



COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Ontario Civilian Police
    Commission, 2020 ONCA 720

DATE: 20201109

DOCKET: C68058

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Silvano Lochner

Applicant (Appellant)

and

Ontario
    Civilian Police Commission

Respondent (Respondent)

Michael S. Dunn, for the intervener the Attorney General
    of Ontario

No one appearing for the applicant

No one appearing for the respondent

Heard: September 23, 2020 by
    video conference and in writing

Determination pursuant to r. 2.1 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg.
    194
and on appeal from the judgment of Justice David L. Corbett of
    the Superior Court of Justice, dated February 13, 2020, with reasons reported
    at 2020 ONSC 944.

Pepall J.A.:


Introduction

[1]

On September 9, 2020, the Attorney General of
    Ontario, in its capacity as intervener, wrote to the Registrar, requesting that
    Mr. Lochners appeal be referred to the court for determination pursuant to r.
    2.1 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194,
and that it be dismissed as frivolous,
    vexatious, and an abuse of process. This was in furtherance of an endorsement
    of Strathy C.J.O., dated September 9, 2020, directing that notice be given to
    Mr. Lochner and that the r. 2.1 matter be heard before the appeal, or in such
    manner as the panel may direct. The Attorney General provided Mr. Lochner and
    the Ontario Civilian Police Commission with notice. The Commission advised in
    writing that it would not be filing any materials and that it would not be
    appearing as it had no submissions to make to this court.

[2]

In response to the r. 2.1 request, Mr. Lochner
    provided extensive written submissions in several packages for the courts consideration.
    He advised the Registrar that he would not be available to participate in the
    video conference on September 23, 2020, the day scheduled for the r. 2.1 matter
    and the appeal.

[3]

On September 23, Mr. Lochner did not appear. The
    panel stated that it was granting a r. 2.1 order and dismissing his appeal as
    being frivolous, vexatious, and an abuse of process with brief reasons to
    follow. To the extent there are any departures from the procedures described in
    r. 2.1, they are so ordered pursuant to r. 2.1.01(3).

Background

[4]

In these reasons, I do not propose to recite all
    of the numerous frivolous and vexatious proceedings taken by Mr. Lochner since
    2006, which have been detailed by numerous judges, including Corbett J. It is
    his order refusing Mr. Lochners fourth application for
mandamus
that Mr.
    Lochner seeks to appeal. However, some factual background is required.

[5]

The provenance of all of these proceedings is an
    incident that occurred in August 2006, when members of the Toronto Police
    Emergency Task Force attended the Lochner family residence to execute a warrant
    for the arrest of the appellant, Mr. Lochner. Most unfortunately, Mr. Lochners
    intellectually-disabled adult brother, George Lochner, was mistaken for the
    appellant, and in the course of subduing George, the police tasered him. Paramedics
    attended, they took George to the hospital, and he was released that same night.

[6]

Mr. Lochner and other family members sought
    civil and criminal redress for this incident. The Public Guardian and Trustee
    (PGT)  which was appointed to act as litigation guardian for George in the
    civil action  settled the action, over the objections of the Lochner family. Twice,
    the Lochner family applied unsuccessfully to have the PGT removed as Georges
    litigation guardian.

[7]

The Lochner family and the appellant then pursued
    other avenues. When the Lochner family unsuccessfully sought to have criminal
    charges brought against the officers involved in the tasering, they then sought
    to prosecute privately, again unsuccessfully. The within appeal concerns Mr.
    Lochners fourth attempt to commence a private prosecution arising out of the
    same 2006 incident.

[8]

On September 19, 2019, under s. 685 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, this court dismissed a third appeal of Mr.
    Lochner from a refusal to grant
mandamus
, finding that the appeal was
    frivolous and vexatious:
Lochner v. Ontario (Attorney General)
, 2019
    ONCA 730. This court summarized his three attempts to pursue a private
    prosecution.  It concluded, at paras. 20-21, that the notice of appeal revealed
    no arguable grounds of appeal, and that the appeal lacked merit and appeared
    to have been initiated in pursuit of an unyielding course of harassment
    extending for more than a decade: at para. 23.

[9]

Mr. Lochner has sought to compel the respondent,
    the Ontario Civilian Police Commission, to commence an investigation, but these
    efforts have also been unsuccessful.

[10]

On May 17, 2019, the appellant was convicted by Corbett J. of
    contempt of court for his improper conduct during the hearing:
Lochner v.
    Ontario Civilian Police Commission
, 2019 ONSC 3048 (Div. Ct.). Justice Corbett
    wrote:

Mr Lochner has made it clear that he will not
    cease his efforts to litigate issues relating to the tasering of his brother in
    2006 unless he is restrained from so doing.  His four faxes are focused on
    how he believes his claims are meritorious and that there are still avenues
    available for him to pursue these issues in court.  His intemperate
    statements about jurists who disagree with him are eloquent evidence that he
    will continue, unabated, without the constraints of rationality or civility to
    constrain his behaviour.  Wantonly accusing a judge of impropriety because
    he disagrees with the judges decision is a clear hallmark of an irrational
    litigant, one who, in this case, is ungovernable even in the face of an
    immediate risk of incarceration.  Even a cursory review of past decisions
    related to these matters makes it clear that Mr Lochner has been carrying on as
    an unreasonable, ungovernable litigant for quite some time.  And it is
    time for that to end.

[11]

Justice Corbett also made a restraining order
    against Mr. Lochner. He was prohibited from commencing or pursuing in the
    courts of Ontario (including the Small Claims Court, the Superior Court of
    Justice, and the Divisional Court, but not including the Court of Appeal) (i)
    any proceeding against the Ontario Civilian Police Commission, or (ii) any
    proceeding in which he seeks relief of any kind in relation to the police
    incident in 2006 involving his brother, George Lochner, without first obtaining
    permission from the case management judge: at para. 15.
[1]
Justice Corbett appointed
    himself as the case management judge.

[12]

As mentioned, on September 23, 2019, this court
    foreclosed Mr. Lochners third attempt at a private prosecution. On December
    23, 2019, Mr. Lochner attempted to commence a fourth private prosecution in the
    Ontario Court of Justice. This was stayed, and Mr. Lochner sought leave to
    commence a new application for
mandamus
. Justice Corbett denied this
    request on February 13, 2020.
[2]
He concluded:

This Request was frivolous. I have provided
    these reasons so that there will be a record available publicly of this
    frivolous request.  However, there is a limit to the time and resources that
    the court should devote to frivolous proceedings brought by Mr. Lochner.  Mr.
    Lochner should understand that future requests of this nature will likely be
    decided peremptorily.

[13]

It is this order that is the subject matter of
    Mr. Lochners appeal before this court.

[14]

On July 20, 2020, Mr. Lochner sought permission
    once more to commence a private prosecution. On July 28, 2020, Corbett J.
    denied this request, determining that, like the request he had denied on
    February 13, 2020, it was vexatious:
Lochner v. Ontario Civilian Police
    Commission
, 2020 ONSC 4606 (Div. Ct.), at para. 6.

Rule 2.1

[15]

Rule 2.1.01(1) provides that the court may, on
    its own initiative, stay or dismiss a proceeding if the proceeding appears on
    its face to be frivolous or vexatious or otherwise an abuse of the process of
    the court. The determination may be made in a summary manner and on the basis
    of written materials.

[16]

Rule 2.1 responds to an ever-increasing problem
    in the courts: vexatious and abusive litigants. Justice Yves-Marie Morissette
    of the Court of Appeal of Quebec addressed the challenges associated with
    vexatious litigants in his 2019 article entitled Querulous and Vexatious
    Litigants as a Disorder of a Modern Legal System, 24 Can. Crim. L. Rev. 265. He
    introduces his article, at pp. 265-66, by explaining the problem that such
    litigants pose to other parties and all stakeholders in the administration of
    justice:

Some self-represented litigants never let go.
    Not only do they resist any reasonable attempt to settle a dispute
    consensually, but they also forever refuse to accept defeat in the courts. They
    continue to fight on, in any available forum, until they are forced to stop.
    Whatever the initial dispute that they had with an employer, a neighbour, an
    ex-spouse, a relative, a government agency, or any other person or institution,
    there is a strong probability that this dispute will have evolved and
    eventually degenerated into an all-out war fought on every front, at first in a
    tribunal or a court of law, against one or several parties, and later against
    those parties' lawyers, the lawyers' partners, their professional regulators or
    their insurers, the court personnel, judges in person, or even the judicial
    council if its decisions are subject to judicial review. Whenever possible,
    they will seek leave to appeal to the Supreme Court of Canada.

Among the many self-represented parties, these
    abnormally belligerent and obdurate litigants only account for a very small
    percentage of parties who go to court in person and without counsel. But they
    are a real and threatening burden for other parties and for all stakeholders in
    the administration of justice (be they the parties themselves or lawyers,
    judges, court administrators and court personnel). The situation of the parties
    targeted in the initial dispute is usually the worst. Apart from the often
    considerable legal and professional costs they may have to incur because of
    lengthy, repetitious and spurious proceedings, they may also develop a sense of
    despair at the ineffectiveness of the legal system.

[17]

In describing appellate experience, he writes,
    at p. 285, that appellate courts are not designed to cope with the burden
    imposed by vexatious litigants:

[Appellate jurisdictions] seem to be designed
    and staffed (perhaps understandably so) on the assumption that they will only
    deal with serious disputes and appeals deserving to be heard. But vexatious
    litigants, who
always
exercise any
de plano
right of appeal they
    may have, and who
always
seek leave to appeal when such leave is
    required, are frequent flyers in these courts and are present in a higher
    proportion on appeal than in first instance. [Emphasis in original.]

[18]

Vexatious litigants are a drain on our system of
    justice. In addition to being a burden on the opposing parties, they are a
    burden on the judiciary and court personnel. At least the judiciary has
    mechanisms to attempt to address the conduct of vexatious litigants, but court
    personnel are ill-equipped to do anything when faced with a barrage of telephone
    calls, emails, and other communications frequently characterized by incendiary
    and rude remarks. The cost and time incurred by opposing parties is significant,
    and adverse costs awards frequently cannot be relied upon to discourage future
    comparable behaviour.

[19]

In his article, Morrisette J.A., at pp. 274-76, lists
    the signs of a querulous disposition as follows:

·

the litigant is virtually always
    self-represented

·

the litigants attitude is characterized by
    marked obduracy

·

persistent reiteration and amplification

·

arguments are often unintelligible or highly
    confused

·

written submissions contain much that is not
    legally relevant to the dispute

·

the style of written submissions is quite
    distinctive (opaque and long written materials, faulty terminology and syntax,
    emphatic tone reinforced by different fonts and styles, multiple appendices and
    supporting documents, and the expression of a keen desire for moral
    vindication)

·

marked lack of due diligence in the advancement
    of claims

·

exhaustion of all rights of review, appeal, or
    revocation any time there is an adverse judgment

·

unsustainable allegations and gratuitous
    complaints against members of the legal profession, and

·

a cessation of proceedings only when the
    litigant cannot pay legal fees and costs.

[20]

Similarly, in
Gao v. Ontario (Workplace
    Safety and Insurance Board)
, 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras.
    14-15, Myers J. described the characteristics typically found in vexatious
    litigants:

·

bringing multiple proceedings to try to
    re-determine already determined issues

·

rolling forward grounds and issues from prior
    proceedings

·

persistent pursuit of unsuccessful appeals

·

failure to pay costs awards

·

bringing proceedings for a purpose other than
    the assertion of legitimate rights

·

bringing proceedings where no reasonable person
    would expect to obtain the relief sought, and

·

inappropriate submissions in both form (curious
    formatting, many pages, odd or irrelevant attachments, multiple methods of
    emphasis, numerous foot and marginal notes) and content (rambling discourse,
    rhetorical questions, repeated misuse of technical terms, references to self in
    the third person, inappropriately ingratiating statements, ultimatums, and threats).

Gao
was approved by this court in
Scaduto v. The Law Society of Upper Canada
,
    2015 ONCA 733, 343 O.A.C. 87, at para. 9, leave to appeal refused, [2015]
    S.C.C.A. No. 488;
Khan v. Krylov & Company LLP,
2017 ONCA 625, 138
    O.R. (3d) 581, at para. 13; and
Rallis v. Myers
, 2019 ONCA 437, at
    para. 5.

[21]

It is important for the courts to be gatekeepers
    of our system of justice. Abusive litigants should be screened out of the
    system so that parties with true justiciable disputes may have them adjudicated
    by the courts.

[22]

That said, two points merit special emphasis.
    First, not all self-represented parties are vexatious litigants. Second, even a
    vexatious litigant may raise a legitimate issue that justifies consideration by
    a court. It is in part for this reason that r. 2.1.01 is intended for the
    clearest of cases.

Mr. Lochners Case

[23]

Mr. Lochners is the clearest of cases. On its
    face, Mr. Lochners proceeding and the appeal of Corbett J.s order are frivolous,
    vexatious, and an abuse of process. They reflect re-litigation, the rehashing
    of the same complaints, and spurious inflammatory allegations. And, they have
    no prospect of success.

[24]

Mr. Lochner exhibits many of the features of
    vexatious litigants, as described by Morrisette J.A. and Myers J. Significantly,
    he has repeated substantially similar allegations in multiple, unsuccessful
    proceedings and makes wide-ranging but unsustainable allegations against a wide
    range of individuals.

[25]

I would conclude that a r. 2.1 order is
    appropriate in the circumstances, and I would further dismiss his appeal as
    frivolous, vexatious, and an abuse of process.

[26]

The question then becomes what terms, if any,
    should be added to this order to ensure that, on the one hand, Mr. Lochner is
    not forever barred from accessing the courts, but on the other, the people who
    work in the court system, be they judges, opposing counsel, or court personnel,
    are not subjected to abusive conduct, regular and sometimes daily
    communications, and frivolous motions. Terms of such orders often include a
    provision that the party be prohibited from making any further motions relating
    to the appeal unless leave of a judge or panel of this court is obtained. (See:
Simpson v. The Chartered Professional Accountants of Ontario
, 2016
    ONCA 806 at para. 49 and
Midland Resources Holding Limited v. Shtaif
,
    2018 ONCA 743, at para. 14). As we have seen, however, a term requiring leave
    has not served to discourage Mr. Lochner.

[27]

Although a statutory court, this court has
    implicit powers that derive from its power to control its own process:
R.
    v. Cunningham
, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19;
Marché DAlimentation
    Denis Thériault Ltée v. Giant Tiger Stores Limited
, 2007 ONCA 695, 87 O.R.
    (3d) 660, at para 24; and
R. v. Church of Scientology
(1986), 25
    C.C.C. (3d) 149 (Ont. C.A.), at pp. 150-151. The courts powers extend to all
    powers that are reasonably necessary to accomplish its mandate or, stated
    differently, the powers necessary to perform its intended functions:
R.
    v. 974649 Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. Thus,
    clearly this court may control its own process. The question here is the extent
    of this power.

[28]

The challenge presented by this exceptional case
    is how to strike an effective balance between protecting our system of justice and
    its stakeholders from abuse and frivolous proceedings and allowing access to
    Mr. Lochner for any future
arguable
proceedings.

[29]

One possible solution would be to require that Mr.
    Lochner access this court only through a lawyer.

[30]

In
Jonsson v. Lymer
, 2020 ABCA 167, 7
    Alta. L.R. (7th) 146, the Alberta Court of Appeal wrote that if the superior courts
    power to control its own process authorizes requiring a litigant to access the
    courts only through a lawyer, it should exercise this power sparingly.  Slatter
    J.A. concluded that the superior court had the power to prevent abuse of its
    processes but it should be used sparingly and only when statutory authority is
    inadequate: at paras. 29  33, and 42.  In that case, the court concluded that
    a vexatious litigant order ought not to have been granted.

[31]

Recently, in
Uber Technologies Inc. v.
    Heller
, 2020 SCC 16, 447 D.L.R. (4th) 179, albeit in a different context, Brown
    J. (concurring) cited
Jonsson
stating, at para. 111, that the rule of
    law requires that citizens have access to a venue where they can hold one
    another to account.  He wrote: Access to civil justice is paramount to the
    public legitimacy of the law and the legitimacy of the judiciary as the
    institution of the state that expounds and applies the law.

[32]

The ability to access justice is a foundational common
    law tradition.  In recent decades, the mantra of access to justice has gained
    considerable traction as the costs associated with litigation have skyrocketed
    making litigation an unrealistic means of dispute resolution for many if not most
    Ontarians.  This has evolved into a do-it-yourself litigation regime where
    guidance and instructions for self-represented parties have frequently been emphasized
    over the provision of legal advice and counsel for the self-represented party. Has
    the justice system placed too much emphasis on helping parties represent
    themselves rather than ensuring that parties are represented by counsel? Do-it-yourself
    manuals may give an impression of access to justice, but this guidance is an
    inadequate replacement for proper legal representation.  In his 2020 Opening of
    the Courts speech, Strathy C.J.O. stated:

In order to be fair, and to avoid unreasonable
    delay, particularly but not exclusively where the state is a litigant,
both
    parties must have competent legal representation
. This speaks to the urgent
    need for a significant re-investment in legal aid, including duty counsel and
    legal clinics and support for pro bono services. It is, quite frankly, a false
    economy to think that cutting these vital services saves money. When litigants
    are unrepresented and unsupported, the justice system slows to a crawl,
    valuable resources are drained, and other cases are held back. More important,
    the most vulnerable members of our society, those whom our justice system
    purports to protect, are further victimized because their playing field is
    uneven: Opening of the Courts of Ontario for 2020.
[3]
[Emphasis added.]

[33]

This vexing issue does not need to be resolved
    for the purposes of this case.  However, requiring a litigant to be represented
    by a lawyer in a case such as this ensures real and effective access to the
    courts. It also serves to enhance the justice experience for other
    stakeholders, most notably opposing parties. Lastly, it is not without
    parallel.  For example, although for different reasons, the Rules of Civil
    Procedure require that a corporation be represented by counsel, absent leave of
    the court: r.15.01(2).

[34]

Mr. Lochner is what I would describe as a
    lifestyle litigator; in other words, litigating has become his way of life. As this
    court observed, he has pursued an unyielding course of harassment extending
    for more than a decade. This calls for exceptional relief. Accordingly, in
    these extraordinary circumstances, I would order that Mr. Lochner be prohibited
    from making any further motions in this court in relation to this proceeding unless
    he is represented by a lawyer, his materials have been prepared and filed by a
    lawyer, and leave of a judge of this court has been obtained by a lawyer acting
    on his behalf. The counter staff may communicate with a lawyer acting for Mr.
    Lochner but should refuse to accept materials from, or communicate with, Mr.
    Lochner himself.

[35]

Requiring Mr. Lochner to access this court through
    a lawyer is within this courts power to control its own process. Doing so is
    justified and the only meaningful solution to the challenges presented by Mr. Lochner.
    These are exceptional circumstances.

Disposition

[36]

For these reasons, I would dismiss Mr. Lochners
    appeal as frivolous, vexatious, and an abuse of process pursuant to r. 2.1 and
    further order that Mr. Lochner be prohibited from making any further motions in
    relation to this proceeding unless he is represented by a lawyer, his materials
    have been prepared and filed by a lawyer, and leave of a judge of this court
    has been obtained by a lawyer acting on his behalf. The counter staff may
    communicate with a lawyer acting for Mr. Lochner but should refuse to accept
    materials from, or communicate with, Mr. Lochner himself.

Released: November 9, 2020 (S.E.P.)

S.E. Pepall
    J.A.

I agree. M.L.
    Benotto J.A.

I agree. S.
    Coroza J.A.





[1]
Justice Corbett subsequently confirmed that this encompasses
    proceedings in the Ontario Court of Justice and those before a Justice of the
    Peace



[2]
In his reasons, Corbett J. cited some of the decided cases relating
    to Mr. Lochner:

Lochner
    v. Toronto Police Services Board
, 2013 ONSC
    4387,
Lochner v. Toronto Police Services
    Board
,
2014 ONSC 2137
,
Lochner v. Toronto Police Services Board
,
2014 ONSC 3563
,
Lochner v. Toronto Police Services Board
,
2013 ONSC 2137
,
Lochner v. Callanan
,
2015 ONSC 617
, Lochner v. Callanan
,
2015 ONSC 2464
,
Lochner v. Callanan
,
2015 ONSC 3628
,
Lochner v. Callanan
,
2015 ONSC 4386
,
Lochner v. Callanan
,
2015 ONSC 5598
,
Lochner v. Toronto (Police Services)
,
2015 ONCA 626
,
Lochner v. Toronto (Police Services)
,
2015 ONCA 703
,
Lochner v. Callanan
,
2016 ONSC 591
,
Lochner v. Callanan
,
2016 ONSC 1614
,
Lochner v. Callanan
,
2016 ONSC 1705
,
Lochner v. Callanan
,
2016 ONSC 3379
,
Lochner v. Callanan
,
2016 ONSC 4136
,
Lochner v. Callanan
,
2016 ONSC 4561
,
Lochner v. Callanan
,
2016 ONSC 5384
,
R. v. Lochner
,
2017 ONSC 1235
,
Lochner v. Callanan
,
2016 ONCA 283
,
Lochner v. AG Ontario
,
2018 ONSC 2994
,
AG Ontario. v. Lochner
,
2018 ONCA 910
,
Lochner v. AG Ontario
,
2019 ONCA 52
.



[3]
Speech delivered at the Court of Appeal for Ontario, September 22,
    2020, online: Court of Appeal for Ontario
    <ontariocourts.ca/coa/en/ps/ocs/ocs.htm>.


