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Zesty’s and comedian appeal

Human Rights Code should not apply to comedy, they say

Guy Earle (above) and the owners of Zesty's want the court to strike down Section 8 of the BC Human Rights Code, or at least declare it doesn't apply to entertainment. Credit: myspace.com/guyearle

Comedian Guy Earle and the owners of Zesty’s, now known as Zawa Restaurant, have each appealed a recent BC Human Rights Tribunal decision that ordered them to pay $22,500 plus interest in damages to a Vancouver lesbian.

In 2007 Lorna Pardy filed a human rights complaint against Zesty’s and Earle, saying they discriminated against her when Earle shouted homophobic and sexist slurs at her during and after his performance, and broke her sunglasses.

In her testimony to the tribunal, Pardy said Earle called her a “fucking dyke” and a “fucking cunt,” suggested she take her girlfriend home and fuck her up the ass with a strap-on, and suggested somebody stick a dick in her mouth to shut her up.

Pardy also testified that Zesty’s owner and manager Salam Ismail “did not intervene to prevent the tirade or the harassment from continuing.”

The Human Rights Tribunal ruled in Pardy’s favour on April 20.

In documents filed with the BC Supreme Court on June 15 and 17, both Earle and Ismail argue that Section 8 of the BC Human Rights Code, which prohibits discrimination by any service or facility customarily available to the public, should be declared unconstitutional because it is “impermissibly vague, overbroad and an unjustified infringement of the right to freedom of expression guaranteed to all Canadians.”

If the court refuses to strike down Section 8, Earle and Ismail want a declaration specifying the section “was never intended to apply and does not apply to the content of entertainment and the arts, such as the standup comedy performance in the case at issue.”

Also at issue is Tribunal member Murray Geiger-Adams’ ruling that Earle was, in fact, an employee of Zesty’s at the time of the incident and that his acts were therefore deemed to be those of the owners.

“In this case I was an unpaid, volunteer comic who, under any analysis, was neither an agent nor an employee of Zesty’s,” Earle writes in his affidavit. “But even if I was, which I wasn’t, I can see no reasoning or law that says the Code has authority to restrict the content of a performer’s expression.”

Earle and Ismail have also requested that Pardy pay for “all reasonable legal costs and fees associated with this entire course of litigation and for costs, and for such other remedy as the Court deems appropriate.”

In his affidavit, Ismail describes the Tribunal hearings into the case as the “biggest nightmare” of his life and says the process was weighted in Pardy’s favour.

He claims he was “subjected to immense psychological pressure” throughout the hearings and cross-examinations, exacerbated by the fact that he did not have a lawyer.

Earle, who describes himself as a “left-leaning university graduate who has no problem whatsoever with gay people” in his affidavit, denies calling Pardy a “fucking cunt” but admits that he did refer to the “dyke table.”

“I don’t regard the term ‘dyke’ as particularly offensive,” he writes. “Think ‘dykes on bikes’ putting on a show every year at the gay Pride parade in Vancouver. I certainly NEVER called them cunts.” 

Pardy’s lawyer could not be reached for comment before press time.