Lorna Pardy’s 2007 visit to a Vancouver comedy club has netted her human rights damages of $22,500.
I sense this is a decision we’re going to be hearing about for a long time to come.
Pardy filed a human rights complaint against comic Guy Earle and the owner of the Vancouver club (Zesty’s) at which he was performing in 2007.
Pardy alleged she and her same-sex partner were “subjected to a tirade of homophobic and sexist comments” by Earle and that, as a result, she experienced harassment.
Earle denied that he discriminated against Pardy.
He said that Pardy and her companions were “loud, disruptive, and heckled the comics who performed that evening, including him.”
Earle and the owner of Zesty’s applied in 2008 to have Pardy’s human rights complaint dismissed.
Both applications were rejected by the tribunal.
Earle and Zesty’s appealed that decision to B.C.’s Supreme Court which sent the matter back to the tribunal for reconsideration.
Now, four years after the dustup at Zesty’s, the tribunal has issued its decision.
The result (all 523 paragraphs of it spread over 103 pages) is a finding that Pardy was discriminated against and an accompanying award of damages of $22,500.
The facts, as found by the tribunal, were that Pardy and her partner and a friend were moved to a table near the club’s stage when the patio closed that evening.
They did not heckle or otherwise disrupt the show—when Earle saw Ms. Pardy’s partner give her a kiss, he “directed virulent insults exclusively at her and others at her table based on her personal characteristics as a woman and a lesbian.”
Earle also “angrily left the stage twice to confront” Pardy and her group.
Each time, she threw a glass of water at him and told him not to approach their table.
Later, Earle cornered Pardy, continuing to physically and verbally abuse her and grabbed and broke her sunglasses.
The tribunal found that Earle repeatedly and publicly subjected her to extreme homophobic and sexist comments and physical aggression while he was hosting the “open mic” comedy show that evening.
On the “free speech” issue, the tribunal determined that Earle was not “telling jokes” and there was no evidence he was using comedy to expose the stereotypes of others.
Nothing about his asserted purposes in attacking Pardy’s sex and sexual orientation justified elevating his right of free expression over her right to be protected against discriminatory conduct.
This case has attracted a substantial amount of commentary and both sides have their vocal supporters.
On the one hand, a casual observer might say, “She was in a comedy club—what did she expect? That’s what comics do.”
On the other hand, Pardy’s supporters would assert she was entitled to enjoy the club’s services without being singled out and subjected to a “tirade” aimed squarely at her gender and her sexual persuasion.
The question of whether human rights protections should extend to a setting such as a comedy club is definitely a thorny one.
It’s scenarios like this which are the basis for the legal truism that “hard cases make bad law.”
Earle was reported, in the Globe and Mail, as saying, “The point of stand-up comedy is that you can say whatever the hell you want on stage. It’s the sharp end of a free society.”
He may be attributing a little more importance to the societal role of comedians than they
warrant (if barbarian hordes sweep down on us out of the hills, will anyone be relying on comedians to stem the tide with their stinging one-liners?) but his point does seem to have resonated in some minds.
Commentator Ezra Levant, for instance, referred to the tribunal, in the wake of this decision, as a “patented kangaroo court” and to the hearing process as a “circus.”
I can’t wait to hear what he thinks about the recent arrest on the Isle of Wight of lounge singer, Simon Ledger, for subjecting a passer-by to “racial abuse” by singing the song “Kung Fu Fighting.”
The commentary back and forth on the Pardy complaint suggests to me that we simply haven’t decided, as a society, whether human rights protections should be extended to such fringe settings.
It’s an indication that the human rights regime we’ve let loose is an evolving one in which many of the areas on the fringe have yet to be charted.
Members of the legal profession know that difficult fact patterns, such as this one, make for decisions that are susceptible to appeal.
That being the case, Pardy and Earle and the owner of Zesty’s might be preparing themselves for the long and winding road towards the Supreme Court of Canada.
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.