Lochner v. Callanan, 2015 ONSC 3628

CITATION: Lochner v. Callanan, 2015 ONSC 3628

COURT FILE NO.: 07-CV-331980PD1

DATE: 20150608

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LINA LOCHNER, PAUL LOCHNER and GEORGE LOCHNER by his 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

Lina Lochner, self-represented and acting in person

Paul Lochner, self-represented and acting in person

Walter Kim, for the Public Guardian and Trustee Litigation Guardian for George Lochner

HEARD: June 5, 2015

ENDORSEMENT

DIAMOND J.:

Background to this Motion

1In this proceeding, which is now over eight years old, the plaintiffs are Lina Lochner (“Lina”) and her two sons Paul Lochner (“Paul”) and George Lochner (“George”).

2At the time of the commencement of this proceeding, George was (and remains) a party under disability. Originally, George’s litigation guardian was his brother (a non-party) Silvano Lochner (“Silvano”).

3In the Statement of Claim, the plaintiffs allege that on or about August 11, 2006, the defendant police officers came to the Lochner family home with a view to arresting Silvano. The plaintiff further allege that during that attendance, and without any warning, some or all of the defendant police officers began to attack both Paul and George including subjecting George to several Taser deployments.

4In this proceeding, George seeks damages against the defendants for, inter alia, assault, battery, wrongful arrest, negligence 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. Lina seeks damages against the defendants for, inter alia, trespass and Charter remedies. Paul seeks damages against the defendants for assault, battery, wrongful arrest and Charter remedies.

5Pursuant to the Order dated March 12, 2014 of Justice Himel, the plaintiffs’ then-solicitors Swadron Associates were removed as the plaintiffs’ solicitors of record in this proceeding. Justice Himel also ordered Silvano to be removed as George’s litigation guardian, and appointed the Public Guardian and Trustee (“PGT”) as George’s litigation guardian to replace Silvano.

6I note that in the preamble to Justice Himel’s Order (attached as Exhibit 22 to Lina’s supporting affidavit), the terms of the Order were apparently arrived at on consent of “the parties other than Paul Lochner”.

7The PGT remains George’s litigation guardian to this date. In the fall of 2014, the PGT in its capacity as George’s litigation guardian brought a motion pursuant to Rule 7.08 of the Rules of Civil Procedure for court approval of a proposed settlement arrived at between George with the defendants. As set out in Lina’s supporting affidavit filed on the within motion, both she and Paul vehemently opposed the PGT’s Rule 7.08 motion, which was argued before Justice Firestone on November 14, 2014 and March 9, 2015.

8With Lina and Paul’s consent, counsel for the PGT provided me with a copy of Justice Firestone’s endorsement released on April 28, 2015. A review of that endorsement clearly discloses that (a) Justice Firestone has not yet made any determination regarding whether the proposed settlement amount is appropriate and reasonable in settlement of the various claims being advanced by George in this proceeding, and (b) Justice Firestone’s said decision remains under reserve pending receipt of additional information and documentation he requested be produced to the Court on or before June 30, 2015.

9In the interim, and while waiting for Justice Firestone’s decision to be released, Lina and Paul have brought this motion seeking an order (a) removing the PGT as George’s litigation guardian, and (b) appointing Lina or Paul as George’s litigation guardian. I note that despite the fact that the defendants were not served with this motion, I nevertheless allowed Lina and Paul to proceed with full argument of their motion before this Court.

Litigation Guardians - Generally

10When dealing with a motion to remove a litigation guardian, it is important to examine the purposes of Rule 7 of the Rules of Civil Procedure. I rely upon and adopt the following comments made by Justice Stinson in the case of 626381 Ontario Ltd. v. Kagan, Shastri 2013 ONSC 4114:

“Where the Court is dealing with a person under a disability, a number of unique procedural rules and safeguards found in Rule 7 apply, including, for example, the rule that no settlement by or against the party with the disability is binding without the approval of a judge: Rule 7.08. Of particular relevance to this case, Rule 7 also mandates the person under a disability must be represented by a litigation guardian (Rule 7.01(1)), and the Court must appoint the PGT or the Children’s Lawyer to act as the litigation guardian for the person under a disability if no other proper person is willing and able to do so (Rule 7.04(1)).

These procedural safeguards set out in Rule 7 are designed to protect not only the person under a disability, but also ‘to protect the integrity of the judicial process for all participants in the litigation, including the Court (Murphy v. Carmelite Order of Nuns 2014 CarswellOnt 9965). As noted by Lofchik J. in Lico v. Griffiths, [2008] O.J. No. 101 8 (S.C.J.), at para. 24, because the rules protect the person under a disability, they consequently protect the entire Court procedure.”

11Motions to remove litigation guardians are typically based upon allegations that the litigation guardian (a) is in a position of conflict of interest, (b) is a potential witness at trial, or (c) has not acted honestly and diligently in the best interests of the party under a disability.

12I note that both Lina and Paul are witnesses in the within proceeding, and obviously have a personal interest in the outcome of this proceeding. Clearly, both Lina and Paul stand to benefit, either directly or indirectly, by the potential success of this litigation. This is likely why Silvano, a family member but non-party to this proceeding, was originally appointed as George’s litigation guardian.

The Public Guardian and Trustee

13Ironically, when motions to remove a litigation guardian are successful, the Court typically appoints the PGT as the new litigation guardian for the party under a disability. It is therefore necessary to examine the role and purpose of the Office of the PGT.

14While part of the Ministry of the Attorney General, the Office of the PGT operates as its own corporation, having been established to fulfil the government’s unique parens patriae role protecting individuals who cannot protect themselves. The mandate of the PGT is extremely broad, and includes the following:

• managing the property and personal care of incapable adults;

• acting as litigation guardian or legal representative for incapable persons Involved in litigation;

• making treatment decisions on behalf of incapable individuals; and

• administering estates where there is no other estate trustee.

15When acting as litigation guardian for parties under a disability, the PGT is responsible for dealing with any legal issues that arise for that party under a disability. It is true that the PGT normally acts as the litigation guardian “as a last resort” (i.e. where there are no other appropriate candidates), but once appointed the Office of the PGT’s entire purpose is to ensure that it fulfills the duties and obligations bestowed upon a litigation guardian for parties under a disability that are involved in litigation.

Decision

16No case law was cited or filed by Lina and Paul setting out any example of the Court removing the PGT as litigation guardian for a party under a disability. While there are numerous cases removing private individuals as litigation guardians, as stated above, in many of those cases the Court appointed the PGT as the new litigation Guardian.

17Given the PGT’s mandate as expressed above, in my view, the onus placed upon a moving party seeking an order removing the PGT as litigation guardian for a party under a disability is a high and onerous one. To satisfy such a stringent onus, a moving party would need to tender clear and cogent admissible evidence of actual misconduct on the part of the PGT, or at a minimum conduct which clearly and convincingly shows that the PGT has run afoul of its obligation to be neutral, indifferent and unbiased. A moving party would thus need to demonstrate to the Court through such evidence that the PGT has maintained and/or promoted a position adverse to the party under a disability.

18I have reviewed the affidavits, and listened to the submissions, of Lina and Paul. Regrettably, Lina and Paul have included copies of the parties’ pre-trial memoranda and letters from the plaintiffs’ previous counsel in their materials. No doubt these documents are protected by both solicitor/client and settlement privilege, and to the extent that they were relied upon by Lina and Paul on this motion, since they did not have the benefit of legal advice, I find that neither Lina nor Paul waived any of those privileges for the purpose of this proceeding.

19At the time of Justice Himel’s March 12, 2014 Order, both Lina and Paul could have moved before the Court to be appointed as George’s litigation guardian. Neither did so, and were content with (and arguably consented to) the appointment of the PGT. As previously stated, in such circumstances, Lina and Paul would need to tender clear and cogent evidence of misconduct on the part of the PGT to support the relief they now seek.

20Essentially, while they do take some issue with how the PGT has handled the prosecution of the remainder of George’s case against the Defendants (as the PGT took carriage of this matter seven years after it was commenced), Lina and Paul allege that the PGT is not acting in George’s best interests due to their own complete dissatisfaction with the proposed settlement being recommended by the PGT to Justice Firestone for Court approval.

21I have no doubt that this is a very emotional matter for the Lochner family, and that they are genuinely concerned for George as their son and brother. There is no doubt that Lina and Paul disagree with the PGT’s assessment of the merits of George’s case against the defendants. The bulk of their respective affidavits seek to convince the reader that the PGT‘s view of the merits of George’s case, and the defence to George’s claim, is unsubstantiated and not supportable by the evidence relied upon by Lina and Paul.

22Clearly, the PGT owes no duty to Lina or Paul in this proceeding. As George’s litigation guardian, the PGT must make decisions that further and protect George’s best interests. The PGT must account to George, and this Court, but not to Lina or Paul. Thus a history of conflict between the PGT and a party in the proceeding other than the party under a disability would not be sufficient to satisfy the aforesaid heavy onus.

23As previously stated, Justice Firestone has yet to deliver his decision in response to the PGT’s request for Court approval of the proposed settlement. Until then, the arguments advanced by Lina and Paul in response to the PGT’s motion for Court approval are live and under consideration by the Court.

24In my view, those same arguments do not satisfy the onus placed upon Lina and Paul to satisfy this Court that the PGT is not acting in George’s best interests. Accordingly, the motion is dismissed.

Costs

25I would urge the parties to agree upon the costs of this motion. In the event such an agreement cannot be achieved, I would ask that the parties serve and file written submissions, limited to four pages including a Costs Outline, in accordance with the following schedule:

(a) The PGT shall serve and file its submissions within 10 business days of the release of this Endorsement; and

(b) Lina and Paul’s responding costs submissions shall be served and filed within 10 business days thereafter.

Diamond J.