An Ottawa court has thrown out a discrimination lawsuit against KISS bassist and lead singer Gene Simmons launched against him by a concertgoer who was removed from one of the band’s shows in 2013.
Byeongheon Lee’s claim originated from what he saw as a wrongful ejection from the rock band’s July 25, 2013 concert at the Canadian Tire Centre in Ottawa.
In Lee v. Simmons et al., Ontario Superior Court Justice Marc R. Labrosse was asked to dismiss an action brought against Simmons for what Lee saw as the rocker’s involvement in his removal from the concert.
The statement of claim indicated that Simmons gestured to Lee and that Lee believed the gesture was related to him blocking the view of another concertgoer. It also states that the security staff told him that: “Mr. Simmons did not like his ethnicity.”
Lee alleged he was grabbed by the arm and escorted out of the Canadian Tire Centre and that he was not allowed to collect his coat, cellphone or money or communicate with the person he was at the concert with to advise that he was leaving the concert.
He claimed that being removed from the concert caused him to be “shocked, stunned, embarrassed, scared and humiliated.” Once escorted outside the seated area of the arena, Lee claims, he was surrounded, harassed, intimidated, assaulted and battered by the additional security staff.
In the claim, Lee said 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 stated that as a result of the incident and the injuries, he would be required to receive treatment.
But Labrosse indicated that Lee’s claim against 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, s. 46.1(2) “which 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.”
“Justice Labrosse found that the Superior Court did not have jurisdiction to entertain this claim, but that was not self-evident on the face of the statement of claim, so the issue required adjudication by the court,” said Stephen Cavanagh of Cavanagh LLP, an Ottawa firm retained by the insurer of KISS.
The Human Rights Tribunal of Ontario is the only venue that could hear a discrimination claim based on race or ethnicity. According to the decision, Lee, who is self-represnted, has applied to the Human Rights Tribunal and to the Human Rights Commission, but applications did not proceed.
“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,” said Labrosse.
In the decision, Labrosse indicated that, “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.
“The 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.
“This leaves the sole pleading of discrimination against the Defendant Simmons and the well-established law that there is no independent tort of discrimination.”
Cavanagh said in emailed comments to Legal Feeds that Lee was originally represented by counsel and that he “was in discussions with that lawyer for quite a while about letting some of the clients he was representing (including KISS, their manager and Gene Simmons) out of the action on formal grounds.
“For example, KISS is not a legal entity, capable of being sued, and no allegations were advanced against either the band or the manager,” said Cavanagh.
“The lawyer indicated that she was prepared to agree to this, but the paperwork never got completed properly before she withdrew from the case.
“Ultimately, we brought a motion before Justice Hackland for the dismissal of the action as against my clients, other than Gene Simmons, on those formal grounds. It was successful,” Cavanagh said.