigation Guardian – 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: S.F. Dunphy, J.
Counsel: Silvano Lochner, Lina Lochner and Paul Lochner, for the Plaintiffs/Moving Parties R. Love for the Defendants/Responding Parties
Heard: June 21, 2016
Endorsement
[1] On April 18, 2016 I dismissed the action of the (remaining) plaintiffs Mr. Paul Lochner and Ms. Lina Lochner pursuant to Rule 52.01(2)(c) of the Rules of Civil Procedure. The defendants had appeared at the trial but the plaintiffs did not, having previously indicated their intention not to appear in no uncertain terms when their request for an adjournment of the trial was not granted.
[2] The plaintiffs appeared before me today on a motion brought, among other cited grounds, pursuant to Rule 52.01(3) asking me to set aside the judgment I granted on April 18, 2016 dismissing their claim.
[3] Following what can only be described as a tumultuous hearing lasting approximately 90 minutes, I found it necessary to clear the courtroom and to proceed to consider the motion based upon the written materials filed and such oral submissions as were able to be made in the chaotic conditions the moving parties created in the courtroom.
[4] The behaviour of the plaintiffs was nothing short of outrageous, all allowances being made for the high emotions and deep feelings this case has engendered. The volume of shouting brought in security forces on multiple occasions and thoroughly disrupted proceedings in neighbouring courtrooms. The plaintiffs made threatening gestures in the direction of Mr. Love and hurled invective and abuse at him that was endured with a stoicism that should not be required of any barrister putting on a gown to appear in court. Accusations of perjury were made liberally and utterly without foundation. They interrupted me repeatedly and did not hesitate to leaven their submissions with baseless accusations of bias, corruption and bribery on my part from the first moment the court was called to order. Although I managed to restore a semblance of order for a time, it was only for a time. The plaintiffs (I include in their number Mr. Silvano Lochner who spoke on their behalf at their request and has done so at previous appearances as well) were utterly ungovernable and disrespectful of the court process. In the end, they had to be removed by court security personnel.
[5] The plaintiffs filed extensive written material in support of this motion and touched upon virtually all of the themes raised in their written argument in oral argument before their egregious and contumelious behaviour necessitated their ejection from the courtroom. In the circumstances, I have decided to proceed to render a decision on the motion.
[6] For the reasons that follow, I dismiss this motion. The plaintiffs made no effort to satisfy their burden of establishing at least prima facie evidence of the merits of their own claim, focusing substantially all of their energies on the (settled) claim of their son and brother Mr. George Lochner. Their failure to attend the trial was unreasonable and at all events deliberate. They do not meet the test for setting aside a judgment granted in default of appearance at trial.
[7] This court must be very wary of allowing the admirable precepts of access to justice and reasonable accommodation of self-represented parties to be stretched and abused by over-indulgence of unacceptable behaviour. Access to justice is a right, but not without limit. Parties responding to self-represented litigants also have a right to access to justice on a level playing field. No litigant has the right to operate by rules of their own choosing while exhibiting open contempt for rulings of the court and its procedures.
[8] These litigants have abused the process of the court in the most egregious fashion and have been doing so repeatedly over an extended period of time. It is too late to nip this behaviour in the bud; it is not too late to stop indulging it.
Factual background
[9] The case has its origins in the execution by Toronto Police Services of a warrant to enter the plaintiffs’ residence to apprehend Mr. Silvano Lochner on August 11, 2006. It was alleged that the warrant was not lawfully obtained and that the entry into the house was trespass. It was also claimed that the police assaulted Mr. Paul Lochner and Mr. George Lochner in the course of the execution of that warrant, the latter having been subdued with the use of a Taser.
[10] Mr. George Lochner is a party under disability. He was initially represented in the action by his brother Silvano Lochner as litigation guardian.
[11] The matter had a long history between 2007 and 2014 that is not material to this motion. In 2013 a three-week non-jury trial commencing June 9, 2014 was fixed.
[12] On March 12, 2014, Himel J. made an order on consent for the removal of the plaintiffs’ former lawyer from the record and appointing the Public Guardian and Trustee to represent the interests of Mr. George Lochner going forward. The June 9, 2014 trial date was re-confirmed but a second pre-trial was ordered.
[13] Ms. Lina Lochner and Mr. Paul Lochner filed a Notice of Intention to Act in Person on May 9, 2014 and have continued as self-represented parties in this litigation since that time.
[14] On May 21, 2014 the PGT requested an adjournment of the June 9, 2014 trial date as a result of its inability to find outside counsel able to conduct the trial. The matter came on before Stinson J. His endorsement indicates that Mr. Lina Lochner and Mr. Paul Lochner both acknowledged that the trial could not proceed without Mr. George Lochner having counsel present. A new trial date of October 14, 2014 was set.
[15] On October 1, 2014 the parties were again before Stinson J. Counsel for the PGT, Mr. Kim, advised the court that a tentative settlement of Mr. George Lochner’s claim had been reached and a motion for court approval of that settlement under Rule 7.08 of the Rules of Civil Procedure set for November 14, 2014. Stinson J. ordered the October 14, 2014 trial date to be vacated and required the parties to attend in scheduling court on November 19, 2014 to obtain a new trial date. The moving parties attached considerable importance to the following passage of the endorsement of Stinson J. on October 1, 2014:
“In view of the pending motion for approval of the settlement of George’s claim, the scope and length of the trial are uncertain. As well, if the settlement is not approved, a trial of George’s claim will be necessary. It is simply impractical to sever the trial of the claims of the other plaintiffs from the trial of George’s claim. For these reasons, the PGT and the defendants ask that the trial date of 14 October 2014 be vacated. The logical and necessary conclusion is that the trial date of 14 October 2014 must be vacated based on the simple logistics of the step now required. The motion for approval must be heard and decided before a new trial date is set because the length of the trial will be determined by whether it does or does not include George’s claim”.
[16] On November 14, 2014, Firestone J. heard the motion to approve the tentative settlement. The matter was adjourned to permit a capacity assessment to be conducted. That assessment was completed in February 2015 and was scheduled to be considered by Firestone J. on a resumption of the settlement approval motion before him on March 9, 2015.
[17] The matter eventually came up in trial scheduling court on February 18, 2015 before Himel J. Her endorsement indicates that the defendants sought to defer setting the trial date until after the decision of Firestone J. regarding the approval of the settlement because the outcome would affect the length of the trial (a shorter trial being needed if the settlement were approved). Mr. Silvano Lochner on the other hand urged upon the court that “his mother is in her 80’s and has cancer and seeks an early trial date”. Himel J. accepted Mr. Lochner’s suggestion and fixed the trial date for April 18, 2016. Sufficient time to hear the longer trial if necessary was reserved but there was otherwise no linkage drawn between the trial schedule and the status of the settlement with Mr. George Lochner.
[18] The settlement approval motion came back on for a hearing before Firestone J. on March 9, 2015. He heard from representatives of the Lochner family. Firestone J. requested further information from the PGT on April 28, 2015 that was provided to him on June 30, 2015. The matter was taken under reserve.
[19] Meanwhile, Ms. Lina Lochner and Mr. Paul Lochner brought a motion to have the PGT removed from the record while the approval of the settlement was still pending before Firestone J. On June 5, 2015, Diamond J. dismissed that motion. An appeal from this order was taken to the Court of Appeal and quashed.
[20] Firestone J. released reasons declining to approve the settlement on October 1, 2015.
[21] A second and significantly improved settlement was negotiated by the PGT on behalf of Mr. George Lochner on December 4, 2015. On January 28, 2016, the plaintiffs sought unsuccessfully to consolidate the PGT’s motion to approve the settlement of Mr. George Lochner’s claim with the hearing of the trial on the merits that was still scheduled for April 18, 2016. That motion before Matheson J. was unsuccessful.
[22] The plaintiffs then renewed their efforts to remove the PGT as litigation guardian for Mr. George Lochner, arguing that the PGT was not operating in his best interests. Their motion was denied by Faieta J. on February 12, 2016. Faieta J. released extensive reasons for his decision including a detailed review of the proceedings to date and a discussion of the objections raised by the moving party plaintiffs with the evidence tendered by the PGT in support of the settlement.
[23] Many of the same objections rejected by Faieta J. on February 12, 2016 were repeated by the plaintiffs in their motion before me. His reasons are reported at Lochner v Callanan, 2016 ONSC 1705.
[24] The second settlement was then brought before D. Wilson J. on March 9, 2016 as an ex parte motion in writing under Rule 7.08 of the Rules of Civil Procedure and was approved by her at that time. While the motion was ex parte, the supporting affidavit and the settlement itself had been communicated to the plaintiffs and were a significant element of the motion before Faieta J. Her reasons were kept under seal so as not to prejudice the fair trial of the remaining claims.
[25] The two remaining plaintiffs were unhappy with this settlement reached on behalf of their son and brother. They were of the view that the affidavit material filed by the PGT failed to provide the level of disclosure required of an ex parte motion under Rule 39.01(6) of the Rules of Civil Procedure and contend that they are interested persons with standing to challenge the approval pursuant to Rule 37.14(1)(a) of the Rules of Civil Procedure. They determined to appeal the order of D. Wilson J. approving the settlement.
[26] So it was that they appeared before McEwen J. on March 23, 2016 to seek an adjournment of the trial in order to pursue their intended appeal of the approval of the settlement affecting their co-plaintiff. McEwen J. denied the plaintiff’s request for an adjournment. The transcript of that hearing reveals that matters became quite tumultuous as soon as counsel for the defendants, Mr. Love, attempted to make submissions. The plaintiffs were unable to restrain themselves from interjecting and interrupting Mr. Love when he attempted to make submissions. While I was provided with only a partial transcript of the hearing, it is evident that the behaviour witnessed by me in my courtroom was not at all unusual and was, to the contrary, quite typical of the behaviour exhibited by these litigants.
[27] McEwen J. released an endorsement on March 23, 2016 dismissing the motion of the plaintiffs to adjourn the trial date of April 16, 2016. He found “there are no issues of trial readiness. The only issue is the Rule 7 settlement which, as noted, is not an impediment”. His endorsement concluded with the following:
“Last, I should note that the plaintiffs – Lina and Paul – advise that if the trial goes ahead they will not participate. I urge them to reconsider their position. If they fail to attend they run a serious risk of having their actions dismissed. This order is, of course, subject to any further order that the trial judge might make ” (emphasis added).
[28] As noted, the plaintiffs failed to appear at the trial. They did not renew their request for an adjournment before me as trial judge. I found the trial to have been validly called and accepted the defendants’ motion pursuant to Rule 52.01(2)(c) of the Rules of Civil Procedure in light of the failure of the plaintiffs to appear. Judgment was issued dismissing the claim with costs.
[29] In support of this motion to set aside my judgment, the plaintiffs filed extensive material relating to the merits of the case of Mr. George Lochner that has been settled, to the procedural history of this case and to the grounds upon which they seek to set aside the approval of the settlement reached by the PGT on behalf of Mr. George Lochner. They filed little to no material before me discussing the merits of their own claims and offered no explanation for their refusal to attend their own trial beyond their disagreement with the ruling of McEwen J.
Issues to be argued
[30] Have the plaintiffs established any grounds that might justify setting the judgment dismissing their claim aside?
Analysis and discussion
[31] The leading authority on the grounds for setting aside a judgment obtained against a party that failed to attend at trial is the Divisional Court decision in Waite v. Gershuny, 2005 ON SCDC 4101. The test for setting aside a judgment obtained against a party who has failed to attend at trial is analogous to the test applied in setting aside an order granted against a party who has failed to appear at a motion under Rule 37.14(1)(b) of the Rules of Civil Procedure. The three part test to set aside such an order or judgment requires (i) that the application to set aside be made as soon as reasonably possible; (ii) that it be supported by evidence setting forth a reasonable explanation for the failure to attend; and (iii) that it also be supported with evidence of a defence (or claim) on the merits at least on a prima facie consideration, setting forth the facts which will enable the court to decide whether or not there was a matter that would have afforded a defence (or a claim): Waite at para. 9-10 and authorities cited therein.
(i) Timeliness of motion
[32] There is no serious issue taken with the timeliness of this motion. While the motion was not necessarily brought at the soonest possible moment, this motion was heard less than two months from the date of the judgment and appears to have been commenced within one month. No serious prejudice arising from these brief delays in the context of this decade-old action has been alleged.
(ii) Circumstances of the default
[33] I am aware of no case that has ever suggested that deliberately choosing not to attend at a trial or motion can be a basis to ask for the judgment or order to be set aside. Indeed, in Waite, the “real possibility” that the failure to attend trial was deliberate was a factor that weighed against granting the requested relief: Waite at para. 13.
[34] There is no doubt whatsoever that the plaintiffs simply chose not to attend their trial. They so advised McEwen J. Despite being cautioned by him against maintaining that course and being advised of their right to apply to the trial judge for an adjournment they did not appear.
[35] There is no suggestion that there was inadvertence. The plaintiffs appear to have concluded that they were entitled to an adjournment of the trial by reason of their stated intention to appeal the approval of the settlement reached with Mr. George Lochner. They remain unable to understand why McEwen J. did not agree with their position but submit that the matter was not validly called for trial in light of the refusal of McEwen J. to adjourn it.
[36] Whether the plaintiff’s non-appearance at trial can be characterized as contumelious, it was certainly deliberate. They disagreed with McEwen J’s ruling and were determined to act in accordance with the order they were denied rather than the one they were granted. That way lies chaos.
[37] Is there any basis on which the deliberate refusal of these self-represented parties to attend their own trial might be excused?
[38] From a careful review of the materials filed by the moving parties and the oral submissions of Mr. Silvano Lochner (whom I exceptionally agreed to hear on behalf of Mr. Paul Lochner and Ms. Lina Lochner at their request), the following is what I have understood of why the plaintiffs felt justified in adopting the misguided course they followed.
[39] The core of their complaint is the settlement of the claim of Mr. George Lochner. They sought on two separate occasions to have the PGT removed. In the motion before Faieta J. they sought to argue that counsel for the PGT was misrepresenting the evidence regarding the exact nature of the injuries suffered by Mr. George Lochner. The plaintiffs sought to have me examine in detail possible discrepancies in the evidence as to whether there were two Tasers or three; whether Mr. George Lochner was tasered in the front only or in the front and back and other similar matters. Substantially similar issues - and indeed the same affidavit (being the supporting affidavit filed for the Rule 7.08 settlement approval motion) – were canvassed before Faieta J.
[40] The plaintiffs’ position is founded upon their pending appeal of the approval of the settlement. The basis on which they claim standing to bring such an appeal was not explained to me but will presumably be a matter for the court hearing that appeal in July. They suggest that since the PGT was able to receive an adjournment of a fixed trial date in October 2014 on the strength of the tentative settlement and the argument that the claims of all plaintiffs needed to be heard together, it is only fair and reasonable that the plaintiffs’ own request for an adjournment to allow them to appeal what they view as a flawed approval of the settlement should also be allowed. They reason that if they are successful on their appeal it would be impractical and unjust to run the risk of having to have two trials instead of one.
[41] The order of D. Wilson J. of March 9, 2016 was effective when made and remains in full force unless and until it is stayed, varied or set aside. No litigant is entitled to presume to ignore such an order. A stay may be sought in appropriate cases, but no litigant can act as if the order were not effective. While a pending appeal – or even an announced but unfiled appeal – may be a factor to be considered on a motion seeking an adjournment, it cannot be presumed to be a decisive one.
[42] The status quo on March 23, 2016 (and on April 18, 2016) was that there were only two remaining plaintiffs, Mr. George Lochner’s claim having been finally settled. That remains the status quo today. The plaintiffs strongly urged me to consider what would happen if they are successful in their appeal and the settlement with Mr. George Lochner is set aside. Without dismissing the concern, that is a factor but a factor among many.
[43] While the defendants would be considerably disadvantaged by having to undergo two separate trials of similar facts considering the circumstances of the claim, the same disadvantage is not necessarily true of the plaintiffs whose claimed damages are quite separate and distinct from each other. The plaintiffs bear no particular risk of inconsistent verdicts or findings. The defendants upon whom that risk primarily fell raised no complaint about moving forward to trial notwithstanding the risk of a successful appeal of the settlement. It is noteworthy that it was the plaintiffs who (successfully) urged that the earliest possible trial date be fixed before Himel J. on February 18, 2015 notwithstanding the pending settlement approval motion. Their position before me was in many ways a reversal of the position taken before Himel J.
[44] While I cannot assume that the plaintiffs will not be successful, considering their slender claim to standing and the number of times these or similar issues have been raised and decided adverse to them, I cannot attribute more than some weight to their possibility of success either.
[45] The plaintiffs may have felt justified in their own minds in ignoring the ruling of McEwen J.; they were not objectively justified in doing so. The trial was validly called. They deliberately chose to forego the opportunity at the opening of the trial to make the very arguments they made before me on this motion by renewing their request for an adjournment then. Choices have consequences.
[46] They made a decision not to attend the trial and had been explicitly advised of the consequences of their action and of the recourse available to them to seek an adjournment from the trial judge. I can see no basis to relieve the plaintiffs of the consequences of a decision deliberately taken with full knowledge of the consequences.
(iii) Evidence of the merits
[47] The plaintiffs have filed very extensive evidence of the merits, unfortunately all or substantially all of the evidence that they have filed relates to the merits of Mr. George Lochner’s claim. Mr. George Lochner was injured in the course of being subdued with a Taser. However, there is no such claim advanced in respect of Ms. Lina Lochner or her other son Mr. Paul Lochner.
[48] The plaintiffs have failed to set before me facts from which I might assess the merits of their own claims if only to be satisfied on a prima facie basis that theirs is a reasonable case on the merits. I cannot conclude on the evidence before me that these plaintiffs have even a prima facie case on the merits that might warrant a re-opening of the judgment rendered on April 18, 2016.
[49] The plaintiffs have made no effort at all to satisfy this aspect of the test for setting aside my judgment.
(iv) Conclusion
[50] I find that the plaintiffs have failed to provide a reasonable excuse for failing to appear at trial. The failure was intentional with full knowledge of the consequences. They have also failed to provide me with any reasonable foundation in evidence to conclude that the claim dismissed by me on April 18, 2016 was prima facie meritorious. This motion is without foundation.
Disposition
[51] For the foregoing reasons, I dismiss this motion with costs.
[52] The defendants have submitted an Outline of Costs requesting Substantial Indemnity costs of $8,506.99. The defendants urge me to grant substantial indemnity costs in light of the plaintiffs’ outrageous behaviour on this motion. I agree. The defendants are entitled to costs of this motion on a substantial indemnity scale.
[53] The plaintiffs have not had an opportunity to review the Outline of Costs of Mr. Love. That is because they were ejected from the courtroom by reason of their behaviour. I shall nevertheless provide them with an opportunity to comment on the amount of costs sought before finalizing my order on costs. I shall receive any responding submissions of the plaintiffs regarding costs until July 15, 2016. Failing receipt of submissions from the plaintiffs, I shall render my decision thereafter.
S.F. Dunphy, J. Date: June 22, 2016