At this point, it's unlikely anyone is laughing at an ugly exchange that comedian Guy Earle had with Lorna Pardy and her friends at a Vancouver comedy club three years ago.
Mr. Earle, the volunteer master of ceremonies at an open-mike comedy night at Zesty's restaurant, called Ms. Pardy, a lesbian, and her two friends "dykes," among other things, and made explicit suggestions about their sexual practices, apparently because he thought they were being disruptive.
But the Ontario comic's lawyer says Ms. Pardy's wounded feelings aside, Mr. Earle's expletive-laced attacks are outside the jurisdiction of B.C.'s Human Rights Commission, and the commission proceedings that began Monday could have a chilling effect on artistic expression.
"It's absolutely a comedy show," said James Millar outside the hearing. "That's a smack-down of a heckler."
Mr. Millar withdrew from the human rights tribunal on the first day of the hearing. The tribunal is considering Ms. Pardy's complaint that Mr. Earle's comments about the group's sexual orientation were discriminatory under a section of the B.C. Human Rights Code covering service in businesses.
Mr. Millar was protesting a decision by tribunal adjudicator Murray Geiger-Adams to hear evidence in the case before deciding whether the tribunal actually had jurisdiction over the issue. That decision, Mr. Millar told Mr. Geiger-Adams, made the hearing essentially illegal.
"As a lawyer, I'm in a situation where I'm saying this tribunal is proceeding against the rule of law," Mr. Millar told the hearing.
Mr. Earle, who lives in Georgetown, Ont., and did not attend the hearing for financial and family reasons, agreed with Mr. Millar's decision, the lawyer said.
Mr. Millar's walkout sets the stage potentially for the case to go back to the B.C. Supreme Court, which quashed the commission's first bid to hold a full hearing, citing questionable jurisdiction.
Mr. Millar had been expecting to get the adjudicator's written reasons for proceeding without deciding on jurisdiction so that he could go back to court. But he didn't receive them, and without them, he said he's in limbo.
He contends Mr. Earle's rants against the women were protected under Section 2(b) of the Charter of Rights and Freedoms, covering freedom of expression. "Section 2(b) trumps anything in the B.C. Human Rights Code," he told the hearing.
While the commission is not empowered to enforce the Charter, Mr. Millar said, it remains bound by it.
Extending the code's provisions on services to cover Mr. Earle's remarks could have wide implications for free expression, Mr. Millar told reporters later.
"They're saying essentially that artistic expression should follow the same rules as somebody slinging hamburgers at McDonald's or some other outlet," he said. "This decision, in terms of their jurisdiction, would impact the Internet, impact Google, YouTube, performing arts, artistic expression of any kind."
The hearing went ahead without Mr. Millar and Mr. Earle, who'd earlier been denied permission to testify over the telephone.
Zesty's owner Salam Ismail remained, but with his brother Sam, who's not a lawyer, speaking for him. The owner was named in the complaint because Ms. Pardy sees Mr. Earle as an employee, albeit unpaid, for whom he was responsible.
Devyn Cousineau, Mr. Pardy's lawyer, told the hearing that Ms. Pardy, a 32-year-old airport meteorological technician, has been diagnosed with post-traumatic stress since the incident in May, 2007.
Ms. Pardy testified she went to Zesty's to meet her then-girlfriend and another woman for late-evening drinks on the restaurant's patio. She was halfway through her second beer when the waitress said the patio was closing and they should go inside. Ms. Pardy said she had no idea a comedy show was about to start.
She said the group was trying to sort out their drinks order with two waitresses when Mr. Earle started targeting them after her girlfriend had kissed her on the cheek.
"Don't mind the inconsiderate dyke table that just walked in," she recalled Mr. Earle saying.
Ms. Pardy denied Mr. Earle's claim the table was heckling the comedians, adding some came over later to apologize. "It's just not the way I conduct myself in public," she said. "I wasn't in any way challenging him. I was shocked and embarrassed. He was angry and condescending."
But things got worse, she said. Mr. Earle came off the stage after one of Ms. Pardy's friends told him he was being ignorant. He leaned over Ms. Pardy in what she felt was a threatening manner, so she threw a glass of water in his face.
Instead of shocking Mr. Earle into backing off as Ms. Pardy hoped, she said he continued with his graphic taunts at her.
"I was humiliated and I was shocked and embarrassed," she said. "I was shaking, sweating, my ears were ringing. I felt like I'd been assaulted."
Before the night was over, Ms. Pardy had a couple more encounters with Mr. Earle, resulting in a second glass of water in his face and Mr. Earle later whipping the sunglasses from her head and breaking them.
Mr. Pardy said she didn't leave because she'd hoped the restaurant's manager would do something.