Court File and Parties

CITATION: Lochner v. Callanan, 2016 ONSC 1614 COURT FILE NO.: 07-CV-31980PD DATE: 2016-03-09

SUPERIOR COURT OF JUSTICE - ONTARIO

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: Madam Justice Darla A. Wilson.

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

HEARD: In Writing

Endorsement

[1] This is the second motion brought by the Public Guardian and Trustee ["PGT"] as the litigation guardian for the Plaintiff George Lochner ["George"] pursuant to Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ["the Rules"] to obtain court approval of a proposed settlement on George's behalf.

[2] There have been numerous court attendances with respect to the proposed settlement of George's claims and a background of them is of assistance to understand the context in which the present motion is brought.

Background

[3] The Plaintiff Lina Lochner ["Lina"] is the mother of George and the other Plaintiff Paul Lochner ["Paul"]. There is another brother, Silvano Lochner ["Silvano"] who initially was the litigation guardian of George when this action was commenced in 2007. George was born in 1965, with a neurological deficit related to cerebral palsy.

[4] The events giving rise to this claim occurred on August 11, 2006, at the Lochner family home. It is alleged by the Plaintiffs that the Defendants, all of whom were at the time police officers with the Toronto force, came to the Lochner home with the intention of arresting Silvano. It is alleged the Defendants assaulted Paul and then commenced an assault and battery upon George which included the use of several Taser deployments. At the time the action was commenced, George was a party under a disability and he remains so. George and Paul advance claims in this lawsuit for damages for assault, battery, wrongful arrest and detention as well as a declaration that their constitutional rights were violated. Lina claims damages in trespass as well as breach of constitutional rights. Punitive, exemplary and/or aggravated damages are also sought. George pleads that as a result of the actions of the police officers, he sustained physical, emotional and psychological pain and suffering and he has incurred care costs and will continue to do so in the future.

[5] On March 12, 2014, Himel J. removed Silvano as litigation guardian for George and appointed the PGT in his place. Mr. Walter Kim was appointed by the PGT to act as counsel on this matter. On July 21, 2014, Mr. Kim and the solicitor for the Defendants agreed to settle George's claims, subject to court approval. A motion was brought for court approval of the settlement.

[6] The family members, including Lina, Paul and Silvano, opposed the proposed settlement that the PGT was recommending. The motion came before Justice Firestone on November 14, 2014. Justice Firestone noted, "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."[^1] On consent, the initial motion for approval of the settlement was heard orally and the Lochner family was given an opportunity to make their submissions concerning the proposed settlement.

[7] The parties agreed that George would undergo a capacity assessment, which took place with Dr. Lynn Lightfoot, a psychologist. Dr. Lightfoot delivered a report dated January 14, 2015. The motion continued in front of Justice Firestone on March 8, 2015 and George and his family members were again afforded the opportunity to make submissions on the proposed settlement. Dr. Lightfoot confirmed that George had been diagnosed with a developmental disability, likely stemming from an early cerebral injury. She concluded that while George was capable of making certain decisions, he does not have the mental capacity to appraise risk or to understand the consequences of a decision or lack of decision. Dr. Lightfoot concluded that George is not capable of providing instructions to counsel.

[8] On the initial motion for approval of the proposed settlement, the PGT was recommending the sum of $45,000 all-inclusive to settle George's claims. From this amount $40,000 would be paid to the Accountant of the Superior Court of Justice, to be held for his credit until further order of this court.

[9] Justice Firestone was not satisfied that he had sufficient medical evidence before him on the Rule 7 motion to determine George's level of functioning prior to the incident and in what ways he had been affected and continues to be affected from the injuries from the incident. On April 28, 2015, Firestone J. released written reasons in which he ordered the PGT to obtain further documentation and information.

[10] A supplementary motion record was filed by the PGT. and Firestone J. heard submissions from the Lochner family. Justice Firestone noted that no pre-judgment interest was being paid by the Defendants on the sums offered to George for his damages. He made reference to the fact that in the materials there is a dispute regarding the number of times George was Tasered, which was relevant to the issue of the damages George sustained. Justice Firestone was of the view that the documentary record was inadequate and as a result, he refused to approve the $45,000 all-inclusive settlement offer for George. Justice Firestone's decision was released October 1, 2015.

[11] On June 5, 2015, before Justice Firestone released his decision on the Rule 7.08 motion, the Plaintiffs Lina and Paul brought a motion seeking an order that the PGT be removed as George's litigation guardian and appointing one of them in the place of Mr. Kim. Justice Diamond dismissed this motion noting the Plaintiffs had not satisfied the heavy onus of demonstrating that the PGT was not acting in George's best interests. The family brought a further motion to have the PGT removed as litigation guardian, which was heard by Justice Faieta February 12, 2016 and dismissed.

[12] On January 22, 2016, the Plaintiffs Lina and Paul brought another motion for an order consolidating the Rule 7.08 motion and the trial of the action. That motion was dismissed by Matheson J. on the basis that there was only one action and the Rule 7.08 motion was brought in the action and was not separate from it requiring a consolidation order.

[13] On January 18, 2016, the PGT filed the motion that is before me, seeking approval of a new proposed settlement pursuant to Rule 7.08. Subsequently, the PGT received submissions and complaints from the Lochner family who object to the proposed settlement. Thus, a supplementary motion record was filed with an affidavit of solicitor Kim sworn March 2, 2016 containing the various emails from the family, setting out their views of the potential settlement. This record has been reviewed and considered. The trial of this action is set for April 18, 2016.

The Second Motion For Approval

[14] The current motion seeks approval of another proposed settlement for George. The materials include the affidavit of Nicholas Hedley the Deputy Legal Director with the PGT as well as the affidavit of solicitor Kim sworn January 18, 2016 and his supplementary affidavit sworn March 2, 2016. The proposed settlement includes payment to George the sum of $65,000 all-inclusive for his damages, interest and costs. From this sum, the PGT proposes to recover costs of $5,000 so the sum of $60,000 would be paid into court to George's credit, subject to further order of this court.

Analysis

[15] It is trite law to say that there can be no settlement of the claims of a party under a disability without the approval of the court. The Court of Appeal in Wu Estate v. Zurich Insurance Co. (2006), 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (Ont. C.A.), had this to say, 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 CanLII 36 (SCC), [1986] 2 S.C.R. 388 at para. 73. The jurisdiction is "essentially protective" and "neither creates substantive rights nor changes the means by which claims are determined": Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257 at 268 (C.A.). The duty of the court is to examine the settlement and ensure that it is in the best interests of the party under disability: Poulin v. Nadon, 1950 CanLII 121 (ON CA), [1950] O.R. 219 (C.A.). The purpose of court approval is plainly to protect the party under disability and to ensure that his or her legal rights are not compromised or surrendered without proper compensation.

[16] In order to determine the appropriateness of the proposed settlement for George, the court must examine the evidence on the liability issues as well as on the damages. The affidavit of Mr. Kim filed in support of this motion is very thorough. There have been examinations for discovery of the parties as well as extensive documentary production. While I am aware this matter is set to proceed to trial on April 18, in my view there is no reason that the claims of George need to proceed to trial for an assessment of his claims. I can assess the propriety of the proposed settlement based on the materials filed for the Rule 7 motion, which is the usual procedure for claims involving a party under a disability.

[17] I note there is no requirement under the Rules for the family members of a person under a disability to be notified of a proposed settlement or to make submissions to the court. The PGT, as the litigation guardian for George is empowered to settle his claims, subject to court approval pursuant to Rule 7.08(1). The decision is not for George to make, as he is a party under a disability; the decision is not for his family to make either. As the court has noted, "the decision, as between a settlement or a trial, was for the PGT to make."[^2] This is, of course, subject to approval of the court by way of a Rule 7.08 motion.

[18] In the case before me, the PGT wrote to George on December 15, 2015 and again on January 5, 2016 advising that a motion was being brought to obtain approval from the court of a proposed settlement and requested any written materials be sent to Mr. Kim so they could be included in the motion materials. Nothing was received until after this motion was filed on January 18, 2016. The Lochner family stated that documents were excluded from the materials and consequently, the PGT filed a supplementary motion record containing the submissions from the Lochner family.

Liability

[19] Liability is in dispute. The police officers deny they used excessive force on George and they allege he attacked them and resisted arrest. In determining whether the Defendants are liable, the credibility of the parties will be critical.

[20] The Defendants had obtained a warrant to enter the Lochner house and arrest Silvano with the Emergency Task Force. The officers went to the house on the evening of August 11, 2006.

The Version of Events According to the Defendants

[21] After arriving at the house the Defendants asked where Silvano was and they were told by Lina that he was out and no one was home. Four officers entered the house and saw George, who they assumed was Silvano. They told him they wanted to take him into custody and they allege George charged them. George was Tasered, with the Taser in the "probe" mode. The officers say that the first two Tasers were ineffective. The Defendants allege George pushed back at them and he was Tasered in the "drive-stun" mode, following which they were able to restrain him. Silvano returned home and was arrested. George was taken to the hospital where he was examined. The physician noted he had been Tasered twice but was physically fine and he was discharged home. The Defendants deny that they punched George.

The Version of Events According to the Plaintiffs

[22] At her examination for discovery, Lina testified that Paul was forced to the ground by the officers and had blood all over his hands. Paul testified that he was thrown to the ground, kicked and punched in the head by the members of the Emergency Task Force and that he was handcuffed very tightly; he did not say that he was bleeding. Neither Lina nor Paul witnessed the events between George and the police officers.

[23] At his discovery George testified that he was compliant with the requests of the officers and that he told them he was George, not Silvano. He stated that he was Tasered 20 times, punched and handcuffed.

[24] The supplementary motion record contains various emails from Silvano which set his views and his belief that his brother was Tasered 3 times. He states in his correspondence that the evidence makes it clear that the Defendants used excessive force on his brother. He offers his interpretation of the medical documentation.

Expert Report

[25] The prior solicitor for the Plaintiffs secured a draft opinion from an expert in the area of the use of Tasers, Mr. Ijames. This expert was of the opinion that four to six applications of a Taser in the situation involving George did not constitute excessive force.

[26] The third lawyer who acted for the Plaintiffs obtained an expert report from Dr. Butt, a forensic pathologist. He offered his opinion on how George's injuries were sustained.

[27] It is not clear that the Plaintiffs will be successful at trial in establishing liability against the Defendants. Given the different version of events that are described by the parties, credibility will be an important factor. However, there are other difficulties the Plaintiffs face at trial in proving their case.

[28] It is clear that the warrant secured by the police was invalid since it was not signed. However, s. 25(2) of the Criminal Code, R.S.C. 1985, c. C-46, provides that if the police were acting in good faith, their actions were justified. None of the evidence suggests that the police knew that the warrant they had obtained was defective as the Justice of the Peace had signed the wrong form. Thus, it is far from clear that the court will quash the warrant that was issued; that is an issue for the trial judge to determine based on the totality of the evidence. From my perspective as the judge reviewing the Rule 7 motion for approval, I say simply that it is a risk for George associated with proceeding to trial.

[29] To be successful on their claim, the Plaintiffs must prove the police used excessive force in the circumstances. On this argument, credibility will be critical. Only George can offer evidence at trial on this issue, whereas four of the Defendants will testify on this point. Some of George's testimony at discovery cannot be supported on the facts. For example, he was adamant that six officers from the Emergency Task Force entered his room; there is nothing in the evidence that suggests anything other than that there were four officers who entered the house. Another example is George's assertion that he was struck by the Taser 20 times; there is simply no evidence to support this contention. I do not say this to be critical of George; he has deficits which will likely prevent him from being a strong witness at trial. Furthermore, the expert retained by the solicitor for the Plaintiffs was of the opinion on the facts that the Defendants did not use excessive force.

[30] While Silvano argues that the Court will find George was Tasered 3 times by the Defendants, I do not agree with this position. My review of the evidence in its totality does not give credence to this theory. Silvano will not be permitted to offer his opinion on the number of Tasers at trial and Dr. Butt in his expert report did not find evidence of 3 Tasers being used on George. In any event, the issue of liability will not turn solely on the number of times George was Tasered by the police officers.

[31] In my view, there is a significant risk that the Plaintiffs may not be able to establish liability at trial. This is a factor to be considered by the court when determining if the proposed settlement is in the best interests of George.

Damages

[32] There is information in the motion material that Lina and Paul wish to recover the numbers set out in the Statement of Claim for their damages: $3,250,000 for George's damages plus $3,000,000 in punitive damages; $100,000 for Lina's damages; and $100,000 for Paul's damages plus $3,000,000 in punitive damages. This is not a reasonable position. Numbers for damages which are inserted into the Statement of Claim often bear no relationship to what the claim is actually worth on the evidence. Counsel usually includes a very high number in the Statement of Claim so that motions to amend to increase the prayer for relief do not need to be brought. Plaintiffs who bring action for personal injuries should not think that the numbers claimed in the pleadings are the numbers that they should settle their claims for.

[33] The former solicitors for the Plaintiffs secured an expert report from Dr. Glancy, a psychiatrist, on the issue of what the effects were of the incident of August 11, 2006, on George's mental state. Dr. Glancy stated, "It is very difficult to elicit symptoms that may be the sequelae of this incident from George…. Since the subject's social and occupational functioning at 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."

[34] The forensic pathologist, Dr. Butt, delivered a report with his opinion on the nature of the injuries sustained by George. Dr. Butt noted that George's wounds were superficial in nature, including an injury to his right eye, which he thought was caused by a direct blow. Dr. Butt concluded that George had been subject to the Taser seven times. In at least one of the hits, the darts did not penetrate George's skin. Dr. Butt said, with respect to the abrasions, "Minor grazes are seen on the trunk and both arms, none of the grazes suggest a significant degree of force."

[35] Although Justice Firestone requested further medical notes and records from George's treating doctors as well as an updated medical report detailing George's current emotional and psychological condition, and the PGT requested George be assessed, the Lochners refused. Thus, there is no updated medical documentation on which to assess the damages sustained. Mr. Kim deposes in his affidavit filed in support of this motion that the family has not acceded to his requests to be allowed to speak to George.

[36] I have reviewed the following medical information concerning George: hospital records for August 11, 2006; the report of Dr. Glancy of June 30, 2008; the report of Dr. Morgenthau dated September 28, 2010; the note of Dr. Barret dated March 20, 2013; the report of Dr. Skouras dated January 14, 2014; and the capacity assessment of Dr. Lightfoot dated January 14, 2015.

[37] Dr. Morgenthau is a neurologist who assessed George in 2010 at the request of the family doctor. He was of the opinion that George had anxiety and suggested he be referred to a psychiatrist. He stated there was no significant central nervous system injury. A CT scan of his head showed no abnormality.

[38] While Lina alleges that George has red eyes related to the assault, there is no medical evidence to support this contention. The ophthalmologist, Dr. Skouras, who assessed George January 14, 2014, noted a normal eye examination and did not recommend any treatment.

[39] The ambulance call report which was completed the night of these events indicates that George was mildly agitated, with marks of Taser darts on his back without complications. I accept the description of the injuries sustained by George as set out in the report of Dr. Butt, a pathologist, dated November 19, 2013. He reviewed photographs and other documents in order to assess the cause and extent of injuries George sustained on August 11, 2006. He identified bruises on George's right ear and eyelid as well as various abrasions, all of which he described as superficial. He noted none of these injuries suggested a significant degree of force.

[40] Dr. Butt found there were 5 sites on George's body which indicated the Taser was used in direct mode and another 2 times where it was used in the drive-stun or probe mode during which the weapon deploys darts. Silvano believes there were 3 Tasers used in probe mode.

[41] I accept the opinion of Dr. Butt which is corroborated by objective evidence of injury. I find that George was subject to a Taser likely six or seven times, of which two of these attempts were done unsuccessfully in the probe mode and did not penetrate his skin. There is no reliable evidence that he was Tasered 20 times. That may be George's recollection, but there is no evidence to support this number of Tasers.

[42] It is not surprising that George experienced upset, nightmares and anxiety following the events of August 11, 2006. It is unclear how long he suffered from these symptoms, for two reasons: his family has not provided any updated medical documentation despite the order of Justice Firestone and the requests of Mr. Kim; and George's intellectual limitations prevent assessors from determining with any degree of accuracy the psychological sequelae of the incident.

[43] In my opinion, assuming the Plaintiffs are successful at proving liability against the Defendants, I assess the range of general damages for George, based on the evidence before me, in the $40,000-$50,000 range. If one takes the mid-point of that range, $45,000, and adds pre-judgment interest at a rate of five percent for nine years, the figure is $65,250.

[44] There is no evidence of special damages. If such damages had been incurred, I would have expected the family would have provided receipts to substantiate these claims, in the more than eight years that this action has been proceeding through the system. Justice Firestone ordered evidence on special damages be provided to the court in his endorsement of April 28, 2015; nothing was provided. The absence of such documentation indicates to me that no damages have been incurred.

[45] After reviewing all of the evidence, including the submissions from the Lochner family, I conclude that the sum proposed to resolve George's claim is reasonable and fair in all of the circumstances. The sum offered for damages represents fair compensation based on the evidence, with little if any reduction for the risks associated with proceeding to trial and being unsuccessful. Given the uncertainties associated with proceeding to trial which I have set out in these reasons, I am of the view that it is in George's best interests to resolve the case in accordance with the settlement offer. Proceeding through a trial would undoubtedly be stressful for George and would not be in his best interests, particularly when the chances of him recovering more than the settlement offer are not strong.

[46] George continues to be a person under a disability; the PGT has not been removed as his litigation guardian. In fact, the motions brought by the Lochner family to have the PGT removed as George's litigation guardian were dismissed; one by Justice Diamond in June, 2015[^3] and a more recent order from Justice Faieta. Therefore, the PGT has the full authority to move before the court for approval of a proposed settlement, which they have done. All parties affected by the order sought have consented to it; Silvano is a non-party.

[47] The PGT seeks costs of $5,000. Given the long and contorted history of this action, and the fact that the PGT has incurred more than $100,000 in fees in its representation of George in this lawsuit, that amount of fees is eminently reasonable and I approve it.

Conclusion

[48] Approval is granted of the proposed settlement of George's claims for the sum of $65,000, of which $60,000 shall be paid into court to his credit, until further order of this court.

[49] Given the ongoing litigation and the scheduled trial, I order under s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, that this endorsement be sealed and not form part of the public record until after the trial of this action has taken place and judgment issued. My order is subject to a further order from this court. I have issued a hand-written endorsement indicating the proposed settlement of George's claims has been approved pursuant to Rule 7.08 and I have signed the draft Judgment.

D.A. Wilson J.

Date: March 09, 2016

[^1]: Lochner et al. v. PC Callanan et al. 2015 ONSC 2464 para. 12 [^2]: Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718 (Div. Ct.) para 15 [^3]: Lochner v. Callanan, 2015 ONSC 3628