SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-331980PD1

DATE: 20151001

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 for the Public Guardian and Trustee – Litigation Guardian for George Lochner

George Lochner, Silvano Lochner, Paul Lochner and Lina Lochner, In Person

ENDORSEMENT

[1] On November 14, 2014, I heard a motion brought by the Public Guardian and Trustee (“PGT”), acting as litigation guardian for the plaintiff George Lochner (“George”) under Rule 7.08 of the Rules of Civil Procedure, R.S.O. 1990, Reg.194 (“the Rules”). The November 2014 motion was for court approval of a settlement proposed on George’s behalf. At the request of the PGT, that motion was heard orally so that George’s family members, who are opposed to the settlement, could make submissions regarding why the proposed settlement should not be approved.

[2] On that day, after hearing the submissions of counsel for the PGT and Lochner family, the parties agreed that the motion would be adjourned so that George could undergo a capacity assessment by a certified capacity assessor (health practitioner). The PGT and the Lochner family agreed to the capacity assessment given the Lochners’ position that George was not a party under disability and therefore did not require representation by a litigation guardian under Rule 7.01. Subsequently, the capacity report of Dr. L. Lightfoot, dated January 14, 2015, was delivered. It is Dr. Lightfoot’s opinion that George is not capable of instructing counsel. An invoice in the sum of $2,100 was rendered for the cost of the assessment and report.

[3] This motion was brought back before me by way of oral hearing on March 9, 2015.

[4] Under the terms of the proposed settlement, the defendants were to pay the all-inclusive sum of $45,000. From this amount, the proposed sum of $40,000 inclusive of interest was to be paid to the Accountant of the Superior Court of Justice, to be held for George’s credit until further order of this Court. The PGT was to receive the sum of $5,000 for its costs. Those costs consisted of $3,175.14 for fees and $1,824.86 for disbursements and HST. The PGT now seeks the additional sum of $2,100 from George’s settlement to pay for the costs of Dr. Lightfoot’s capacity assessment report. It also seeks $567.91, representing the cost of obtaining the additional medical records that I requested in my April 28, 2015 endorsement. In their Notice of Return of Motion dated January 28, 2015, the PGT sought reimbursement for George’s capacity assessment from the Lochner family. In the Further Supplementary Motion Record dated June 30, 2015, the PGT appears to seek reimbursement of this sum from George’s all-inclusive settlement of $45,000. As a result, the proposed net settlement funds to be paid into Court for George’s credit is $37,332.09, not $40,000 as originally proposed. There is no evidence that the defendants are paying or have been requested to pay these additional disbursements. These additional disbursements would come from George’s proposed settlement funds.

[5] In my endorsement dated April 28, 2015, I indicated that based on both the documentary evidence filed and on the submissions of the PGT and the Lochner family, further evidence was required in order for me to properly access the damages portion of the proposed settlement. As a result, no determination was or has been made regarding whether the proposed settlement, based on the applicable liability and damage considerations, should be approved under Rule 7.08.

[6] On June 30,2015, the PGT delivered its supplementary motion record. It contained the additional information and documents the PGT was able to obtain in accordance with my endorsement dated April 28, 2015.

[7] For the sake of completeness, the following is the factual background and procedural history in this matter.

[8] 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.

[9] George seeks against all defendants on a joint and several basis, $3,000,000 in general damages for assault, battery, wrongful arrest, 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 were violated. In the alternative to the general and special damages claims in the sum of $3,250,000, he seeks $3,250,000 in damages pursuant to section 24(1) of the Charter for breach of his Charter rights.

[10] Lina, who is George’s mother, claims against all defendants on a joint and several basis the sum of $100,000 in damages for trespass as well as a declaration that her constitutional rights under 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.

[11] Paul is George’s brother. He claims against the defendants on joint and several basis the sum of $100,000 in damages for assault, battery, 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, wrongful arrest and detention claim seeks damages in the sum of $100,000 pursuant to section 24(1) of the Charter for breach of his Charter rights.

[12] The plaintiffs jointly allege that on August 11, 2006, the defendants attended at their family home to arrest George’s brother Silvano. Silvano is not a plaintiff in these proceedings. At that time, they allege that without any warning, the defendants descended upon and attacked Paul. Shortly thereafter, the plaintiffs allege 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.

[13] George pleads that as a result of defendants’ actions, which include assault and battery, wrongful arrest, detention and negligence, he 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.

[14] On March 12, 2014, Himel J. ordered that the plaintiffs’ law firm be removed as lawyers of record. It was further ordered that Silvano, who had been named and was acting as George’s litigation guardian, be removed as litigation guardian and that the PGT be appointed as his litigation guardian. It was further ordered that the title of proceedings be amended accordingly.

[15] 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.

[16] 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 as required under Rule 7.08 of the Rules. 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.

[17] 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 therefore communicated to George and his family members.

[18] Both George and his family members Silvano, Paul and Lina have made it clear that they oppose the proposed settlement recommended by George’s litigation guardian.

[19] 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.

[20] As indicated above, on November 14, 2014, this motion for court approval came before me by way of oral hearing. At that time, as previously indicated, Silvano took the position that George is not a party under disability (as that term is defined under Rule 1.03(b)), and as a 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 at that time 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.

[21] At the hearing on November 14, 2014, by way of signed consent, the PGT and the Lochner family agreed 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. It was agreed that if the parties were unable to agree on who the assessor would be, then the court would select the assessor. I ordered that the assessor provide the capacity assessment report to the PGT on or before January 16, 2015.

[22] 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.

[23] In her report, Dr. Lightfoot 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.

[24] It is Dr. Lightfoot’s opinion that, on a balance of probabilities, George understands 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. Dr. Lightfoot states that in her professional opinion, George is not capable of instructing counsel.

[25] As previously indicated, 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 met with George personally. She did so to ascertain whether or not George is a party under a 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).

[26] In addition to the written materials filed at the oral hearing on March 9, 2015, oral submissions were made by Mr. Kim and by Silvano, Paul, Lina and George.

[27] The PGT, in their capacity as litigation guardian for George, has full authority under the Rules to settle his claim on George’s behalf subject to court approval 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 (Litigation guardian of) v. Heselden, 2014 ONSC 6718 (Div. Ct.) at para. 15). This is subject to final approval from this court.

[28] I have considered the available evidence and weighed the potential risks of proceeding to trial. For the reasons set forth below, I conclude that the amount currently being proposed is not in George’s best interests. With respect, $45,000 inclusive of all claims, interest, costs and assessable disbursements is not reasonable. As a result, I do not approve the proposed settlement. In coming to this determination, I have considered the record in this matter as well as the oral submissions of the PGT and Lochner family.

[29] With respect to the general damage claim, there is no current medical opinion setting forth and detailing George’s current psychological and emotional condition and if and to what degree that condition has or will be affected by the incident which is the subject matter of this action.

[30] The affidavit evidence filed by the PGT in support of the proposed settlement deposes that the entire sum of $45,000 is for general damages. No payment of pre-judgment interest has been made. No amount is being paid by the defendants for assessable disbursements and HST.

[31] Based on the evidentiary record before me, there is no valid basis to deny the payment of any pre-judgment interest to George. The moving party submits that the delay is attributable to the co-plaintiffs Lina and Paul, as well as George’s former litigation guardian Silvano. However, there are insufficient particulars regarding how these persons individually or collectively delayed this action sufficient to deny the payment of any pre-judgment interest in this proposed settlement. Any delay caused or contributed to by the co-plaintiffs is a matter to be visited upon the co-plaintiffs when addressing the issue of pre-judgment interest as it relates to their claims, not George’s. On the evidentiary record before me, I am not satisfied that there is any basis to deny George pre-judgment interest.

[32] I note that section 128(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the Act”), in conjunction with Rule 53.10, provides that the pre-judgment interest rate on damages for non-pecuniary loss in an action for personal injury is five per cent per year. This is subject to the discretion of the court under section 130 of the Act.

[33] Regarding the issue of special damages, there is an insufficient documentary record to make a just and proper determination regarding whether George has or will incur any non-OHIP covered medical and rehabilitation goods and services which may be causally related to this incident.

[34] With respect to the liability issues in this action, based on the record before me, there appears to be a dispute regarding the number of times George was tazered. This issue is directly related to the determination of the likelihood of success regarding the damage claims being advanced in this action which include the claim for Charter damages. On the record before me, for the purposes of determining the reasonableness of the proposed settlement, I am unable to make a proper and just determination regarding the issues of liability which are central to a determination of whether the proposed settlement is in George’s best interest and therefore ought to be approved.

[35] Irrespective of the determination on this motion, this action will be proceeding to trial at which time the claims the liability and damage claims of the co-plaintiffs against the defendants will be adjudicated. In my view, the interests of justice require in the absence of a more complete record, that George have the benefit of that same complete evidentiary record as it applies to both liability and damages to ensure his claim not be settled prematurely without more complete liability and damage evidence.

[36] The liability and damage issues in this action are complex. Given the factual matrix of this case, I do not have confidence that the documentary record before me is sufficient for the consideration of the liability issues or the appropriate assessment of damages.

[37] For the reasons stated above, the sum of $45,000 all-inclusive on the record before me is not an appropriate settlement amount. There is, in my view, insufficient liability and damage evidence to make a meaningful assessment of the reasonability of George’s proposed settlement: Rivera v. LeBlond, [2007] O.J. No. 889 (S.C.), at para 23.

[38] As a result this motion for approval of the proposed settlement in the sum of $45,000 all-inclusive is dismissed. I do not remain seized of this matter regarding any further motions which may be brought prior to trial.

[39] Given the ongoing litigation in this matter, I order under section 137(2) of the Act that 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: October 1, 2015