CITATION: Lochner v. Ontario Civilian Police Commission, 2019 ONSC 3048
DIVISIONAL COURT FILE NO.: 096/19
DATE: 20190517
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SILVANO LOCHNER
Mr Lochner, self-represented
Applicant
- and -
ONTARIO CIVILIAN POLICE
Matthew Peachey, for the respondent
COMMISSION
Respondent
Heard at Toronto: May 15, 2019
DECISION AND SENTENCING
D.L. Corbett J. (Orally)
Introduction
[1] Mr Lochner appeared before me on May 15, 2019, as directed in my endorsement of May 6, 2019 (Lochner v. Ontario Civilian Police Commission, 2019 ONSC 2839), to address his conduct in advancing multiple applications against the respondent in respect to its decision not to investigate events surrounding police tasering of Mr Lochner’s brother in 2006.
[2] The appearance on May 15th did not go well.
[3] Prior to the appearance, following release of my endorsement requiring Mr Lochner’s attendance to address his conduct as a litigant, Mr Lochner sent four incendiary faxes to the court, accusing me of (among other things) “corruption” and “obstruction of justice”. These faxes were directed to the Divisional Court office, to me personally, and to several other judges to their judicial email addresses, this despite the admonition to Mr Lochner in the court’s May 6th endorsement that uninvited direct communications with a judge are improper.
[4] On May 15th, Mr Lochner was asked to fill out his information on the counsel slip. He wrote my name, “DAVID CORBETT”, as the “applicant / moving party” and wrote his own name on the back of the slip. When asked to explain this, he said that, in his view, I am the moving party, having compelled his attendance to address the matters set out in my endorsement of May 6th.
[5] Things proceeded in this vein. Mr Lochner would not answer my questions, and complained that I would not let him speak. When I let him speak, he complained that I was not listening. When I was listening, he complained that I was not reading a statute to which he had referred me. He provided a running commentary on my comportment in the courtroom, as he saw it. Then he tried to cross-examine me on whether I decided the 2.1 ruling as an “administrative judge” or as a “judicial judge” (a distinction that was lost on me), and he then became very agitated and told me that my decision may have been made “without jurisdiction” and “illegally”. After about fifteen minutes, I cited Mr Lochner for contempt of court and ordered him taken into custody.
[6] This seemed to have some prophylactic effect: Mr Lochner seemed surprised and became more subdued.
[7] As Mr Lochner was being placed in handcuffs (to which he submitted peaceably), I told him that he had a choice. If he calmed down and behaved properly and addressed the matters at hand with proper decorum, I would ask the constable to release him and we would continue. If he continued in his conduct, I would have him taken into custody and set a return date for sentencing. Mr Lochner said that he would behave himself, and so I asked the constable to release him.
[8] Unfortunately things did not improve for long. Attempts I made to direct Mr Lochner to the issues at hand were met with repeated complaints that I would not let him talk. Every opportunity he was given to talk was focused on his view of the merits of what happened when his brother was tasered by police thirteen years ago. The longer he went, the more agitated he became. Then he began to cross-examine me about a case in which I had been reversed by the Court of Appeal some five years ago – a case totally unrelated to the matters at hand – but which Mr Lochner suggested shows that I am inherently “a biased judge”. I ignored this attempted cross-examination, and then, as I was trying to direct Mr Lochner to the issues at hand, he told me “not to provoke” him. His belligerence increased. And so finally, after about another half hour, I cited Mr Lochner for contempt in the face of the court and remanded him in custody to today to be sentenced.
[9] Taken altogether, Mr Lochner’s conduct obviously constitutes contempt in the face of the court. I address the appropriate sentence for this conduct at the end of these reasons.
Vexatious Abuse of Process
[10] 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.
[11] 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.[^1]
[12] 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.
[13] 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.
[14] 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.[^2] In my view such an order should not, itself, be insulated from appellate review, nor should it insulate from appellate review related decisions. In my view the inherent jurisdiction of a Superior Court Justice does not extend to limit recourse to the Court of Appeal.[^3] I consider the Divisional Court decision of January 17, 2019, my decision of May 6, 2019, and this decision, are all decisions for which Mr Lochner should be able to pursue whatever appeal rights he may have under the Rules of Civil Procedure. Therefore, I am granting him permission to pursue whatever appeal rights he may have in the Divisional Court in respect to those decisions.
[15] 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.
Rule 2.1 Order Dismissing Application Issued May 3, 2019
[16] As I noted in my endorsement of May 6, 2019, Mr Lochner started another application against the respondent Commission on May 3, 2019. In my endorsement of May 6th I directed Mr Lochner to show cause why this application ought not be dismissed pursuant to R.2.1.
[17] In his written materials, Mr Lochner argues that this fresh proceeding has not been decided already. He argues that he is not seeking an order that the Commission commence an investigation, but rather that the Commission take steps in response to an allegedly unreasonable decision of the Chief of Police not to take steps respecting the tasering of George Lochner in 2006. Mr Lochner also made this argument during the oral hearing on May 15, 2019.
[18] While I agree with Mr Lochner that his latest application, at least as he characterizes it, may not be precluded by principles of res judicata (that is, it may not be within the four corners of the prior dismissals of proceedings against the Commission), the application is clearly a vexatious attempt to relitigate issues that have been decided long ago.
[19] In my capacity as a single judge of the Divisional Court, it is ordered that Mr Lochner’s latest application (Lochner v. Ontario Civilian Police Commission, Divisional Court File 234/19) be dismissed pursuant to R.2.1, without costs, as frivolous, vexatious and an abuse of process.
Sentencing for Contempt of Court
[20] The court will not accept verbal abuse from a litigant, whether orally or in writing. The court will not tolerate belligerent and disrespectful conduct in court.
[21] Mr Lochner has spent three days in custody awaiting sentencing. Ordinarily, I would consider a sentence in the range of 2-3 weeks appropriate for Mr Lochner’s calculated and sustained contemptuous treatment of the court. However, I understand from Mr Lochner that his mother is gravely ill in hospital, and is not expected to survive. I understand that he has day-to-day responsibility for his disabled brother George. It would be a particular hardship for him to serve additional prison time now.
[22] I am concerned that exercising discretion to impose a lenient sentence could be misinterpreted by Mr Lochner. I add a few last words so that this may not be the case. The court will not accept the defiant, rude, contemptuous conduct he has shown in this matter, and that recurrent conduct of this type could well attract a substantially lengthier sentence.
[23] Mr Lochner is sentenced to time served (three days) for contempt in the face of the court.
D.L. Corbett J.
Released: May 17, 2019
DIVISIONAL COURT FILE NO.: 096/19
DATE: 20190517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SILVANO LOCHNER
Applicant
- and -
ONTARIO CIVILIAN POLICE COMMISSION
Respondent
DECISION
D.L. Corbett J.
Released: May 17, 2019
[^1]: 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.
[^2]: 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
[^3]: This is distinguished from the effect of a vexatious litigant order under s.140 of the Courts of Justice Act, an order I am not making in this decision.