Appellant and his family have filed numerous unsuccessful civil and criminal cases since 2006 incident
In a recent case, the Court of Appeal for Ontario prohibited a frivolous and vexatious litigant from filing more motions in connection with the case except if represented by a lawyer.
Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720 involves one of the latest in a series of proceedings initiated by appellant Silvano Lochner since 2006. In August 2006, members of the Toronto Police Emergency Task Force visited the appellant’s residence to serve a warrant for his arrest. "Mr. Lochner’s intellectually-disabled adult brother, George Lochner, was mistaken for the appellant, and in the course of subduing George, the police tasered him," wrote Sarah Pepall for the Ontario Court of Appeal.
The police officers mistook the appellant’s disabled brother George for him and 'tasered' George, who had to be taken to the hospital, according to the judgment.
The appellant and his family have since filed numerous unsuccessful civil and criminal cases, all rooted back to the August 2006 incident. They twice tried to remove George’s litigation guardian, the Public Guardian and Trustee, which settled the civil action over the family’s objections.
In May 2019, the Ontario Superior Court of Justice convicted the appellant of contempt of court due to his improper conduct during the hearing and issued a restraining order that banned him from pursuing any action against the Ontario Civilian Police Commission or any action relating to the August 2006 incident in any Ontario court.
In September 2019, the Ontario Court of Appeal dismissed the appellant’s third attempt at a private prosecution, ruling that the appeal was frivolous and vexatious and showed no merit or arguable grounds of appeal. In December 2019, the appellant made his fourth attempt at a private prosecution and sought leave to file a new application for mandamus. In February 2020, Justice David Corbett the Ontario Superior Court of Justice denied this application for being frivolous.
Last July 20, the appellant again requested permission to initiate a private prosecution, which Justice Corbett again denied on July 28 for being vexatious. The present appeal was from Justice Corbett’s February 2020 order.
The Ontario Court of Appeal dismissed the appeal as frivolous, vexatious and an abuse of process on its face. The appeal court said that the circumstances made it appropriate to issue an order under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appeal court further banned the appellant from filing any more motions before it in connection with this case, except if counsel represents the appellant, prepares and files materials on his behalf and obtains leave of a judge of the appeal court. The appellant’s counsel, and not the appellant himself, is allowed to communicate with the court’s counter staff and to file materials on his behalf.
While the appellant demonstrated several characteristics of vexatious litigants, such as a tendency to repeat similar allegations across numerous proceedings, the appeal court considered how it should achieve an effective balance between safeguarding the justice system and its stakeholders from these frivolous proceedings and ensuring that the appellant retains access to justice for future arguable proceedings.
It was through this line of thinking that the appeal court decided to require the appellant, under the exceptional circumstances and in accordance with its power to control its own process, to seek the representation of a lawyer if he wished to file any more motions.
“Has the justice system placed too much emphasis on helping parties represent themselves rather than ensuring that parties are represented by counsel?” wrote Justice Pepall. “Do-it-yourself manuals may give an impression of access to justice, but this guidance is an inadequate replacement for proper legal representation.”