COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

DATE: 20201109

DOCKET: C68058

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Silvano Lochner

Applicant (Appellant)

and

Ontario Civilian Police Commission

Respondent (Respondent)

Michael S. Dunn, for the intervener the Attorney General of Ontario

No one appearing for the applicant

No one appearing for the respondent

Heard: September 23, 2020 by video conference and in writing

Determination pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and on appeal from the judgment of Justice David L. Corbett of the Superior Court of Justice, dated February 13, 2020, with reasons reported at 2020 ONSC 944.

Pepall J.A.:

Introduction

[1] On September 9, 2020, the Attorney General of Ontario, in its capacity as intervener, wrote to the Registrar, requesting that Mr. Lochner’s appeal be referred to the court for determination pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and that it be dismissed as frivolous, vexatious, and an abuse of process. This was in furtherance of an endorsement of Strathy C.J.O., dated September 9, 2020, directing that notice be given to Mr. Lochner and that the r. 2.1 matter be heard before the appeal, or in such manner as the panel may direct. The Attorney General provided Mr. Lochner and the Ontario Civilian Police Commission with notice. The Commission advised in writing that it would not be filing any materials and that it would not be appearing as it had no submissions to make to this court.

[2] In response to the r. 2.1 request, Mr. Lochner provided extensive written submissions in several packages for the court’s consideration. He advised the Registrar that he would not be available to participate in the video conference on September 23, 2020, the day scheduled for the r. 2.1 matter and the appeal.

[3] On September 23, Mr. Lochner did not appear. The panel stated that it was granting a r. 2.1 order and dismissing his appeal as being frivolous, vexatious, and an abuse of process with brief reasons to follow. To the extent there are any departures from the procedures described in r. 2.1, they are so ordered pursuant to r. 2.1.01(3).

Background

[4] In these reasons, I do not propose to recite all of the numerous frivolous and vexatious proceedings taken by Mr. Lochner since 2006, which have been detailed by numerous judges, including Corbett J. It is his order refusing Mr. Lochner’s fourth application for mandamus that Mr. Lochner seeks to appeal. However, some factual background is required.

[5] The provenance of all of these proceedings is an incident that occurred in August 2006, when members of the Toronto Police Emergency Task Force attended the Lochner family residence to execute a warrant for the arrest of the appellant, Mr. Lochner. Most unfortunately, Mr. Lochner’s intellectually-disabled adult brother, George Lochner, was mistaken for the appellant, and in the course of subduing George, the police tasered him. Paramedics attended, they took George to the hospital, and he was released that same night.

[6] Mr. Lochner and other family members sought civil and criminal redress for this incident. The Public Guardian and Trustee (“PGT”) — which was appointed to act as litigation guardian for George in the civil action — settled the action, over the objections of the Lochner family. Twice, the Lochner family applied unsuccessfully to have the PGT removed as George’s litigation guardian.

[7] The Lochner family and the appellant then pursued other avenues. When the Lochner family unsuccessfully sought to have criminal charges brought against the officers involved in the tasering, they then sought to prosecute privately, again unsuccessfully. The within appeal concerns Mr. Lochner’s fourth attempt to commence a private prosecution arising out of the same 2006 incident.

[8] On September 19, 2019, under s. 685 of the Criminal Code, R.S.C. 1985, c. C-46, this court dismissed a third appeal of Mr. Lochner from a refusal to grant mandamus, finding that the appeal was frivolous and vexatious: Lochner v. Ontario (Attorney General), 2019 ONCA 730. This court summarized his three attempts to pursue a private prosecution. It concluded, at paras. 20-21, that the notice of appeal revealed no arguable grounds of appeal, and that the appeal lacked merit and appeared “to have been initiated in pursuit of an unyielding course of harassment extending for more than a decade”: at para. 23.

[9] Mr. Lochner has sought to compel the respondent, the Ontario Civilian Police Commission, to commence an investigation, but these efforts have also been unsuccessful.

[10] On May 17, 2019, the appellant was convicted by Corbett J. of contempt of court for his improper conduct during the hearing: Lochner v. Ontario Civilian Police Commission, 2019 ONSC 3048 (Div. Ct.). Justice Corbett wrote:

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.

[11] Justice Corbett also made a restraining order against Mr. Lochner. He was 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: at para. 15.[^1] Justice Corbett appointed himself as the case management judge.

[12] As mentioned, on September 23, 2019, this court foreclosed Mr. Lochner’s third attempt at a private prosecution. On December 23, 2019, Mr. Lochner attempted to commence a fourth private prosecution in the Ontario Court of Justice. This was stayed, and Mr. Lochner sought leave to commence a new application for mandamus. Justice Corbett denied this request on February 13, 2020.[^2] He concluded:

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.

[13] It is this order that is the subject matter of Mr. Lochner’s appeal before this court.

[14] On July 20, 2020, Mr. Lochner sought permission once more to commence a private prosecution. On July 28, 2020, Corbett J. denied this request, determining that, like the request he had denied on February 13, 2020, it was vexatious: Lochner v. Ontario Civilian Police Commission, 2020 ONSC 4606 (Div. Ct.), at para. 6.

Rule 2.1

[15] Rule 2.1.01(1) provides that the court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. The determination may be made in a summary manner and on the basis of written materials.

[16] Rule 2.1 responds to an ever-increasing problem in the courts: vexatious and abusive litigants. Justice Yves-Marie Morissette of the Court of Appeal of Quebec addressed the challenges associated with vexatious litigants in his 2019 article entitled “Querulous and Vexatious Litigants as a Disorder of a Modern Legal System”, 24 Can. Crim. L. Rev. 265. He introduces his article, at pp. 265-66, by explaining the problem that such litigants pose to other parties and all stakeholders in the administration of justice:

Some self-represented litigants never let go. Not only do they resist any reasonable attempt to settle a dispute consensually, but they also forever refuse to accept defeat in the courts. They continue to fight on, in any available forum, until they are forced to stop. Whatever the “initial dispute” that they had with an employer, a neighbour, an ex-spouse, a relative, a government agency, or any other person or institution, there is a strong probability that this dispute will have evolved and eventually degenerated into an all-out war fought on every front, at first in a tribunal or a court of law, against one or several parties, and later against those parties' lawyers, the lawyers' partners, their professional regulators or their insurers, the court personnel, judges in person, or even the judicial council if its decisions are subject to judicial review. Whenever possible, they will seek leave to appeal to the Supreme Court of Canada.

Among the many self-represented parties, these abnormally belligerent and obdurate litigants only account for a very small percentage of parties who go to court in person and without counsel. But they are a real and threatening burden for other parties and for all stakeholders in the administration of justice (be they the parties themselves or lawyers, judges, court administrators and court personnel). The situation of the parties targeted in the “initial dispute” is usually the worst. Apart from the often considerable legal and professional costs they may have to incur because of lengthy, repetitious and spurious proceedings, they may also develop a sense of despair at the ineffectiveness of the legal system.

[17] In describing appellate experience, he writes, at p. 285, that appellate courts are not designed to cope with the burden imposed by vexatious litigants:

[Appellate jurisdictions] seem to be designed and staffed (perhaps understandably so) on the assumption that they will only deal with serious disputes and appeals deserving to be heard. But vexatious litigants, who always exercise any de plano right of appeal they may have, and who always seek leave to appeal when such leave is required, are frequent flyers in these courts and are present in a higher proportion on appeal than in first instance. [Emphasis in original.]

[18] Vexatious litigants are a drain on our system of justice. In addition to being a burden on the opposing parties, they are a burden on the judiciary and court personnel. At least the judiciary has mechanisms to attempt to address the conduct of vexatious litigants, but court personnel are ill-equipped to do anything when faced with a barrage of telephone calls, emails, and other communications frequently characterized by incendiary and rude remarks. The cost and time incurred by opposing parties is significant, and adverse costs awards frequently cannot be relied upon to discourage future comparable behaviour.

[19] In his article, Morrisette J.A., at pp. 274-76, lists the signs of “a querulous disposition” as follows:

• the litigant is virtually always self-represented
• the litigant’s attitude is characterized by marked obduracy
• persistent reiteration and amplification
• arguments are often unintelligible or highly confused
• written submissions contain much that is not legally relevant to the dispute
• the style of written submissions is quite distinctive (opaque and long written materials, faulty terminology and syntax, emphatic tone reinforced by different fonts and styles, multiple appendices and supporting documents, and the expression of a keen desire for moral vindication)
• marked lack of due diligence in the advancement of claims
• exhaustion of all rights of review, appeal, or revocation any time there is an adverse judgment
• unsustainable allegations and gratuitous complaints against members of the legal profession, and
• a cessation of proceedings only when the litigant cannot pay legal fees and costs.

[20] Similarly, in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15, Myers J. described the characteristics typically found in vexatious litigants:

• bringing multiple proceedings to try to re-determine already determined issues
• rolling forward grounds and issues from prior proceedings
• persistent pursuit of unsuccessful appeals
• failure to pay costs awards
• bringing proceedings for a purpose other than the assertion of legitimate rights
• bringing proceedings where no reasonable person would expect to obtain the relief sought, and
• inappropriate submissions in both form (curious formatting, many pages, odd or irrelevant attachments, multiple methods of emphasis, numerous foot and marginal notes) and content (rambling discourse, rhetorical questions, repeated misuse of technical terms, references to self in the third person, inappropriately ingratiating statements, ultimatums, and threats).

Gao was approved by this court in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 9, leave to appeal refused, [2015] S.C.C.A. No. 488; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 13; and Rallis v. Myers, 2019 ONCA 437, at para. 5.

[21] It is important for the courts to be gatekeepers of our system of justice. Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.

[22] That said, two points merit special emphasis. First, not all self-represented parties are vexatious litigants. Second, even a vexatious litigant may raise a legitimate issue that justifies consideration by a court. It is in part for this reason that r. 2.1.01 is intended for the clearest of cases.

Mr. Lochner’s Case

[23] Mr. Lochner’s is the clearest of cases. On its face, Mr. Lochner’s proceeding and the appeal of Corbett J.’s order are frivolous, vexatious, and an abuse of process. They reflect re-litigation, the rehashing of the same complaints, and spurious inflammatory allegations. And, they have no prospect of success.

[24] Mr. Lochner exhibits many of the features of vexatious litigants, as described by Morrisette J.A. and Myers J. Significantly, he has repeated substantially similar allegations in multiple, unsuccessful proceedings and makes wide-ranging but unsustainable allegations against a wide range of individuals.

[25] I would conclude that a r. 2.1 order is appropriate in the circumstances, and I would further dismiss his appeal as frivolous, vexatious, and an abuse of process.

[26] The question then becomes what terms, if any, should be added to this order to ensure that, on the one hand, Mr. Lochner is not forever barred from accessing the courts, but on the other, the people who work in the court system, be they judges, opposing counsel, or court personnel, are not subjected to abusive conduct, regular and sometimes daily communications, and frivolous motions. Terms of such orders often include a provision that the party be prohibited from making any further motions relating to the appeal unless leave of a judge or panel of this court is obtained. (See: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 at para. 49 and Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743, at para. 14). As we have seen, however, a term requiring leave has not served to discourage Mr. Lochner.

[27] Although a statutory court, this court has implicit powers that derive from its power to control its own process: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 87 O.R. (3d) 660, at para 24; and R. v. Church of Scientology (1986), 1986 CanLII 4633 (ON CA), 25 C.C.C. (3d) 149 (Ont. C.A.), at pp. 150-151. The court’s powers extend to “all powers that are reasonably necessary to accomplish its mandate” or, stated differently, “the powers necessary to perform its intended functions”: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. Thus, clearly this court may control its own process. The question here is the extent of this power.

[28] The challenge presented by this exceptional case is how to strike an effective balance between protecting our system of justice and its stakeholders from abuse and frivolous proceedings and allowing access to Mr. Lochner for any future arguable proceedings.

[29] One possible solution would be to require that Mr. Lochner access this court only through a lawyer.

[30] In Jonsson v. Lymer, 2020 ABCA 167, 7 Alta. L.R. (7th) 146, the Alberta Court of Appeal wrote that if the superior court’s power to control its own process authorizes requiring a litigant to access the courts only through a lawyer, it should exercise this power sparingly. Slatter J.A. concluded that the superior court had the power to prevent abuse of its processes but it should be used sparingly and only when statutory authority is inadequate: at paras. 29 – 33, and 42. In that case, the court concluded that a vexatious litigant order ought not to have been granted.

[31] Recently, in Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179, albeit in a different context, Brown J. (concurring) cited Jonsson stating, at para. 111, that the rule of law requires that citizens have access to a venue where they can hold one another to account. He wrote: “Access to civil justice is paramount to the public legitimacy of the law and the legitimacy of the judiciary as the institution of the state that expounds and applies the law.”

[32] The ability to access justice is a foundational common law tradition. In recent decades, the mantra of “access to justice” has gained considerable traction as the costs associated with litigation have skyrocketed making litigation an unrealistic means of dispute resolution for many if not most Ontarians. This has evolved into a do-it-yourself litigation regime where guidance and instructions for self-represented parties have frequently been emphasized over the provision of legal advice and counsel for the self-represented party. Has the justice system placed too much emphasis on helping parties represent themselves rather than ensuring that parties are represented by counsel? Do-it-yourself manuals may give an impression of access to justice, but this guidance is an inadequate replacement for proper legal representation. In his 2020 Opening of the Courts speech, Strathy C.J.O. stated:

In order to be fair, and to avoid unreasonable delay, particularly but not exclusively where the state is a litigant, both parties must have competent legal representation. This speaks to the urgent need for a significant re-investment in legal aid, including duty counsel and legal clinics and support for pro bono services. It is, quite frankly, a false economy to think that cutting these vital services saves money. When litigants are unrepresented and unsupported, the justice system slows to a crawl, valuable resources are drained, and other cases are held back. More important, the most vulnerable members of our society, those whom our justice system purports to protect, are further victimized because their playing field is uneven: “Opening of the Courts of Ontario for 2020”.[^3] [Emphasis added.]

[33] This vexing issue does not need to be resolved for the purposes of this case. However, requiring a litigant to be represented by a lawyer in a case such as this ensures real and effective access to the courts. It also serves to enhance the justice experience for other stakeholders, most notably opposing parties. Lastly, it is not without parallel. For example, although for different reasons, the Rules of Civil Procedure require that a corporation be represented by counsel, absent leave of the court: r.15.01(2).

[34] Mr. Lochner is what I would describe as a lifestyle litigator; in other words, litigating has become his way of life. As this court observed, he has pursued an “unyielding course of harassment extending for more than a decade”. This calls for exceptional relief. Accordingly, in these extraordinary circumstances, I would order that Mr. Lochner be prohibited from making any further motions in this court in relation to this proceeding unless he is represented by a lawyer, his materials have been prepared and filed by a lawyer, and leave of a judge of this court has been obtained by a lawyer acting on his behalf. The counter staff may communicate with a lawyer acting for Mr. Lochner but should refuse to accept materials from, or communicate with, Mr. Lochner himself.

[35] Requiring Mr. Lochner to access this court through a lawyer is within this court’s power to control its own process. Doing so is justified and the only meaningful solution to the challenges presented by Mr. Lochner. These are exceptional circumstances.

Disposition

[36] For these reasons, I would dismiss Mr. Lochner’s appeal as frivolous, vexatious, and an abuse of process pursuant to r. 2.1 and further order that Mr. Lochner be prohibited from making any further motions in relation to this proceeding unless he is represented by a lawyer, his materials have been prepared and filed by a lawyer, and leave of a judge of this court has been obtained by a lawyer acting on his behalf. The counter staff may communicate with a lawyer acting for Mr. Lochner but should refuse to accept materials from, or communicate with, Mr. Lochner himself.

Released: November 9, 2020 (“S.E.P.”)

“S.E. Pepall J.A.”

“I agree. M.L. Benotto J.A.”

“I agree. S. Coroza J.A.”

[^1]: Justice Corbett subsequently confirmed that this encompasses proceedings in the Ontario Court of Justice and those before a Justice of the Peace

[^2]: In his reasons, Corbett J. cited some of the decided cases relating to Mr. Lochner: 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]: Speech delivered at the Court of Appeal for Ontario, September 22, 2020, online: Court of Appeal for Ontario <ontariocourts.ca/coa/en/ps/ocs/ocs.htm>.