CITATION: Lee v Simmons et al., 2017 ONSC 4980

COURT FILE NO.: 14-61407

DATE: 2017/08/22

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: Justice Marc R. Labrosse

COUNSEL: Byeongheon Lee, Self-Represented

Stephen Cavanagh and Robin S. Brown, Counsel, for the Defendant Gene Simmons

HEARD: May 23, 2017

ENDORSEMENT

Mr. Justice Marc. R. Labrosse

1The Defendant, Gene Simmons brings this motion seeking an order dismissing this action as against him.

2The Plaintiff’s claim originates from his alleged wrongful ejection from a concert of the rock band Kiss which was held on July 25, 2013 at Canadian Tire Centre in Ottawa. The Plaintiff alleges that the Defendant Simmons discriminated against him by having him removed from the concert because Simmons did not like the Plaintiff’s ethnicity. The Plaintiff claims that his removal caused him to be shocked, stunned, embarrassed, scared and humiliated. Once escorted outside the seated area of the arena, the Plaintiff claims having been surrounded, harassed, intimidated, assaulted and battered by the additional security staff.

3However, the Plaintiff’s claim against the Defendant Simmons is based on discrimination due to his race in accordance with s. 46.1 of the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code”) Section 46.1(2) clearly states that an action cannot be commenced solely on an infringement of a right protected under Part 1 of the Code which include both race and ethnicity.

4For the reasons which follow, I conclude that s. 46.1(2) of the Code prohibits the Plaintiff from commencing a claim against the Defendant Simmons given that his claim is based solely on an infringement of a right under Part 1 of the Code.

Background

Background

5On July 25, 2013, the Plaintiff attended a Kiss concert at the Canadian Tire Centre in Ottawa. He has pleaded that he was removed from the arena at the request of the Defendant Simmons.

6The Plaintiff has pleaded that at the time of his removal, he was shocked, stunned, embarrassed, scared and humiliated. He further pleads that he co-operated with the security staff and when he arrived in the hallway outside the seated portion of the arena, he was suddenly surrounded, harassed, intimidated, assaulted and battered by the additional security staff. The plaintiff pleads that he was grabbed by the arm and escorted out of the Canadian Tire Centre and that he was not allowed to collect his coat, cellular phone, money nor communicate with the person he attended the concert with to advise that he was leaving the concert.

7The Plaintiff states that as a result of the discrimination, harassment, intentional infliction of nervous shock, and mental distress he endured, that he suffered the following injuries: mental distress, depression, anxiety, post-traumatic stress disorder, loss of income, loss of reputation and loss of business. He further pleads that as a result of the incident and the injuries, he will be required to receive treatment.

8The Statement of Claim mentions the Defendant Simmons in four different paragraphs and those paragraphs can be summarized as follows:

(a) Para 7: That the Defendant Simmons was a member of Kiss and the individual that is alleged to have discriminated against the Plaintiff;

(b) Para 12: The Defendant Simmons gestured to the Plaintiff and the Plaintiff believed that the gesture was related to him blocking the view of another patron as he had been standing;

(c) Para 13: That the Plaintiff observed Simmons gesturing to some of the staff and that shortly thereafter, he was approached by the in-house security and informed that he had to vacate the premises; and

(d) Para 16: That the security staff told him that: “Mr. Simmons did not like his ethnicity”.

9There is no other mention of the Defendant Simmons in the Statement of Claim. However at para. 19, the Plaintiff states that “as a result of the discrimination….he suffered the following injuries:…”. Arguably, para. 19 contains a pleading directed to the Defendant Simmons.

10The Defendant Capital Security and Investigations has also pleaded that the Plaintiff was removed from the arena at the request of the Defendant Simmons.

Position of the Parties

Position of the Parties

11The Defendant Simmons moves to dismiss the action as against himself. Simmons did not pursue any of the other relief sought in the Notice of Motion. In a Motion Confirmation Form sent prior to the hearing of the motion, Simmons confirmed that the issues surrounding the dismissal of the crossclaim of the Defendant, Capital Security as against Simmons had been resolved.

12The Defendant Simmons relies on s. 46.1(2) of the Code which does not permit a person to commence an action based solely on an infringement of a right under Part 1 of the Code. He also relies on the jurisprudence established by the Supreme Court of Canada as summarized in Jaffer v. York University, 2010 ONCA 654 which states that there is no independent tort of discrimination and that the Human Rights Tribunal is the only forum that has jurisdiction to hear human rights claims exclusively falling under Part I of the Code.

13Thus, the Defendant Simmons states that the Plaintiff’s claim against Simmons should be:

(i) struck pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (“Rules”) as it discloses no reasonable cause of action against Simmons;

(ii) dismissed pursuant to Rule 21.01(3)(a) as the Superior Court has no jurisdiction over the subject matter of the action against Simmons; and,

(iii) dismissed pursuant to Rule 21.01(3)(d) as the action against Simmons is frivolous or vexatious or is otherwise an abuse of the process of the court.

14The Plaintiff’s Responding Record contains an affidavit where he makes further allegations against the Defendants which go beyond the allegations made in the Statement of Claim. He groups together the alleged discrimination, harassment and assault against all the Defendants.

15While he makes no request to amend the Statement of Claim, the Plaintiff’s affidavit states that the Defendant Simmons also assaulted and harassed the Plaintiff. These allegations are not part of the Claim. There are no facts included to support the suggestion that Simmons assaulted and harassed the Plaintiff.

16During oral argument for this motion, the Plaintiff advanced the notion of “wrongful eviction” and that the actions of Simmons amounted to an “intentional indirect tort”. Once again, no request was made to amend the Statement of Claim.

17Finally, the Plaintiff’s Responding Record contains a statement that the Plaintiff has applied to the Human Rights Tribunal and to the Human Rights Commission but applications did not proceed.

Analysis

Analysis

18There is no real dispute that the Statement of Claim as drafted only contains allegations against the Defendant Simmons based on discrimination. Even when considered liberally, the Statement of Claim does not suggest that Mr. Simmons’ action of seeking the removal of the Plaintiff caused the claimed harassment or assault.

19The Statement of Claim was drafted at a time when the Plaintiff was represented by counsel.

20The Plaintiff has argued that the request to remove the Plaintiff was an intentional indirect tort. I fail to see how the action of requesting the removal of the Plaintiff from a concert, regardless of the reason for the request, would extend liability to Simmons for the manner in which security staff would have proceeded with such removal. I am of the view that the claim as pleaded may allow the Plaintiff to claim harassment and assault against the security staff, however those claims are not made out against the Defendant Simmons. Any facts supporting a claim for harassment or assault commenced at the point that security staff acted on the request by Simmons to have the Plaintiff removed and the manner in which they proceeded.

21This leaves the sole pleading of discrimination against the Defendant Simmons and the well-established law that there is no independent tort of discrimination.

22The Plaintiff presented his opposition to the requested relief as a self-represented litigant and I am mindful of the Court’s gatekeeping function to assist the administration of justice to have cased heard on their merit.

23Rule 1.04 of the Rules requires that the Court apply the Rules to secure the just, most expeditious and least expensive determination of the proceedings. Further, Rule 1.04 calls for proportionality in making orders and giving directions.

24Rule 1.05 of the Rules allows for the court to impose such terms and give such directions as are just. As part of this discretion, the Court could have considered a request by the Plaintiff to amend its pleading as against the Defendant Simmons but no such request has been made.

25I am of the view that it is not part of the Court’s gatekeeping function to go beyond a pleading drafted by counsel of record and authorize the amendment of such pleading when such relief has not been sought from the Court even where the party is self-represented. Furthermore, it would be improper to authorize such an amendment where the Court has not been persuaded that there are any reasonable prospects of the claims of harassment or assault being successful against the Defendant Simmons. Rule 1.04 of the Rules calls for the Court to facilitate the most expeditious and least expensive determination of the proceedings and in my view there is no merit to allowing the claim against the Defendant Simmons to proceed to an unrequested amendment of the Statement of Claim.

26Finally, I have considered the Statement of Claim without focusing on a named causes of action to determine if the material facts as pleaded could lead to a finding that some cause of action exists other than discrimination. For example, I do not believe that there is any vicarious liability which falls upon Mr. Simmons for the actions of the security personnel. Nor do I find that by asking for the Plaintiff to be removed, that it was reasonably foreseeable that the Plaintiff would be harassed or assaulted.

27In the end, the Plaintiff’s claim against the Defendant Simmons is that Simmons discriminated against him. There is evidence which supports such a claim based on notes of the security company. However, the Superior Court does not have the jurisdiction to hear a claim for discrimination which would be based on the Plaintiff’s race or ethnicity. Such a claim falls under the jurisdiction of the Human Rights Tribunal: see Jaffer v. York University.

28Consequently, the Plaintiff’s claim as against the Defendant Gene Simmons is dismissed on the ground that the Superior Court has no jurisdiction over the sole claim of discrimination made against Mr. Simmons. As a result of this conclusion, there is no need to consider the other relief sought in the Notice of Motion.

[29]

30In the event that the Defendant Simmons has any difficulty taking out the order which arises from my endorsement after properly serving the Plaintiff with its draft order, he may seek to have an appointment before me to settle the order, on notice to the Plaintiff.

Order

Order

31It is hereby ordered that the Plaintiff’s claim as against the Defendant Gene Simmons is dismissed.

Costs

Costs

32If the parties are unable to agree on the issue of costs, they may provide submissions in writing. The Defendant Simmons will have 30 days to provide written costs submissions and the Plaintiff will then have 30 days to respond in writing. The costs submissions shall not exceed three pages in length, excluding Costs Outlines and attachments.