



COURT OF APPEAL FOR ONTARIO

CITATION: Lochner v. Callanan, 2017 ONCA 283

DATE: 20170406

DOCKET: C62498 and C62704

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Lina Lochner, Paul Lochner
and George
    Lochner
by his litigation guardian  Public Guardian and Trustee

Plaintiffs (
Appellants
)

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 (
Respondents in Appeal
)

Lina Lochner and Paul Lochner, acting in person

Walter Kim, for the Public Guardian and Trustee

Laura Day, for the respondents

Heard: March 23, 2017

On appeal from the orders of Justice Robert Goldstein of
    the Superior Court of Justice, dated July 8, 2016 and September 13, 2016.

ENDORSEMENT

[1]

The appellants appeal the two orders of the motions judge and bring a
    motion to introduce fresh evidence on appeal.

[2]

These proceedings arise out of an altercation between the appellants,
    George Lochner, and the police, during which George Lochner was tasered by the
    police. The appellants and George Lochner brought an action for damages against
    the police. The appellants claims were dismissed when they failed to attend at
    the trial of their action.

[3]

George Lochner is a person under a disability. The Public Guardian and
    Trustee is his litigation guardian in the proceedings arising from his
    altercation with the police. The proposed settlement of George Lochners claim
    received court approval by order of Justice D. Wilson (the settlement approval
    judge) on March 9, 2016 (the settlement order).

[4]

The appellants take issue with the settlement of George Lochners
    claim.  They brought a motion to set aside the settlement order under r. 37.14,
    and then brought another motion to set aside that order, this time relying on
    r. 39.01(6).  Both motions were dismissed. The motions judge also ordered that
    they were prohibited from filing any further motions in the Superior Court
    absent leave. They appeal from each of the orders.

[5]

With respect to the dismissal of their r. 37.14 motion, the appellants
    submit that the motions judge erred in determining that they had no standing to
    bring that motion.

[6]

We disagree. Although the Public Guardian and Trustee provided the
    appellants with a copy of the notice of motion to approve the settlement as a
    courtesy, neither of the appellants was a party or other person who was
    affected by the order within the meaning contemplated by r. 37.14(1). To have
    standing to challenge the settlement order, the appellants had to demonstrate
    that their proprietary or economic interests were affected by the order:
Ivandaeva
    Total Image Salon Inc. v. Hlembizky
(2003), 63 O.R. (3d) 769 (C.A.). They
    failed to meet this burden. The motions judge determined that there was no
    evidence that the appellants interests were affected by the settlement order. We
    see no error in the motions judges finding, which is entitled to deference on
    appeal.

[7]

With respect to the appellants r. 39.01(6) motion, the appellants submit
    that the motions judge erred in dismissing their motion as an abuse of process
    and in ordering that they bring no further motions without leave of the court. The
    appellants maintain that the Public Guardian and Trustee failed to make full
    disclosure before the settlement approval judge.

[8]

We disagree. The motions judge correctly concluded that the appellants
    were attempting to re-assert their challenge to the settlement order and to re-litigate
    the same issue of standing that was the subject of their first motion, and that
    their second motion was therefore an abuse of process. Further, there is no
    basis for the argument that full disclosure was not made. The appellants were
    given the opportunity to make their views known to the settlement approval
    judge and the Public Guardian and Trustee filed a supplementary motion record
    which included the appellants arguments and objections to the settlements, and
    documents that they said were relevant. Finally, there was no error in the
    exercise of the motions judges discretion, based on the record before him, to
    make the order that the appellants bring no further motions without leave.

[9]

Lastly, the appellants proposed fresh evidence consists of the opinion
    of Liam Hendrikse concerning George Lochners taser injuries. This evidence
    relates to the question of George Lochners damages and has nothing to do with
    the issue of the appellants standing to challenge the settlement order. As a
    result, we would not admit this evidence because it could not possibly have
    affected the outcome of the motions to set aside the settlement order. It fails
    to meet the test for admission of fresh evidence. See
R. v. Palmer
, [1980]
    1 S.C.R. 759.  The motion for admission of fresh evidence is therefore
    dismissed.

[10]

For these reasons, the appeals are dismissed.

[11]

The appellants shall pay $3,000 in costs as follows: $750 to the Public
    Guardian and Trustee for each motion, for a total of $1,500, and $750 to the
    respondents for each motion, for a total of $1,500, for their partial indemnity
    costs of both appeals, inclusive of disbursements and taxes.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


