Court of Appeal for Ontario
Date: 2017-12-19
Docket: M48532 (C64335)
Panel: Hourigan, Brown JJ.A. and Himel J. (ad hoc)
Between
Byeongheon Lee Respondent (Responding Party)
and
Doc McGhee, McGhee Entertainment, Capital Security and Investigations, Canadian Tire Centre, Gene Simmons and Kiss Moving Party (Respondents)
Counsel
Robin Brown, for the moving party
Byeongheon Lee, appearing in person
Heard and released orally: December 13, 2017
Endorsement
[1] The appellant attended a Kiss concert at the Canadian Tire Centre in Ottawa on July 25, 2013. He was removed from the arena by security staff. He commenced an action claiming damages as a result of discrimination, harassment, intentional infliction of nervous shock, mental distress, loss of income, loss of reputation and loss of business.
[2] The claims against the defendants McGhee Entertainment and Kiss were dismissed by Hackland J. on November 22, 2016 for failing to disclose a cause of action.
[3] The respondent Simmons brought a motion to dismiss under rule 21.01(1)(b) as disclosing no cause of action which was granted by Labrosse J. He held that the sole claim against Simmons was alleging discrimination and that the effect of s. 46.1(2) of the Ontario Human Rights Code was to prohibit an action solely on an infringement of a right under Part 1 of the Code. The appellant appeals that order but does not assert any alleged error of law.
[4] Simmons brings a motion to quash the appeal under s. 134(3) of the Courts of Justice Act alleging that the appeal is devoid of merit. A court will seldom exercise its power to quash an appeal because it is manifestly devoid of merit, as this will usually require full argument on all grounds the appeal raised: see, Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.).
[5] We see no reason to depart from that principle.
[6] Motion to quash the appeal is dismissed. The appeal of this matter shall be heard on February 8, 2018 for one hour. Respondent shall serve and file a factum by January 19, 2018. Costs of this motion are reserved to the panel hearing the appeal.
"C.W. Hourigan J.A." "David Brown J.A." "Himel J."