Lee v. McGhee, 2018 ONSC 6463

COURT FILE NO.: 14-61407 DATE: 2018/10/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Byeongheon Lee, Plaintiff AND Doc McGhee, McGhee Entertainment, Capital Security and Investigations, Canadian Tire Centre, Gene Simmons and KISS, Defendants

BEFORE: Madam Justice R. Ryan Bell

COUNSEL: Plaintiff, self-represented Robin S. Brown, for the Defendant Gene Simmons Pierre Champagne, for the Defendant Canadian Tire Centre

HEARD: October 19, 2018

Endorsement

Overview

[1] Byeongheon Lee alleges that he suffered mental distress, anxiety, depression and post-traumatic stress disorder, loss of income, loss of reputation and loss of business following a concert by KISS, held in Ottawa in July 2013 at the Canadian Tire Centre (“CTC”). Mr. Lee alleges that he was removed from the concert because the defendant Gene Simmons “didn’t like his ethnicity.”

[2] In August 2017, Labrosse J. dismissed Mr. Lee’s claim against Mr. Simmons because it was based solely on an allegation of discrimination and barred by the Ontario Human Rights Code. In January 2018, Labrosse J. ordered Mr. Lee to pay Mr. Simmons’ costs of the motion in the amount of $5,500, within thirty days. In May 2018, Kershman J. provided Mr. Lee with an additional 120 days within which to pay, and stated: “[i]f the $5,500 of costs is not paid within 120 days of the release of this decision, the Defendants can move to dismiss the action on notice to the Plaintiff.” Mr. Lee has not paid the costs ordered by Labrosse J. He has also not paid costs of $500 ordered by Master Champagne, as she then was, at a scheduled case conference on April 4, 2018. The case conference could not proceed because Mr. Lee did not attend.

[3] Mr. Simmons moves to dismiss the action as against him. In the alternative, he seeks an order requiring Mr. Lee to post security for costs to his credit. CTC moves for similar relief.

[4] Rules 57.03(2) and 60.12 of the Rules of Civil Procedure grant the court authority to dismiss or stay an action where a party has failed to pay a costs award. These rules recognize that situations arise where the enforcement of interlocutory orders overrides the general principle that a matter should be heard on its merits (Talluto v. Marcus, 2017 ONSC 1243, at para. 22). The right of access to the courts comes with a responsibility to abide by the Rules of Civil Procedure and to comply with orders of the court. A failure to enforce orders is not only unfair to the parties opposite; it also undermines respect for the court and the civil justice system (Rana v. Unifund Assurance Company, 2016 ONSC 2502, at para. 50).

[5] Mr. Lee has not abided by the Rules of Civil Procedure. Mr. Lee has not complied with court orders. He seeks to blame others for his conduct of this litigation. In my view, Mr. Lee’s conduct has reached the point where the interests of justice require the dismissal of his claim as against Mr. Simmons and CTC.

Litigation History

[6] Mr. Lee commenced his action against the defendants in 2014. At the time, he was represented by a lawyer.

[7] The action as against Doc McGhee was dismissed, on consent, in October 2016.

[8] In November 2016, Hackland J. dismissed Mr. Lee’s action as against KISS and McGhee Entertainment on the basis that it failed to disclose a cause of action against them. Hackland J. awarded costs to KISS and McGhee Entertainment in the amount of $3,500, to be paid by Mr. Lee within thirty days. By this time, Mr. Lee was self-represented. In his endorsement, Hackland J. wrote: “[t]he plaintiff is strongly advised to transfer this case to the Small Claims Court.”

[9] Counsel for KISS and McGhee Entertainment – who is also counsel for Mr. Simmons – requested payment of the costs awarded by Hackland J. several times. Those costs were ultimately paid by Mr. Lee, but they were not paid within thirty days as ordered.

[10] On August 22, 2017, Labrosse J. granted Mr. Simmons’ motion and dismissed the action as against Mr. Simmons on the basis that the Superior Court has no jurisdiction over the sole claim of discrimination made against Mr. Simmons.

[11] Labrosse J. invited the parties to provide written submissions in the event they were unable to agree on the costs of the motion. Mr. Simmons provided costs submissions. Mr. Lee did not. Labrosse J. awarded Mr. Simmons his costs of the motion fixed in the amount of $5,500, payable within thirty days.

[12] Mr. Lee appealed Labrosse J.’s order to the Court of Appeal. In February 2018, the Court of Appeal dismissed Mr. Lee’s appeal, but without prejudice to his ability to move within 45 days for leave to amend his statement of claim to bring it within the jurisdiction of the Superior Court.

[13] Mr. Lee then moved before Kershman J. for leave to amend his statement of claim. The motion was opposed by Mr. Simmons and CTC. On April 4, 2018, while the decision on the motion for leave to amend remained under reserve, Mr. Lee failed to attend a case conference. Master Champagne, as she then was, acknowledged in her endorsement that Mr. Lee might have felt there was no need to attend because he was waiting for Kershman J.’s decision; however, “[b]e that as it may, Mr. Lee should have advised the court and taken its direction; he cannot simply fail to show up.” Mr. Lee was ordered to pay CTC costs thrown away of $500, payable forthwith.

[14] The April 4, 2018 conference was not the first time Mr. Lee failed to attend a scheduled case conference. In December 2016, Mr. Lee did not attend the first case conference to set a timetable. On January 25, 2018, Mr. Lee once again failed to attend. The matter was adjourned, on consent, to April 4, 2018.

[15] In an attempt to excuse his non-payment, Mr. Lee takes the position that the costs order of Master Champagne, as she then was, is unreasonable. I reject this submission for the following reasons. First, Mr. Lee took no steps to challenge the order at the time it was made. Second, he failed to attend scheduled case conferences on two prior occasions. Third, the April 4, 2018 date was scheduled on consent. I infer from these facts that Mr. Lee simply chose to ignore the costs order.

[16] In May 2018, Kershman J. released his reasons for judgment on Mr. Lee’s motion for leave to amend. Kershman J. found that the proposed amendments to the statement of claim did not comply with the rules of pleadings as set out in Rule 25.06(1) and (2) of the Rules of Civil Procedure. In addition, Kershman J. stated that:

(i) “the Court is not prepared to allow any amendments that are now statute barred;” (ii) “the Court will not allow any allegations in the proposed Amended Statement of Claim that refer to discrimination under the Human Rights Code or the Canadian Charter of Rights and Freedoms whether directly or indirectly;” (iii) “Justice Labrosse in his decision has already rejected any potential claim of harassment or assault against Mr. Simmons;” and (iv) “the Plaintiff will not be allowed to make a claim for an intentional indirect tort.”

[17] In his reasons for judgment, Kershman J. recommended that Mr. Lee seek legal advice in relation to the proposed amended statement of claim. Kershman J. also stated that if Mr. Lee decided to proceed with the amended statement of claim – with or without legal advice – Mr. Lee was required to serve and file the pleading within fifty days in accordance with the Rules of Civil Procedure, including Rule 26.03, which deals with how amendments to a pleading are to be made. The amended statement of claim would be subject to the defendants’ rights to challenge its propriety in the event that it did not comply with the decisions of Labrosse J. and Kershman J.

[18] With respect to the costs order of Labrosse J., Kershman J. provided Mr. Lee with an additional 120 days within which to pay the costs, failing which “the Defendants can move to dismiss the action on notice to the Plaintiff.” It has been more than 120 days since the release of Kershman J.’s reasons for judgment on May 17, 2018. The costs order of Labrosse J. remains outstanding.

[19] Kershman J. fixed the costs of the motion before him at $3,500, in the event Mr. Lee served an amended statement of claim.

[20] Counsel for Mr. Simmons, with Mr. Lee’s knowledge, scheduled an appointment before Kershman J. to ensure that the draft order accurately reflected the court’s intentions. In the interim, and despite no order having been taken out, Mr. Lee proceeded to have his amended statement of claim filed with the court. At the hearing of the motions, I was provided a comparison of the amended statement of claim, as filed, to the proposed amended statement of claim in respect of which Kershman J. refused leave to amend. As is readily apparent from the comparison, there are no new allegations against Mr. Simmons. Apart from the deletion of the references to “intentional indirect tort,” the filed amended pleading and the proposed amended pleading which was before Kershman J. are the same.

[21] On July 18, 2018, the date originally scheduled for the appearance before Kershman J. to settle the order, Mr. Simmons and CTC moved to strike the amended statement of claim which Mr. Lee had been able to have filed with the court. The decision from this attendance remains under reserve.

Analysis

[22] In my view, the conduct of Mr. Lee in this case warrants the exercise of the court’s discretion to dismiss his action as against Mr. Simmons and CTC pursuant to Rules 57.03(2) and 60.12(b).

[23] Rule 57.03(2) addresses the matter of unpaid costs. It provides that where a party fails to pay the costs of a motion, the court may dismiss or stay the party’s proceeding or make such other order as is just. Rule 60.12 addresses interlocutory orders generally and provides the court broad discretion to sanction non-compliance with an order by dismissing the action, striking the pleading, issuing a stay of proceedings or making “such other order as is just.”

[24] In Rana, at para. 50, Dunphy J. set out the principles that should guide the court in exercising its discretion under Rules 57.03(2) and 60.12. Mr. Simmons and CTC rely, in particular, on the following:

b. The right of access to the courts must be accompanied by the responsibility to abide by the rules of civil procedure and to comply with orders of the court – to exempt impecunious parties from the enforcement of costs orders when made would amount to granting “carte blanche to continue to ignore the rules and orders of the court and take unsupportable steps in the action without fear of consequences” per Master Dash in Heu v. Forder Estate, 2011 ONSC 16198 at para. 19-20;

e. If the orders of the court are “cavalierly ignored” and if a litigant “continuously fails to comply with her obligations as a litigant and then fails to abide by the costs consequences attendant upon that behavior, the court is justified in bringing some finality to the action” (per Master Dash in Burrell v. Peel (Regional Municipality) Police Services Board, 2007 ONSC 46173 at para. 63; aff’d 2010 ONSC 1387);

g. Self-represented litigants, while entitled to some accommodation and assistance to ensure a fair hearing, are not entitled to abuse the system or the party opposite and failure to enforce orders once made against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system: per Myers J. in Baradaran v. Tarion Corp., 2015 ONSC 7892; Bilich v. Toronto (City) Police Services Board, 2014 ONSC 6765;

h. “Courts usually talk in terms of prejudice that cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them”: per D.M. Brown J.A. in Schwilgin v. Szivy, 2015 ONCA 816 at para. 23).

[25] Mr. Lee has failed to comply with the costs order of Labrosse J., despite the fact that he was extended an indulgence of 120 days by Kershman J. Mr. Lee has ignored the costs order of Master Champagne, as she then was. In addition, I have considered the following additional factors:

• Mr. Lee did not avail himself of the opportunity to make submissions to Labrosse J. on the issue of costs.
• Mr. Lee failed to attend three case conferences aimed at setting a timetable in his own action. With respect to the April 4, 2018 conference, the endorsement reflects that counsel for CTC advised Mr. Lee “that he believes that the appearance today is mandatory and cannot be cancelled other than by the court. Mr. Lee states that he will not attend nonetheless and he is not here.” As the court stated, Mr. Lee should have advised the court and “taken its direction; he cannot simply fail to show up.”
• At no time did Mr. Lee advise that he intended to pay the costs orders.
• Mr. Lee squandered the opportunity given to him by Kershman J. – that is, the additional 120 days to pay the costs order of Labrosse J. He has already been given “one last chance.”
• Until the hearing of these motions, Mr. Lee provided no explanation or rationale as to why the costs orders had not been paid. Mr. Lee provided no evidence as to his financial circumstances. Mr. Lee’s reference at the hearing to other litigation in which he is involved and in respect of which he hopes to secure a favourable damages award is not evidence. The inescapable conclusion from the evidence in the record is Mr. Lee chose to ignore the costs orders.
• Mr. Lee was aware of the scheduled attendance before Kershman J. to settle the terms of the order. In the interim, however, Mr. Lee proceeded to have the amended statement of claim issued, a document that was substantially the same as the proposed draft pleading rejected by Kershman J.
• At the hearing of the motions, Mr. Lee blamed his former counsel for alleged deficiencies in the original pleading. He also blamed his conduct on an alleged conflict between the decisions of Labrosse J. and the Court of Appeal. There is no evidence in support of the former assertion and there is no merit with respect to the latter. Mr. Lee’s behaviour is not that of a responsible litigant.

[26] Fairness dictates that Mr. Lee not put these defendants to still more expense when he has already been provided with a considerable indulgence in the order of Kershman J. Mr. Lee has continuously failed to comply with his obligations as a litigant. His behaviour is unfair to these defendants. His conduct shows disrespect for the court and the civil justice system.

[27] As a self-represented litigant, Mr. Lee is entitled to some accommodation and assistance. He has received plenty: Hackland J.’s recommendation that Mr. Lee transfer this matter to Small Claims Court; the Court of Appeal’s dismissal of Mr. Lee’s appeal but without prejudice to his ability to move for leave to amend his statement of claim; the rescheduling of the case conferences; Kershman J.’s recommendation that Mr. Lee seek legal advice; and Kershman J.’s order permitting Mr. Lee an additional 120 days within which to pay the costs order of Labrosse J. The considerable accommodation afforded to Mr. Lee does not mean that he is entitled to abuse the system or the parties opposite. Simply put, Mr. Lee is not entitled to continue to ignore the rules and orders of the court, without fear of the consequences.

Disposition

[28] For these reasons, I grant the motions of Mr. Simmons and CTC. The action as against Mr. Simmons and CTC is dismissed with costs. I also dispense with the need for Mr. Lee’s approval of the form of the draft order.

[29] Mr. Simmons and CTC may provide me with their submissions as to costs by November 12, 2018. Mr. Lee shall provide me with his submissions in response by November 26, 2018.

Madam Justice R. Ryan Bell Date: October 30, 2018

ONTARIO SUPERIOR COURT OF JUSTICE RE: Byeongheon Lee, Plaintiff AND Doc McGhee, McGhee Entertainment, Capital Security and Investigations, Canadian Tire Centre, Gene Simmons and KISS, Defendants BEFORE: Madam Justice R. Ryan Bell COUNSEL: Plaintiff, self-represented Robin S. Brown, for the Defendant Gene Simmons Pierre Champagne, for the Defendant Canadian Tire Centre HEARD: October 19, 2018 ENDORSEMENT Ryan Bell, J. Released: October 30, 2018