Court of Appeal for Ontario

Date: 2018-02-09 Docket: C64335

Judges: Feldman, Paciocco and Fairburn JJ.A.

Between

Byeongheon Lee Appellant/Plaintiff

and

Doc McGhee, McGhee Entertainment, Capital Security and Investigations, Canadian Tire Centre, Gene Simmons and Kiss Respondents/Defendants

Counsel

Byeongheon Lee, appearing in person

Stephen Cavanagh, for the respondent, Simmons

Heard and released orally: February 8, 2018

On appeal from: the judgment of Justice Marc R. Labrosse of the Superior Court of Justice, dated August 22, 2017.

Reasons for Decision

[1] The appellant's claim was struck out as outside the jurisdiction of the Superior Court.

[2] Under s. 46.1(2) of the Human Rights Code, R.S.O. 1990, c. H.19, a person cannot bring a civil court action "based solely on an infringement of a right under part 1" of the Code. The statement of claim as currently drafted bases the claim against Mr. Simmons solely on a breach of the Human Rights Code.

[3] The motion judge discussed the possibility of an amendment to the statement of claim but stated that the appellant did not request an opportunity to amend. He also reviewed the statement of claim and could not find facts that would support another named cause of action against Mr. Simmons.

[4] The appellant is a self-represented litigant. He has made attempts to seek redress through approaches to the Human Rights Commission, but he has been unable to make progress there whether because of language difficulties or for other reasons.

[5] We see no error in the decision of the motion judge based on the statement of claim as drafted. It was clear however during the oral argument of this appeal that Mr. Lee did not fully appreciate the limits of the statement of claim as drafted. In our view the appellant should be entitled – if he wants to and thinks he has the basis to do so – to bring a motion in Superior Court to amend his statement of claim to bring it within the jurisdiction of the Superior Court.

[6] The appeal is therefore dismissed, but without prejudice to the ability of the appellant to bring a motion, if so advised, to the Superior Court within 45 days of today for leave to amend his statement of claim to bring it within the jurisdiction of the Superior Court.

[7] No costs will be awarded.

K. Feldman J.A.

David M. Paciocco J.A.

Fairburn J.A.