Court of Appeal for Ontario

Date: 2017-04-06 Docket: C62498 and C62704

Judges: Rouleau, Pepall and Roberts JJ.A.

Parties

Between

Lina Lochner, Paul Lochner and George Lochner by his litigation guardian – Public Guardian and Trustee

Plaintiffs (Appellants)

and

PC Gordon Callanan, Sgt Mark Armstrong, PC Domenic Bruzzese, PC David Bragg, PC William Shikatani, PC Gissa Waters, PC Stephen Carmichael and Toronto Police Services Board

Defendants (Respondents in Appeal)

Counsel

Lina Lochner and Paul Lochner, acting in person

Walter Kim, for the Public Guardian and Trustee

Laura Day, for the respondents

Hearing and Appeal

Heard: March 23, 2017

On appeal from: the orders of Justice Robert Goldstein of the Superior Court of Justice, dated July 8, 2016 and September 13, 2016.

Endorsement

[1] The appellants appeal the two orders of the motions judge and bring a motion to introduce fresh evidence on appeal.

[2] These proceedings arise out of an altercation between the appellants, George Lochner, and the police, during which George Lochner was tasered by the police. The appellants and George Lochner brought an action for damages against the police. The appellants' claims were dismissed when they failed to attend at the trial of their action.

[3] George Lochner is a person under a disability. The Public Guardian and Trustee is his litigation guardian in the proceedings arising from his altercation with the police. The proposed settlement of George Lochner's claim received court approval by order of Justice D. Wilson ("the settlement approval judge") on March 9, 2016 ("the settlement order").

[4] The appellants take issue with the settlement of George Lochner's claim. They brought a motion to set aside the settlement order under r. 37.14, and then brought another motion to set aside that order, this time relying on r. 39.01(6). Both motions were dismissed. The motions judge also ordered that they were prohibited from filing any further motions in the Superior Court absent leave. They appeal from each of the orders.

Standing to Challenge the Settlement Order

[5] With respect to the dismissal of their r. 37.14 motion, the appellants submit that the motions judge erred in determining that they had no standing to bring that motion.

[6] We disagree. Although the Public Guardian and Trustee provided the appellants with a copy of the notice of motion to approve the settlement as a courtesy, neither of the appellants was a party or other person who was affected by the order within the meaning contemplated by r. 37.14(1). To have standing to challenge the settlement order, the appellants had to demonstrate that their proprietary or economic interests were affected by the order: Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 63 O.R. (3d) 769 (C.A.). They failed to meet this burden. The motions judge determined that there was no evidence that the appellants' interests were affected by the settlement order. We see no error in the motions judge's finding, which is entitled to deference on appeal.

The Second Motion and Abuse of Process

[7] With respect to the appellants' r. 39.01(6) motion, the appellants submit that the motions judge erred in dismissing their motion as an abuse of process and in ordering that they bring no further motions without leave of the court. The appellants maintain that the Public Guardian and Trustee failed to make full disclosure before the settlement approval judge.

[8] We disagree. The motions judge correctly concluded that the appellants were attempting to re-assert their challenge to the settlement order and to re-litigate the same issue of standing that was the subject of their first motion, and that their second motion was therefore an abuse of process. Further, there is no basis for the argument that full disclosure was not made. The appellants were given the opportunity to make their views known to the settlement approval judge and the Public Guardian and Trustee filed a supplementary motion record which included the appellants' arguments and objections to the settlements, and documents that they said were relevant. Finally, there was no error in the exercise of the motions judge's discretion, based on the record before him, to make the order that the appellants bring no further motions without leave.

Fresh Evidence

[9] Lastly, the appellants' proposed fresh evidence consists of the opinion of Liam Hendrikse concerning George Lochner's taser injuries. This evidence relates to the question of George Lochner's damages and has nothing to do with the issue of the appellants' standing to challenge the settlement order. As a result, we would not admit this evidence because it could not possibly have affected the outcome of the motions to set aside the settlement order. It fails to meet the test for admission of fresh evidence. See R. v. Palmer, [1980] 1 S.C.R. 759. The motion for admission of fresh evidence is therefore dismissed.

Disposition

[10] For these reasons, the appeals are dismissed.

[11] The appellants shall pay $3,000 in costs as follows: $750 to the Public Guardian and Trustee for each motion, for a total of $1,500, and $750 to the respondents for each motion, for a total of $1,500, for their partial indemnity costs of both appeals, inclusive of disbursements and taxes.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.