Superior Court of Justice – Ontario

CITATION: Lochner v. Callanan, 2016 ONSC 1705

COURT FILE NO.: 07-CV-331980PD1

DATE: 20160309

BETWEEN:

LINA LOCHNER, PAUL LOCHNER and GEORGE LOCHNER by his Litigation Guardian – PUBLIC GUARDIAN AND TRUSTEE Plaintiffs

– and –

PC GORDON CALLANAN, SGT MARK ARMSTRONG, PC DOMENICO BRUZZESE, PC DAVID BRAGG, PC WILLIAM SHIKATAHNI, PC GISSA WATERS, PC STEPHEN CARMICHAEL and TORONTO POLICE SERVICES BOARD Defendants

COUNSEL:

Silvano Lochner, for himself and the Plaintiffs

Walter Kim, for the Public Guardian and Trustee

HEARD: February 10, 2016

REASONS FOR DECISION

INTRODUCTION

[1] The moving parties, the plaintiffs Lina Lochner, Paul Lochner and Silvano Lochner bring this motion for an Order to remove the Public Guardian and Trustee (“PGT”) as Litigation Guardian for George Lochner, and (2) appointing one of them as the Litigation Guardian for George Lochner. Lina is George’s mother. Paul is George’s brother. Silvano Lochner is not a party to this action. With the consent of the parties, Silvano made submissions on behalf of the moving parties on this motion.

[2] The moving parties rely on Rule 7.06(2) of the Rules of Civil Procedure which states that where it appears that a Litigation Guardian is not acting in the “best interests” of the party under disability, the Court may substitute that person as Litigation Guardian.

[3] For the reasons described below, I have dismissed this motion.

BACKGROUND

[4] George suffers from a fixed neurological deficit related to cerebral palsy and secondary to an early cerebral injury.

[5] This action was commenced on August 27, 2007. The parties allege that on August 11, 2006 the defendants attended at Lina’s home to arrest George’s brother Silvano Lochner. Silvano was not at Lina’s home. They allege that the defendants attacked Paul and George. They allege that the defendants punched George in the face and “tasered” him a number of times. George is a party under disability. Silvano acted as his Litigation Guardian.

[6] The plaintiffs initially retained the law firm of Ruby & Edwardh. This law firm sought and obtained an Order of this Court removing it from the record in November 2012.

[7] The plaintiffs retained Davin Charney in December, 2012. Mr. Charney sought and obtained an Order of this Court removing him from the record on March 14, 2013.

[8] The plaintiffs retained the law firm of Swadron Associates in April 2013. This law firm sought and obtained an Order of this Court removing it from the record in December 2013. At the same time Swadron Associates sought to have Silvano removed as Litigation Guardian and have the PGT appointed in his place. On March 12, 2014, Justice Himel ordered that Swadron Associates be removed from the record and, with Silvano’s consent, named the PGT as George’s Litigation Guardian in place of Silvano.

[9] This action was scheduled for a three week trial commencing on June 9, 2014. On May 21, 2014 Justice Stinson vacated the trial date and set a new trial date fixed for October 14, 2014. Justice Stinson’s endorsement states:

[10] Mr. Kim, on behalf of the PGT, advises that his office has to date been unable to retain counsel to take the trial on behalf of George Lochner. As a result, the trial cannot proceed as scheduled. I have explained to the Lochners the need to have counsel at trial acting for George and they acknowledge that need. At the same time, they are understandably anxious to proceed to trial as soon as possible.

[11] The trial date of June 9, 2014 must be vacated. A new trial date is fixed for October 14, 2014, for 3 weeks. Mr Kim is directed to forthwith seek out counsel to take the trial Mr. Kim, counsel for the PGT, was directed to forthwith seek out counsel to take the trial on behalf of George Lochner. If outside counsel cannot be retained, a lawyer from the MAG should act.

[12] On July 21, 2014 George by his Litigation Guardian, the PGT, agreed to settle his claim. Minutes of Settlement, expressly subject to Court approval, were executed in August, 2014. The PGT brought a motion for court approval under Rule 7.08 of the Rules of Civil Procedure. The PGT notified the moving parties of the proposed terms of the settlement given that a party under disability has a right to make submissions regarding a proposed settlement. The moving parties objected to the terms of the settlement.

[13] The motion for approval of the settlement was heard by Justice Firestone on November 14, 2014. Silvano submitted that George was not a party under disability. With the consent of the parties Justice Firestone ordered that George undergo a capacity assessment.

[14] On March 9, 2015 Justice Firestone found that the psychiatric assessment confirmed that George has a developmental disability and that he does not understand that is relevant to making decisions in the lawsuit. As a result, Justice Firestone concluded that George lacks capacity. Silvano, on behalf of the other plaintiffs, submitted that George should have the right to have his claim determined at trial along with the other plaintiffs. Justice Firestone determined that George has not right to dictate the course of his action. The PGT, as Litigation Guardian, has full authority to decide whether to settle George’s action or go to trial. Justice Firestone also found that the PGT had not acted contrary to George’s best interests as alleged by the moving parties. Justice Firestone reserved his decision on whether to approve the proposed settlement.

[15] On April 28, 2015 Justice Firestone ruled that further information was required in order to determine whether the proposed settlement should be approved under Rule 7.08 of the Rules of Civil Procedure.

[16] While waiting for Justice Firestone’s decision on whether the proposed settlement should be approved, Lina and Paul brought a motion seeking an order (a) removing the PGT as George’s Litigation Guardian, and (b) appointing Lina or Paul as George’s Litigation Guardian. This motion was dismissed by Justice Diamond on June 8, 2015 on the basis, that given the material before him, the moving parties had not presented “…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 tis obligation to be neutral, indifferent and unbiased”.[^1]

[17] On June 30, 2015 the PGT filed further information in support of the settlement.

[18] On October 1, 2015, Justice Firestone refused to approve the settlement on the grounds that the amount of the proposed settlement was unreasonably low based on the evidence adduced for the following reasons: (1) a current medical opinion detailing Georges current psychological and emotional condition was not submitted; (2) there was no evidence as to the degree that those conditions have or will be affected by the incident; (3) the settlement did not provide for the payment of pre-judgment interest on the basis that the plaintiffs had delayed this action however there was no evidence to support this assertion; (4) there was insufficient evidence to determine whether George will incur any expenses in the future, not covered by OHIP, related to this incident. There was also a dispute about the number of times that George was tasered and, as a result, there was insufficient evidence to determine the issue of liability.

[19] The PGT and the defendants entered a second settlement of George’s action. On December 15, 2015 the Lochners were notified of the proposed settlement. No immediate response was received by the PGT. The PGT delivered the motion to approve the second settlement to the Court.

[20] On January 22, 2016, this Court heard a motion by Lina and Paul to consolidate the PGT’s motion to approve the second settlement with the trial of this action which is scheduled to commence on April 18, 2016. On January 26, 2016 this motion was dismissed on the grounds that it would be prejudicial to the plaintiffs to have counsel’s opinion regarding the strengths and weaknesses of Georges case, offers to settle and related material brought to the attention of the same judge hearing the Lina and Paul’s claim.

[21] The Lochners bring this motion to remove to the PGT on the grounds that the PGT is not acting in George’s best interests.

ANALYSIS

[22] If a party to a proceeding suffers from a disability, then a Litigation Guardian must be appointed in order to protect that person’s interests. Once a Litigation Guardian is appointed, the Litigation Guardian becomes the substitute decision-maker for the person under disability in respect of the litigation and has the responsibility to dictate the course of the litigation, including its settlement.[^2] At all times, a Litigation Guardian must exercise its decision-making discretion in a manner that protects the interests of the person under disability. If no other person is willing and able to act for the party under disability, the PGT is a Litigation Guardian of last resort and must be appointed as Litigation Guardian.[^3]

[23] Rule 7.06(2) of the Rules of Civil Procedure states that a person may be removed from acting as a Litigation Guardian when he or she is not acting in the “best interests” of the party under disability. The applicable legal principles governing the “best interests” test were outlined by the Supreme Court of Canada in Gronnerud (Litigation Guardian Of) v. Gronnerud Estate [2002] S.C.J. No. 39, 2002 SCC 38 at paras 18-20. The Court stated:

18 A Litigation Guardian is responsible for commencing, maintaining or defending an action on behalf of a person. Under The Queen's Bench Rules of Saskatchewan, the Litigation Guardian can be the property guardian appointed under The Dependent Adults Act or any other individual appointed by the court: Rules 46(2)(a) and 46(2)(f). Under Rule 49(1), the court can remove a Litigation Guardian and appoint a substitute, if it appears to the court that the guardian is not acting in the best interests of the disabled adult. The test to remove and replace a Litigation Guardian turns on the "best interests" of the dependent adult.

19 The leading Saskatchewan case on the criteria to appoint a Litigation Guardian is Szwydky v. Magiera (1988), 1988 CanLII 4975 (SK QB), 71 Sask. R. 273 (Q.B.), at pp. 276-77 … . The six criteria are:

-- the evidence must establish that the incompetent is unable to act for himself or herself;

-- evidence should be verified under oath as to the incompetent's mental condtion and his or her inability to act as plaintiff;

-- evidence must demonstrate that the Litigation Guardian is both qualified and prepared to act, and in addition is indifferent as to the outcome of the proceedings;

-- the applicant should provide some evidence to support the claim being made;

-- the applicant should obtain the consents of the next-of-kin or explain their absence;

-- if the applicant has a personal representative or power of attorney whose status is not being challenged in the proceedings, some explanation should be offered as to why the attorney or representative has not been invited to bring the claim.

20 The Szwydky criteria provide guidance in defining the "best interests" test set out in Rule 49(1). The third criterion, that of "indifference" to the result of the legal proceedings, essentially means that the Litigation Guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a Litigation Guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a Litigation Guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A Litigation Guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a Litigation Guardian

[24] The moving parties submit that the PGT is not acting in George’s best interests for the several reasons. They allege that:

• The PGT refuses to provide the Court with full and fair disclosure of evidence regarding the material issues;
• The PGT refuses to diligently attend to the interests of George Lochner and take all steps necessary for the protection of those interests;
• The PGT instead made conclusory statements for the benefit of the defendants;
• The PGT is providing incompetent representation;
• The PGT tampered with evidence as a means to obstructing justice;
• The PGT refuses to communicate with George Lochner.

[25] Neither the moving parties’ submissions nor their affidavit specifically address the above allegations. The affidavit jointly executed by the moving parties and their Factum, as well as the oral submissions, were critical of the matters described below.

Pre-Trial Conference

[26] A pre-trial conference was held on March 26, 2014. The moving parties allege that the pre-trial was frustrated because counsel for the PGT was unfamiliar with the case, failed to file a pre-trial memorandum and was unprepared to discuss settlement. It is not surprising that the pre-trial was not productive given that the PGT was appointed as Litigation Guardian only two weeks earlier.

Postponement of the Trial

[27] This action was scheduled for trial on June 9, 2014. On May 21, 2014 the trial was postponed to October 14, 2014 by Justice Stinson to permit the PGT to retain outside legal counsel forthwith. The moving parties submit that despite being directed by Justice Stinson to seek outside counsel, the PGT stopped looking for outside counsel after May 21, 2014. Counsel for the PGT states:

On May 21, 2014, the matter was before the Honourable Mr. Justice Stinson for Trial Scheduling. Both counsel for the defendants and counsel for the PGT requested that the trial be set for February 17, 2015.

Paul and Lina requested that the matter be set down for trial in 5 months (October 14, 2014).

Both counsel for the defendants and I objected to this earlier proposed date. I objected based on the fact that the PGT was just appointed 2 months ago, the PGT was still trying to find outside counsel and because the materials forwarded to my office consisted of 7 years’ worth of material from three different law firms. Counsel for the defendants objected as he already had a trial scheduled for October 14, 2014.

Despite these objections Justice Stinson set the matter down for a three week trial commencing October 14, 2014.

Silvano has repeatedly accused me of lying to Justice Stinson on May 21, 2014. He claims that my serving and filing a Notice of Appointment on May 20, 2014 means that the PGT was not looking to retain outside counsel, but had already decided to take carriage of the matter and were already working on a settlement to “protect” the defendants.

This is not true. The PGT was actively trying to find outside counsel and only stopped looking because Paul and Lina succeeding in having the matter set down for trial on October l4, 2014. Given that the trial date was now less than 5 months away, the PGT was of the view that it would be very difficult to find outside counsel willing to take this file and it was only then that I received instructions to cease efforts to retain outside counsel.

Given that counsel for the defendants now had two trials scheduled for October 14, 2014, he approached the PGT about settlement discussions.[^4]

[28] In my view, the above circumstances do not suggest that the PGT was not acting in George’s best interests. It was open to the PGT to consider an invitation from opposing counsel to settle this action. To do otherwise, would be irresponsible. Rather than proceed to trial in October 2014, the PGT entered a settlement agreement which was then submitted for court approval in November 2014.

Evidence for Approval of the Second Settlement

[29] The moving parties submit that Mr Kim’s affidavit sworn January 18, 2016 contains a “litany of unfounded opinions”. This affidavit appears comprehensive (28 pages plus over 30 exhibits) in respect of both liability and damages. The moving parties dispute whether 2 or 3 tasers were used. The evidence explicitly addresses Silvano’s theory that three tasers were used. It appends various records, including taser reports, related to the use of tasers that evening.

[30] The moving parties also assert that George was tasered on both his front torso and his back. This point was also expressly addressed by the Mr. Kim’s affidavit sworn January 18, 2016. In doing so, it references various police records and a report obtained from a forensic pathologist who provided an opinion regarding the number of taser impacts as well as the location, seriousness and permanency of the injuries suffered by George as a result of this incident, including the injuries caused by being tasered. This report also provides the pathologist’s opinion regarding the number of times that George was tasered as well as the location of impact caused by the tasers as well as whether the impacts caused by taser being used in probe mode or drive-stun mode.

[31] The PGT’s management of the litigation seems to stem from the fact that they feel that the PGT has not adopted their position on the circumstances of this incident. The PGT has no such obligation to the moving parties. A Litigation Guardian is obliged to disclose all material facts so that the Court considering the settlement can determine whether it is in the best interests of the party under disability. I agree with the following statement:

Before approving a settlement for a party under disability, the court will require that the motion record include full disclosure of the entire settlement including the total amount to be received from all of the defendants and how it is proposed that the global amount be allocated if there is more4 than one plaintiff. The court expects and requires full disclosure of all facts which might bear on any material aspect of the case, including liability, damages and fees, so that the court will be able to make a reasoned decision on the appropriateness of the settlement in every aspect. The applicants should provide sufficient evidence to demonstrate that: (1) an appropriate investigation with respect to both liability and damages has been completed; (2) an appropriate assessment of liability issues has been made; (3) an appropriate assessment of damages issues has been made, and (4) the fees and disbursements which the plaintiffs’ lawyers propose to charge are reasonable in all the circumstances.[^5]

[32] These circumstances do not establish that the PGT is not acting in George’s best interests.

[33] Further, the moving parties have not demonstrated that the PGT has a conflict of interest vis-à-vis George. There is no evidence that the PGT has a relationship, pecuniary or otherwise, with the defendants.

[34] Further, the moving parties have not demonstrated that the PGT has a personal interest in the outcome of George’s action. The fact that the PGT did not seek this appointment underscores that it does not have a personal interest in the outcome.

CONCLUSIONS

[35] For the reasons given above, I dismiss the motion to remove the PGT as Litigation Guardian.

[36] At the request of the PGT, and in order to prevent privileged information being made available to the defendants, I order that: (1) tabs E, S and Z of the Motion Record be sealed; (2) that the settlement numbers shown in paragraphs 4, 28, 30, 37 and 38 of tab P of the Motion Record as well as tab E and paragraphs 2, 40 and 41 of tab B of the Responding Record be redacted. These documents include affidavits from the solicitor for PGT delivered to the Court in support of the two proposed settlements.

[37] I heard submissions over about ninety minutes from Silvano Lochner on behalf of the moving parties and an additional ten minutes from his brother Paul Lochner. The moving parties did not stay to listen to the PGT’s submissions and as a result they did not provide any reply submissions.

[38] If the PGT wishes to seek its costs of this motion, then I order that the PGT serve and file its costs submissions within one week of today’s date and that the moving parties may, if they wish, serve and file their reply cost submissions within two weeks of today’s date. The costs submissions, and any reply, shall be no more than four pages in length.

Mr. Justice M. D. Faieta

Released: March 9, 2016

[^1]: Lina and Paul’s appeal to the Ontario Court of Appeal in respect of Justice Diamond’s decision was dismissed on October 16, 2015 on the ground that the appeal should have been made to the Divisional Court.

[^2]: Kavuru (Litigation guardian of) v. Heselden [2014] O.J. No. 5496, 2014 ONSC 6718 (Divisional Court)

[^3]: Rule 7.04(1)(b) of the Rules of Civil Procedure.

[^4]: Affidavit of Walter Kim, sworn January 18, 2016, paragraphs 136-142. This affidavit was included in the moving parties’ Motion Record.

[^5]: The Law of Civil Procedure in Ontario, pages 293-294