Insulting  somebody  publicly  can  be  costly

           

The Zesty Restaurant in Vancouver is owned and operated by Salam Ismail and Zesty Food Services Inc. Guy Earle approached Mr. Ismail in the early spring of 2007, proposing to host an “open mic” comedy show at Zesty Restaurant.  After a trial performance, Mr. Ismail agreed.  Thereafter, their arrangement was that Mr. Earle (or, in a few cases, another person designated by him) would host the shows, and act as the master of ceremonies.

On May 22, 2007, Ms. Lorna Pardy and her friends came into the restaurant from outside and were seated by the staff in the booth closest to the stage.  This was most unfortunate to Mr. Earle because their noise was disturbing to him as he was the master-of-ceremonies at an “open mic” comedy show that evening. What was equally disturbing to him was that he had to pass by their booth when going to, or leaving, the stage.

As a part-time stand-up comedian in my younger days, I can say with some authority that noisy customers are unquestionably a constant irritant and distraction to comics.  That is particularly so in late night venues where liquor is served.  Comics will speak of the ‘perfect’ way to handle noisy customers, but the fact of the matter is that sometimes stand-up comedy is spontaneous, often unscripted, and sometimes the comics will handle a heckler or noisy customer with panache and sometimes they will not.  It depends on the comic, and the heckler or noisy customer and many other factors.  The audience generally looks forward to robust exchanges between comics and hecklers and noisy customers and comics are expected to target the vulnerabilities of such customers when they counter verbal abuse or excessive noise.  The retort is called a ‘smack-down’. A smack-down is a verbal ‘slap-in-the-face’ to the unruly customer. Hecklers can be pretty abusive in stand-up comedy shows. Most hecklers or excessively noisy customers are either drunk or are show-offs. Their motives are either indifference to the feelings of the comic or alternatively, they want to appear before the other patrons as being funnier than the comedian on the stage by getting the patrons to laugh at the comedian.  

 

When I had to endure the antics of a heckler or excessively noisy customer, I would get the patrons to laugh at him instead of me. When I would smack down a heckler or noisy customer, I never insulted him about his physical disability if he was obviously disabled nor would I make reference to his race. If two men or two women were sitting alone at a table, I never made a sexual joke about their sex or sexuality.

These kinds of insults go far beyond what is considered a proper smack-down. However, I would comment on their mentality or the size of their mouths. I could get quite nasty in my smack-downs. In one instance, I said to the audience when a heckler kept interrupting my routine.  

 

“For every ninety-eight people in a room, there is a spark of enormous intelligence in their brains. And then there is the ninety-ninth one in the room who has an ignition problem.” 

 

For the man with the big mouth who constantly used loud expletives in his conversation with his table mates, I said as I pointed my finger to the offender,

 

“I address my comments to anyone who is sitting near that man. I suggest that you move away from him because every time he opens his mouth to speak, he spews shit everywhere.”

 

 In one instance I said to my audience,

 

“After looking at that man’s mouth and comparing its size with the Harlem Tunnel, I have to conclude that the tunnel has to take second place.” 

 

Then after having insulted the hecklers, or noisy customers, I would immediately continue with my routine before they could be heard responding to my insult.  

At Zesty's, there was a sign at the door that said: “Edgiest comedy in town. Not for the faint of heart.” That isn’t a permissive invitation to insult a patron about her sex or sexuality. Unfortunately for Guy Earle and the restaurant, he went beyond the bounds of decency. His smack-down reference to her sex and sexuality and the other women at her table was a very big mistake on his part. Here are the comments he said about Ms. Pardy and the other women at her table while he still had the mike in his hand;

 

“Don't mind that inconsiderate dyke table over there. You know lesbians are always ruining it for everybody. Do you have a strap-on? You can take your girlfriend home and fuck her in the ass. Are you on the rag; is that why you're being such a fucking cunt? Stupid cunts and stupid dykes. unquote

He later said to Ms. Pardy;

"Thanks for ruining the evening, fucking dyke. You're a fat ugly cunt. No man will fuck you; that's why you're a dyke. You fat cunt. Do you want to be a man; is that why you're such a fucking asshole?  Somebody shut her up.  Put a cock in her mouth and shut her the fuck up.”

These comments were not made in response to any heckling by any of the women.  Rather they were a response to the noise associated with their being moved by Zesty staff from the patio to booth 3 and asked if they wished to order drinks. The staff was partly at fault for the noise also. Further, the women were not drunk. 

 

The following night, Mr. Ismail (the owner of the restaurant) asked Ms. Pardy to leave, and she said that she would file a complaint against him. He replied, “Go, do whatever you want”.  She then stood up, and loudly told everyone in the restaurant that Mr. Ismail condoned violence against women, because he did nothing when she was assaulted the night before.  She left the restaurant, and repeated the same thing on the patio, before leaving the premises. I think when she used the word, “assaulted” she was really saying she was assaulted verbally by Mr. Earle.

Ms. Pardy later met with Mr. Ismail and tried to reach a settlement with him with respect to the manner in which she was treated in his restaurant. She wanted Mr. Ismail to acknowledge, take responsibility for, and apologize for the night before.  She also wanted him to compensate her for her broken sunglasses. She also wanted to obtain admissions from Mr. Ismail about his responsibility for what she had experienced.

Ms. Pardy was agitated from the beginning of the conversation.  Mr. Ismail initially asked Ms. Pardy to tell him what had happened. He was conciliatory, apologized, and again offered to pay for her sunglasses.  When Mr. Ismail responded to her attempt to tell him that she had been assaulted by a comedian from his stage, by saying that the comedians “made fun of everyone”, she raised her voice, asked him why he had allowed this to happen and then accused him of failing to take responsibility for Mr. Earle's actions, all the time,  pointing her finger at him.

Ms. Pardy also told Mr. Ismail that he was liable for what had happened, and she would hold him accountable.  She further accused him standing nearby, watching what was going on and doing nothing to stop the comedian from verbally abusing her. He responded to those accusations by saying to her that he had not been present in the restaurant at the time. With her telling him that he was liable for what happened is evidence of her intention to file a human rights complaint against him and his comedian.

He suggested that the incidents of the previous night might have been her fault.  He asked her why she did not talk to him that night, why she stayed to the end of the show, and why she did not call the police, if she thought Mr. Ismail didn’t care what had happened to her. I should add that the police wouldn’t have charged anyone that night even if they had arrived.

Despite the fact that Ms. Pardy threw water in Mr. Earle’s face twice when he deliberately moved too close to their table after insulting her, she didn’t have to endure the insult she received from Mr. Earle so she filed a complaint against him and the restaurant with the B.C. Human Rights Tribunal (the “Tribunal”).

The law in Canada makes such insulting statements made in public an offence punishable by large payments being awarded to the victim and paid by the offender.  But what section of the law applies in a case like this?

Section 8 (1) (b) of the British Columbia Human Rights Code states;

(b) discriminate against a person or class of persons regarding an accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation   or age of that person or class of persons.

The Tribunal found as a fact that Mr. Earle's two sets of comments from the stage, his cornering of Ms. Pardy, his continued verbal abuse of her by the bar as she returned from the washroom, and his grabbing and breaking of her sunglasses, had a significant and lasting physical and psychological effect on Ms. Pardy.  The Tribunal found that Mr. Earle's actions aggravated her pre-existing condition of generalized anxiety disorder with panic attacks, and based, on medical evidence it accepted, caused her a post-traumatic stress disorder.  The Tribunal also found that Mr. Earle made false public statements about Ms. Pardy in an interview that he gave that was subsequently posted on YouTube, which exacerbated and prolonged these effects on Ms. Pardy. He was ordered to pay Ms. Pardy, $15.000 and because of Mr. Ismail indifference to Ms. Pardy’s complaint, he was ordered that his restaurant was to pay her $7.000.

Both Mr. Ismail and Mr. Earle appealed the decision of the Tribunal to the Superior Court in B.C. in respect to their finding of guilt against his restaurant and the comedian and they appealed the award given to Ms. Pardy that was to be paid by Zest Restaurant and by Mr. Earle. Now this is where the case gets really interesting. 

The petitioners challenged the constitutionality of section 8 of the Human Rights Code as being overbroad and an unjustifiable infringement of section 2(b) of the Canadian Charter of Rights and Freedoms. That part of the Charter guarantees everyone in Canada the freedom of speech. Broadly stated, the petitioners argued that section 8 does not apply to the content of entertainment and art, particularly stand-up comedy. 

The Charter certainly doesn’t guarantee everyone the right to defame people so the arguments of those two petitioners went in the same direction that feces go when it reaches the bowl of a toilet. It is beyond me why lawyers in a case like that would even submit such a stupid argument.

They further argued that the Tribunal erred in finding that the petitioners were providing a service customarily available to the public or that Mr. Earle was an employee.  The petitioners also sought to set aside the decision because the rulings the Tribunal gave were procedurally patently unfair because instead of attending the hearing in person, Mr. Earle chose to address the hearing by phone.  Boy, talking about reaching. It was about as futile as a drowning man reaching his arm out for the shore of an island that is just over the horizon.

 

The Superior Court judge said that the refusal to allow Mr. Earle to attend the hearing by telephone alone was not patently unreasonable. The reason for this is that an adjudicator wants to see the demeanor of witnesses and that can’t be done on the phone.

 

The court also concluded that Ms. Pardy experienced adverse treatment in the provision of a service customarily available to the public, and that her membership in one of enumerated groups, namely her sex or sexual orientation, was a factor in that adverse treatment.  Ms. Pardy’s lawyer  submitted that the evidence before the Tribunal had established that she suffered adverse treatment in the form of verbal and physical harassment, including deeply offensive comments made by Mr. Earle directed at her and her friends, and that she satisfied the necessary test for prima facie discrimination. (prima facie evidence is good and sufficient to prove a case)

 

As to damages, the court concluded  that the Tribunal’s award in her favour was authorized by section  37(2) of the Code, which allowed the Tribunal to make an order that the respondents “pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self-respect or to any of them”.  The appellants on the other hand had argued that the damages should be set aside because the Tribunal’s exercise of discretion was patently unreasonable; an argument that the court did not accept as being a valid one.

Mr. Earle attempted to convince the judge that stand-up comedians endure hardships and should be given some leeway to thwart the actions of hecklers who interfere with their routines. His position in this matter was as follows;

“To be clear, stand-up comics have a tough task.  In this case I was an unpaid, volunteer comic who, under any analysis, was neither an agent nor an employee of Zesty's.  But even if I was, which I wasn't, I can see no reasoning or law that says that the Code has authority to restrict the content of a performer's expression.  I would have testified that I had no authority to remove a heckler.  No pay.  No rights.  I couldn't know if the audience suffered anxiety disorders or how my words may affect them.  I couldn't have known that I was subject to section 8 of the Code, and that I did not have the protection guaranteed to all Canadians under the Charter, or that I would be held up in the national media as a convicted criminal homophobe (Vancouver Sun, front page), or that I would require legal services and expert evidence that had a value of thousands and thousands of dollars just to enforce my right to freedom of expression.  From my perspective, the right of all Canadians to freedom of expression guaranteed under the Charter is a hollow promise.  From my perspective, it is now open season for hecklers to abuse comedians all they like, and even get paid for disrupting performances if they are successful in goading a comic to the edge.  It can happen to any comic.

First of all, he wasn’t being heckled by Ms. Pardy or the others at the table. His only complaint was that they were too noisy. He could have handled the noise at their table in a more tactful manner. He could have stepped down from the stage and approached them and politely asked them to keep their talking down until he finished his routine.

Many years ago, I was giving a small piano recital to a group of old people and two of them in the front row kept talking as I was playing the piano. I looked at them twice but they kept talking. I stood up in the middle of the piece I was playing and immediately left the building.

Some of Mr. Earle’s statement is true but an experienced comic knows that he will never, ever win a verbal fight with a customer. His statement that the Human Rights Code doesn’t have the right to restrict a comic from what the comic says in his routine is the epitome of stupidity. If the Code didn’t have that right, anyone appearing on a stage could defame anyone he wants and even advocate that gays and lesbians should not be permitted to be in public places. How anyone even with a small portion of his brain cells in his head still functioning has to know that despite our freedom of speech that is given to all of us, we can’t defame people or advocate that there be limits on the rights of others who fall under the protection of the Human Rights Code. 

The Superior court ordered that the decision of the British Columbia Human Rights Tribunal was to remain as it was and the judge also ordered that Ms. Pardy’s legal and court costs be added in addition to the $23,000 that they have pay to her.  Plus they had to pay the fees of their own lawyers.

Humour in any form is an art and like all art, it has to be refined. Many people can understand a good joke and a humorous remark but not that many people have the ability to make people laugh at their jokes and humorous comments. I polished my humour over the years and have never really bombed over a joke but what I do very carefully, is not to insult a stranger unless that stranger has insulted me first and that has rarely happened.  

People like to be entertained. They enjoy laughing, and they appreciate a person who can bring a smile to their faces. They will readily accept almost anyone as a friend, even a shy stranger who can make them laugh. (That is how I met my wife while we were on a train in Europe) What decent people will not accept from a comic or anyone else is an inappropriate insult, especially when the so-called humorous comment is directed to someone who has the protection of Human Rights Codes.