Superior Court of Justice - Ontario
CITATION: Lochner et al. v. PC Callanan et al. 2015 ONSC 2464
COURT FILE NO.: 07-CV-331980PD1
DATE: 2015-04-28
RE: LINA LOCHNER, PAUL LOCHNER and GEORGE LOCHNER, by his Litigation Guardian, the 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: Mr. Justice S.E. Firestone
COUNSEL: Walter Kim, for the Public Guardian and Trustee – Litigation Guardian for George Lochner George Lochner, Silvano Lochner, Paul Lochner and Lina Lochner in Person
HEARD: November 14, 2014 and March 9, 2015
ENDORSEMENT
[1] The Public Guardian and Trustee ("PGT") in its capacity as litigation guardian for George Lochner ("George") brings this motion under Rule 7.08 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194 ("the Rules") for Court approval of the proposed settlement on behalf of George.
[2] Pursuant to the terms of the proposed settlement, the defendants are to pay in satisfaction of all claims brought by George in the sum of $45,000 (inclusive of all claims for damages, declarations, interest and costs). From this amount George is to receive the sum of $40,000 inclusive of interest which is to be paid to the Accountant of the Superior Court of Justice, to be held for his credit until further order of this Court. The sum of $5,000 is to be paid to the PGT for its costs in satisfaction of $3,175.14 for fees and $1,824.86 for disbursements and HST. The PGT seeks additional costs from the Lochner family in the amount of $2,100 for the cost of the capacity assessment conducted on January 7, 2015, the particulars of which are set out below.
Background
[3] On April 27, 2007, the plaintiffs Lina Lochner ("Lina"), Paul Lochner ("Paul") and George, by his litigation guardian at the time Silvano Lochner ("Silvano") commenced the within action.
[4] George claims against the defendants on a joint and several basis $3,000,000 in general damages for assault, battery, wrongful arrest and detention and negligence; $250,000 in special damages and a declaration that his constitutional rights pursuant to sections 7, 8, 9 and 12 of the Charter of Rights and Freedoms have been violated. In the alternative to the general and special damages claims in the sum of $3,250,000, he seeks the same amount pursuant to section 24(1) of the Charter for breach of his Charter rights.
[5] Lina is George's mother. She claims against the defendants on joint and several basis $100,000 in damages for trespass and a declaration that her constitutional rights as afforded by sections 7 and 8 of the Charter have been violated. In the alternative, she seeks the same amount pursuant to section 24(1) of the Charter for breach of her Charter rights.
[6] Paul Lochner is George's brother. He claims against the defendants on joint and several basis $100,000 in damages for assault, battery and wrongful arrest and detention; a declaration that his constitutional rights under sections 7, 8, 9, 10 and 12 of the Charter have been violated; and $3,000,000 in punitive, exemplary and/or aggravated damages. In the alternative to his assault, battery and wrongful arrest and detention claim he seeks damages in the sum of $100,000 pursuant to section 24(1) of the Charter for breach of his Charter rights.
[7] The plaintiffs allege that on August 11, 2006, the defendants attended at their family home to arrest Silvano, George's brother, at which time without any warning they descended upon and attacked Paul. Shortly thereafter it is alleged that some or all of the defendants commenced an assault and battery upon George by subjecting him to numerous taser deployments in both drive stun mode and full deployment mode and by punching him in the face and body.
[8] George pleads that as a result of defendants' actions, which include assault and battery, wrongful arrest detention and negligence, he has sustained and continues to sustain physical pain and suffering; emotional and psychological pain and suffering; diminished quality and enjoyment of life; and past and future care expenses.
Procedural History
[9] On March 12, 2014, Himel J. ordered that the plaintiffs' law firm be removed as lawyers of record. It was further ordered that Silvano be removed as litigation guardian for George, that the PGT be appointed as his litigation guardian and that the title of proceedings be amended accordingly.
[10] On May 23, 2014, a Notice of Change of Lawyer was filed by Walter Kim of the Ministry of the Attorney General – Office of the Public Guardian and Trustee.
[11] On or about July 21, 2014, George (by his litigation guardian the PGT) and the defendants agreed to settle the claims being advanced on behalf of George subject to court approval. Minutes of Settlement were subsequently executed by the defendants on August 14, 2014 and by the PGT on George's behalf on August 15, 2014. These Minutes of Settlement specifically provide that they are not binding on George unless approved by a judge of the Superior Court of Justice.
[12] Although there is no requirement to do so under the Rules, the PGT advises that it is their practice and procedure to inform the party under disability of any potential settlement and to obtain their views on such proposed settlement where feasible. The proposed settlement was communicated to George and his family members.
[13] Both George and his family members Silvano, Paul and Lina have made it clear that that they oppose the proposed settlement recommended by George's litigation guardian.
[14] On the consent of the parties, it was requested that this motion for court approval be heard orally rather than in writing and that George and the Lochner family be given an opportunity to make submissions regarding the proposed settlement.
[15] On November 14, 2014, this motion for court approval came before me by way of oral hearing. At that time Silvano took the position that George is not a party under disability (as that term is defined under Rule 1.03(b)) and as result there is no requirement that his action be continued on his behalf by litigation guardian under Rule 7.06(1). It was further submitted that George is therefore entitled to make his own determination regarding whether he should accept the proposed settlement offer without the approval of a judge under Rule 7.08(1) or, in the alternative, proceed to trial.
[16] At the hearing on November 14, 2014, by way of signed consent, it was agreed between the PGT and Lochner family that George would undergo a capacity assessment by a health practitioner who is a certified capacity assessor selected by the PGT in consultation with the Lochner family. If the parties were unable to agree on who the assessor would be, then the court would select the assessor. It was ordered that the capacity assessment report was to be provided to the PGT on or before January 16, 2015.
[17] It was agreed that Dr. Lynn Lightfoot, Ph.D. C Psych., a Designated Capacity Assessor, would conduct the assessment. On December 22, 2014 the matter was referred to Dr. Lightfoot by Mr. Kim, counsel for the PGT. At that time background facts were given and various reports were provided. The Lochner family also provided a package of documents to Dr. Lightfoot for her consideration. All documents which were provided to Dr. Lightfoot are specifically referenced in her report dated January 14, 2015 and were considered by her in arriving at her opinion. An invoice in the sum of $2,100 was rendered by Dr. Lightfoot to Mr. Kim.
[18] Dr. Lightfoot in her report confirms that George is a 49-year-old gentleman who has been diagnosed with a developmental disability. Although the exact cause of his disability is unknown, it appears from available medical information that he suffered anoxia at birth. Dr. Lightfoot refers to Dr. Bruni's opinion, based on a neurological assessment he conducted, that George has a fixed neurologic deficit related to cerebral palsy, secondary to some early cerebral injury.
[19] It is Dr. Lightfoot's opinion that, on a balance of probabilities, George does understand information that is relevant to making decisions in his lawsuit. He does not, however, have the capacity to realistically appraise the risk and likely outcome of the decision or lack of decision. In this regard Dr. Lightfoot states at p. 10 of her report:
The second component of the legal test is whether Mr. Lochner has inability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. It is my considered opinion that Mr. George Lochner does not have the capacity to realistically appraise the risk and likely outcome of the decision or lack of decision. Mr. Lochner has a firm fixed belief that he should receive a specific amount of money in his settlement. This settlement amount that is acceptable to him is the amount stated in the original statement of claim. Mr. Lochner could not consider the idea that there might be other options that he will be presented with that he should consider. Nor could Mr. Lochner engage in a process of evaluation of other possibilities. Mr. Lochner demonstrated concrete, black and white thinking, and dismissed any other option or potential outcome as inadequate to compensate his and his family's damages. The only standard against which he evaluated potential outcomes was the one he believed would please his brother Silvano, who he obviously holds in very high regard. Mr. Lochner repeatedly stated he wanted his brother Silvano to be his litigation guardian.
Dr. Lightfoot states that in her professional opinion George is not capable of instructing counsel.
[20] On March 9, 2015 this motion was brought back before me for oral hearing. At that time I ruled that in my respectful view, there is no valid basis to call into question Dr. Lightfoot's conclusion regarding George's lack of capacity. Both the PGT and the Lochners provided Dr. Lightfoot with all necessary and relevant documentation to enable her to arrive at her ultimate opinion. Dr. Lightfoot reviewed the medical information provided and in addition met with George personally to ascertain whether or not George is a party under disability under Rule 7.01(1) as that term is defined under Rule 1.03(1). I find that George is a party under disability under Rule 7.01(1).
[21] In addition to the written materials filed at the oral hearing on March 9, 2015, I heard the oral submissions of Mr. Kim and as well from Silvano, Paul, Lina and George regarding the proposed settlement.
The test to be met on a Rule 7.08(4) motion
[22] The Lochner family submits that George should have the right to have his claim determined at trial along with the other plaintiffs who are advancing claims in this action, namely Lina and Paul.
[23] In Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718 (Div. Ct.), the Divisional Court states at para. 8 that:
While is true that any party to a proceeding has a right to a hearing, I disagree with the motions judge that that right is "unfettered" or "absolute". A party may be deprived of the hearing for any number of reasons. For example, an action can be dismissed for procedural reasons including delay or a failure to comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A party may also choose to forgo their right to a hearing and reach a settlement.
[24] The Court goes on to confirm at para. 9 that:
[I]t is important to remember what the role of the litigation guardian is. It is a person who is appointed to deal with a piece of litigation that the party cannot deal with on his or her own because that person suffers from a disability.
[25] As the Divisional Court pronounced, once a finding of disability is made, as is the case here, and a litigation guardian has been appointed, it becomes the duty of the litigation guardian to handle the litigation. As I indicated at the oral hearing on March 9, 2015, I find that the PGT has not acted and is not acting contrary to the best interests of George as alleged by the Lochner family.
[26] The Divisional Court goes on at para. 12 to clarify the authority of a litigation guardian to agree to a settlement (subject to court approval) and the right of the party under disability to make submissions regarding such settlement as follows:
It was entirely within the authority of the PGT, in its role as litigation guardian, to agree to a settlement of these actions. It then fell to the court to determine whether those settlements ought to be approved. I accept that it is within the discretion of the judge hearing the approval motion to take into account any submissions that the person under a disability might wish to make regarding the proposed settlement, but it must be remembered that the person under a disability no longer controls litigation. That responsibility is vested in litigation guardian.
[27] In this case the PGT as George's litigation guardian has full authority under the Rules to settle his claim on his behalf and seek court approval of the proposed settlement as directed under Rule 7.08(1). While George and his family members have been afforded an opportunity to make submissions regarding the proposed settlement, George as a party under disability no longer has the right to dictate the course of litigation: "the decision, as between a settlement or a trial, was for the PGT to make" (Kavuru, para. 15).
[28] The requirement for court approval of a proposed settlement on behalf of a party under disability was explained in Wu Estate v. Zurich Insurance Co. (2006), 2006 ONCA 16344, 268 D.L.R. (4th) 670 (Ont. C.A.), at para.10:
The requirement for court approval of settlements made on behalf of parties under disability is derived from the court's parens patriae jurisdiction. The parens patriae jurisdiction is of ancient origin and is "founded on necessity, namely the need to act for the protection of those who cannot care for themselves… to be exercised in the 'best interest' of the protected person… for his or her 'benefit' or 'welfare': Re Eve, 1986 SCC 36, [1986] 2 S.C.R. 388 at para. 73.
[29] In Rivera v. LeBlond, [2007] O.J. No. 889 (S.C.), Thorburn J. at para. 23 confirms the principle that a party seeking court approval is required to submit a sufficient amount of evidence to make a meaningful assessment of the reasonability of the proposed settlement of the claims of the person under disability.
[30] Typically the applicant is to provide sufficient evidence demonstrating: that an appropriate investigation regarding liability and damages has been completed; that an assessment of liability issues has been made; that appropriate assessment of damages has been made; and that the fees and disbursements which the plaintiff's lawyer proposes are reasonable in the circumstances. The evidence must be sufficient to enable the court to determine that the assessments and proposed fees and disbursements are reasonable: Rivera, at paras. 27-28.
[31] I have considered the documentary evidence filed as well as the submissions of the moving party and the Lochner family. In my view, there is further evidence required, if possible, to allow me to properly access the damages aspect of the proposed settlement. I have come to this conclusion for the following reasons:
- General non-pecuniary damages:
[32] The type and nature of the physical injuries originally sustained are appropriately set forth in the medical documentation provided, which includes the North York General Hospital records and the report of Dr. John C. Butt, CM, M.D. FRCP dated November 19, 2013.
[33] Dr. Butt in his report refers to various photographs taken in 2006 under the "Documents etc. reviewed" section and to various diagrams under the "Description of Injuries to George Lochner" section. These photographs and diagrams are not included in the moving party's motion record. In addition, there is no current medical documentation on the current state of the physical injuries sustained during the incident.
[34] There is also a lack of medical documentation detailing George's pre-existing psychological condition, if or how it was exacerbated by the incident in question, and any prognosis. There is one psychiatric medical report from Dr. Graham D. Glancy M.B.; Ch. B; F.R.C. Psych; F.R.C.P. (C) Forensic Psychiatrist dated June 30, 2008.
[35] Dr. Glancy opines that, given that George is mild to moderately mentally retarded and does not have the conceptual framework to describe psychological concepts, it is very difficult to elicit symptoms that may be the sequelae of the incident from George. At the time of Dr. Glancy's assessment on May 13, 2008, George appeared to suffer from moderate anxiety and some post-traumatic symptoms. It was unclear, according to Dr. Glancy, what the state of such anxiety and post-traumatic symptoms were at that time and what the prognosis was.
[36] The major symptom, according to Dr. Glancy, was repeated nightmares of the event in question. George also appeared to be fearful and distrustful of the police. According to his brother, Dr. Glancy states, George was more withdrawn and isolated and was worried about being home alone. For a while after the incident it appeared that his cognitive abilities may have been affected and although this has been ameliorated, his brother stated his cognitive abilities were not back to exactly where they were.
[37] Dr. Glancy's report goes on to state that since George's social and occupational functioning at a baseline are so limited, it is difficult to discern whether his functioning has been significantly affected by the incident. He still attends his day program, his swimming program and tries to take some trips by himself in order to assert his independence.
[38] On the evidentiary record before me is unclear whether I have been provided with all available evidence which would help clarify George's level of social and occupational functioning prior to the incident and how it was affected or will continue to be affected, if at all, by the incident in question. It is unclear whether there were efforts made to obtain any pre-incident clinical notes, records or other documentation from any medical practitioners or social service agencies that treated George prior to the incident in question, which would assist in making this determination. There is also little medical documentation addressing the current state of George's emotional and psychological condition including nightmares or panic attacks following Dr. Glancy's report of June 30, 2008. In my view such pre- and post-incident documentation, if its exists and is available, as well as a current medical opinion, are necessary in order to properly assess the general damage claim being advanced in light of George's pre-existing medical condition.
[39] A special damages claim is advanced in the statement of claim. At the oral hearing Mr. Kim advised that, based on the evidence, the PGT did not negotiate any amount for special damages. He advises that Lina alleges that George continued to suffer from an eye injury which required care, but no documentation was produced by her to substantiate that claim. There is insufficient evidence in the record regarding whether there are any past or future special damage claims and if so what the specifics are. Further evidence from the moving party is required.
[40] Regarding the all-inclusive figure of $40,000, it is unclear what portion is for the general damage claim and what part is for pre-judgment interest.
[41] For the reasons stated above, further information and documentation is required regarding the issue of general and special damages in order to make a meaningful determination of whether, in conjunction with the other information provided, the proposed settlement is reasonable and appropriate under rule 7.08. In order to make that determination the moving party is directed to make best efforts to provide the additional information and documentation requested below on or before June 30, 2015 subject to any other order the court may make as follows:
Clinical notes, records or other available documentation from any medical practitioners or social service agencies that treated George both prior and subsequent to the incident in question, including the documentation referred to in the medical report of Dr. Glancy dated June 30, 2008, which would assist in determining his psychological condition both prior to and subsequent to the incident.
An updated medical opinion and/or documentation detailing the current state of George's emotional and psychological condition including nightmares or panic attacks.
Evidence regarding whether there are any past or expected future special damage claims and if so what the specifics are. In particular, any evidence or documentation regarding George's eye injury and all related treatment expenses incurred.
From the sum of $40,000, details of what portion is for the general damage claim and what part is for pre-judgment interest.
The diagrams and photographs referred to in Dr. Butt's report under the "Documents etc. reviewed" section and "Description of Injuries to George Lochner" section.
[42] Given the ongoing litigation in this matter, I order under section 137(2) of the Courts of Justice Act, R.S.O.1990, c.C.43 that only a copy of this endorsement with the proposed settlement numbers redacted is to be placed in the court file to form part of the public record subject to any other order of the Court. An unredacted copy is to be delivered to the parties.
Firestone J.
Date: April 28, 2015