Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079 IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE SUPREME COURT OF BRITISH COLUMBIA


Citation:

Ismail v. British Columbia (Human Rights Tribunal),




2013 BCSC 1079


Date: 20130619

Docket: S114144

Registry: Vancouver

Between:

Salam Ismail and Zesty Food Services Inc.

Petitioners

And

British Columbia Human Rights Tribunal, Lorna Pardy, and Guy Earle

Respondents

- and -

Docket: S114070

Registry: Vancouver

Between:

Guy Earle

Petitioner

And

British Columbia Human Rights Tribunal, Lorna Pardy,
Salam Ismail, and Zesty Food Services Inc.

Respondents

Before: The Honourable Mr. Justice Sigurdson

On judicial review from: Human Rights Tribunal decisions dated:
June 24, 2008 (Pardy v. Earle (No. 1), 2008 BCHRT 241, File No. 5338);
March 8, 2010 (Pardy v. Earle (No. 2), 2010 BCHRT 78, File No. 5338);
April 23, 2010 (Pardy v. Earle (No. 3), 2010 BCHRT 128, File No. 5338); and
April 20, 2011 (Pardy v. Earle (No. 4), 2011 BCHRT 101, File No. 5338).

Reasons for Judgment


Appearing for Salam Ismail and Zesty Food Services:

Sam Ismail


Counsel for Guy Earle:

James W. Millar


Counsel for B.C. Human Rights Tribunal:

Jessica M. Connell


Counsel for Lorna Pardy:

Lindsay A. Waddell


Place and Date of Hearing:

Vancouver, B.C.

July 3-6, 2012


Further Written Submissions of counsel for Mr. Earle:

received April 2, 2013


Further Written Submissions of counsel for Ms. Pardy:

received April 16, 2013


Further Written Submissions of counsel for Mr. Earle:

received April 23, 2013


Place and Date of Judgment:

Vancouver, B.C.

June 19, 2013


TABLE OF CONTENTS

I. INTRODUCTION

II. ISSUES

III. OUTLINE OF JUDGMENT

IV. PARTIES’ POSITIONS

A. Mr. Earle, Mr. Ismail and Zesty

B. Ms. Pardy and the Tribunal

V. Appropriate Standard of Review

VI. THE RECORD AND CHALLENGES TO THE ADMISSIBILITY OF EVIDENCE

VII. FINDINGS OF FACT BY THE TRIBUNAL

VIII. SUMMARY OF THE ANALYSIS BY THE TRIBUNAL

IX. PROCEDURAL HISTORY

X. PROCEDURAL ISSUES

A. Tribunal’s Failure to Decide the “No Jurisdiction” Preliminary Issue

B. Tribunal’s Refusal to Allow Mr. Earle to Testify by Telephone

C. Tribunal’s Refusal to Adjourn the Hearing

XI. CONSTITUTIONALITY OF SECTION 8 OF THE CODE

A. Parties’ Positions

1. Position of Mr. Earle, Mr. Ismail, and Zesty

2. Position of Ms. Pardy

B. Analysis

1. Infringement

2. Section 1 of the Charter

3. Is the Objective for Which the Limit is Imposed Pressing & Substantial?

4. Proportionality

XII. JUDICIAL REVIEW OF the TRIBUNAL’S DECISION

A. A Service Customarily Available to the Public

B. Was Mr. Earle an Employee of Mr. Ismail and Zesty?

C. Was there Discrimination Contrary to s. 8 of the Code?

1. The Tribunal’s Approach to Determining Whether There was Discrimination Under S. 8 of the Code

2. Was the Tribunal Correct in the Manner in Which it Approached the Issue of Discrimination?

3. Was the Tribunal Correct in Finding Discrimination?

a) Petitioners’ Argument

b) Ms. Pardy’s Argument

c) Analysis

XIII. DAMAGES

XIV. CONCLUSION
I. INTRODUCTION

[1] Guy Earle was the master-of-ceremonies at an “open mic” comedy show at Zesty Restaurant in Vancouver on May 22, 2007. Lorna Pardy was a patron at the restaurant that evening. She complained to its owner and then to the Human Rights Tribunal that Mr. Earle had directed homophobic and sexist insults at her. The restaurant is owned and operated by Salam Ismail and Zesty Food Services Inc. (“Zesty”).

[2] The B.C. Human Rights Tribunal (the “Tribunal”), after a four-day hearing, ruled that Mr. Earle, Zesty and Mr. Ismail discriminated against Ms. Pardy regarding a service customarily available to the public because of her sex and sexual orientation, without a bona fide reasonable justification, contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”).

[3] The petitioners, Mr. Earle, Mr. Ismail and Zesty, challenge the constitutionality of s. 8 of the Code and the Tribunal’s decision arguing infringement of freedom of expression. They also seek to set aside the Tribunal’s decision on procedural and substantive grounds. Although given notice, the Attorney General of British Columbia did not appear. The respondent Ms. Pardy defended the constitutionality of the legislation.

[4] Section 8 of the Code reads:

8(1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any 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.

(2) A person does not contravene this section by discriminating

(a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or

(b) on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

[Emphasis added]

[5] The Tribunal decided that it did not have jurisdiction to consider whether s. 8 of the Code is unconstitutional. It held that Mr. Earle, Mr. Ismail and Zesty were offering a service customarily available to the public pursuant to s. 8 of the Code, and that Mr. Earle was an employee of Mr. Ismail and Zesty for the purposes of the Code. It concluded that Mr. Earle’s words and actions constituted discrimination based on sex and sexual orientation.

[6] The Tribunal awarded damages in favour of Ms. Pardy against Mr. Earle individually in the sum of $15,000, and against Mr. Ismail and Zesty jointly and severally in the sum of $7,500.

[7] The petitioners argue that the Tribunal wrongly or incorrectly concluded that Mr. Earle’s words and actions were discriminatory and that Mr. Earle was a “service provider” and an employee, as those concepts are used in theCode.

[8] The petitioners also say that the procedure followed by the Tribunal was patently unfair:

(a) by refusing to consider a preliminary application by Mr. Earle to dismiss the complaint;

(b) by forcing Mr. Earle and his counsel to hearing dates that were inconvenient to Mr. Earle and not available to his counsel;

(c) by refusing to allow Mr. Earle to testify via telephone or via Skype;

(d) by refusing Mr. Earle’s counsel’s application to adjourn the hearing pending a determination of a preliminary jurisdictional question; and

(e) by proceeding to conduct a full hearing without the participation of Mr. Earle or his counsel.
II. ISSUES

[9] The issues before the Court include procedural fairness, the constitutionality of s. 8 of the Code, and the correctness of the Tribunal’s order. In more detail, the issues are:

A. Procedural Issues

1. What is the standard of review for procedural decisions of the Tribunal?

2. Whether specific actions of the Tribunal were appropriate, including:

a) the Tribunal’s failure to decide a preliminary application by Mr. Earle to dismiss the complaint due to lack of jurisdiction under the Code to affect the content of, or restrict the speech of, comedians;

b) the Tribunal’s refusal to permit Mr. Earle to testify by telephone;

c) the Tribunal’s refusal to adjourn the hearing and instead proceeded to conduct a hearing without the participation of Mr. Earle or his counsel.

B. The Evidence and the Record

1. What is the standard of review?

2. Are the facts found by the Tribunal subject to challenge and should new evidence be admitted?

C. Charter Issues

1. Is s. 8 of the Human Rights Code unconstitutional as infringing s. 2(b) of the Charter?

D. Judicial Review of the Tribunal’s decision

1. What is the standard of review?

2. Was there a “service customarily available to the public”?

3. Was Mr. Earle an employee of Mr. Ismail and Zesty?

4. Was the Tribunal correct in finding that there was discrimination under s. 8 of the Code?

5. Was the Tribunal correct in finding Zesty liable?

6. Was the Tribunal correct in awarding damages and in the amount awarded?
III. OUTLINE OF JUDGMENT

[10] This case concerns a challenge to the constitutionality of s. 8 of the Human Rights Code and a challenge to the decision of the Tribunal under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

[11] The constitutional challenge is to both the section of the statute and the decision of the Tribunal on grounds of freedom of expression. Recent decisions of the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, and Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, show that these are separate questions that mandate different analyses.

[12] In this judgment, I proceed in this fashion. First, I review the positions of the parties, and then discuss the standard of review for the issues under the Judicial Review Procedure Act. I then consider the record and the challenge to evidence tendered by the petitioners.

[13] Next, I review in some detail the findings of fact by the Tribunal. Then I discuss the challenges to the Tribunal’s decision on procedural grounds.

[14] Following that, I consider the constitutional challenge to s. 8 of the Code. Next, I turn to the judicial review issues and consider whether the Tribunal erred in finding Mr. Earle, Mr. Ismail and Zesty were providing a service customarily available to the public, whether Mr. Earle was an employee, and whether the Tribunal erred in finding discrimination. Those issues also involve the respondents’ objection to the evidence the petitioners seek to introduce.

[15] Finally, I discuss the question of damages against Mr. Earle, Mr. Ismail and Zesty.
IV. PARTIES’ POSITIONS
A. Mr. Earle, Mr. Ismail and Zesty

[16] The petitioners challenge the constitutionality of s. 8 of the Code as overbroad and an unjustifiable infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). They argue that the aim of s. 8 is not to censor the arts but if it was, then s. 8 is a broad, invasive prohibition against “discriminatory” performances or artistic expression and that outright prohibition cannot be justified under s. 1 of the Charter. Further, the petitioners challenge the Tribunal’s application of s. 8 in the decision under review as being an infringement of s. 2(b) of the Charter. Broadly stated, the petitioners argue that s. 8 does not apply to the content of entertainment and art, particularly stand-up comedy. More specifically, they argue that to the extent that s. 8 has application, the Tribunal’s decision is unconstitutional because it unjustifiably infringes the petitioners’ s. 2(b) Charter rights.

[17] The petitioners argue that the Tribunal erred in failing to consider the constitutionality of s. 8 of the Code and, in any event, they now seek to introduce evidence that was not before the Tribunal as part of their Charter challenge, something which they say is appropriate in the circumstances.

[18] The petitioners seek to set aside the Tribunal’s decision that they discriminated against Ms. Pardy. They say 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 seek to set aside the decision because of rulings they submit were procedurally patently unfair.
B. Ms. Pardy and the Tribunal

[19] The respondent Ms. Pardy opposes the petition. The respondent Tribunal appeared, but made submissions limited to the procedural history, the role of the court on judicial review, the Tribunal’s record of the proceeding, the standards of review applicable to issues on judicial review, and the available relief, should the Court determine that the Tribunal erred. Although there was a Charter challenge to the constitutionality of s. 8 of the Code, regrettably, theAttorney General did not appear.

[20] I will therefore briefly set out the position of Ms. Pardy regarding the issues. Where the Tribunal took a position on an issue, I will set that out as well.

[21] The respondents oppose the introduction of new evidence on the ground that judicial review is intended to be a review of the Tribunal’s decision on the basis of the record before the Tribunal. They also argue that the proposed evidence is hearsay. To the extent that the evidence may be relevant to the Charter challenge, the respondents submit that it ought to have been introduced before the Tribunal.

[22] In terms of procedural issues, Ms. Pardy argues that the refusal to allow Mr. Earle to attend by telephone was not patently unreasonable, the appropriate standard for review of that decision. Ms. Pardy argues that the decision to defer the question of whether the Tribunal had jurisdiction until after the hearing when evidence would be heard was not patently unreasonable, the standard that the respondents say also applies to that decision. The Tribunal’s refusal to consider the Charter challenge at first instance is a question, the respondents say, to be decided on a correctness basis. Ms. Pardy takes the position that the Tribunal did not have jurisdiction to consider the Charter.

[23] The respondents say that the issue of whether the petitioners were providing a service customarily available to the public is a question of mixed fact and law to be determined under the correctness standard, and Ms. Pardy says the Tribunal’s decision was correct.

[24] Ms. Pardy submits that the review of whether Mr. Earle was an employee of Zesty or Mr. Ismail, bearing on vicarious liability, is subject to the correctness standard. She submits that the Tribunal was correct.

[25] The decision as to whether there was discrimination, the respondents say, is also subject to the correctness standard of review. They submit that the test for prima facie discrimination required that Ms. Pardy establish that she fell within one of the enumerated grounds under s. 8 of the Code, that she 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 submits that the evidence before the Tribunal 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 test for prima facie discrimination.

[26] As to damages, Ms. Pardy says that the award in her favour was authorized by s. 37(2) of the Code, which allows the Tribunal to make an order that the respondent “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 respondents say the damages can be set aside only if the Tribunal’s exercise of discretion was patently unreasonable, something that Ms. Pardy says did not occur here.

[27] In terms of the Charter challenge, the respondent Ms. Pardy acknowledges that the application of s. 8 of the Code will, in some cases, infringe s. 2(b) of the Charter. However, she contends that the infringement, if and when it occurs, is a reasonable limit that can be demonstrably justified in a free and democratic society, as required by s. 1 of the Charter, and that under the Oakes test, or the proper balancing or reconciling, any infringement of the petitioners’ s. 2(b) rights is justified.
V. APPROPRIATE STANDARD OF REVIEW

[28] The standard of review on judicial review of an administrative tribunal’s decisions, where it has not been set by legislation, has largely been settled by the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. However, the standard of review for the decisions of the Tribunal is established by the Administrative Tribunals Act, S.B.C. 2004, c. 45. According to s. 32 of the Code, s. 59 of theAdministrative Tribunals Act applies and establishes the standard of review for various questions in this proceeding.

[29] Section 59 of the Administrative Tribunals Act provides:

59(1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.

(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.

(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.

(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(c) is based entirely or predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.

[30] Section 59(1) of the Administrative Tribunals Act provides that the standard of review for a decision of the Tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact, and the application of common law rules of natural justice and procedural fairness. The correctness standard therefore applies upon review if the question is one of law or mixed fact and law. The decisions of the Tribunal regarding whether the petitioners were offering a service customarily available to the public pursuant to s. 8 of the Code, whether Mr. Earle was an employee of Mr. Ismail or Zesty, and whether Ms. Pardy was discriminated against, are questions of mixed fact and law, and are therefore subject to the standard of correctness.

[31] The standard that applies to the factual component of a question of mixed fact and law was discussed in Kinexus Bioinformatics Corp. v. Asad, 2010 BCSC 33, [Kinexus]. In that case, Wedge J. held that although the court is permitted to intervene where the correctness standard applies, it is prohibited from interfering with factual findings unless the test set out in s. 59(2) of the Administrative Tribunals Act is satisfied. Findings of fact must not be set aside unless there is either no evidence to support the tribunal’s finding, or, in light of all the evidence, the finding is otherwise unreasonable. The comments of Wedge J. in Kinexus describe the Court’s role in reviewing the factual component of questions of mixed fact and law:

30 On the correctness standard, the court substitutes its opinion for that of the Tribunal. On pure questions of law, this task is fairly straightforward. However, in the present case, Kinexus alleged that the Tribunal erred when it found Kinexus had failed to provide Mr. Asad with a workplace free from discrimination. According to Kinexus, the application of the law to the facts as found did not give rise to a finding of discrimination. To the extent that the Tribunal’s findings of fact cannot be readily separated from the law, this is a question of mixed fact and law.

31 Our Court of Appeal has held that the correctness standard applies to questions of mixed fact and law: British Columbia v. Bolster, 2007 BCCA 65, leave to appeal ref’d [2007] S.C.C.A. No. 167 (QL).

32 The application of the correctness standard to questions of mixed fact and law presents certain challenges. The court is permitted to intervene on the correctness standard, but is prohibited from interfering with the Tribunal’s factual findings unless the standard set out in s. 59(2) is satisfied. If the court finds a material error of fact, its intervention is warranted. If not, the court must then assess whether the Tribunal has committed a reviewable error of law justifying the court’s intervention. The issue is not whether the court agrees with the Tribunal’s conclusion based on its view of the evidence: the court’s role on judicial review does not include stepping into the shoes of the Tribunal to determine the case as though it were the decision maker in the first instance.

[32] With that overview, I turn first to the evidence that the petitioners seek to introduce on this hearing.
VI. THE RECORD AND CHALLENGES TO THE ADMISSIBILITY OF EVIDENCE

[33] A judicial review takes place on the tribunal’s factual record. The challenge to the constitutionality of the legislation is not a matter of review, because it was argued for the first time in this Court.

[34] On the hearing of a complaint, the Tribunal must determine the facts and then decide whether, in that factual and statutory context, the complainant has established discrimination under the Code.

[35] The facts as found by the Tribunal are the facts that I must accept for the purposes of this judicial review unless there is no evidence to support them, or, in light of all of the evidence, they are otherwise unreasonable.

[36] Kinexus provides a useful summary of the role of the court on judicial review when it considers factual matters.

26 The ATA provides that a court must not set aside the Tribunal’s finding of fact unless there is no evidence to support it, or the finding is otherwise unreasonable in light of all of the evidence. This standard requires a high degree of deference by a court toward the Tribunal’s fact-finding function, and reflects the common law standard of review.

27 The reasonableness standard with respect to factual findings must be applied not to evaluate the evidence before the Tribunal, but to define the limits of the Tribunal’s decision making power. As Binnie J. noted inDunsmuir v. New Brunswick, 2008 SCC 9 at para. 141:

... The danger of labelling the most “deferential” standard as “reasonableness” is that it may be taken (wrongly) as an invitation to reviewing judges not simply to identify the usual issues, such as whether irrelevant matters were taken into consideration, or relevant matters were not taken into consideration, but to reweigh the input that resulted in the administrator’s decision as if it were the judge’s view of “reasonableness” that counts. At this point, the judge’s role is to identify the outer boundaries of reasonable outcomes within which the administrative decision maker is free to choose.

28 Stated slightly differently, a tribunal’s decision must contain some evidence logically capable of supporting its conclusion. On judicial review, the court cannot weigh and evaluate the evidence that was properly received and which has some probative value, but then/must confine its review to the initial question of whether there is some evidence capable of supporting the decision: Re McInnes, at p. 698.

29 If the Tribunal ignored or omitted relevant evidence when arriving at a material finding of fact, it has committed a reviewable error. An omission constitutes a reviewable error only if the court determines that the Tribunal failed to have regard to evidence relevant to a material finding of fact. Again, when considering whether the Tribunal erred, the court must avoid re-weighing the evidence and maintain an attitude of deference to the Tribunal’s fact-finding role.

[37] A related question is whether new evidence may be introduced on this judicial review.

[38] The petitioners seek to introduce extrinsic evidence by way of an affidavit of Mr. Earle of May 31, 2011, an affidavit of Mr. Ismail of June 17, 2011 and an affidavit of Mr. Allman of June 14, 2011. The respondents object to these affidavits on the basis that they are hearsay and because, where they contain factual evidence, they ought to have been presented to the Tribunal and are beyond the record that is admissible.

[39] The respondents submit that to now allow Mr. Earle to present evidence about his “expression” amounts to a collateral attack on the Tribunal’s finding and that evidence should not be admissible.

[40] In this part of the judgment, I will deal with the challenges to the affidavits that relate to the merits of the decision, as opposed to affidavits, or parts of affidavits, that relate to questions of procedure or procedural unfairness. The affidavit that the respondents find especially objectionable is Mr. Earle’s affidavit of May 31, 2011 (filed June 15, 2011), and in particular paragraphs 19-37. In it, Mr. Earle speaks of hecklers and the treatment of hecklers at comedy clubs (paras. 19-20). At paragraphs 20-34, Mr. Earle sets out the evidence he would have given at the hearing if, in his words, “he had been permitted to participate in the hearing”. At paragraph 35, he comments on Ms. Pardy’s medical report and what he would have done to respond to it, had he had resources. Paragraph 36 contains an argument concerning the position of a stand-up comic and an argument about the application of the Code to a performer’s expression. Paragraph 37 makes an argument about the concern for all artists, writers, entertainers, and comedians if expression is limited to avoiding offending the most sensitive member of the audience.

[41] In Kinexus, Wedge J. also considered an application to admit new evidence and she summarized the applicable law this way:

17 The court’s power to admit evidence beyond the record of proceeding must be exercised sparingly, and only in an exceptional case. Such evidence may be admissible for the limited purpose of showing a lack of jurisdiction or a denial of natural justice. In Ross, Silverman J. said the following at paras. 26-27 after reviewing the relevant case law:

26 The general rule with respect to the admissibility of extrinsic material is that it is, except in very special circumstances, inadmissible. This is because a judicial review is a review of a decision on the tribunal’s record of proceedings. It is that very record which is the subject of the judicial review. Affidavit material describing evidence not before the tribunal or attaching documents that were not before the decision-maker is not part of that record and is generally inadmissible on judicial review. ...

27 There are, however, exceptions to the general rule where extrinsic evidence may sometimes be admissible. For example, it may be admissible for the limited purpose of showing a lack of a jurisdiction or a denial of natural justice. In circumstances where the grounds for judicial review are a breach of natural justice or procedural fairness, the petitioner may be entitled to adduce new evidence. However, the new evidence must be both relevant and necessary before it will be admissible[.]

In addition, the court may, in rare circumstances, admit affidavit evidence to show that a tribunal made a factual finding incapable of being supported by the evidence. Such affidavit evidence must be restricted to necessary references to factual errors and must not draw conclusions or interpret the evidence forming the record of proceeding. Such affidavit evidence must not be used to convert an application for judicial review into a re-hearing of the merits.

[42] I have concluded that most of the evidence that I have referred to in this section is not admissible on the judicial review.

[43] The evidence that deals with the specific factual issues that are the subject of decision under judicial review is not admissible. Judicial review is to be limited to the record. The proposed evidence concerning the specific incident does not fall within the exception that it relates to a factual finding incapable of being supported on the evidence.

[44] What of the more general evidence about hecklers, stand-up comics and comedy clubs at paragraphs 19, 20, 36 and 37 of Mr. Earle’s May 31, 2011 affidavit? I refer to these paragraphs.

19. Had I been permitted to testify in the only manner I could financially afford, via telephone, or Skype, I would have been able to give some evidence about the challenges of doing stand-up comedy in nightclubs, bars, or anywhere, for that matter. Hecklers, for example, are 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 hecklers, but the fact of the matter is that stand-up is spontaneous, often unscripted, and sometimes the comic will handle a heckler with élan and sometimes they will not. It depends on the comic, and the heckler, and many other factors. The audience generally looks forward to robust exchanges between comics and hecklers and comics are expected to target the hecklers' vulnerabilities when they counter verbal abuse. The retort is called a "smackdown". A smackdown is a "slap in the face" to the heckler. Smackdowns can be pretty rough in stand-up. At Zesty's, there was a sign at the door that said:

"Edgiest comedy in town - Not for the faint of heart".

20. Heckling includes any disruption of the performance. Just as a judge is entitled to shut up people who are disrupting the proceedings, a comic is entitled to smackdown members of the audience who disrupt the show. Unlike a judge, though, a comedian can't have a sheriff jail the loudmouth who won't shut up. On May 22, 2007, Ms. Pardy and her table came in from outside and sat in the booth closest to the stage. This is important not only because their noise was more disruptive, but also important because I would pass by their booth when going to, or leaving, the stage.

…

36. 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 s. 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, Allman affidavit), 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.

37. Finally, I would have testified that a comic cannot operate under a rule that his expression is limited to that which may offend the most sensitive member of the audience. Had I used the very same language with a party who suffered no loss of dignity, or who didn't care what a comedian might say in a comedy club, recognizing the source and the circumstances, then there could be no claim. Such an uncertain measure should be a source of the greatest concern for all artists, writers, entertainers, and comedians who contribute to the cultural life of all Canadians.

[45] That evidence is in a different category than evidence that relates to the question of the record of the Tribunal and whether the findings of fact can be sustained. Those paragraphs, although largely argument, arguably relate to the question of the constitutionality of the legislation, and are admissible as legislative facts. However, Ms. Pardy’s counsel argues that even though the constitutionality of the legislation could not be challenged at the tribunal level, Mr. Earle ought to have introduced all relevant evidence at that time. Moreover, she says it is hearsay evidence and that determining what is commonplace at a comedy club requires expert evidence.

[46] I reject the argument that this evidence, if admissible, ought to have been tendered before the Tribunal. It might, of course, have been tendered as relevant to the issue of whether there was discrimination under the Code, but this is the first time that the Code’s constitutionality could be challenged. I see no basis for restricting the evidence that the petitioners may introduce on that challenge.

[47] I agree that evidence of normal practice at comedy clubs or places where there are other forms of artistic expression should be introduced by someone with relevant knowledge or expertise, and should not include hearsay. However, here I find that the objection of the respondent really goes to weight and that paragraphs 19, 20, 36 and 37 of Mr. Earle’s affidavit are admissible and can be considered by me, along with the arguments of the petitioners, in reference to whether the legislation is constitutional.

[48] The other affidavits to which objection was made, that of Mr. Ismail and Mr. Allman in large part set out procedural history and are admissible on the procedural issues that I will discuss later. In connection with the procedural history, the affidavit of Ms. Craig is also admissible. However, parts of the affidavit of Mr. Allman are clearly argument, not evidence and are not admissible upon the constitutional challenge or the judicial review of the Tribunal’s decision.
VII. FINDINGS OF FACT BY THE TRIBUNAL

[49] I now address the findings of fact by the Tribunal. The petitioners have failed to establish that there was no evidence to support the Tribunal’s factual findings, or that in light of all of the evidence, those findings are otherwise unreasonable.

[50] I will paraphrase extensively from the written decision of the Tribunal and set out the facts that it found. The substance of the dispute really concerns the legal consequences flowing from these finding of facts.

[51] Mr. 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.

[52] Mr. Earle determined who would perform, and in what order. He introduced the comedians as they came on stage. The only compensation with a direct monetary value for Mr. Earle, or any of the other comedians, was a limited amount of free beer supplied by Zesty. Otherwise, Mr. Earle and the other comedians remained paying customers of the restaurant, which remained open for other paying customers.

[53] Mr. Ismail permitted Mr. Earle and others to organize these shows as a benefit to the comedians and the community, but he and Zesty also benefitted directly from the arrangements, in that they attracted paying customers, and indirectly, in that they permitted Mr. Ismail to meet people, such as Mr. Wolfe, with whom he later entered into more formal business arrangements.

[54] The Zesty parties (Mr. Ismail and Zesty) advertised the comedy shows on their doors, in their washrooms, and on their website, indicating that the shows were a part of the restaurant's business.

[55] Mr. Ismail's permission was required to begin this series of shows, and he was able, over Mr. Earle's objections, to bring them to an end. Mr. Ismail retained the authority to establish standards for the behaviour and language of the host and performers in relation to Zesty's customers, and to prevent the host and performers from appearing if they breached those standards.

[56] On May 22, 2007, after working until 6:30 p.m. and going home, Ms. Pardy arrived at Zesty at about 9:30 p.m., to meet her girlfriend Ms. Broomsgrove and their friend Ms. Sandor.

[57] Ms. Pardy joined Ms. Sandor and Ms. Broomsgrove on the patio at Zesty at about 9:30 p.m. They were sitting at a patio table furthest from the stage, which was inside.

[58] Ms. Pardy was not aware that Zesty was putting on an open mic comedy night, was not there to see the show, and did not hear any announcement that it was starting or any invitation to attend. She stayed on the patio after she became aware that it had started, and only came inside when her server told her that the patio was closing, and conducted her inside.

[59] While on the patio, Ms. Pardy ordered two beers, and consumed only half of the second one.

[60] At about 11:00 p.m., Ms. Semczyszyn, an employee of Zesty, requested that Ms. Pardy, Ms. Sandor and Ms. Broomsgrove move inside the restaurant. Their server, Brandy, brought the group in from the patio, and conducted them to a booth close to the stage (“booth 3”). Ms. Pardy and her friends were, before their arrival on the patio, unaware of the open mic night, had not come to the restaurant to attend it, and did not volunteer to come inside for that purpose. When they became aware that it was in progress, they did not object to being seated near the stage, and they did not immediately leave the restaurant.

[61] Brandy, Ms. Semczyszyn, Ms. Sandor, Ms. Pardy, and Ms. Broomsgrove all then engaged in a fairly noisy discussion of whether the party wanted to order more drinks, whether more Corona was available, and, if so, whether it was cold or warm. Ms. Semczyszyn left the booth during this discussion, returned with a case of beer, and continued the conversation. Ms. Pardy and Ms. Broomsgrove sat down facing the stage; Ms. Sandor had her back to it.

[62] In view of their closeness to the stage, and the relatively small number of other people in the restaurant, this exchange created a short disruption to the amplified open mic performance taking place on the stage. However, the restaurant staff initiated this exchange, and fully participated in it. The short disruption and level of noise was consistent with the operation of a restaurant which was serving food and beverages to the public, and simultaneously offering a comedy performance to that same public. No witness testified that any of the conversation at the booth at this point was directed to anyone on the stage, or related to the performance taking place there.

[63] When the server brought Ms. Pardy, Ms. Broomsgrove and Ms. Sandor in from the patio at approximately 11:00 p.m., and seated them in booth 3, Mr. Roy was just finishing his comedy set, and soon left the stage. While he was performing, the three women did not heckle or otherwise disrupt the performance, other than by taking part in the discussion initiated by restaurant staff regarding drinks.

[64] Mr. Earle took the stage. He was there to introduce Mr. Wolfe. At that point, the three women had said nothing to him. He had either witnessed the conversation among the three women and the servers before he took the stage, or its continuation after he did so, or both, and he considered that the noise of their conversation might disrupt the show. Then Mr. Earle saw Ms. Broomsgrove kiss Ms. Pardy.

[65] “There was no public display of affection between Ms. Pardy and Ms. Broomsgrove beyond a kiss - what one often sees in restaurant, bar or club settings between other young couples ...” Tribunal decision para 102. Another comedian present, Mr. Franson, used the words, "That's when it all started". In Mr. Wolfe's words, Mr. Earle "saw them kiss [and said] 'that's what I'm going to go after until you shut up'".

[66] In the next very short while, Mr. Earle, from the stage, using a microphone, and in his capacity as host or master-of-ceremonies of the open mic night, said the following words, directed exclusively at Ms. Pardy, Ms. Broomsgrove, and Ms. Sandor, or words to substantially the same effect:

"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".

[67] These comments were not made in response to any heckling by any of the women. Rather they were a response, generally, 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. Mr. Earle's words were a response, specifically, to seeing Ms. Broomsgrove kiss Ms. Pardy.

[68] All three women, and others present, responded to Mr. Earle's comments by booing him. Ms. Sandor engaged him to the extent of calling him "ignorant", saying that he was not telling jokes anymore, and that he was not funny.

[69] Immediately after Mr. Earle's first set of comments to Ms. Pardy and her friends from the stage, he left the stage and angrily approached booth 3. Ms. Pardy picked up a glass of water from the table and threw it in his face. She said, "Don't come near our table”, and he said something uncomplimentary. The Tribunal could not determine what he said, or whether he spoke before or after Ms. Pardy threw the water.

[70] Both Ms. Pardy and her friend, Ms. Sandor, were shocked and stunned by what Mr. Earle had said to them from the stage, and were apprehensive about his angry approach to their booth, though not acutely concerned about their physical safety.

[71] Shortly after Ms. Pardy threw the first glass of water at Mr. Earle, Mr. Earle returned to the stage to finish introducing Mr. Wolfe, and said the following words, directed exclusively at Ms. Pardy, Ms. Broomsgrove, and Ms. Sandor, or words to substantially the same effect:

"Thanks for ruining the evening, fucking dykes”,

"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."

[72] Ms. Broomsgrove had said from the audience that Mr. Earle wasn't funny. Others in the audience, including some or all of Ms. Pardy, Ms. Sandor and Ms. Broomsgrove booed. In response either to Ms. Pardy's boos, or something else that she said, Mr. Earle made his "shut her the fuck up" comment.

[73] When Mr. Wolfe finished his brief performance, he and another comedian, DJ, both came to Ms. Pardy's booth and expressed regrets about Mr. Earle's behaviour. The lights had come on, and the show had ended. The time was approximately 11:15 p.m.

[74] Ms. Pardy and her friends were standing near their booth, talking to Mr. Wolfe and DJ, when Mr. Earle approached again, agitated and angry. Ms. Pardy threw a second glass of water in his face and said, "I told you not to come near this table", but no other words were exchanged. Mr. Earle left the vicinity of the booth. Ms. Pardy experienced a physical reaction, which included ringing in her ears, sweating, and shaking.

[75] Ms. Pardy walked toward the washroom, and spent a short time there splashing her face, crying and trying to compose herself. When she emerged, as she was passing along the bar, en route to her booth in an effort to avoid Mr. Earle, he approached her. He stood over her. In the course of a heated verbal exchange, in which both of them pointed fingers in one another's faces, he said the following to her:

"You had to ruin the show, you fucking stupid dyke, stupid bitch."

"You want to be a man, don't you?"

[76] Mr. Earle then reached out, took the sunglasses which were pushed up on Ms. Pardy's head, broke them in half, and threw them on the floor at her feet. Ms. Semczyszyn, who had just come upon the scene, picked up the pieces, but said nothing. Ms. Pardy returned to her booth and her friends. They gathered up their belongings and prepared to leave.

[77] Mr. Ismail was not present in the restaurant when Mr. Earle made any of his comments, when Ms. Pardy threw either glass of water, or when Mr. Earle broke her sunglasses, but returned just after the last of these events.

[78] When Mr. Ismail returned to the restaurant, he was told something about the incidents between Ms. Pardy and Mr. Earle.

[79] Mr. Earle approached Mr. Ismail, who asked him what had happened. Ms. Pardy saw them talking. Mr. Earle told Mr. Ismail that Ms. Pardy and her friends were drunk and hassling him, and that they had thrown water in his face. In fact, the women were not drunk. Any hassling they did followed Mr. Earle's comments to all three of them from the stage, and to Ms. Pardy near the bar when he accosted her after her exit from the washroom. Ms. Pardy did twice throw a glass of water in Mr. Earle's face as he approached her booth. Mr. Earle did not tell Mr. Ismail what he had said to Ms. Pardy or the other women.

[80] Before Mr. Ismail and Mr. Earle finished their conversation, Mr. Ismail was called to the phone, and Mr. Earle went out to the street. The time was approximately 11:30 p.m.

[81] Shortly after 11:30 p.m., Ms. Pardy, Ms. Sandor, Ms. Broomsgrove, Mr. Earle, Mr. Franson, Mr. Espaniel (a comedian who was there as a spectator), Mr. Roy, and perhaps Mr. Miedzinski (another comedian) all went outside at about the same time.

[82] The three women were together, walking away. Mr. Earle made a comment about free speech, and Ms. Sandor made a comment that hate speech is not free speech. Ms. Broomsgrove made a comment about paying for Ms. Pardy's sunglasses, and Mr. Earle responded by telling her to "fuck off". There were likely other words exchanged among Ms. Pardy, Mr. Earle, Ms. Sandor and Ms. Broomsgrove, but the Tribunal could not determine what they were.

[83] The three women continued on to Ms. Broomsgrove's nearby home. Mr. Earle, Mr. Franson, Mr. Espaniel and Mr. Roy went to a nearby bar.

[84] Ms. Pardy telephoned Mr. Ismail the next day, May 23, 2007, during the daytime. She reminded him that she had been at Zesty Restaurant the previous evening, and gave him her characterization of the events there, and her reaction to them. He believed her account, was receptive to her concerns, invited her to come down to talk to him, and volunteered to pay for her sunglasses. Mr. Ismail stated his understanding that Ms. Pardy had thrown water at Mr. Earle, and said that this might be characterized as an assault.

[85] Ms. Pardy attended the restaurant in the early evening of May 23, coming directly from her work. She brought a tape recorder from work, with which she had decided to surreptitiously record her conversation with Mr. Ismail, and which she activated before she entered the restaurant. Neither Mr. Ismail nor Mr. Dacosta, an employee of Zesty, was aware that she was recording them.

[86] Mr. Ismail was on the telephone when Ms. Pardy arrived. She was upset about her experience of the evening before, disappointed that Mr. Ismail had suggested in their earlier telephone conversation that, in throwing water, she might have been partly at fault, and impatient that Mr. Ismail was not immediately available. 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. Through the recording, she also wanted to obtain admissions from Mr. Ismail about his responsibility for what she had experienced.

[87] Ms. Pardy was agitated from the beginning of the conversation. Mr. Ismail initially asked Ms. Pardy to tell him what had happened, 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, accused him of failing to take responsibility for Mr. Earle's actions, and pointed her finger at him.

[88] Ms. Pardy said Mr. Ismail was liable for what had happened, and she would hold him accountable. She said he had been standing watching, and did not do anything. He told her he had not been present at the restaurant at the time.

[89] Mr. Ismail reacted negatively to Ms. Pardy's loud and accusatory approach. He also became very upset. He objected to the way she was speaking to him, and 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 did not care.

[90] When Mr. Ismail asked Ms. Pardy to leave, and told her to "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.

[91] Mr. Ismail followed her outside as far as the patio. Mr. Dacosta, his employee, persuaded him not to call the police.

[92] 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.
VIII. SUMMARY OF THE ANALYSIS BY THE TRIBUNAL

[93] I will briefly summarize the analysis of the Tribunal in reaching its decision.

[94] Although Mr. Earle sought to challenge the constitutionality of s. 8 of the Code before the Tribunal, the Tribunal held that s. 45 of the Administrative Tribunals Act deprives it of jurisdiction over constitutional issues related to the Charter, and that it has no power to refer a stated case on a Charter question to the courts. The Tribunal concluded the Zesty parties and Mr. Earle could not challenge the constitutionality of s. 8 of the Code on Charter grounds before the Tribunal, as the Tribunal did not have jurisdiction.

[95] The Tribunal decided that Mr. Earle and the Zesty parties were, in offering entertainment and refreshment to Ms. Pardy and its other patrons, providing a "service ... customarily available to the public" on the evening of May 22, 2007. The Tribunal’s reasons were that the open mic comedy night was a regular offering at Zesty Restaurant, pursuant to a formal arrangement between Mr. Ismail, the principal of Zesty, and Mr. Earle. The Zesty parties promoted the comedy night through public advertisements, which attracted both performers and other paying customers. The comedy night took place on the restaurant premises, during its regular business hours. The general public was free to attend.

[96] The Zesty parties sponsored the comedy night as part of their business, both because it attracted paying customers (including friends of the comedians and the comedians themselves) who might not otherwise have come to the restaurant, and because it enabled those parties to make contacts in pursuit of future entertainment events.

[97] The services of restaurant and comedy club provided at Zesty Restaurant on the evening of May 22, 2007, were, the Tribunal held, integrated and inseparable. They occupied the same space at the same time, and were provided to the same patrons. The Tribunal decided they were unquestionably customarily available to the public.

[98] The Tribunal concluded that the services of refreshment and entertainment provided to Ms. Pardy were part of a "service ... customarily available to the public" as that phrase is used in s. 8(1) of the Code, and as such it had jurisdiction over Ms. Pardy's complaint of discrimination in the provision of that service.

[99] The Tribunal pointed out that the parties agreed that whether Mr. Earle was an "employee" of the Zesty parties was to be determined with reference to a definition of "employment" which furthers the purposes of the Code, and did not depend on common law (or statutory) definitions. The parties disagreed on whether Mr. Earle was an employee of the Zesty parties for the purposes of the Code.

[100] The Tribunal concluded that Mr. Earle was an employee of the Zesty parties, within the meaning of that term in the Code, in providing a service customarily available to the public.

[101] The Tribunal held that all of Mr. Earle's actions in relation to Ms. Pardy, other than his remarks in the YouTube video, were undertaken in the provision of entertainment as a service to the public, and that, as he was an employee of the Zesty parties in providing that service, his acts were deemed to be theirs. The Tribunal said that Mr. Earle is entitled to “whatever enhanced protection there may be for expression which is associated with a comedy performance”.

[102] The Tribunal found that Ms. Pardy made out a prima facie case of discrimination, based on her sex and sexual orientation, against Mr. Earle and the Zesty parties. It found that Ms. Pardy proved, as she was required to do, that she fell within one of the enumerated grounds under s. 8, that she experienced adverse treatment in the provision of a service customarily available to the public, and that her sex or sexual orientation was a factor in the adverse treatment. The Tribunal accordingly found that she had made out a prima facie case of discrimination.

[103] The Tribunal noted that the respondents' principal argument in justification was that, in his actions towards Ms. Pardy, Mr. Earle was exercising his Charter-protected freedom of expression. The Tribunal said it could not consider or give effect to this argument, because of s. 45 of the Administrative Tribunals Act. The Tribunal said its jurisdiction to entertain arguments related to freedom of expression arose, if at all, in deciding whether a non-Charterclaim to free expression is a defence under s. 8(1) of the Code, as a "bona fide and reasonable justification" for conduct that would otherwise contravene the Code.

[104] The Tribunal held that Mr. Earle and the Zesty parties had not identified any ambiguity in the provisions of the Code which would permit their interpretation in light of Charter values, such as Mr. Earle's freedom of speech. The provisions of s. 8 of the Code as to the elements of a prima facie case of discrimination, and of a bona fide and reasonable justification for such discrimination, the Tribunal said, were unambiguous and well-settled, and their application in this case does not give rise to any significant difficulties.

[105] In case the Tribunal was mistaken in its conclusion that the provisions of s. 8 of the Code contained no ambiguity, it went on to consider whether Mr. Earle’s exercise of freedom of expression was a bona fide and reasonable justification for his conduct.

[106] Because freedom of expression is at the heart of the petitioners’ challenge, I set out the following passages from the Tribunal’s decision, indexed at Pardy v. Earle (No. 4), 2011 BCHRT 101:

449 In his argument, Mr. Earle justifies his actions as a necessary part of his performance to deal with "hecklers", and cautions against any decision which would have a "chilling effect upon performers simply because someone in the audience doesn't 'get' the joke". I have already found that Ms. Pardy was not a heckler, and that Mr. Earle had means to deal with perceived disruption to the show far short of his attack on her as a woman and as a lesbian. None of the witnesses testified that Mr. Earle was telling "jokes".

450 I test Mr. Earle's asserted right to free expression, as framed by him in his argument, against the rationale stated in Grant for protecting such expression: "an aspect of self-realization for both speakers and listeners". These are the relevant "Charter values" in assessing the balance between Mr. Earle's right to express himself against Ms. Pardy's right under the Code to protection from discrimination. It is obvious that Mr. Earle's actions were destructive of Ms. Pardy's "self-realization"; I confine my discussion to whether they were justified by his stated purpose in undertaking them.

451 As noted, Mr. Earle relies on [Comedy Network re Comedy Now ("Gord Disley"), [2006] C.B.S.C.D. No. 4] as a case which supports the comedic use of exaggerated stereotypes to expose and prompt examination of prejudices with the aim of reducing discrimination.

452 None of the respondents tendered any evidence that Mr. Earle's actions had this purpose or effect. The evidence was all to the contrary: that his purpose, put at its highest, was to "shut her up", and that his effect was to humiliate and injure Ms. Pardy with specific reference to her sex and sexual orientation. It cannot fairly be suggested that the tone, content, or context of Mr. Earle's words and actions directed at Ms. Pardy were consistent with the Code's purposes of promoting "a climate of understanding and mutual respect where all are equal in dignity and rights" or of "removing impediments to full and free participation in the economic, social, political and cultural life of British Columbia".

453 Even if there was a basis in the evidence for an inference that Mr. Earle was on a mission to "expose prejudices" (other than, perhaps, his own), the Canadian Broadcast Standards Council's decision in Disleyexpressly recognized that the purpose of the human rights clause it was considering was to "protect against harmful speech".

454 Further, the radio comedian's words at issue in Disley, which the Council found did not contravene the human rights clause, were a far cry from the abuse Mr. Earle turned on Ms. Pardy. In a passage not referred to by Mr. Earle, the Council reproduced the full text of the remarks which were the subject of the complaint in that case:

So Pride Day's coming up, huh? I'm not a fag myself; if I was, I'd tell ya. I can't, so I won't. I mean, really, homophobia in the year 2000 looks particularly stupid, doesn't it? 'Cause it's the year 2000. And we're all in the same freaking boat, so just get over it. This is what I tell people that I come across that I don't want to bother with, who are homophobic.

Fags renovate like a [muted phrase: "son of a bitch"]. Me, I'm not good with tools. I mean, renovating for me is putting a candle in a bottle, you know. Am I in the right apartment? Homosexual men have projects around the house. You hand a fag a square foot and say "make it attractive", no problem. I mean I know men with bachelor apartments and sliding doors. Like French doors. Window boxes, hardy cacti. Man, you walk into a house full of straight boys and suggest a project, you know what you get? "Uhh, you mean like take the empties back? I've got some popsicle sticks; you can build a birdhouse. What?"

455 One can accept that that these comments may have been, as the Council found, on one side of the line of "harmful speech", while concluding that Mr. Earle's comments were far beyond the other side of that line.

[107] The Tribunal stated its conclusion at para. 456 this way:

456 I conclude that any defence by the respondents that Mr. Earle's freedom of expression was a bona fide and reasonable justification for discrimination fails on both the facts and the law. Mr. Earle's conduct was not reasonably related to any effort to deal with a disruption to the show. Mr. Earle was not engaged in exposing the stereotypes of others. Nothing about Mr. Earle's asserted purposes in verbally and physically attacking Ms. Pardy on the basis of her sex and sexual orientation justified elevating his right to free expression over her right under the Code to be protected against his discriminatory conduct.
IX. PROCEDURAL HISTORY

[108] Before turning to the more substantive challenges to the decision, I will address the procedural issues raised by the petitioners.

[109] The procedural history is largely taken from the submission of counsel for the Tribunal where its accuracy was not disputed. When I deal with the various objections of the petitioners as to procedural unfairness, I will describe the matters in contention.

[110] On September 10, 2007, Ms. Pardy filed her complaint, alleging discrimination against her in the provision of a service because of her sex and sexual orientation, contrary to s. 8 of the Code. She filed an amended form on October 25, 2007.

[111] The Tribunal accepted the complaint for filing and notified Mr. Earle, who filed his response on April 16, 2008, and Mr. Ismail and Zesty, who filed their response on April 24, 2008.

[112] On April 24, 2008, Mr. Earle filed an application to dismiss Ms. Pardy’s complaint under s. 27(1) of the Code, on the grounds that the complaint was not within the Tribunal’s jurisdiction, that his acts did not contravene theCode, that there was no reasonable prospect that the complaint would succeed, and that proceeding with the complaint would not benefit the group or the person alleged to have been discriminated against.

[113] Section 27(1) of the Code provides

27(1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:

(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;

(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;

(c) there is no reasonable prospect that the complaint will succeed;

(d) proceeding with the complaint or that part of the complaint would not

(i) benefit the person, group or class alleged to have been discriminated against, or

(ii) further the purposes of this Code;

(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;

(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

(g) the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22(3).

[114] The Tribunal rejected the application to dismiss Ms. Pardy’s complaint (Pardy v. Earle, 2008 BCHRT 241, [Pardy No.1]), and found that the Tribunal had jurisdiction. It found that if Ms. Pardy were able to prove her allegation to the effect that she was harassed and singled out on the basis of her sex and sexual orientation, that it would amount to a breach of the Code; and that the disagreements between the parties could only be resolved on the basis of a member hearing the evidence. As such, the Tribunal could not say that Ms. Pardy’s complaint had no reasonable prospect of success. If Ms. Pardy were to succeed in her complaint, there would be benefit to her and the purposes of the Code would be furthered.

[115] There was a pre-hearing conference on November 19, 2008, at which September 9-11, 2009 was agreed upon as the dates of the hearing. On November 25, 2008, the Tribunal issued a Notice of Hearing setting the hearing down for those dates.

[116] On July 24, 2009, Mr. Earle petitioned for judicial review of the decision dismissing his application to have the complaint dismissed. In August 2009, the Tribunal adjourned the hearing set for September 9-11, 2009, essentially on the basis that Mr. Earle’s petition seeking judicial review of the dismissal decision was outstanding. The Tribunal sought advice from the parties as to their availability for a hearing in March 2010, but Mr. Earle’s counsel did not respond.

[117] Mr. Earle applied to the B.C. Supreme Court for judicial review of the Tribunal’s decision in Pardy No. 1. Willcock J., as he then was, delivered oral reasons dated September 10, 2009. In his reasons, he observed, at para. 18:

18 Of note, this is not a case where the jurisdictional question has not been considered on the preliminary application, nor is it a case like many cited in argument where the Tribunal determined that a jurisdictional decision could not be made on preliminary application without a larger evidentiary base. It is rather, despite assurances from the Tribunal’s counsel, a case where there is a decision on the jurisdictional issue, apparently binding on its face.

[118] Willcock J. ordered the Tribunal to reconsider its decision under s. 27(1)(a) that it had jurisdiction to decide the complaint, and he dismissed the remainder of the petition: Earle v. British Columbia Human Rights Tribunal (10 September 2009), Vancouver File No. S085249 (S.C.).

[119] On October 28, 2009, the Tribunal heard submissions regarding the scope of the reconsideration ordered by the Court. The parties subsequently filed written submissions. In a letter decision dated December 23, 2009, the Tribunal set out five issues on which all parties had standing to make submissions:

a. Was Mr. Earle an agent or employee of Mr. Ismail and/or Zesty;

b. Was Mr. Earle providing a service within the meaning of the Code;

c. Should the Tribunal exercise its discretion to consider the issue of whether Mr. Ismail and Zesty were providing a service customarily available to the public;

d. If the Tribunal exercises its discretion to consider the issue, were Mr. Ismail and Zesty providing a service customarily available to the public; and

e. How s. 2(b) Charter rights impact the Tribunal’s jurisdiction, including under s. 8 of the Code. However, pursuant to s. 45 of the Administrative Tribunals Act, R.S.B.C. 2004, c. 45, the Tribunal does not have the jurisdiction to determine if Mr. Earle’s conduct amounts to protected expression.

[120] In the December 23, 2009 decision, the Chair of the Tribunal noted that the member designated to decide the reconsideration issues was not required to do so on a preliminary basis, but was free to conclude that some or all of the issues required an evidentiary basis.

[121] Following a pre-hearing conference on January 14, 2010, by a letter decision of January 19, 2010, the Tribunal adjourned the scheduled hearing dates and decided that the five reconsideration issues would be dealt with at the hearing of the complaint on the merits, rescheduled for March 29-31 and April 1, 2010.

[122] Mr. Millar was counsel for Mr. Earle. Mr. Millar’s representative had applied for an adjournment because Mr. Millar was out of the country until March 15. The Tribunal chair suggested that submissions on the reconsideration issues be put over until the hearing on the merits, and that the hearing be adjourned to the week of March 29 (when all counsel indicated they were available).

[123] Accordingly, by letter dated January 19, 2010, the Chair of the Tribunal adjourned the hearing to the week of March 29, 2010, and left the reconsideration issues to be dealt with at the time. In her reasons, the Chair indicated that the hearing proceeding on March 1-5, 2010 would create a hardship for Mr. Earle, as his counsel was unavailable during that time and had sought an adjournment. As a result of her counsel’s pending leave of absence, Ms. Pardy, she said, would suffer prejudice for an adjournment of any length, but that prejudice was minimized by a short adjournment to the end of March. The Chair noted that it was unlikely that a submission schedule could be set which would allow the parties sufficient time to exchange submissions and the Tribunal to render a decision on the reconsideration issues, as some of the issues may require an evidentiary basis. The Chair also noted that the evidence would not be lengthy, and all counsel were available to proceed during the week of March 29, 2010.

[124] On February 4, 2010, Mr. Earle applied to adduce his evidence by telephone and also argued, contrary to the Tribunal’s January 19, 2010 letter decision, that the preliminary issue to dismiss on jurisdictional grounds should be argued in advance of any hearing dates. The Tribunal determined that the prejudice to Ms. Pardy of allowing Mr. Earle’s application outweighed any prejudice to him in denying it. On March 8, 2010, the Tribunal dismissed Mr. Earle’s application to have his evidence adduced by telephone.

[125] On March 23, 2010, the Tribunal conducted a further pre-hearing conference with the parties to deal with witness scheduling. Counsel for Mr. Earle advised that he may call two or three witnesses and that Mr. Earle might or might not be able to attend the hearing. Mr. Earle’s counsel advised that the hearing dates were inconvenient for him and he requested that they be adjourned in order that the Tribunal could first address two issues which he characterized as jurisdictional: whether Mr. Earle was an employee or agent of Zesty or Mr. Ismail, and whether s. 8 of the Code is a justifiable limit on Mr. Earle’s Charter right to freedom of speech.

[126] The Tribunal treated this request as an application to bifurcate the hearing between, first, legal argument, without evidence, on jurisdictional issues, and, second, if jurisdiction was established, evidence and argument on all other issues.

[127] After hearing the parties’ oral submissions on Mr. Earle’s bifurcation application, the Tribunal denied it, with written reasons to follow.

[128] On March 24, 2011, Mr. Earle filed with the Tribunal a Notice of Constitutional Question in which he gave notice of his intention to apply to the Tribunal for:

(1) A ruling that section 8 of the B.C. Human Rights Code is unconstitutional insofar as it is impermissibly vague, overbroad, and an unjustified infringement of Earle’s right to freedom of expression enshrined in Section 2(b) of the Canadian Charter of Rights and Freedoms, pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms, s. 52 of the Constitutional Act, and the Constitutional Question Act [RSBC 1996] Chapter 68;

(2) in the alternative, a ruling by the Tribunal that s. 8 of the B.C. Human Rights Code does not apply to the expression at issue;

(3) in the further alternative, an immediate referral of the Constitutional and Charter of Rights and Freedoms issues to the B.C. Supreme Court by way of stated case.

[129] On March 26, 2011, Mr. Earle also filed with the Tribunal a further notice of application to adduce his evidence by telephone.

[130] On March 29, 2011, the first day scheduled for hearing, counsel for Mr. Earle asked for a ruling on the renewed telephone evidence application. The Tribunal denied the application, with written reasons to follow.

[131] Also at the hearing on March 29, counsel for Mr. Earle reargued the Tribunal’s March 23 ruling denying the bifurcation application, and applied to the Tribunal to refer to the Supreme Court of British Columbia, in the form of a stated case, the question of whether s. 8 of the Code is unconstitutional as being in conflict with s. 2(b) of the Charter. The Tribunal denied the stated case application, with written reasons to follow.

[132] After the Tribunal denied the bifurcation and stated case applications, Mr. Earle’s counsel asked for a short adjournment to seek instructions from his client. When the hearing reconvened, he stated that the Tribunal was proceeding illegally, that he had to leave the proceeding because it was illegal, that the Tribunal could not proceed with the hearing without first deciding whether the Tribunal had jurisdiction, and that for him to stay would be consenting to an illegal process. He presented the Tribunal with a written document called a “factum of law affecting Mr. Earle’s case”, left the hearing room, and did not return.

[133] The hearing continued through March 29, 30 and 31, during which time the Tribunal heard evidence from three witnesses called by Ms. Pardy, and nine witnesses called by Mr. Ismail and Zesty. Mr. Earle did not testify, and did not appear further in person or through counsel.

[134] At the conclusion of the evidence on March 31, the Tribunal set April 9, 2010 for argument on both the reconsideration issues and the merits of the complaint. The parties who had attended the hearing made oral submissions on that day, and further written argument followed. Though given written notice of the continuation of the hearing, Mr. Earle did not appear in person or through counsel.

[135] At the conclusion of oral argument on April 9, 2010, the Tribunal advised all parties present that, with the benefit of full evidence and argument, the Tribunal would first consider its jurisdiction to decide the complaint. Only if it determined that it had jurisdiction would it go on to consider whether the complaint was justified, and, if so, what remedy was appropriate.

[136] On April 23, 2011, the Tribunal released its written reasons for its March 23, 2010 oral decision denying Mr. Earle’s bifurcation application, and for its March 29, 2010 oral decisions denying his renewed telephone evidence application, and his stated case application: Pardy v. Earle (No. 3), 2010 BCHRT 128. The Tribunal member, Mr. Geiger-Adams, held that the issue of whether Mr. Earle was an employee or agent, or was separately providing a service could only be resolved with a proper evidentiary basis. He said it would be inefficient to have the witnesses testify once with respect to these issues and again if the Tribunal found it had jurisdiction. With respect to the renewed application to testify by telephone, the Tribunal member said that Mr. Earle had raised no new circumstances that would justify a different decision. Thirdly, with respect to the stated case application, he confirmed that pursuant to s. 45 of the Administrative Tribunals Act, the Tribunal did not have jurisdiction over constitutional questions and had no power to refer a stated case to the Court on a question relating to the Charter.

[137] On April 20, 2011, the Tribunal issued the reasons for the decision under review, styled as Pardy v. Earle (No. 4).
X. PROCEDURAL ISSUES

[138] Mr. Earle and Mr. Ismail and Zesty allege that the Tribunal committed procedural errors and was patently unfair in a number of the procedural decisions it made prior to the hearing of the complaint.

[139] Those criticisms or challenges can be grouped into three general categories:

(1) the Tribunal’s failure to decide a preliminary application by Mr. Earle to dismiss the complaint due to lack of jurisdiction under the Code to affect the content of, or restrict the speech of, comedians;

(2) the Tribunal’s refusal to permit Mr. Earle to testify by telephone;

(3) the Tribunal’s refusal to adjourn the hearing and having proceeded to conduct a hearing without the participation of Mr. Earle or his counsel.

[140] In a sense, the refusal of the Tribunal to bifurcate the hearing falls into two categories, as it was essentially an application to adjourn part of the hearing so that the preliminary jurisdictional issues could be determined first.

[141] The Tribunal’s position on the appropriate standard of review, supported by Ms. Pardy, is that its decisions are either discretionary decisions subject to review only if patently unreasonable (which it says they were not), or if the decisions relate to procedural fairness or natural justice, that the hearing was fair in all the circumstances. Ms. Pardy suggests that the petitioners have mischaracterized this ground of review, and no issue of procedural fairness or natural justice arises as the Tribunal did not “decide” to proceed in the absence of Mr. Earle and his counsel, but rather Mr. Earle chose not to attend and his counsel chose to leave the proceedings after objecting to the Tribunal’s process.

[142] I will deal with each of these contentions in turn. I note that although evidence is normally limited to the material that forms part of the Tribunal’s record of proceedings, in some circumstances extrinsic evidence may be admissible to show a denial of natural justice: Kinexus at paras. 16-20.
A. Tribunal’s Failure to Decide the “No Jurisdiction” Preliminary Issue

[143] The question here is whether the Tribunal erred in not deciding, as a preliminary question, whether the Tribunal has jurisdiction to restrict the speech of comedians under s. 8 of the Code.

[144] Mr. Earle says that this was clearly required by the order of Willcock J. referring the matter back to the Tribunal. He argues that it was patently unfair to decide the jurisdictional question in conjunction with hearing evidence.

[145] Ms. Pardy’s position is that the Tribunal’s decision was correct. Her counsel, Ms. Waddell, argues that s. 27.3 of the Code permits the Tribunal to make any order “in order to facilitate the just and timely resolution of a complaint”. Ms. Pardy’s counsel argues that the Tribunal has authority to determine its own jurisdiction and authority to defer a determination about its jurisdiction pending consideration of an evidentiary record when a factual foundation may be helpful to facilitate the jurisdictional determination: see Barker v. Hayes, 2008 BCCA 148. The Tribunal’s decision to consider the question of jurisdiction in conjunction with hearing evidence is a discretionary one. The order of Willcock J. referring the matter back to the Tribunal did not alter this manner of proceeding. A discretionary decision should only be set aside if it is patently unreasonable: s. 59(3) of the Administrative Tribunals Act. A decision is defined as “patently unreasonable” if the discretion:

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(c) is based entirely or predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

[146] Justice Willcock, in referring the question back to the Tribunal, did not provide direction about the process to be engaged in by the Tribunal in reconsidering whether the complaint fell within the scope of s. 8. The Tribunal Chair said in the December 23, 2009 letter dealing with the reconsideration direction:

I note that my decision in this regard does not mean that the member designated to decide these issues is required to do so on a preliminary basis. Once all the submissions are completed, the member designated may conclude that some or all of them require an evidentiary basis that can only be obtained in a full hearing.

[147] The decision of the Tribunal was to defer the jurisdictional consideration until the hearing, when there was a proper evidentiary foundation. On January 19, 2010, the Tribunal Chair exercised her discretion and concluded the hearing should be adjourned to commence on March 29, 2010 to hear evidence on the merits of the complaint, including on the relationship between Mr. Earle and Zesty, and also said that all preliminary issues from the reconsideration decision would be dealt with at the time. She concluded that in the circumstances of this case:

... this is the fairest and most expeditious way of proceeding with the reconsideration ordered by the Court.

[148] The decision of the Tribunal made on January 19, 2010, March 23, 2010, and again on March 29, 2010, that the jurisdictional questions concerning the complaint would be decided in conjunction with hearing evidence fell within the Tribunal’s authority, and was, in my view, a reasonable decision in the circumstances. More importantly, it could not, in my view, be said to have been patently unreasonable. It was not made arbitrarily or in bad faith. The Tribunal did not consider irrelevant factors or fail to take statutory requirements into account. This ground of challenge must fail.
B. Tribunal’s Refusal to Allow Mr. Earle to Testify by Telephone

[149] Mr. Earle says that the Tribunal erred in refusing to allow him to testify by telephone.

[150] The petitioners say that it was patently unfair for the Tribunal to twice refuse applications to adduce Mr. Earle’s testimony by telephone (or Skype) because such a decision discriminates against “the working poor and struggling middle class”, and that it was patently unreasonable “to require [Mr.] Earle to leave his baby, his wife, his job and spend money that he didn’t have to defend himself in a hearing that may have lasted weeks before a Tribunal which refused to consider its own jurisdiction in a case without precedent.”

[151] The Tribunal also received submissions in opposition to this application from Ms. Pardy, as well as an affidavit in opposition.

[152] The Tribunal recognized that s. 27.2(1) of the Code provided it with discretion to hear evidence by telephone. Section 27.2(1) of the Code reads:

27.2(1) A member or panel may receive and accept on oath, by affidavit or otherwise, evidence and information that the member or panel considers necessary and appropriate, whether or not the evidence or information would be admissible in a court of law.

[153] That section allows the Tribunal to receive evidence by telephone. The decision is a discretionary one that is subject to judicial review only if it is patently unreasonable.

[154] The Tribunal gave written reasons for its decision on March 8, 2010: Pardy v. Earle (No. 2), 2010 BCHRT 78.

[155] The Tribunal considered Mr. Earle’s evidence and referred to the lack of information or detail about his important work that could not be delayed, how his employer would be greatly inconvenienced, or the particulars of his estimate of costs. The Tribunal noted that on the other side of the ledger, Ms. Pardy pointed to critical factual issues about which Mr. Earle might be expected to have relevant evidence. Although Mr. Earle may accept the risk that the Tribunal would reduce weight to his evidence if he testified by phone, Ms. Pardy sought to rely on some of his evidence in cross-examination and the Tribunal thought she should not be deprived of an opportunity to conduct that cross-examination in person.

[156] The Tribunal, relying on previous decisions in Francoeur v. Capilano Golf & Country Club Ltd., 2008 BCHRT 171, and Lee v. McManus, 2007 BCHRT 223, pointed out the importance of filing probative material on such an application and the importance to both the other parties and the Tribunal of being able to test and assess the credibility of key witnesses.

[157] The Tribunal’s decision in this application was that, in all the circumstances, the prejudice to Ms. Pardy of allowing Mr. Earle’s application outweighed any prejudice to him in denying it. Although it denied his application, the Tribunal said that Mr. Earle “may make arrangements with the other parties, or apply to the presiding member, to set a time to hear his evidence in such a way as to minimize the length, cost and inconvenience of his attendance.”

[158] In this case, the Tribunal considered the submissions of the parties and relevant considerations. It weighed the relative prejudice and did not appear to take into account irrelevant factors, let alone predominantly base its decision on irrelevant factors. No suggestion of bad faith or an improper purpose is made.

[159] While another tribunal might have made a different exercise of discretion, that is the nature of a discretionary decision. The decision of the Tribunal was not patently unreasonable or unfair.

[160] Accordingly, I reject this ground of review.
C. Tribunal’s Refusal to Adjourn the Hearing

[161] This complaint relates to the refusal of the Tribunal to deal with the jurisdictional issue in the absence of evidence. On March 29, 2010, at the beginning of the hearing of the complaint, Mr. Millar, counsel for Mr. Earle, brought his application for a third time that the jurisdictional issue be dealt with as a preliminary question. When his application was refused by the Tribunal, Mr. Millar, after getting instructions from his client, left the hearing.

[162] Mr. Earle and the Zesty parties argue that the Tribunal denied natural justice and was patently unreasonable in proceeding with the hearing despite knowing the reasons for Mr. Earle’s absence and Mr. Millar’s absence.

[163] Mr. Earle has filed an affidavit from William Allmann which that deals with the March 29, 2010 hearing. The purpose of the affidavit was to show a patently unreasonable procedural decision by the Tribunal. Mr. Allmann said that after the application to adduce telephone testimony was rejected, Mr. Millar made submissions “that he had received no reasons for denying his March 23 ruling to adjourn the full hearing to permit full argument on the issues identified by Justice Willcock and to accommodate his concerns about the imminent murder trial”. This is apparently a reference to a criminal trial for which Mr. Millar was counsel, scheduled to commence April 6, 2010.

[164] Mr. Allmann, who was with Mr. Millar at the hearing, deposed:

James Millar turned to me and commented that no one appeared to listen to him. The Chair had forced Mr. Millar into this full hearing knowing it was incredibly inconvenient. Neither the Chair nor this member would allow him to make the preliminary application to dismiss as contemplated by Willcock J. James Millar then advised the member he didn’t appear to be listening to him at all. Mr. Millar asked for a moment to consult with Guy Earle.

Following that discussion he submitted to the Member, quoting language from Crockford v. British Columbia and Dunsmuir that it “was against the rule of law” to proceed without a determination of the question of whether the Tribunal had the jurisdiction to entertain the complaint in the first place. He submitted that he “had the greatest of respect for the Tribunal” but that the Tribunal did not appear to be listening to him at all. He paused to see if the member would respond. The member did not, so Mr. Millar advised that “with your leave, I will leave”. On the way out he filed a draft “factum” prepared by two U.B.C. law students.

[165] Ms. Pardy argues that no issue of procedural fairness or natural justice arises, as the Tribunal did not decide to proceed in the absence of Mr. Earle and his counsel, but rather Mr. Earle chose to not attend and his counsel chose to leave after objecting to the Tribunal’s decision on how it would proceed.

[166] Julie Craig is a legal assistant with the Community Legal Assistance Society, counsel for Ms. Pardy. She swore an affidavit setting out some of the procedural history of this case. She noted that following the decision of the B.C. Supreme Court on September 10, 2009, a new hearing was scheduled for March 1-5, 2010. Mr. Millar indicated in January that it was his understanding the Mr. Earle was not bound by the March 1-5 hearing dates and that he (Mr. Millar) was out of the country until March 15, 2010. At a pre-hearing conference held on January 14, 2010, attended by counsel for Ms. Pardy and Mr. Uhlmann, appearing as agent for Mr. Millar, the Tribunal was advised that Mr. Millar was out of the country until March 15, 2010, and had a court case from April 6-16, 2010. On January 19, the Chair of the Tribunal adjourned the hearing to March 29, 2010. At a further pre-hearing conference on March 23, 2010, Mr. Millar advised that the new hearing dates were inconvenient and he did not agree to them.

[167] The question before me is whether the Tribunal’s decision to proceed in the absence of Mr. Earle and his counsel was patently unreasonable. The decision to go ahead in the absence of Mr. Earle and Mr. Millar may also be characterized as a question of procedural fairness in which case the standard of review is whether the Tribunal acted fairly in all the circumstances.

[168] I have concluded that proceeding in the absence of Mr. Earle and his counsel in the circumstances cannot be considered patently unreasonable or unfair in all the circumstances.

[169] Rule 35(4) of the Tribunal’s Rules of Practice and Procedure provides that the Tribunal may proceed with the hearing of a complaint in the absence of a participant, if it is satisfied the participant received notice of the hearing. In this case, both counsel and Mr. Earle had ample notice, and the hearing was adjourned on one prior occasion because of Mr. Earle’s counsel’s lack of availability.

[170] Moreover, the reason the hearing did not involve Mr. Earle’s counsel or Mr. Earle was because Mr. Earle instructed his counsel not to attend. He may have disagreed with the decision of the Tribunal on how to deal with the jurisdictional question and he may have disagreed with the decision not to allow Mr. Earle to testify by telephone, but the hearing proceeded in counsel’s absence because he left.

[171] Under s. 59(1) of the Administrative Tribunals Act, the question is whether, in all the circumstances, the Tribunal acted fairly. I think it did. At the hearing before me, Mr. Millar urged that he was preparing for a criminal trial and the Tribunal gave that little heed. An affidavit was filed that included a transcript of Mr. Millar’s submissions and comments to the Tribunal on March 29. I allowed the affidavits to which I have referred to be introduced on questions of the procedural fairness of the Tribunal.

[172] I have reviewed that transcript and I find that although the Tribunal would have been aware of Mr. Millar’s trial commitment a week later, Mr. Millar did not give the upcoming trial as his reason for not continuing to attend the hearing.

[173] I reject this ground of procedural unfairness.

[174] Accordingly, I reject the procedural challenges by the petitioners to the manner in which the Tribunal proceeded and conducted the hearing.
XI. CONSTITUTIONALITY OF SECTION 8 OF THE CODE

[175] The petitioners argue that s. 8 of the Code is unconstitutional because it is inconsistent with s. 2(b) of the Charter, and they seek to set aside the order of the Tribunal as infringing their freedom of expression.

[176] As explained by Chief Justice McLachlin in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para. 67, [2009] 2 S.C.R. 567 at 602, the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing an administrative decision that is said to violate the rights of a particular individual.

[177] I will first discuss the constitutionality of the statute and then discuss whether the Tribunal’s order under the statute is constitutional.
A. Parties’ Positions
1. Position of Mr. Earle, Mr. Ismail, and Zesty

[178] The petitioners argue that s. 8 of the Code, as applied to forms of expression such as the words of Mr. Earle during his appearance as emcee, contravenes s. 2(b) of the Charter. They submit that even if the objective of promoting social tolerance were attributed to s. 8 of the Code, it is too broad and too invasive, and the limitation on freedom of speech is disproportionate to the intended objective. The petitioners submit that the Supreme Court’s analysis in Whatcott supports this position.

[179] Moreover, the petitioners say that the broad purpose of s. 8 of the Code in prohibiting discrimination in the provision of a service customarily available to the public lacks precision to effectively censor expression in performance and the arts. The petitioners say that because the prohibition has the potential of a chilling effect on free expression, and is too broad and vague, it cannot satisfy s. 1 of the Charter. Put another way, the petitioners submit that the application of s. 8 to a comedian, with the onerous penalties that are authorized under the Code, involves a limitation of freedom of expression that is disproportionate to the objectives of the statute.

[180] The petitioners rely on R. v. Keegstra, [1990] 3 S.C.R. 697 and R. v. Zundel, [1992] 2 S.C.R. 731.

[181] Discrimination, the petitioners say, is too uncertain to be a lawful limitation on free expression in the context of artistic expression, given that artistic expression includes such things as comedic stereotypes and comedic retort. The petitioners say that what amounts to the outright prohibition on “discrimination “in performances simply cannot be justified under s. 1 of the Charter.

[182] Moreover, the petitioners say that the history of s. 8 of the Code shows its intended purpose was not to apply to the arts, but to prohibit the practice of barring entry by minorities to services customarily available to the public.
2. Position of Ms. Pardy

[183] The respondents disagree and submit that s. 8 of the Code is constitutional.

[184] Ms. Pardy, referring to Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 [“Taylor”], concedes that s. 8 of the Code will sometimes infringe s. 2(b) of the Charter, but submits that the issue is whether the infringement, if and when it occurs, is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society, as required by s. 1 of the Charter. Here, she submits, the task is to balance individual rights of freedom of expression with important community needs described in the purposes of the Code.

[185] Ms. Pardy submits that the decisions that are relied on heavily by the petitioners (Keegstra and Zundel) arose in the context of criminal legislation rather than human rights legislation. She urges that the pressing and substantial objective of human rights statutes is to further the Charter right to equality. In Taylor and Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 [“Ross”], the Supreme Court of Canada found the promotion of equality to be a pressing and substantial objective.

[186] Ms. Pardy says that the Oakes test must be applied to determine if any limit created by the statute is reasonable. Ms. Pardy says that there is a rational connection between the objective of the statute and Tribunal orders that may be made pursuant to the remedial power in s. 37 of the Code. She submits that s. 8 minimally impairs the s. 2(b) Charter right, given the internal limitation that it only applies to expression in the context of a service customarily available to the public, not to speech generally. In terms of balancing the salutary and deleterious effects of s. 8, Ms. Pardy says that Mr. Earle is not prohibited from engaging with the world as a comedian, nor prohibited from engaging in future shows. He is simply prohibited from treating individuals adversely in a way that amounts to discrimination in the delivery of services customarily available to the public on the basis of one or more of the grounds enumerated in the Code. She says that the salutary effects are significant in that they ensure that the recipients of public services are not subjected to discrimination and harassment. She submits that they outweigh the deleterious effects of any infringement on expression.

[187] In Ms. Pardy’s submission, the balancing is to be done by the Tribunal. She says that if a declaration were to be made that any case involving expression, or artistic or comedic expression is outside the jurisdiction of the Human Rights Tribunal, that would prevent the Tribunal from performing its “legislative function” as she says has done in foundational cases such as Taylor, North Vancouver School District No. 44 v. Jubran, 2005 BCCA 201, andRobichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, and, in particular, in Ross.

[188] Ms. Pardy also submits that the facts of this case show why an exception from s. 8 for artistic or comedic expression would be problematic, particularly where the expression also involves verbal harassment and physical intimidation.
B. Analysis

[189] The question is whether s. 8 of the Code is unconstitutional because it infringes s. 2(b) of the Charter in a manner not demonstrably justified in a free and democratic society under s. 1 of the Charter. The burden is on the petitioners to show an infringement of their s. 2(b) rights. On the s. 1 analysis, the burden is on the party seeking to uphold the legislation.

[190] For convenience, s. 8(1) of the Code, also set out above, reads as follows:

8(1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any 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.
1. Infringement

[191] Does s. 8 infringe s. 2(b) of the Charter? Freedom of expression has been broadly interpreted in the Charter context. In Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927 at 969, the Supreme Court of Canada defined the ambit of s. 2(b) this way: “if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee”. The Supreme Court of Canada has also said that s. 2(b) should be given a large and liberal interpretation and that in freedom of expression cases, the weighing of competing values should take place in the s. 1 analysis: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at 766.

[192] A number of criminal statutes and human rights statutes have been found to infringe freedom of expression: Keegstra and Zundel were cases where s. 2(b) was infringed by Criminal Code provisions; Whattcott, Taylor andRoss were cases which considered whether s. 2(b) was infringed by human rights legislation.

[193] All five of these cases involved legislation that imposed specific prohibitions on types of expression. In this case, the section at issue does not impose a direct prohibition on speech but, as the respondents correctly concede, there will be numerous cases, including the case at bar, where there is an infringement on freedom of expression as a result of a tribunal order under s. 8.

[194] When there is a denial of a service to a designated group or discrimination against a designated group in the course of providing a service customarily available to the public, freedom of expression will often be implicated, because the denial will be conveyed through words or some other form of expression. A denial of service by a manager, a comment by a doorman, or comments by an emcee or a performer, are likely to “convey or attempt to convey a meaning” and are prima facie within the scope of the Charter guarantee. I find that Ms. Pardy’s concession that s. 8 will often infringe s. 2(b) of the Charter is a sensible one.

[195] Therefore, insofar as s. 8 of the Code applies to the words and conduct of the petitioners, it infringes freedom of expression.
2. Section 1 of the Charter

[196] I now turn to the s. 1 analysis. The question is whether the respondents have established that this infringement is demonstrably justified in a free and democratic society.

[197] Chief Justice Dickson wrote in R. v. Oakes, [1986] 1 S.C.R. 103 at 138-139:

69 To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charterright or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom". The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

70 Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test". Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance”.

[citations omitted]

[198] The application of the Oakes test requires a contextual analysis.

[199] In Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (Attorney General), [1998] 1 S.C.R. 877, the Supreme Court of Canada described the contextual approach to the s. 1 analysis, at para. 87:

The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

[200] In Whatcott, the Supreme Court of Canada acknowledged the need for a contextual and purposive approach to the justification of a limit on freedom of expression. Whatcott concerned a challenge to s. 14(1)(b) of The Saskatchewan Human Rights Code, a provision concerning hate speech. The Court, under the heading “The Approach to Freedom of Expression under Section 1”, described the task in that case (at para. 66), as being “to balance the fundamental values underlying freedom of expression ... in the context in which they are invoked, with competing Charter rights and other values essential to a free and democratic society”. This included “a commitment to equality and respect for group identity and the inherent dignity owed to all human beings”.

[201] In Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, a case concerning third party election advertising expense limits, four contextual factors were listed: (1) the nature of the harm; (2) the vulnerability of the group; (3) the subjective fears and apprehension of harm; and (4) the nature of the impugned activity. The Court there found deference to the legislature may be appropriate where vulnerable groups are protected, where there are competing social values being balanced by the state, and where the social or moral value of the activity being supressed is low.

[202] Applying the first Harper factor, the harm s. 8 seeks to address, discrimination and its associated evils, is a serious one. As for the second and third factors, the groups listed in s. 8 have been identified by the legislature precisely because they are historically vulnerable groups, and therefore have a legitimate apprehension of harm.

[203] In regard to the fourth Harper factor, the nature of the impugned activity, expression, including artistic and comedic expression is valued and protected under the Charter. However, not all forms of expression protected by s. 2(b) will be afforded the same standard of scrutiny under s. 1.

[204] The Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, described, at paras. 47-50, the three rationales for the constitutional protection of free expression:

47 The guarantee of free expression in s. 2(b) of the Charter has three core rationales, or purposes: (1) democratic discourse; (2) truth-finding; and (3) self-fulfillment: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 976. These purposes inform the content of s. 2(b) and assist in determining what limits on free expression can be justified under s. 1.

48 First and foremost, free expression is essential to the proper functioning of democratic governance. As Rand J. put it, "government by the free public opinion of an open society ... demands the condition of a virtually unobstructed access to and diffusion of ideas": Switzman, at p. 306.

49 Second, the free exchange of ideas is an "essential precondition of the search for truth": R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 803, per McLachlin J. This rationale, sometimes known as the "marketplace of ideas", extends beyond the political domain to any area of debate where truth is sought through the exchange of information and ideas. Information is disseminated and propositions debated. In the course of debate, misconceptions and errors are exposed. What withstands testing emerges as truth.

50 Third, free expression has intrinsic value as an aspect of self-realization for both speakers and listeners. As the majority observed in Irwin Toy, at p. 976, "the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed".

[205] Some expression lies close to the core values underlying freedom of expression and some expression lies far from those core values. For example, in Ross, La Forest J., interpreting Dickson C.J.’s decision in Keegstra, said, at para. 90, “hate propaganda ... strays some distance from the core values of freedom of expression and, consequently, restrictions on expression of that kind might be easier to justify than other infringements on freedom of expression”. Like hate speech, some discriminatory speech may stray from the core values of freedom of expression.

[206] Another aspect of the context of this case is that, in normal practice, s. 8 is applied by bodies with special expertise in discrimination law. As the Supreme Court said in Ross, at para. 87:

It must be recognized that human rights tribunals have played a leading role in the development of the law of discrimination, and this is reflected in the jurisprudence of this Court both in the area of human rights and under theCharter. This Court should proceed under s. 1 with recognition of the sensitivity of human rights tribunals in this area, and permit such recognition to inform this Court's determination of what constitutes a justifiable infringement of the Charter.

[207] Therefore, in considering whether the infringement is demonstrably justified in a free and democratic society, relevant contextual factors include the fact that the legislature is seeking to address the harm of discrimination against vulnerable groups, that discriminatory speech is removed from the core values underlying freedom of expression, and that a tribunal with special expertise is charged with determining when there is discrimination.
3. Is the Objective for Which the Limit is Imposed Pressing & Substantial?

[208] The law that is challenged must pursue an objective that is sufficiently important to justify limiting a Charter right.

[209] The objective of s. 8 of the Code may be discerned from the purposes of the Code as they appear at s. 3, which reads:

3 The purposes of this Code are as follows:

(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(c) to prevent discrimination prohibited by this Code;

(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e) to provide a means of redress for those persons who are discriminated against contrary to this Code

[210] The elimination of discrimination based on characteristics such as race, sex, disability and sexual orientation is an important legislative objective. That has been stated in many cases. In Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, the Supreme Court of Canada said that the common purpose of human rights statute provisions that prohibit discrimination with respect to services offered to the public (such as s. 8), is “the elimination of discrimination in enterprises that serve the public” (at para. 55).

[211] I refer as well to comments of the Supreme Court of Canada in Ross at para. 97:

97 In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Dickson C.J. found that the objective of promoting equal opportunity unhindered by discriminatory practices based on race or religion was pressing and substantial. In arriving at his conclusion, he reviewed the harms caused by messages of hatred, including "substantial psychological distress", pressure to renounce cultural differences, and loss of self-esteem. As well, he noted that the result of such messages may be to increase discrimination. He then referred to the international community's commitment to the eradication of discrimination. To this end, he reviewed the international conventions to which Canada is a signatory and concluded (at p. 920) that they exhibit that the commitment of the international community to the eradication of discrimination extends to prohibiting the dissemination of ideas based on racial or religious superiority. Finally, he stated that ss. 15 and 27 of the Charter, in which the values of equality and multiculturalism are enshrined, strengthen the "substantial weight" to be given to the objective of preventing the harmful effects associated with hate propaganda.

[212] The objective of s. 8 is to prevent discrimination in services customarily available to the public. It is clear that this purpose is pressing and substantial. In Taylor, it was held that in seeking to prevent the harms caused by hate propaganda, the objective behind s. 13(1) is obviously one of pressing and substantial importance, sufficient to warrant some limitation upon the freedom of expression; see as well Keegstra at 746-747; Whatcott at para. 77.

[213] The petitioners suggest, however, that dealing with communication or expression in an adult comedy club goes beyond the original, more restricted, purpose of the statute. The petitioners say that if such expression were to be covered by s. 8, the legislature would have said so explicitly.

[214] I disagree. Clearly, discrimination against a person, because of sex or sexual orientation in the provisions of a service customarily available to the public, will often involve forms of expression.

[215] I conclude that the reduction or elimination of discrimination, including discriminatory forms of expression, is a pressing and substantial objective.
4. Proportionality

[216] The next question under the Oakes test is proportionality: whether the challenged law is rationally connected to the objective, impairs the right no more than is necessary to accomplish the objective, and has benefits which outweigh the deleterious effects of limiting the Charter right.

[217] I must first consider whether the law is rationally connected to the objective.

[218] It is rare to find cases where there is no rational connection between the objective and the impugned law: Robert J. Sharpe and Kent Roach, The Charter Rights and Freedoms, 4th ed. (Toronto: Irwin Law, 2009) at p. 71.

[219] However, some laws do fail the rational connection step, such as part of the provision at issue in Whatcott, which was found invalid (Whatcott, para. 99). Section 14(1)(b) of the Saskatchewan Human Rights Code read:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

...

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

[Emphasis in Whatcott]

[220] In Whatcott, the Court said with respect to the impugned section:

99 In my view, prohibiting representations that are objectively seen to expose protected groups to “hatred” is rationally connected to the objective of eliminating discrimination and the other harmful effects of hatred. Prohibiting expression which “ridicules, belittles or otherwise affronts the dignity of” protected groups is not rationally connected to reducing systematic discrimination against vulnerable groups. Those words unjustifiably infringe s. 2(b) of the Charter and are constitutionally invalid.

[221] Having found that the words “ridicules, belittles or otherwise affronts the dignity of" were not rationally connected to the objectives of eliminating discrimination and the other wrongful effects of hatred, the Supreme Court severed those words from the section.

[222] I have considered whether that aspect of the Whatcott decision has implications for the constitutionality of s. 8 of the Code. It might be argued that Mr. Earle’s words merely ridiculed, belittled or affronted the dignity of Ms. Pardy and that section 8 would be unconstitutional if it extended so far as to prohibit those words.

[223] However, in my view Whatcott is distinguishable from the case at bar. Section 14(1)(b) of the Saskatchewan Human Rights Code is concerned with speech that promotes hatred and the section is directly aimed at prohibiting such expression. Section 8 of the B.C. Code, on the other hand, is concerned with eliminating discrimination in the provision of services to the public. It is only when expression causes such discrimination that it is caught by s. 8.

[224] In Whatcott the prohibition against language that “ridicules, belittles or otherwise affronts the dignity of” persons based on their race, sex, sexual orientation and the like, was held not to be rationally connected to the goal of reducing systematic discrimination against vulnerable groups. Here, the question is whether there is a rational connection between prohibiting discrimination in providing services to the public (including forms of expression that constitute discrimination) and the goal of eliminating discrimination in the provision of services customarily available to the public.

[225] I conclude here that there is a rational connection between the legislative objective and the impugned legislation. Indeed, it is difficult to conceive how the problem of discrimination in services to the public could possibly be addressed without including forms of expression in the prohibition. For example, discrimination against a category of patrons in a restaurant could be accomplished simply by declining to serve persons in that category. Equally, it could be accomplished through a sign that says “No [persons in that category] allowed” or through subjecting patrons in that category to vituperative and insulting language once in the restaurant.

[226] I find that the rational connection aspect of the test is satisfied.

[227] I turn to the next aspect of the proportionality analysis in Oakes: is the limit minimally impairing? This aspect is central to the petitioners’ challenge to the law, where they say it is vague and overbroad.

[228] In Whatcott, the provision at issue was also challenged for over-breadth in that it “captures more expression than is necessary to satisfy the legislative objectives, and thereby fails to minimally impair the right to freedom of expression” (at para. 107). The Supreme Court of Canada reiterated that, provided the option chosen by the legislature is one within a range of reasonably supportable alternatives, the minimal impairment test will have been met: para. 101, relying on R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at 781-783.

[229] I observe at the outset that there are some limits written into s. 8 of the Code. It is tailored to the objective of the elimination of discrimination in enterprises that serve the public by only prohibiting discrimination (a) in an accommodation, service, or facility that is customarily available to the public, (b) against certain named groups, and (c) without a bona fide and reasonable justification.

[230] Nevertheless, even with those limitations, is the section overbroad and does it have a chilling effect on freedom of expression by infringing on artistic or comedic expression? In other words, does it capture more expression than necessary to satisfy its legislative objective?

[231] The overall purpose of s. 8 is to prevent discrimination in services customarily available to the public, including discrimination through forms of expression. Discriminatory speech strays some distance from the “spirit of s. 2(b) of the Charter”. It is not just any speech that is caught by s. 8; it is only speech that amounts to unjustifiable discrimination, as determined by the Human Rights Tribunal applying the Code. In applying the Code, the Tribunal must properly consider Charter values.

[232] As I will explain, I find that s. 8 minimally impairs a person’s freedom of expression. It does not restrict speech generally, or artistic or comedic speech generally. Section 8, to the extent it affects expression, only does so in connection with discriminatory conduct in the course of providing a service customarily available to the public. Moreover, it only does so if a Tribunal, bound by the Charter, makes an order under s. 8 that properly balances the severity of the interference with freedom of expression with the Code’s achievement of its objectives.

[233] In considering whether s. 8 is overbroad, the Court can consider that a tribunal is subject to the Charter and is required to properly exercise its statutory mandate (and that it will be subject to judicial review if it does not). In determining whether conduct amounts to discrimination, a tribunal must consider the impact of an order on freedom of expression. (I will discuss this further when I review the decision of the Tribunal.) For example in Taylor the Court dealt with a challenge to s. 13(1) of the Canadian Human Rights Act, which provided that it was “a discriminatory practice ... to communicate telephonically ... any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination”. Dickson C.J. said this, in considering whether the s. 13(1) was minimally impairing, at para. 62:

62 In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.

[234] In discussing the presence in some human rights statutes of provisions safeguarding freedom of expression or speech (as well as statutes that do not have those provisions), the Chief Justice said, at para. 65:

65 Perhaps the so-called exemptions found in many human rights statutes are best seen as indicating to human rights tribunals the necessity of balancing the objective of eradicating discrimination with the need to protect free expression (see, e.g., Rasheed v. Bramhill (1980), 2 C.H.R.R. D/249, at p. D/252). In any event, I do not think it in error to say that even in the absence of such an exemption an interpretation of s. 13(1) consistent with the minimal impairment of free speech is necessary. I say this with an eye to pre-Charter cases in which freedom of expression is discussed, these making it evident that an interpretative stance designed to prevent the undue infringement of freedom of expression is available to the courts ...

[Emphasis added]

[235] I do not think that s. 8 requires a provision that it does not apply to artistic performances or comedic performances in order for it to be minimally impairing. The Tribunal must consider the factual context of a complaint which would include whether the alleged violation of s. 8 formed part of an artistic performance.

[236] Moreover, in considering whether the Code is minimally impairing, it is important to note that s. 8 only applies to expression that constitutes discriminatory conduct and that speech, although it may be protected by s. 2(b) of theCharter, is not necessarily close to the core values of freedom of expression.

[237] As expressed in Whatcott, at para. 146:

146 In my view, s. 14(1)(b) of the Code meets the minimal impairment requirement. The prohibition, interpreted and applied in the manner set out in these reasons, is one of the reasonable alternatives that could have been selected by the legislature. It impairs freedom of expression “no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account” (Sharpe, at para. 96, perMcLachlin C.J. (emphasis in original)).

[238] Similarly, if the Tribunal applies s. 8 of the Code properly, there is minimal impairment of freedom of expression. Given that s. 8, to the extent it affects expression, only does so in connection with discriminatory conduct in the course of providing a service customarily available to the public, and given the fact that any order made under s. 8 must consider Charter values and minimally impact freedom of expression, I think that the legislature’s choice to enact s. 8 was within a range of reasonably supportable alternatives. This is supported by the qualification in s. 8 that the discrimination must be “without a bona fide and reasonable justification”, language absent from the provision at issue inWhatcott.

[239] I have concluded that s. 8 of the Code is not over-broad and I have concluded that the impugned statute minimally impairs freedom of expression.

[240] Finally, I turn to the last aspect of the proportionality analysis, whether the benefit of the restriction or limit outweighs the deleterious effects.

[241] Here, in my view, the infringement’s salutary effects outweigh its deleterious effects. The primary goal of the legislation is to prevent discrimination in the provision of services to the public. In my view, s. 8, properly interpreted, pursues a substantial government objective. The section only affects unjustifiable discriminatory expression, and an order under s. 8 only impinges on expression with tenuous links to the rationale underlying freedom of expression.

[242] In Taylor, Chief Justice Dickson wrote at para. 83:

83 It will be apparent from the preceding discussion that I do not view the effects of s. 13(1) upon the freedom of expression to be so deleterious as to make intolerable its existence in a free and democratic society. The section furthers a government objective of great significance and impinges upon expression exhibiting only tenuous links with the rationale underlying the freedom of expression guarantee. Moreover, operating in the context of the procedural and remedial provisions of the Canadian Human Rights Act, s. 13(1) plays a minimal role in the imposition of moral, financial or incarcerating sanctions, the primary goal being to act directly for the benefit of those likely to be exposed to the harms caused by hate propaganda. It is therefore my opinion that the degree of limitation imposed upon the freedom of expression by s. 13(1) is not unduly harsh, and that the third requirement of the Oakes proportionality approach is satisfied.

[243] In dealing with this last factor, I am mindful that, at this point, I am dealing with the impugned section, not the order. I conclude that the benefit of prohibiting discrimination in the provision of a service customarily available to the public, including discrimination expressed in words such as those used by Mr. Earle, outweighs the detrimental effect of restricting expression in those circumstances.

[244] Keegstra is of limited utility to the petitioners. In that case the majority of the Supreme Court found that the hate speech provision at issue was a justifiable limit on s. 2(b) of the Charter.

[245] In Zundel, however, a statutory provision was overturned for violating s. 2(b) in a manner that could not be justified under s. 1. At issue in Zundel was s. 181 of the Criminal Code, which prohibited publishing “a statement, tale or news” known to be false and causing injury to a public interest. The provision dated back to 1275, and was originally intended to prevent slander against nobles. The Government could identify no contemporary social problem to justify s. 181. It was rarely used, and had no equivalent in other free and democratic jurisdictions. All of these qualities distinguish s. 181 from s. 8 of the Human Rights Code, here at issue. Section 8 is not anachronistic, is frequently used, is common to all Canadian provincial jurisdictions, and combats discrimination, an undeniable social ill. The purposes underlying the Code appear in s. 3. There is not a shifting purpose as asserted in Zundel. Zundelis helpful as an example of a law that unconstitutionally limits freedom of expression, but its facts are too unlike those here at issue to be of assistance to the petitioners’ position.

[246] Accordingly, I find that Ms. Pardy has met the burden of showing that the limitations on freedom of expression imposed by s. 8 are justifiable under s. 1 and, accordingly, are constitutional.

[247] I turn to the application for judicial review of the decision, including the petitioners’ challenge to the decision itself as infringing s. 2(b) of the Charter.
XII. JUDICIAL REVIEW OF THE TRIBUNAL’S DECISION

[248] Apart from the challenge to the constitutionality of s. 8 of the Code, and apart from the arguments of procedural unfairness, the petitioners challenge the decision of the Tribunal and, in particular, three central conclusions that are essential to its decision: first, that there was, in the circumstances, a service customarily available to the public; second, that Mr. Earle was an employee of Zesty for the purposes of the Code; and third, the key issue, that Ms. Pardy has proven discrimination under s. 8 of the Code. The final issue, whether there was discrimination, engages the petitioners’ freedom of expression arguments. Although the petitioners challenged the order finding discrimination as violating Mr. Earle’s freedom of expression, they did not specifically argue that the order unjustifiably infringed his s. 2(b) rights. Nevertheless, I will consider the argument that the order itself contravenes the Charter.
A. A Service Customarily Available to the Public

[249] Section 8(1) of the Code does not limit the types of services it encompasses. That the word “service” is unqualified, and that it is listed alongside “accommodation” and “facility”, suggests a legislative intent to capture a broad range of activities.

[250] A definition of “service” that has been frequently cited in Tribunal decisions is “something of benefit provided to one person by another”: Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1 at para. 78. The benefit does not have to be enjoyed by the person directly affected by the service. For example, as per British Columbia v. Crockford, 2005 BCSC 663 at para. 23, rev’d on other grounds, 2006 BCCA 360:

A person being arrested or questioned by the police, or a person against whom charges are approved by Crown Counsel, will not generally perceive that act as being "of benefit" to themselves personally. However, viewed in the larger context, the police provide a range of services which are a benefit to the general public, as do Crown Counsel.

[251] The case law on s. 8(1) services is as inclusive as the Nixon definition. In Gould v. Yukon Order of Pioneers, supra, La Forest J. noted in his concurrence that a broad range of activities had been found by the courts to qualify as a “service” for the purpose of the Code (para. 59).

[252] In the early case of Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435, Martland J. for the majority, listed “restaurants, bars, taverns, service stations, public transportation and public utilities” as services. This has been expanded in subsequent jurisprudence to include services as diverse as the provision of social assistance benefits; the awarding of research grants; the processing and consideration of immigration applications; the issuance of public proclamations; education and training; and membership on a sports team: Crockford at para. 77. In Berg v. University of British Columbia, [1993] 2 S.C.R. 353, it was not disputed that providing a student with a rating sheet (the equivalent of a report card) and keys to a building qualified as a service (at 374).

[253] The issue in the s. 8(1) cases is not typically whether an activity is a service, but whether it is customarily available to the public: Moore v. British Columbia (Education), 2008 BCSC 264 at para. 99, rev’d on other grounds, 2012 SCC 61. Where the service is at issue, generally its nature or scope is contested, not whether one exists at all. For example, the recent Supreme Court of Canada decision in Moore turned on whether services for a dyslexic elementary school student were general education services or special education services (at paras. 27-29). I have not been directed to a case where a provided activity was customarily available to the public but fell outside the scope of s. 8(1) because it was not a service.

[254] It may be, as the petitioners contend, that a comedic performance is not a “service” for the purpose of s. 8(1) of the Code. However, I find that I do not have to decide this point, because, on the facts of this case, the restaurant’s food and drink service and its comedy show were indivisible and must be considered together.

[255] Ms. Pardy and her companions began the evening at Zesty on the patio. Their server then moved them inside, where the open mic night was ongoing. It was not possible for them to enjoy the normal restaurant services without being exposed to the comedy show. I find that the comedy show was part of the service that Zesty was providing to the general public that night, along with food and beverages. That Ms. Pardy and her companions did not themselves enjoy a benefit from the comedy show does not mean it was not a service, or in this case, part of a service, since it was a benefit to some of the restaurant’s patrons: as per Crockford, at para. 23, as quoted above..

[256] This finding is consistent with the decision in L.(C.) v. Badyal (1998), 34 C.H.R.R. D/41, (B.C.H.R.T.) where an off-duty manager at a pub approached two women dancing to their friend’s karaoke performance, and asked them to leave because of their sexual orientation. The karaoke and dancing were part of the pub’s service on that night, and the Tribunal had no trouble finding that the manager’s behaviour constituted discrimination in the provision of a service customarily available to the public: at para. 31; see also, Rawala v. DeVry Institute of Technology (1982), 3 C.H.R.R. D/1057, quoted with approval in Berg at 379. The important point is that the women in Badyal were discriminated against not in the provision of the normal pub service of food and drinks, but in the service of karaoke and dancing, which was an integral part of the pub’s public service at that time. Likewise, Ms. Pardy and her friends were allegedly discriminated against by the emcee of a show, which was an integral part of Zesty’s service to the public.

[257] I conclude that the Tribunal was correct in finding that the comments and actions of Mr. Earle occurred during the provision of a service customarily available to the public.
B. Was Mr. Earle an Employee of Mr. Ismail and Zesty?

[258] The issue here is whether the Tribunal correctly determined that Mr. Earle was, for the purposes of any liability under the Code, an employee of Mr. Ismail and Zesty.

[259] The petitioners say that the Tribunal erred. Mr. Earle argues that the Tribunal’s reasoning was to the effect that if Mr. Earle was an employee or agent of Zesty, the content of his performance would be subject to s. 8. Mr. Earle submits that his speech should not be subject to a different standard if he was an employee rather than simply a volunteer or a guest comic. Moreover, Mr. Earle argues that the Tribunal relied on irrelevant authority that “employee” and “agent” should be interpreted liberally in order to extend jurisdiction into the regulation of arts and entertainment. On the evidence, Mr. Earle argues that he was not an employee, simply a guest of Zesty who was permitted to perform on stage.

[260] Mr. Ismail endorses this argument and suggests that Mr. Earle was simply a volunteer, not an employee, who received some free beer as other comedians did.

[261] Ms. Pardy argues that the legislation should be given a broad and liberal reading to effect its aims and goals. This, she submits, applies to the interpretation of “employee” for the purpose of s. 44(2) of the Code. She argues that the Tribunal applied the correct test in determining that Mr. Earle was an employee of the Zesty parties.

[262] Employment is defined in s. 1 of the Code in this way:

"employment" includes the relationship of master and servant, master and apprentice and principal and agent, if a substantial part of the agent's services relate to the affairs of one principal, and "employ" has a corresponding meaning

[263] Section 1 has a non-exhaustive definition of employment.

[264] The Tribunal relied on Crane v. British Columbia (Ministry of Health Services), 2005 BCHRT 361 (“Crane, BCHRT”), reversed on other grounds, 2007 BCSC 460 (“Crane, BCSC”), for a statement of applicable principle for determining employment in a human rights context. In Crane, BCSC, Madam Justice Ballance said, at para. 152:

... courts and tribunals have stretched the meaning of "employment" to ensure that the purposes of human rights legislation are not thwarted in the sense that the targets of discrimination are not left without any remedy.

[265] The question is whether Crane, BCHRT at para. 79 sets out the correct test, and whether it was applied correctly to the facts of this case. The test is as follows:

79 Drawing together the strands of this jurisprudence, I summarize the applicable principles as follows:

i. "Employ", "employer" and "employment" are to be given a large and liberal interpretation which will best achieve the purposes of the Human Rights Code;

ii. The determination of the identity of the employer or employers is a highly fact-specific enquiry; no one "test" can be developed which will serve in all contexts;

iii. While no one "test" can be developed, there are a number of factors or considerations which may be relevant to the determination of employer status. The most important of these include:

a. "Utilization" - this is the concept discussed in Pannu, Rosin and Fontaine, which looks to the question of whether the alleged employer "utilized" or gained some benefit from the employee in question;

b. Control - did the alleged employer exercise control over the employee, whether in relation to the determination of his or her wages or other terms and conditions of employment, or in relation to their work more generally, such as the nature of the work to be performed or questions of discipline and discharge?;

c. Financial burden - did the alleged employer bear the burden of remuneration of the employee?; and

d. Remedial purpose - does the ability to remedy any discrimination lie with the alleged employer? This concept was discussed in Tulk and Reid.

[266] In Crane, BCSC, Ballance J. considered the important factors that inform the “expanded notion of employment in the human rights milieu”, including utilization, control, financial burden, and remedial purpose, but concluded that the Tribunal’s finding in that case that the Government was a co-employer of Mr. Crane was incorrect.

[267] Courts have given a broad and liberal interpretation to the term “employee” or “employment” to ensure that the remedial purposes of the Code are given effect with respect to parties that might, for example, be independent contractors: see the discussion in Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601 at para. 18, leave to appeal to SCC refused, [2006] S.C.C.A. No. 365. Should “employee” also be interpreted liberally when it is relevant to the question of the vicarious liability of a party found to be an employer? I think that the requirement that human rights legislation be given a broad and liberal meaning to ensure its objectives are satisfied should apply not only to possible complainants, but also to people engaged in the provision of services customarily available to the public.

[268] I find that for the purposes of the Code, the definition of employment and factors indicating employment described in Crane, BCHRT and applied in Crane, BCSC, are appropriate to the case at hand. I note that the Cranefactors have been regularly cited in subsequent tribunal decisions, and that they were listed with approval, although they were not applicable on the facts in that case, in Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal), 2012 BCCA 313 at para. 20, leave to appeal to SCC granted [2012] S.C.C.A. No. 409. If that, as I find, was the correct test, was the Tribunal correct in its application to the facts here?

[269] I think that the Tribunal was correct in finding that Mr. Earle was an employee for the purpose of the Code. He was not a mere volunteer at an open mic show; he had an ongoing relationship with Zesty whereby he hosted a weekly comedy show on Tuesday nights. The Zesty parties “utilized” Mr. Earle’s services in organizing and recruiting performers for the open mic show, which Zesty promoted and benefitted from by drawing in customers. They controlled Mr. Earle’s services in the sense that without their permission he would not have been the emcee.

[270] Zesty bore the burden of remuneration for Mr. Earle by providing free beer. That is obviously a modest factor but nevertheless points towards an employment situation contemplated by the Code: see Randhawa v. Cowick, [1991] B.C.J. No. 884 (S.C.).

[271] The final factor is whether the ability to remedy any discrimination lay with the alleged employer. The Tribunal said this at para. 335 of the decision:

335 I find that there is a remedial purpose in finding Mr. Earle to be an employee of the Zesty respondents. They participated in making the arrangements which permitted Mr. Earle to perform, and setting the conditions under which he did so. They had the opportunity and ability to set behavioural standards for performers. They had the opportunity to monitor the performance, and to intervene if it got out of hand. They had the ability to terminate Mr. Earle's services, and prevent him from performing further. Finally, they had the ability to provide a remedy for Mr. Earle's actions, whether by way of apology, financial compensation, or the institution of policies designed to prevent a recurrence.

[272] I find that the test applied by the Tribunal was correct in a human rights context and the Tribunal was also correct that Mr. Earle was an employee for the purposes of the Code.
C. Was there Discrimination Contrary to s. 8 of the Code?

[273] The Tribunal concluded that Mr. Earle and the Zesty parties were offering entertainment and refreshment to Ms. Pardy and its other patrons, and in doing so were providing “a service ... customarily available to the public” on the evening of May 22, 2007. The Tribunal accordingly found that it had jurisdiction over Ms. Pardy’s complaint of discrimination in the provision of that service. The Tribunal found that Mr. Earle was “an employee” of the Zesty parties within the meaning of that term in s. 44(2) of the Code and that his acts were deemed to be their acts for the purposes of considering liability for discrimination under the Code.

[274] The Tribunal held, relying on Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56, that, in order to prove a prima facie case of discrimination, Ms. Pardy must prove that she fell within one of the enumerated grounds under s. 8, that she experienced adverse treatment in the provision of a service customarily available to the public, and that her sex or sexual orientation was a factor in the adverse treatment. The Tribunal found that she satisfied those tests and made out a prima facie case of discrimination.

[275] The Tribunal then said that it considered whether there was a bona fide and reasonable justification for Mr. Earle’s action. It summarized Mr. Earle’s argument that he was provoked by Ms. Pardy’s behaviour, or that it was a consensual conflict between her and Mr. Earle. Finally, in Mr. Earle’s case, the Tribunal considered whether his actions were exercises of free expression.

[276] At paras. 433-456 of its final decision, the Tribunal considered what it said was the respondent’s principal argument in justification, i.e. that in his actions towards Ms. Pardy, Mr. Earle was exercising his Charter-protected freedom of expression.

[277] The Tribunal said, at para. 436:

... I think it follows that [Mr. Earle] is entitled to whatever enhanced protection there may be for expression which is associated with a comedy performance.

[278] The Tribunal held that the Zesty parties had not identified any ambiguity in the provisions of the Code which permitted it to interpret them in light of Charter values relating to Mr. Earle’s freedom of speech. The Tribunal said, at para. 441:

As discussed at length above, the provisions of s. 8 of the Code as to the elements of a prima facie case of discrimination, and of a bona fide and reasonable justification for such discrimination are unambiguous and well-settled, and their application in this case does not give rise to any significant difficulties. On the authority of Bell Express Vu and Maughan, I “must treat [the Code’s] clear meaning as binding”.

[279] However, the Tribunal said that in case it was mistaken in its conclusion that the provisions of s. 8 of the Code contain no ambiguity which would permit the Tribunal to consider Charter values or principles of free expression in deciding whether Mr. Earle’s actions were a bona fide and reasonable justification for his treatment of Ms. Pardy, it would consider that argument.

[280] As I will discuss below, I find that while the Tribunal was correct about its lack of jurisdiction to determine the constitutionality of s. 8, the Tribunal erred in that it was required to interpret s.8 of the Code in light of the Chartervalue of freedom of expression.

[281] For convenience, I set out again the Tribunal’s decision at paras. 449-453 and 456 as it deals with Mr. Earle’s expressive rights:

449 In his argument, Mr. Earle justifies his actions as a necessary part of his performance to deal with “hecklers”, and cautions against any decision which would have a “chilling effect upon performers simply because someone in the audience doesn’t ‘get’ the joke”. I have already found that Ms. Pardy was not a heckler, and that Mr. Earle had means to deal with perceived disruption to the show far short of his attack on her as a woman and as a lesbian. None of the witnesses testified that Mr. Earle was telling “jokes”.

450 I test Mr. Earle’s asserted right to free expression, as framed by him in his argument, against the rationale stated in Grant for protecting such expression: “an aspect of self-realization for both speakers and listeners”. These are the relevant “Charter values” in assessing the balance between Mr. Earle’s right to express himself against Ms. Pardy’s right under the Code to protection from discrimination. It is obvious that Mr. Earle’s actions were destructive of Ms. Pardy’s “self-realization”; I confine my discussion to whether they were justified by his stated purpose in undertaking them.

451 As noted, Mr. Earle relies on Disley [Comedy Network re Comedy Now ("Gord Disley"), [2006] C.B.S.C.D. No. 4] as a case which supports the comedic use of exaggerated stereotypes to expose and prompt examination of prejudices with the aim of reducing discrimination.

452 None of the respondents tendered any evidence that Mr. Earle’s actions had this purpose or effect. The evidence was all to the contrary: that his purpose, put at its highest, was to “shut her up”, and that his effect was to humiliate and injure Ms. Pardy with specific reference to her sex and sexual orientation. It cannot fairly be suggested that the tone, content, or context of Mr. Earle’s words and actions directed at Ms. Pardy were consistent with the Code’s purposes of promoting “a climate of understanding and mutual respect where all are equal in dignity and rights” or of “removing impediments to full and free participation in the economic, social, political and cultural life of British Columbia”.

453 Even if there was a basis in the evidence for an inference that Mr. Earle was on a mission to “expose prejudices” (other than, perhaps, his own), the Canadian Broadcast Standards Council’s decision in Disley expressly recognized that the purpose of the human rights clause it was considering was to “protect against harmful speech”.

...

456 I conclude that any defence by the respondents that Mr. Earle’s freedom of expression was a bona fide and reasonable justification for discrimination fails on both the facts and the law. Mr. Earle’s conduct was not reasonably related to any effort to deal with a disruption to the show. Mr. Earle was not engaged in exposing the stereotypes of others. Nothing about Mr. Earle’s asserted purposes in verbally and physically attacking Ms. Pardy on the basis of her sex and sexual orientation justified elevating his right to free expression over her right under the Code to be protected against his discriminatory conduct.

[Emphasis added]

[282] I also set out those passages because they contain certain findings of fact that are relevant to my review of the Tribunal’s decision.

[283] What is the proper approach to analyzing a tribunal’s decision when there is an allegation of discrimination? Also, what is the proper approach when the Court is reviewing an order that impinges on the freedom of expression of the person alleged to have discriminated?

[284] The standard of review of the Tribunal’s decision in this regard is correctness.

[285] With respect to the Tribunal’s decision, the petitioners say that it is wrong and does not meet the standard of correctness. The petitioners say that there was no discrimination, only insults, and certainly no expression outside the norm at an adult comedy club. Moreover, Mr. Earle says that he was responding to booing and heckling from Ms. Pardy and her group; in essence, that she voluntarily assumed the risk of what Mr. Earle said. Moreover, the petitioners say that Mr. Earle’s statements were not discrimination but were within his protected freedom of expression. The Tribunal, Mr. Earle asserts, erred in putting the burden on him to justify his speech in the circumstances. Insults, he says, are a common feature of stand-up comedy at an adult comedy club.

[286] Doré, Whatcott, and Taylor provide guidance for the approach the Court should take in reviewing the Tribunal’s decision where the constitutionality of the decision is challenged.

[287] The Supreme Court of Canada held in Doré that when considering whether an adjudicated decision under an impugned statute violates the Charter, the court is considering whether the decision-maker disproportionately and therefore unreasonably limited a Charter right - a balancing exercise, but different than the one under the Oakes test.

[288] In Doré, a Québec lawyer was reprimanded by the disciplinary council of the Québec Bar for a breach of its code of ethics. Mr. Doré wrote a private letter to a judge who had been critical of Mr. Doré during a criminal trial. Mr. Doré argued that the finding of a breach of the code of ethics violated his s. 2(b) rights. Madam Justice Abella referred to discretionary decisions of tribunals. She explained the difference between reviewing the constitutionality of a law and reviewing an administrative decision that is said to violate the rights of a particular individual. She explained that the Oakes analysis is not suitable for the review of an administrative decision, although it had been so utilized in the past. She wrote at paras. 34-37:

34 Since then, and largely as a result of the revised administrative law template found in Dunsmuir, this Court appears to have moved away from Multani, leading to the suggestion that it may have "decided to start from ground zero in building coherence in public law" (Gratton and Sossin, at p. 161). Today, the Court has two options for reviewing discretionary administrative decisions that implicate Charter values. The first is to adopt theOakes framework, developed for reviewing laws for compliance with the Constitution. This undoubtedly protects Charter rights, but it does so at the risk of undermining a more robust conception of administrative law. In the words of Prof. Evans, if administrative law is bypassed for the Charter, "a rich source of thought and experience about law and government will be overlooked".

35 The alternative is for the Court to embrace a richer conception of administrative law, under which discretion is exercised "in light of constitutional guarantees and the values they reflect" (Multani, at para. 152, per LeBel J.). Under this approach, it is unnecessary to retreat to a s. 1 Oakes analysis in order to protect Charter values. Rather, administrative decisions are always required to consider fundamental values. The Chartersimply acts as "a reminder that some values are clearly fundamental and ... cannot be violated lightly" (Cartier, at p. 86). The administrative law approach also recognizes the legitimacy that this Court has given to administrative decision-making in cases such as Dunsmuir and Conway. These cases emphasize that administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise. Integrating Charter values into the administrative approach, and recognizing the expertise of these decision-makers, opens "an institutional dialogue about the appropriate use and control of discretion, rather than the older command-and-control relationship" (Liston, at p. 100).

36 As explained by Chief Justice McLachlin in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing an administrative decision that is said to violate the rights of a particular individual (see also Bernatchez). When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39). When a particular "law" is being assessed for Charter compliance, on the other hand, we are dealing with principles of general application.

37 The more flexible administrative approach to balancing Charter values is also more consistent with the nature of discretionary decision-making. Some of the aspects of the Oakes test are, in any event, poorly suited to the review of discretionary decisions, whether of judges or administrative decision-makers. For instance, the requirement under s. 1 that a limit be "prescribed by law" has been held by this Court to apply to norms where "their adoption is authorized by statute, they are binding rules of general application, and they are sufficiently accessible and precise to those to whom they apply" (Greater Vancouver Transportation Authority v. Canadian Federation of Students -- British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 53).

[289] Although Doré is instructive in this case, it is important to note that in Doré, the Court was not bound by the provisions of a statute like the Administrative Tribunals Act, which set the standard of review. In Doré the Court applied a reasonableness standard under Dunsmuir. While the question for the reviewing court in Doré was whether the decision was reasonable, here the Administrative Tribunals Act requires correctness. (As I have noted fromKinexus, underlying findings of fact are subject to review on a different standard.)

[290] Abella J. in Doré discussed how an administrative decision-maker should apply Charter values in the exercise of a statutory discretion, referring to the task of the decision-maker as well as the task of the court on judicial review at paras. 55-58:

55 How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives. ...

56 Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in the Oakes context. As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, "courts must accord some leeway to the legislator" in the Charter balancing exercise, and the proportionality test will be satisfied if the measure "falls within a range of reasonable alternatives". The same is true in the context of a review of an administrative decision for reasonableness, where decision-makers are entitled to a measure of deference so long as the decision, in the words of Dunsmuir, "falls within a range of possible, acceptable outcomes" (para. 47).

57 On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, "[t]he issue becomes one of proportionality" (para. 155), and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a "margin of appreciation", or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.

58 If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.

[291] The Tribunal did not have the benefit of Doré or Whatcott when it gave its decision in this case.

[292] Whatcott is a case where the Court, as here, was called on to consider the constitutionality of both a statute and a tribunal’s decision. The statute and circumstances were different than those of the case at bar. As discussed above, the statute contained a prohibition on hate speech and the standard of review was reasonableness.

[293] Whatcott dealt with a specific prohibition on a type of speech: hate speech. Clauses in the statute confirming the importance of freedom of expression. The court in Whatcott said, at para. 180:

180 The Tribunal was also aware that the legislative objectives of the Code must be kept in mind in applying the prohibition in s. 14(1)(b). It noted Dickson C.J.'s observation, at p. 930 of Taylor, that clauses confirming the importance of freedom of expression, like s. 14(2) of the Code, indicate to tribunals "the necessity of balancing the objective of eradicating discrimination with the need to protect free expression" (para. 55).

[294] The Supreme Court of Canada in Whatcott referred to its earlier decision in Taylor. Taylor considered a challenge to s. 13(1) of the Canadian Human Rights Act, which provided that:

13. (1) It is a discriminatory practice for a person ... to communicate telephonically ... any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

[295] Holding the law was constitutional after applying the Oakes analysis, the Court in Taylor referred to the task of the human rights tribunal applying s. 13(1) and said, at para. 62 (also quoted above, but reproduced here for convenience):

62. In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.

[Emphasis added.]

[296] Chief Justice Dickson in Taylor discussed the balancing required by the tribunal when considering discrimination and freedom of expression and said:

65 Perhaps the so-called exemptions found in many human rights statutes are best seen as indicating to human rights tribunals the necessity of balancing the objective of eradicating discrimination with the need to protect free expression.... In any event, I do not think it in error to say that even in the absence of such an exemption an interpretation of s. 13(1) consistent with the minimal impairment of free speech is necessary. ...

[Emphasis added.]

[297] If the statute is constitutional, as I have found it is, and the standard of review, as here, is correctness, the Court must determine if the Tribunal was correct in finding Mr. Earle’s conduct was discriminatory. The Tribunal’s decision must have correctly balanced the statutory objective in the section of eradicating discrimination with the need to protect free expression. I think that is clear from the Supreme Court of Canada decision in Whatcott.

[298] Accordingly, I turn to the questions of whether the Tribunal was correct in finding discrimination and whether in the circumstances it interpreted and applied s. 8 in a manner consistent with the minimal impairment of free speech. Put another way, did the Tribunal correctly balance the severity of the interference of the Charter protection with the statutory objective of s. 8?
1. The Tribunal’s Approach to Determining Whether There was Discrimination Under S. 8 of the Code

[299] The Tribunal decided that Ms. Pardy had made out a prima facie case of discrimination based on her sex and sexual orientation. The Tribunal held it could not consider or give effect to Mr. Earle’s main argument that he was exercising his Charter-protected freedom of expression because it was precluded from doing so by s. 45 of the Administrative Tribunals Act. Although holding it was prohibited from considering Charter questions, the Tribunal considered whether it was entitled or obliged to consider Mr. Earle’s freedom of expression as a bona fide reasonable justification for the “discrimination” against Ms. Pardy. The Tribunal held that since there was no ambiguity in the provisions of the Code, there was no basis to interpret s. 8 in light of Charter values. However, in the alternative, the Tribunal considered Charter values and principles of free expression in deciding whether Mr. Earle’s actions were abona fide and reasonable justification for his treatment of Ms. Pardy.

[300] The Tribunal held that any defence that Mr. Earle’s freedom of expression was a bona fide and reasonable justification for discrimination failed “on the facts and the law”. The Tribunal said that Mr. Earle’s conduct was not reasonably related to any effort to deal with a disruption to the show and he was not engaged in exposing stereotypes of others. In conclusion, the Tribunal said that “nothing about Mr. Earle’s asserted purposes in verbally and physically attacking Ms. Pardy on the basis of her sex and sexual orientation justified elevating his right to free expression above her right under the Code to be protected against discriminatory conduct”.

[301] As I will explain, the role of the Tribunal was to determine if there was discrimination in light of the Charter value of freedom of expression. The task that faced the Tribunal is best summarized I think in the following passage from Doré, at paras. 55-56, repeated here in its salient parts for convenience:

55 How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives. …

56 Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. …

[302] Prior to Doré, the review of the correctness of an order, where Charter issues are engaged and Charter rights are infringed, would be on the Oakes test basis. However, as Doré indicates, the Oakes test is not appropriate to a review of a tribunal’s decision. Here, as noted above, the Doré test must also be modified because the standard of review of this tribunal’s decision finding of discrimination is correctness, not reasonableness.

[303] I think that Doré requires that, when applying a correctness standard to the Tribunal’s decision regarding discrimination under s. 8, the court must assess its impact on relevant Charter values. That calls for a consideration of the nature of the decision of the Tribunal and of the relevant statutory and factual contexts. The context includes the statutory objectives and relevant Charter values. The question is whether the decision of the Tribunal correctly reflects a “proportionate balancing of the Charter protections at play”.
2. Was the Tribunal Correct in the Manner in Which it Approached the Issue of Discrimination?

[304] I have concluded that the Tribunal was correct in concluding that it lacked jurisdiction to deal with a challenge to the constitutionality of s. 8 of the Code: s. 45 of the Administrative Tribunals Act.

[305] The Tribunal held that the test for discrimination is clear and unambiguous and that it could not interpret discrimination in light of Charter values in the absence of ambiguity. As a matter of statutory interpretation, this appears to be a sound proposition. “Charter values are relevant to statutory interpretation only where the statute is ambiguous and reference to a Charter value would help resolve the ambiguity”: Peter Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007) at p. 37-29

[306] However, the Tribunal was not simply engaged in statutory interpretation but was applying a provision of the Code to a factual circumstance where Charter rights were allegedly infringed.

[307] When it comes to determining what constitutes discrimination, the Tribunal cannot ignore Charter values.

[308] This is clear from Doré at para. 24, where the Supreme Court of Canada said:

24 It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values (see Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, at para. 71; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at paras. 19-24; and Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at paras. 62-75). The question then is what framework should be used to scrutinize how those values were applied?

[309] A direction in the legislation that a tribunal has no jurisdiction to decide constitutional questions relating to the Charter should not be viewed as a direction that the tribunal should ignore Charter values: United Food and Commercial Workers, Local 401, 2012 ABCA 130 at para. 42 (leave to appeal to SCC granted [2012] S.C.C.A. No. 288, and appeal heard).

[310] However, the Tribunal in fact undertook this analysis in its alternative consideration. This was, in my view, the required approach for the Tribunal: to apply the test for discrimination to the facts of the case with Charter values in mind.
3. Was the Tribunal Correct in Finding Discrimination?

[311] The question here is whether the Tribunal was correct. Did the decision of the Tribunal correctly reflect a “proportionate balancing of the Charter protections at play”?
a) Petitioners’ Argument

[312] The petitioners argue that the Tribunal was wrong in finding discrimination under s. 8 of the Code. The petitioners say that the Tribunal did not “get” that Zesty was an adult comedy club catering to a predominantly gay clientele. Mr. Earle argued that there have been many repressive, destructive prosecutions of comedy clubs and described comedy clubs as the home of profanity, irreverence, vulgarity and derision. Mr. Millar argues that, contrary to the findings of the Tribunal, the women did heckle and unduly disrupt the performance. The petitioners advanced this position:

[Ms. Pardy] played a vital and highly dramatic role in utterly disrupting a performance by unpaid volunteers who came to Zesty’s because of a love of standup comedy and to thoroughly enjoy and exercise their fundamental right to free speech by giving expression to the outrageous and hilarious. Her behaviour attracted an outrageous, but legal, response from Mr. Earle. As noted, comedy clubs are like no other places, the quintessential element that distinguishes them from vapid mainstream media is the fearless pursuit of free speech.

[313] The petitioners argue that the complainant failed to prove that Mr. Earle’s insults were outside the norm expected at an adult comedy club.

[314] The petitioners say the Tribunal’s order is wrong and infringes their right of freedom of expression. Apart from the argument that s. 8 of the Code is unconstitutional, the petitioners argue that the Tribunal’s order was wrong because it extended s. 8 to a comedy or artistic performance. In considering the balance between expressive rights and the statutory objectives of the Code, the petitioners appear to argue that s. 8 of the Code was not designed and could not be interpreted to restrict the expression of comedians or to protect hecklers, but rather was created for a different purpose - to erase barriers of entry to minorities so that they may fully participate in society and the workplace. The petitioners also say that the Tribunal was wrong in interpreting s. 8 to include Mr. Earle’s comments because s. 7 of the Code, which deals with hate speech, defines when speech violates the Code, and s. 7 does not apply on the facts of this case. The petitioners argue that s. 2(b) of the Charter should have been properly considered before the Tribunal issued a declaratory order that Mr. Earle’s words and actions amounted to discrimination.

[315] I think another way of putting the petitioners’ argument is that the Tribunal, in deciding whether there was discrimination under the Code, struck an unreasonable balance between Mr. Earle’s expressive rights and the statutory objectives of the Code. As a result the decision, according to the petitioners, was incorrect.
b) Ms. Pardy’s Argument

[316] Ms. Pardy says that the Tribunal was correct. She submits it applied the correct test for discrimination. She submits that some of the arguments made by the petitioners are contrary to the facts as reasonably supported by the evidence and found by the Tribunal. Ms. Pardy submits that Mr. Earle makes arguments about the norm or standard practice at a comedy club, but failed to lead evidence in that respect.

[317] Ms. Pardy says that the Tribunal was correct in applying the proper test for prima facie discrimination, that is that she experienced adverse treatment in the context of a service customarily available to the public, and her sex or sexual orientation was a factor. She points out that the Tribunal found both physical and verbal abuse.

[318] Ms. Pardy says that to the extent that the petitioners’ freedom of expression rights were engaged, the correct balance was found by the Tribunal. She argues that Mr. Earle is simply prohibited from treating individuals adversely in the delivery of services customarily available to the public on the basis of one or more the grounds enumerated in the Code. She argues that Mr. Earle is not prohibited from engaging with the world as a comedian nor is he prohibited from engaging in future shows or comedy nights. The order, the respondent says, has salutary effects which ensure the recipients of public services are not subject to discriminatory harassment, and is a reasonable limit on the right to freedom of expression.
c) Analysis

[319] Was the Tribunal correct in deciding that the petitioners’ conduct amounted to discrimination?

[320] The question of whether the order correctly and proportionately balances the Charter interests or protections at play, or whether it disproportionately affects freedom of expression, cannot be answered in the abstract. An analysis of the correctness of the Tribunal’s order depends on the facts that it properly found.

[321] In the part of the decision dealing with the finding of discrimination, the Tribunal summarized some of the facts that it found amounted to adverse treatment of Ms. Pardy:

411 There is no dispute that, as a woman and a lesbian, Mr. Pardy is within the enumerated grounds in s. 8. I emphasize that this is because the Code protects all persons from discrimination based on sex or sexual orientation: men and heterosexual persons have equal protection from discrimination based on those characteristics.

412 I find that Ms. Pardy suffered adverse treatment from the respondents. That adverse treatment consisted of the following conduct:

• Mr. Earle made two sets of comments from the stage at Zesty’s, to and about Ms.Pardy and her friends, and recorded above, including referring to them as “fucking cunts”, “stupid cunts”, “stupid dykes”, and “fucking dyke cunts”;

• Mr. Earle cornered Ms. Pardy and continued to physically intimidate and verbally abuse her by the bar as she returned from the washroom, including referring to her as “fucking stupid dyke, stupid fucking bitch”, and he grabbed and broke her sunglasses;

• The Zesty respondents failed to restrain Mr. Earle, protect Ms. Pardy from his verbal or physical assault, or otherwise take effective steps to remedy his treatment of her.

[322] The Tribunal applied the correct test to determine if Ms. Pardy established prima facie discrimination. Obviously the correctness of the decision depends on the facts as found by the Tribunal. The court must not set aside a finding of fact unless there is no evidence to support it, or in light of all the evidence, the finding is otherwise unreasonable.

[323] In that respect, I should deal with one of Mr. Earle’s factual challenges. Mr. Earle argues that Ms. Pardy disrupted the performance and heckled. However, if that is advanced as justification for Mr. Earle’s comments, I reject it because it is contrary to the Tribunal’s specific finding which concluded that Ms. Pardy was not heckling Mr. Earle. No proper basis was advanced to set aside that finding of fact.

[324] Mr. Earle’s conduct, through his words and actions, prima facie amounts to adverse treatment by reason of sex or sexual orientation in the provision of a service customarily available to the public.

[325] The question is whether the Tribunal, in the circumstances, was correct in finding that the conduct amounted to discrimination under s. 8 of the Code, in light of the petitioners’ freedom of expression. The statutory objective of eliminating discrimination, grounded in the Charter value of equality, must be balanced with the severity of the interference with the Charter value of freedom of expression.

[326] That determination requires a consideration of the context in which the events occurred in order to decide whether the Tribunal correctly balanced the Charter interests or protections at play, or whether the petitioners’ freedom of expression was disproportionately infringed.

[327] Mr. Earle delivered his comments to Ms. Pardy in a comedy club where he was the emcee for the open mic performances. While comments made by comedians, artists and emcees are entitled to protection under s. 2(b) of theCharter, there is no absolute protection for comments that might otherwise amount to discrimination under human rights legislation.

[328] The core rationale for freedom of expression was described in Grant v. Torstar Corp. The Court stated at para. 44 that the constitutional status of freedom of expression under the Charter means that all Canadian laws must conform to it. The Court continued, at paras. 47-50, also quoted above, but repeated here for convenience:

47 The guarantee of free expression in s. 2(b) of the Charter has three core rationales, or purposes: (1) democratic discourse; (2) truth-finding; and (3) self-fulfillment: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 976. These purposes inform the content of s. 2(b) and assist in determining what limits on free expression can be justified under s. 1.

48 First and foremost, free expression is essential to the proper functioning of democratic governance. As Rand J. put it, "government by the free public opinion of an open society ... demands the condition of a virtually unobstructed access to and diffusion of ideas": Switzman, at p. 306.

49 Second, the free exchange of ideas is an "essential precondition of the search for truth": R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 803, per McLachlin J. This rationale, sometimes known as the "marketplace of ideas", extends beyond the political domain to any area of debate where truth is sought through the exchange of information and ideas. Information is disseminated and propositions debated. In the course of debate, misconceptions and errors are exposed. What withstands testing emerges as truth.

50 Third, free expression has intrinsic value as an aspect of self-realization for both speakers and listeners. As the majority observed in Irwin Toy, at p. 976, "the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed".

[329] In considering whether there was discrimination here, I recognize that artistic and comedic expression may be entitled to protection even when in poor taste, when it is a failed joke, or when the expression makes readers or listeners uncomfortable or wounds their feelings. A similar observation was made by the Supreme Court of Canada in Whatcott regarding s. 14(1)(b) of the Saskatchewan Human Rights Code, at paras. 108-109:

108 Having concluded that the words “ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)(b) are not rationally connected to the objective of prohibiting speech which can lead to discrimination, I also find them constitutionally invalid because they do not minimally impair freedom of expression.

109 Restricting expression because it may offend or hurt feelings does not give sufficient weight to the role expression plays in individual self-fulfillment, the search for truth, and unfettered political discourse. Prohibiting any representation which “ridicules, belittles or affronts the dignity of” protected groups could capture a great deal of expression which, while offensive to most people, falls short of exposing its target group to the extreme detestation and vilification which risks provoking discriminatory activities against that group. Rather than being tailored to meet the particular requirements, such a broad prohibition would impair freedom of expression in a significant way.

[330] Here the conduct and expression in question was not part of any performance per se, it was not a response to hecklers in the audience, and it was coupled with physical abuse. The comments by Mr. Earle were some distance from the core values underlying the freedom of expression.

[331] The petitioners argue that the Tribunal did not “get” that this was an adult comedy club catering to a predominantly gay clientele. They say Ms. Pardy failed to prove the insults were outside the norm at a comedy club. Mr. Earle argues that the Tribunal’s application of s. 8 would have a chilling effect on performances and artists in British Columbia.

[332] Part of the difficulty with the petitioners’ argument is that they did not present evidence of what customarily might be expected by a patron at a comedy club. Although I cannot take judicial notice of what is normal at a comedy club and how an emcee may deal with audience members, particularly hecklers, I have no doubt that sarcasm and insult are common features in comedy or artistic performances. Even so, importantly, the Tribunal’s findings shows that this is a far different case than the one postulated by the petitioners.

[333] Not every comment made by an emcee is protected speech, although much will be even if it is insulting or offensive. It depends on the facts and what was said and in which circumstances. I note that if the comments that were found to be made by Mr. Earle had been made by the manager at the door, they would clearly constitute discrimination and such a finding would not disproportionately affect the manager’s freedom of expression. However, the context in which Mr. Earle made the comments was different.

[334] The Tribunal, as I referred to above, considered the argument that Mr. Earle was dealing with hecklers, but on the evidence rejected that Ms. Pardy was a heckler and, moreover, held that if Mr. Earle perceived her as such, there were means to deal with perceived disruption short of an attack on her as a woman and a lesbian.

[335] Given the findings of fact, the expression in question is at a low level of significance in terms of the purposes behind the right of freedom of expression. Further, Mr. Earle’s conduct towards Ms. Pardy was not simply expression, but involved physical abuse as well.

[336] Comedy is an important form of expression. Humour is varied, sometimes unique, and often involves sarcasm and insult. I recognize that the use of stereotypes in comedy or artistic expression may have legitimate non-discriminatory purposes including exposing and promoting an examination of prejudice. The Tribunal, in assessing the question of balancing the right to free expression against discrimination, recognized that derogatory comments are not necessarily discriminatory but reached this conclusion:

456 I conclude that any defence by the respondents that Mr. Earle’s freedom of expression was a bona fide and reasonable justification for discrimination fails on both the facts and the law. Mr. Earle’s conduct was not reasonably related to any effort to deal with a disruption to the show. Mr. Earle was not engaged in exposing the stereotypes of others. Nothing about Mr. Earle’s asserted purposes in verbally and physically attacking Ms. Pardy on the basis of her sex and sexual orientation justified elevating his right to free expression over her right under the Code to be protected against his discriminatory conduct.

[337] Mr. Earle says that at comedy clubs patrons must have thick skins and hecklers must know that they will be targeted for insults and putdowns by comedians. Offensive, irreverent and inappropriate language is taken to be the norm when you enter a comedy club. I will assume all of that to be so, and I accept that comedy clubs are places where performers push boundaries and sometimes try to generate outrage. It does not follow that comedy clubs are zones of absolute immunity from human rights legislation.

[338] In deciding whether Mr. Earle’s words and conduct constituted discrimination contrary to s. 8 of the Code, the Tribunal had to give due weight to the context -- a comedy club -- in which the events occurred. I think that it did. In the restaurant that night, Mr. Earle was an emcee who reacted to the disruption caused by the movement of some patrons, including Ms. Pardy, to a new table (by the restaurant management). Ms. Pardy and her companions that night were not hecklers. And Mr. Earle was not giving a comedy performance when he launched into his tirade of ugly words directed at Ms. Pardy.

[339] In the end, this is not a case about the scope of expression in a comedy performance or an artistic performance. It is about verbal and physical abuse that amounts to adverse treatment based on sex and sexual orientation. To illustrate this critical point, I repeat some of the language that Mr. Earle directed at Ms. Pardy, to which I referred earlier in these reasons at paras. 66 and 71:

· "Do you have a strap-on? You can take your girlfriend home and fuck her in the ass."

· "You're a fat ugly cunt. No man will fuck you; that's why you're a dyke. You fat cunt."

· "Somebody shut her up. Put a cock in her mouth and shut her the fuck up."

[340] The Tribunal had to achieve the correct balance in determining whether a finding of discrimination would unreasonably infringe Mr. Earle’s freedom of expression. Based on the facts the Tribunal found, including the words and conduct of Mr. Earle in their specific context, his right to freedom of expression was minimally infringed and the decision of the Tribunal correctly balanced the Charter value of freedom of expression with the statutory objectives underlying s. 8 of the Code, which are in pursuit of another Charter-protected value: equality.

[341] I conclude that, on the facts the Tribunal found, it was correct in its decision that the petitioners were in breach of s. 8 of the Code.
XIII. DAMAGES

[342] The petitioners seek to judicially review the award of damages against them, particularly the award of $15,000 against Mr. Earle for injury to Ms. Pardy’s dignity, feelings, and self-respect. The Tribunal also ordered Zesty and Mr. Ismail, jointly and severally, to pay Ms. Pardy $7,500 for injury to her dignity, feelings, and self-respect.

[343] The relevant section of the Code is s. 37(2) which sets out the remedial orders that the Tribunal may make, and includes subsection (d) which reads:

37(2) If the member or panel determines that the complaint is justified, the member or panel

...

(d) if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:

(i) make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code;

(ii) compensate the person discriminated against for all, or a part the member or panel determines, of any wages or salary lost, or expenses incurred, by the contravention;

(iii) 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.

[Emphasis added]

[344] The standard of review provided in the Administrative Tribunals Act for a discretionary decision is patent unreasonableness.

[345] However, if there are “readily extricable findings of fact or law” underlying the discretionary decision, those findings will be reviewed on the standard applicable to the issues of fact or law as the case may be: see Morgan-Hung v. British Columbia (Human Rights Tribunal), 2011 BCCA 122 at para. 28.

[346] Apart from a “cease and refrain” order, and a declaratory order identifying the impugned conduct as discrimination, the Tribunal ordered the respondents to compensate Ms. Pardy for $320 in lost wages and made an award under s. 37(2)(d)(iii) of the Code to compensate her for discrimination for injury to her dignity, feelings, and self-respect.

[347] The Tribunal followed the framework referred to in Torres v. Royalty Kitchenware Ltd. (1982), 3 C.H.R.R. D/858 (Ont. Bd. Inq.) that described the relevant factors for compensation in cases involving general damages for cases of sexual harassment. Those factors were:

1. the nature of the harassment, that is, was it simply verbal or was it physical as well?

2. the degree of aggressiveness and physical contact in the harassment;

3. the ongoing nature, that is, the time period of the harassment;

4. the frequency of the harassment;

5. the age of the victim;

6. the vulnerability of the victim; and

7. the psychological impact of the harassment upon the victim.

[348] The Tribunal made these findings:

· Mr. Earle’s treatment of Ms. Pardy was both verbal and physical and involved both aggressiveness and physical contact;

· He repeatedly and directly attacked her identity and dignity as a woman and as a lesbian in the most extreme terms that came to mind;

· It was not overlooking that on two occasions, in each case after Mr. Earle had verbally abused Ms. Pardy from the stage and approached her aggressively in the audience, she threw water in his face. The Tribunal found that this was not a wise or effective means of responding or defending herself, but that Mr. Earle’s conduct had put her in a condition where she was unable to immediately formulate a measured or even rational response;

· In an interview six months after the complaint was filed that was posted on YouTube, Mr. Earle made false and inflammatory statements about Ms. Pardy’s conduct at Zesty which seriously exacerbated and prolonged the effect of his earlier actions;

· The psychological impact on Ms. Pardy was immediate, severe, and lasting.

[349] The Tribunal, in assessing the extent of the Zesty parties’ responsibility for injury to Mr. Pardy’s dignity, feelings, and self-respect took into account Mr. Ismail’s apology, his steps to remove Mr. Earle from further performances, and the conduct of Mr. Earle.

[350] The petitioners say that the damages were either excessive or unreasonable for the following reasons:

(a) the Tribunal based its award on a tenuous medical opinion based on history provided by a not-entirely credible complainant;

(b) the award was based in part on an irrelevant consideration, namely a subsequent television appearance by Mr. Earle, that was posted on YouTube;

(c) the Tribunal erred in concluding that because Ms. Pardy had reported to her doctor that her anxiety symptoms had abated for several weeks prior to the night out at Zesty that he could establish a baseline from which to measure the impact of the Zesty experience;

(d) the Tribunal did not consider that there was no evidence of other formal complaints against Zesty or Mr. Earle;

(e) the Tribunal ignored the role of Ms. Pardy’s anxiety disorder in escalating the exchanges at Zesty or the reasonableness of her claims of post-traumatic stress disorder;

(f) there was little or no evidence to assist the Tribunal in weighing or testing the doctor’s opinion, and insufficient evidence supporting the notion that a baseline could be established;

(g) the Tribunal did not consider whether the damages should be reduced for Ms. Pardy having failed to mitigate by remaining at the show;

(h) the award was excessive in relation to other awards and failed to consider the strained financial circumstances of Mr. Earle or whether the other petitioners, Zesty or Mr. Ismail, could pay such fines;

(i) not only should the Tribunal have considered Mr. Earle’s financial circumstances and personal circumstances, but the fact that he apologized and bought and delivered new sunglasses to Ms. Pardy and that he had lost work and suffered ignominy from the widespread report of the proceedings.

[351] An assessment of damages is reviewable under ss. 59(3) and (4) of the Administrative Tribunals Act if it is patently unreasonable.

[352] In making the award the Tribunal considered the impact of the incident on Ms. Pardy. The Tribunal considered her evidence, the evidence of other witnesses and the medical evidence of the psychological and physical impact on her. The findings of the Tribunal were supported by the evidence and the Tribunal took into account that Mr. Earle’s conduct was verbal and physical. The Tribunal also considered awards in other circumstances and in my view, the awards on the facts the Tribunal found were not patently unreasonable.

[353] The only issue that arises for further consideration, in my view, is whether the Tribunal was correct in considering Mr. Earle’s comments in the interview that he gave on the “Dave and Chuck Show” six months after the incident on November 18, 2007 that was subsequently posted on YouTube. The Tribunal found that his comments were false and inflammatory about Ms. Pardy’s conduct on the night in question and “seriously exacerbated and prolonged the effect on her”. The question is whether considering this later interview was an irrelevant consideration to determining the quantum of the award. The Tribunal may only award compensation for the discriminatory event. I think however that the award of the Tribunal in this respect does relate to the event in question. I refer to paras. 222-223 of the decision:

222 On the facts I have found, Mr. Earle’s statements in the interview that Ms. Pardy was intoxicated, that her display of affection consisted of more than Ms. Broomsgrove kissing her, that Ms. Pardy and her friends heckled Mr. Earle before he made his first set of comments to them, that Ms. Pardy or the other women initiated any verbal exchange about their sexual orientation, or that Ms. Pardy accosted him as if to invite a physical fight, were all false. Mr. Earle also omitted from his interview account the fact that, before Ms. Pardy or any of the other women said anything to him, he referred to Ms. Pardy as a “fucking cunt”, and to all of them as “stupid cunts” and “stupid dykes”.

223 Ms. Pardy testified that when she saw the video, she felt sick, as if she was undergoing the experience all over again. She said she didn’t sleep for two or three days after watching it, and that it just kept playing in her mind over and over. She said she couldn’t believe the way Mr. Earle painted her in the interview, or that he “tried to brush this off as a light-hearted comedy”. She said that it was devastating to her to experience it all over again, that she became sick to her stomach, she began to shake and sweat, and her ears rang. Physically, she said she felt like she was in the situation all over again.

[354] I find that the Tribunal was correct and that the exacerbation to Ms. Pardy’s for which the Tribunal compensated her was part of the incident. If I had found that this was an irrelevant consideration, I would have reduced the award against Mr. Earle to $10,000.

[355] I find that the Tribunal’s award has not been shown to be patently unreasonable and the petitioners’ arguments in this respect must be rejected.
XIV. CONCLUSION

[356] The petitioners’ challenge to s. 8 of the Human Rights Code as unjustifiably infringing freedom of expression fails. I have concluded that s. 8 of the Human Rights Code is constitutional.

[357] I have concluded that the Human Rights Tribunal was correct in holding on the facts before it that the derogatory comments and conduct of Mr. Earle at the club constituted discrimination as that term is used in the Human Rights Code. The decision of the Tribunal correctly balanced the severity of any interference with the Charter protection of freedom of expression against the statutory objectives of the Human Rights Code.

[358] The Tribunal was also correct that the discrimination was regarding a service customarily available to the public and that Mr. Earle was an employee of Zesty under the Human Rights Code.

[359] I dismiss the petitions for judicial review, including the procedural challenges by the petitioners. I also uphold the damage award made against the petitioners.

[360] The parties may speak to the question of costs.

“J.S. Sigurdson J.”
The Honourable Mr. Justice J.S. Sigurdson