Superior Court of Justice - Ontario

CITATION: Lochner v. Callanan, 2016 ONSC 591

COURT FILE NO.: CV-07-331980-00

DATE: 20160125

RE: LINA LOCHNER, PAUL LOCHNER, and GEORGE LOCHNER, Plaintiffs

AND: PC GORDON CALLANAN ET AL., Defendants

BEFORE: Justice Matheson

COUNSEL: Lina Lochner and Paul Lochner, self-represented

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

Robert Love, for the Defendants

HEARD: January 22, 2016

ENDORSEMENT

[1] This endorsement arises from a motion brought by the plaintiffs Lina Lochner and Paul Lochner. They move to consolidate a motion brought under Rule 7.08 of the Rules of Civil Procedure with the trial of this action. The trial is scheduled to commence on April 18, 2016.

[2] The Public Guardian and Trustee (PGT) is the Litigation Guardian for the third plaintiff, George Lochner. The PGT has very recently brought a second settlement approval motion under Rule 7.08. A prior settlement approval motion was unsuccessful.

[3] In their submissions on this motion, the moving parties expressed serious concerns that the recent Rule 7.08 motion would be used to delay the trial of this action. Their submissions included comments on prior delays and the conduct of this action thus far. Among other reasons why the moving parties do not want their trial delayed, one of the plaintiffs, Lina Lochner, is 85 years old, has health problems and wants her day in court.

[4] As of now, there has been no request to adjourn or reschedule the April 18, 2016 trial date.

[5] This motion to consolidate is brought under Rule 6 of the Rules of Civil Procedure. For the reasons set out below, I conclude that Rule 6 is not available to the moving parties. However, even if it was, the proposed consolidation would not be appropriate.

[6] Rule 6 allows for a party to seek an order to consolidate “two or more proceedings” pending before the court. In this case, there are not two or more proceedings. There is a single proceeding – this action – and a motion in this action. A motion is not a “proceeding”, as defined in Rule 1.03.

[7] Even if a procedure was available to consolidate the trial of this action with a Rule 7.08 motion, I would decline to do so. The trial and the settlement approval motion cannot be heard by the same judge.

[8] On a Rule 7.08 motion, the court would ordinarily receive considerable privileged information regarding the proposed settlement, the strengths and weaknesses of the plaintiff’s case, opinions of counsel, offers to settle and other material. This is amply demonstrated by the affidavit of counsel from the PGT on the recent Rule 7.08 motion. That affidavit was submitted by the moving parties on this motion as part of a new supplementary motion record.

[9] It would be prejudicial to the plaintiffs to have the evidence on the Rule 7.08 motion come to the attention of the trial judge.

[10] I therefore dismiss this motion.

[11] The Rule 7.08 motion has already been delivered. No adjournment of the trial date has been requested. If, however, there is a request to adjourn the trial date, the moving parties will have an opportunity to argue against that adjournment in Trial Scheduling Court. My dismissal of this motion is not a determination of whether or not a future adjournment should be granted, if an adjournment is sought.

[12] I must also deal with the moving party’s request to file the supplementary motion record. I permitted the moving parties to refer to that motion record in their submissions, subject to my ruling.

[13] I grant leave to the moving parties to file that material, with one condition. As mentioned above, it includes the affidavit of counsel from the PGT that has been delivered in support of the recent Rule 7.08 motion. Two issues arise. First, that evidence ought not to come to the attention of defendants’ counsel. In the courtroom, defendants’ counsel handed his copy to counsel to the PGT. That issue has therefore been addressed. Second, counsel to the PGT properly requests that, if I accept the record, I order that the affidavit be sealed. This is necessary for the reasons set out above, given that the affidavit contains privileged material and its disclosure outside the context of the Rule 7.08 motion would be prejudicial to the plaintiffs.

[14] I therefore order that the affidavit at Tab 9 of the supplementary motion record dated January 14, 2016, being an affidavit of Walter Kim sworn January 18, 2016, be treated as confidential, sealed and not form part of the public record, pursuant to s. 137(2) of the Courts of Justice Act, R.S.O 1990, c. C.43.

[15] An unredacted copy of the endorsement of Firestone J. dated October 1, 2015, including the proposed settlement figures, also forms part of the record before me. In his decision of October 1, 2015, Firestone J. ordered that only a redacted copy of his endorsement of that date would form part of the public record, also pursuant to s. 137(2) of the Act. In accordance with that order, the unredacted copy, which is at Tab 3D of the Motion Record dated January 14, 2016, must also be treated as confidential, sealed and not form part of the public record.

[16] Lastly, there is the question of costs. Both respondents to this motion have provided cost outlines and seek costs of this motion if it is unsuccessful. However, in the particular circumstances of this motion, I conclude that it is more appropriate to order costs in the cause.

Date: January 25, 2016

Justice W. Matheson