Court File and Parties

Court File No.: 07-CV-331980PD1 Date: 2016-08-26 Ontario Superior Court of Justice

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 DOMENIC BRUZZESE, PC DAVID BRAGG, PC WILLIAM SHIKATANI, PC GISSA WATERS, PC STEPHEN CARMICHAEL and TORONTO POLICE SERVICES BOARD, Defendants

Counsel: Walter Kim, for the Public Guardian and Trustee Laura Day, for the PC Gordon Callanan et al

Heard: July 8, 2016

Before: R.F. Goldstein J.

Background

[1] On August 11, 2006 members of the Toronto Police entered the Lochner home to arrest Silvano Lochner. Silvano Lochner was not home. Instead, they mistakenly arrested George Lochner, thinking he was Silvano. They used a Taser on George. The number of times Taser was used, and the setting of the Taser (whether “probe” or “drive-stun”) is a matter of dispute. George Lochner was born with a neurological defect related to cerebral palsy. At all times he has been a party under a disability.

[2] The officers had obtained a warrant for Silvano’s arrest. Silvano faced charges of criminal harassment. The charges arose out of altercations with his neighbours, including an alleged threat by him to use a sledgehammer on a neighbour.

[3] They mistakenly believed that they had a “Feeney Warrant”. A “Feeney Warrant” permits the police to enter a dwelling house in order to arrest a person. The justice of the peace who signed the warrant apparently signed the wrong form.

[4] Lina Lochner and Paul Lochner were home with George. Lina is the mother of George, Paul, and Silvano Lochner. Paul claimed that he was beaten by the police. Lina and Paul both claimed that the police trespassed. They sought damages.

[5] In 2007 Lina, Paul, and George Lochner launched a lawsuit against the individual police officers and the Police Services Board. Silvano Lochner was appointed as George’s litigation guardian.

[6] On March 4, 2014 Madam Justice Himel removed Silvano Lochner as George Lochner’s litigation guardian. The Public Guardian and Trustee (which I will refer to in these reasons as the PGT) was appointed instead. This order was apparently made at the request of the Plaintiffs.

[7] The PGT commenced negotiations on George’s behalf with the defendants in 2015. They eventually reached a settlement. Justice Firestone refused to approve that settlement. Justice Wilson approved a second settlement on March 9, 2016.

[8] Lina and Paul Lochner almost immediately sought to set aside Justice Wilson’s order. At the same time, the PGT and the Defendants brought a motion for a declaration that Lina, Paul, and Silvano Lochner have no standing to bring a motion in respect of Justice Wilson’s judgment.

[9] The PGT’s motion came before me on July 8, 2016. I made the following hand-written endorsement:

The PGT brings this motion for an order that Lina and Paul Lochner do not have standing to set aside Madam Justice Wilson’s judgment.

I asked Silvano Lochner, who made submissions on behalf of Lina and Paul (although he is not a lawyer) to respond to the point raised by the PGT. I gave him a time limit of 40 minutes and indicated that based on earlier demonstrations (see the endorsement of Justice Dunphy in this matter) I would tolerate no inappropriate behaviour. Despite this, after 35 minutes of submissions, Mr. Lochner was totally non-responsive to my questions and my attempts to get him to focus on the issue. He would not allow the court to ask questions. At that point I indicated that I would close court and proceed on the basis of written submissions.

Having reviewed the written material, it is abundantly clear that Lina and Paul Lochner have no standing to set aside Wilson J.’s order. Accordingly, I order that Lina and Paul Lochner have no standing.

I will issue reasons to supplement this endorsement.

Costs

The PGT and the police officers (and the Police Services Board) may make written submissions of no more than 2 pages and submit a costs outline. They may file their submissions with Judge’s Administration by 4:00 pm on July 15, 2016. Lina and Paul Lochner may file written submissions of no more than 2 pages in relation to costs and a costs outline by July 22, 2016 by 4:00 pm at Judge’s Administration.

[10] What follows are my supplemental reasons.

Litigation History

[11] Some context is required.

(a) The Settlement Process

[12] The Plaintiffs, Lina, Paul, and George, filed a statement of claim in 2007. They retained three different lawyers to prosecute this matter. Silvano acted as litigation guardian for George. Each lawyer in turn brought a motion to remove him or herself from the record. Lina and Paul have since acted on their own behalf, with Silvano usually acting as their spokesman. As I noted earlier in my reasons, Silvano Lochner was removed as George Lochner’s litigation guardian on March 4, 2014. I note that that was at the request of the plaintiffs at the time.

[13] In August 2014 the PGT and the Defendants settled George’s claim. The PGT moved for court approval of the settlement, as required for a party under a disability under Rule 7.08 of the Rules of Civil Procedure. Paul and Lina objected to the terms of the settlement. On November 14, 2014 Justice Firestone ordered that George Lochner be assessed. The order was made at Silvano Lochner’s request. Silvano Lochner argued that George was not under a disability. On March 9, 2015, Justice Firestone found otherwise in a lengthy and detailed endorsement. On October 1, 2015 Justice Firestone refused to approve the settlement. Justice Firestone permitted the Lochner family to participate in the hearing, on consent of the defendants and the PGT: Lochner v. Callanan, 2015 ONSC 5598 at paras. 17-19.

[14] The PGT came to a second settlement with the Defendants. Justice Wilson approved the second settlement on March 9, 2016. She provided extensive reasons: See: Lochner v. Callanan, 2016 ONSC 1614.

[15] The Public Guardian notified the Lochners of the motion before Justice Wilson to approve the settlement. The PGT invited comments from the Lochners. Nothing in the Rules requires the PGT to notify non-parties. As Justice Firestone noted, it is the policy of that office to provide notice and invite comments from family members of persons under a disability. The Lochners did not respond. They made no comments.

(b) Attempts to Remove the PGT

[16] Lina, Paul, and Silvano Lochner have made multiple attempts to remove the PGT as George’s litigation guardian. They have alleged misconduct, pecuniary interest in the outcome, fraud, and perjury by members of the office of the PGT. They have been particularly harsh towards Mr. Kim. There is no record of the Lochners submitting any evidence substantiating any of these allegations. Regrettably, there is a very strong record of righteous indignation at the PGT untethered to any actual facts.

[17] On June 5, 2015 Justice Diamond dismissed an attempt by Lina and Paul Lochner to have the PGT removed. They asked that either Lina or Paul be substituted. The did not serve the defendants with the motion, but Justice Diamond still allowed them to make submissions and heard the full argument. At the time Justice Firestone was still considering the first settlement (the settlement that he ultimately refused to approve). Justice Diamond dismissed the motion. He made the following comments:

I 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.

No 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.

Essentially, 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.

I 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.

Clearly, 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.

[18] See: Lochner v. Callanan, 2015 ONSC 3628 at paras. 12, 16, 20, 21, and 22.

[19] On February 10, 2016 Justice Faieta dismissed another attempt by Lina and Paul Lochner (as well as Silvano Lochner, a non-party) to remove the PGT. They argued pursuant to Rule 7.06(2) that the PGT was not acting in the best interests of George. Justice Faieta summarized the position of the Lochners:

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.

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.

[20] Justice Faieta accepted none of the arguments made by the Lochners: Lochner v. Callanan, 2016 ONSC 1705 at paras. 24-25.

(c) The Action By Lina and Paul Lochner

[21] The action was set down for trial initially in June 2014 and then October 14, 2014. In his judgment of February 10 2016, Justice Faieta quoted an endorsement by Justice Stinson:

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:

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.

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.

[22] See: Lochner v. Callanan, 2016 ONSC 1705 at para. 9.

[23] The trial of Lina and Paul Lochner’s claims was set down for April 18, 2016. On January 22, 2016 Lina and Paul brought a motion to consolidate the Rule 7.08 motion to approve the settlement (which was then under consideration by Justice Wilson) with the trial. Justice Matheson dismissed the motion. See: Lochner v. Callanan, 2016 ONSC 591.

[24] On April 18, 2016 the trial came before Justice Dunphy. Lina and Paul Lochner did not appear. As a result, Justice Dunphy dismissed the action. Lina and Paul had previously indicated their intention not to appear at their trial. They did that when Justice McEwen dismissed their request for an adjournment. Lina and Paul then brought a motion to set aside the judgment dismissing their action. Justice Dunphy refused to set aside his judgment: Lochner v. Callanan, 2016 ONSC 4136. In his endorsement, Justice Dunphy set out the relevant history of the action in some detail. He ultimately refused the motion because Lina and Paul failed to establish any basis for setting aside the dismissal. Justice Dunphy noted the unusual nature of the request:

I am aware of no case that has ever suggested that deliberately choosing not to attend at a trial or motion can be a basis to ask for the judgment or order to be set aside. Indeed, in Waite v. Gershuny, 2005 ONSC 4101 (Ont.Div.Ct.) the “real possibility” that the failure to attend trial was deliberate was a factor that weighed against granting the requested relief: Waite at para. 13.

There is no doubt whatsoever that the plaintiffs simply chose not to attend their trial. They so advised McEwen J. Despite being cautioned by him against maintaining that course and being advised of their right to apply to the trial judge for an adjournment they did not appear.

There is no suggestion that there was inadvertence. The plaintiffs appear to have concluded that they were entitled to an adjournment of the trial by reason of their stated intention to appeal the approval of the settlement reached with Mr. George Lochner. They remain unable to understand why McEwen J. did not agree with their position but submit that the matter was not validly called for trial in light of the refusal of McEwen J. to adjourn it.

Whether the plaintiff’s non-appearance at trial can be characterized as contumelious, it was certainly deliberate. They disagreed with McEwen J’s ruling and were determined to act in accordance with the order they were denied rather than the one they were granted. That way lies chaos.

[25] Lochner v. Callanan, 2016 ONSC 4136 at paras. 33-36.

Issue and Analysis

[26] That brings me to the current issue: do Paul and Lina have standing to set aside Justice Wilson’s judgment approving the settlement? The PGT and the defendants in effect seek a pre-emptive strike. Lina and Paul’s own motion to set aside the judgment was commenced before me on August 22, 2016 and will be continued on September 13, 2016.

[27] Lina and Paul rely on Rule 37.07(1) and Rule 37.14(1) of the Rules of Civil Procedure for their own motion. Those rules state:

37.07(1) The notice of motion shall be served on any party or other person who will be affected by the order sought, unless these rules provide otherwise.

37.14(1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

[28] Lina and Paul must therefore show that the motion before Justice Wilson was made “without notice” and that they are persons affected by the motion: Ivandaeva Total Image Salon v. Hlembizky (2003), 2003 ONCA 43168, 63 O.R. (3d) 769, [2003] O.J. No. 949 (C.A.) at para. 18. They cannot.

[29] The motion was not made without notice. Lina and Paul Lochner had notice. Counsel for the PGT provided them with notice as a courtesy. In fact, the PGT wrote to them twice inviting submissions and they did not respond. In any event, they were not entitled to notice.

[30] I also agree that the order of Justice Wilson does not affect Lina and Paul Lochner. They are required to show that the order affects their proprietary or economic rights: Ivandaeva Total Image Salon at para. 27. They have submitted no evidence to show that their rights are affected. Their motion materials are completely directed towards litigating the merits of George’s claim. During the hearing before me, Silvano Lochner repeatedly attempted to get into the merits of the George’s claim. He insisted that the Feeney warrant was invalid, and that Lina and Paul suffered grievous harm at the hands of the police. He also refused to point to any evidence whatsoever that would have provided standing to Lina and Paul. Instead, he became indignant when I indicated that the merits of the claim were not at issue in the motion. The only economic interest of Lina and Paul that could possibly be at stake here is their ability to obtain some of the compensation that will come to George – which is, of course, not a valid economic interest.

[31] I do not wish to be taken as suggesting that selfish economic motives lie behind the actions of the Lochners. No doubt they feel strongly about what they perceive as an injustice. Rather, their actions demonstrate precisely why the PGT cannot take instructions from family members. Those family members may well not act in the best interests of the party under a disability. One can easily imagine, for example, that feuding family members could try to manipulate the process against each other. In this case, Madam Justice Wilson pointed out the significant litigation risk facing George Lochner’s claim. The PGT, acting in George’s best interests, was aware of the litigation risk when it negotiated the settlement. Paul, Lina, and Silvano seem to think that there is no litigation risk. They seem to have convinced themselves that George’s claim should have proceeded to trial – something that could well have resulted in a dismissal of the claim and a very large costs award against him. It is precisely to prevent such potential outcomes that the PGT acts as litigation guardian in appropriate cases.

[32] The only possible remedy available to Lina and Paul (and Silvano) Lochner would be a motion to remove the PGT as George’s litigation guardian. That motion could not possibly succeed. It would be res judicata. Two judges have already dismissed that motion. There is absolutely no new evidence that would suggested anything has changed.

Conclusion and Costs

[33] The PGT’s motion is granted. There will be a declaration that Lina and Paul Lochner have no standing to challenge the judgment of Justice Wilson.

[34] In dealing with the issue of costs, I wish to conclude with some comments about the behaviour of the moving parties.

[35] At the hearing before me Silvano Lochner and Lina Lochner engaged in disruptive and outrageous behaviour that has no place in a courtroom. I was aware of earlier disruptions by the Lochners. Justice Dunphy observed the same sort of intemperate behaviour that I did:

Following what can only be described as a tumultuous hearing lasting approximately 90 minutes, I found it necessary to clear the courtroom and to proceed to consider the motion based upon the written materials filed and such oral submissions as were able to be made in the chaotic conditions the moving parties created in the courtroom.

The behaviour of the plaintiffs was nothing short of outrageous, all allowances being made for the high emotions and deep feelings this case has engendered. The volume of shouting brought in security forces on multiple occasions and thoroughly disrupted proceedings in neighbouring courtrooms. The plaintiffs made threatening gestures in the direction of Mr. Love and hurled invective and abuse at him that was endured with a stoicism that should not be required of any barrister putting on a gown to appear in court. Accusations of perjury were made liberally and utterly without foundation. They interrupted me repeatedly and did not hesitate to leaven their submissions with baseless accusations of bias, corruption and bribery on my part from the first moment the court was called to order. Although I managed to restore a semblance of order for a time, it was only for a time. The plaintiffs (I include in their number Mr. Silvano Lochner who spoke on their behalf at their request and has done so at previous appearances as well) were utterly ungovernable and disrespectful of the court process. In the end, they had to be removed by court security personnel.

The plaintiffs filed extensive written material in support of this motion and touched upon virtually all of the themes raised in their written argument in oral argument before their egregious and contumelious behaviour necessitated their ejection from the courtroom. In the circumstances, I have decided to proceed to render a decision on the motion.

[36] Justice Dunphy commented further:

This court must be very wary of allowing the admirable precepts of access to justice and reasonable accommodation of self-represented parties to be stretched and abused by over-indulgence of unacceptable behaviour. Access to justice is a right, but not without limit. Parties responding to self-represented litigants also have a right to access to justice on a level playing field. No litigant has the right to operate by rules of their own choosing while exhibiting open contempt for rulings of the court and its procedures.

These litigants have abused the process of the court in the most egregious fashion and have been doing so repeatedly over an extended period of time. It is too late to nip this behaviour in the bud; it is not too late to stop indulging it.

[37] I agree whole-heartedly with Justice Dunphy.

[38] Justice Faieta noted that the following occurred before him:

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.

[39] While perhaps not abusive or egregious, that behaviour is certainly disrespectful. See: Lochner v. Callanan, 2016 ONSC 1705 at para. 37.

[40] It is also quite likely that members of the Lochner family are manipulating George Lochner. On January 10, 2016 George Lochner provided a hand-written letter to Kathleen Wynne, the Premier of Ontario. He copied Mr. Kim of the PGT, and Justice Firestone. The letter sets out the position that Silvano Lochner has advanced on multiple occasions before multiple courts both orally and in writing. For example, George apparently wrote:

It is clear to me that based on Walter Kim’s refusal to respond to my November 2, 2015 letter that the PGT intends to lie to the Court once again about the force used by the Defendants on my on August 11, 2006 including how may tasers were used, how many times I was tasered and deny that the Defendants were punched in the eye while I was lying face down on the bed with my arms being held by police officers so I could not defend myself.

[41] George’s letter is well-written and seems stylistically very similar to correspondence signed by other members of the Lochner family, particularly Silvano. It seems likely that Silvano dictated the letter to George. I mean no disrespect to George whatsoever, but I am aware that Justice Firestone noted that:

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.

[42] See: Lochner v. Callanan, 2015 ONSC 5598 at para. 24.

[43] There are other telling clues that Silvano likely dictated George Lochner’s letter. For example, the joint affidavit of Lina and Paul Lochner refers to an email of George Lochner dated November 2, 2015 sent to Walter Kim and others. The index to the Motion Record also indicates that George Lochner sent the email. The email itself was sent from Silvano Lochner’s email account and is signed

Lina Lochner

Paul Lochner

George Lochner

Silvano Lochner

[44] I turn to the events of July 8, 2011. When the hearing commenced I indicated that as a result of previous rulings by other judges I would tolerate no disruptions. All of my attempts to control the process were stymied. I indicated that I would not hesitate to invoke the contempt power of the Court, if necessary, and that a trip to the cells might be salutatory for Silvano and Lina. Lina is a woman in her 80’s and confined to a wheelchair – which does not give her licence to behave any way she wants in a courtroom. (Paul Lochner did not participate in the day’s outrageous behaviour and remained for the most part.). The prospect of a finding of contempt in the face of the court apparently had no effect.

[45] The Lochners have made serious allegations against counsel who have appeared from time to time for the PFT and the Defendants. For example, the Lochners have repeatedly accused Mr. Kim of lying to the court. They seem to believe that any failure to accept their version of events constitutes an act of perjury and justifies a maximum amount of righteous indignation. All counsel, and particularly Mr. Kim, have born it with admirable restraint and stoicism. None of the material before me discloses any basis to find that the PGT has acted in any way contrary to the best interests of George Lochner. Other judges have repeatedly made the same finding.

[46] Like Justice Dunphy, I ultimately decided the motion on the basis of the written material.

[47] At a related proceeding on August 22, 2016, I ordered Silvano Lochner removed from the courtroom for his disruptive behaviour. That did not stop him from repeatedly re-entering the courtroom, shouting, interrupting, and ignoring my direction that he stay out.

[48] At the same hearing I also reluctantly ordered that Lina Lochner leave the courtroom – I was, for obvious reasons, hesitant to have the court officers remove a woman in her 80’s in a wheelchair or find her in contempt in the face of the court. Lina Lochner still refused to stop her disruptions. As I have noted, she appears to believe that she has a license to say anything she wishes at any time she wishes, at a high volume. Eventually Paul Lochner took her out of the courtroom.

[49] All parties sent their costs submissions to the Court. I did not receive the costs submissions of the Lochners until August 23, 2016, which has been the subject of considerable complaint on their part. I did not receive those submissions because they did not deliver them to Judge’s Administration, as I directed. The submissions were delivered to a different room at the Courthouse.

[50] It follows that costs should be awarded against the Lochners. Their own submissions were yet another attempt to re-litigate the merits of the case. Their submissions did not address any issues associated with costs. They did not comply with my order and submit a costs outline or serve their costs submissions on the defendants or the PGT. Their argument simply boiled down to this:

However, both the defendants and the PGT and Trustee, together with his legal counsel, wilfully withheld all this relevant information from the court.

[51] Suffice it to say, there is no evidence whatsoever that the PGT or the defendants have withheld relevant information.

[52] The usual rule is that costs are awarded to the successful party. There is no reason to depart from that rule in this case. The amount must be fair and reasonable in the circumstances: Boucher v. Public Accountants Council for Ontario (2004), 2004 ONCA 14579, 71 O.R. (3d) 291 (C.A.); Anderson v. St. Jude Medical Inc. (2006), 2006 ONSC 85158, 264 D.L.R. (4th) 557, 2006 CarswellOnt 710, [2006] O.J. No. 508 (Div.Ct.).

[53] Applying the principles in Anderson as well as the factors set out in Rule 57.01(1), I note the following:

• This motion should have been totally unnecessary as the efforts of Lina and Paul Lochner to attack the decision of Justice Wilson are completely without merit;
• The evidence filed by Paul and Lina Lochner was completely unrelated to the issue at hand;
• The motion was made unnecessarily complex through the behaviour of Lina, Paul, and Silvano Lochner.

[54] The PGT seeks partial indemnity costs of $2,727.59, including disbursements and HST. The defendants seek partial indemnity costs of $2,142.48 including disbursements and HST. These amounts are totally reasonable. I grant costs in the amounts sought.

[55] The PGT and the defendants will take out an order in accordance with this judgment. The consent of Lina Lochner and Paul Lochner as to form and content is dispensed with.

The Lochners’ Motion to Set Aside

[56] As I have noted, on August 22, 2016 I commenced hearing the motion by Paul and Lina Lochner. Due to the press of other matters, I had to adjourn it to September 13, 2016. Given the result of this motion, it seems extremely unlikely that Paul and Lina Lochner can succeed.

[57] Pursuant to Rule 2.1.02 the Court may stay or dismiss a motion where it appears on its face to be frivolous, vexatious, or otherwise an abuse of process of the court. The court may do this on its own initiative. The issue is dealt with in a summary way. The rule should be applied “robustly” as the Court has a duty to weed out patently unmeritorious claims: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733.

[58] Courts have an inherent jurisdiction to stay proceedings that are frivolous, vexatious, or otherwise an abuse of process of the court. Re-litigating a matter constitutes an abuse of process: Toronto (City) v. CUPE Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. Accordingly it is up to Paul and Lina Lochner to demonstrate why I should not strike their motion.

[59] The procedures for summarily dealing with a motion that is an abuse of process on its face are set out in Rule 2.1.01(3):

2.1.01 (3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:

1. The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.
2. The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.
3. If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.
4. If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.
5. A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.

[60] Accordingly, I direct the following:

• My assistant will provide Lina and Paul Lochner with a copy of this judgment in the usual fashion. The judgment will also be provided to the Registrar.
• The Registrar will immediately provide notice to Paul and Lina Lochner by regular mail. Rule 2.1.01(4) will apply. The notice will indicate that I am considering making an order dismissing their motion.
• The Registrar will also provide the notice by email to Silvano Lochner at slochner@sympatico.ca.
• Paul and Lina Lochner will have 15 days after receiving the notice to file submissions as to why I should not summarily dismiss the motion and vacate the hearing date of September 13, 2016.
• I will determine, in accordance with Rule 2.1.01(3) clause 4 whether the submissions should be delivered to the PGT and the defendants and whether the motion should be summarily dismissed.

R.F. Goldstein J.

Released: August 26, 2016