Guy Earle: My "Waiter" Metaphor Vindicated

"Restaurants have an obligation to provide a service that is free of discrimination," Cousineau [Lawyer for Complainant Lorna Pardy] said. "If you go to a restaurant and the waiter comes up to you and calls you names based on your race or your disability, or whatever, even if you are still technically getting your food and getting your drink you are still being subjected to discriminatory treatment in the provision of that service."

Moreover, Cousineau alleges that the comments were not made during Earle’s official artistic performance.

"This isn’t the case of a comedian standing on stage and saying ‘two lesbians walk into a bar.’ It’s the case of individuals in the audience being targeted and being subjected to slurs about their sex and sexual orientation," she said.

An important thing to note here is that, Zesty's (the Vancouver restaurant where this all took place) was only partly given over to comedy club business on the evening in question, and one of Pardy's supporters, at least, has indicated that the two lesbians were not there for the comedic performances:

No, the ladies did NOT go to Zesty's to see the show. But when the patio closed, they were taken to the table by the stage by the waitresses.

By the way, Guy Earle has a blog/website devoted to his adventures, which was dead for many months and has become active again in the runup to his hearing. For example:

For almost three years, I have been defending myself to attacks from would be heroes blowing intolerance through their misguided horns. I AM NOT A HOMOPHOBE. I don't give a flying shit what you do in your bedroom and for that matter, it's none of my business... so why do you have to ram it down everybody elses throats?

Admittedly, that quote is a bit of a cherry pick on my part.

The distinction above is important to note, because as I've said several times, some will want to portray this as a "free speech" case and it really isn't; the fact that words were used to discriminate is incidental in this case. And were anyone to repeal the relevant section of the B.C. code (section 8), it would leave the provincial analogue to section 13 of the federal code (which is called section 7) in place. Some people with broader anti-HRC agendas may want to see the distinction elided.

Guy Earle BCHRT Hearing

...is not about free speech, though you may hear otherwise. Its not about being an "edgy comedian" testing the limits of acceptable expression; it would be more accurate to say its about being an abusive waiter.

More on this case as it plays out, hopefully.

Ezra Caught In Another

No, The CJC did not fire Kinsella.

Caught in two really. Here we have a case from the BCHRT in which the complainant was ordered to pay costs (full decision, which I have not read yet, can be found here) to the respondents for a specious claim. But wait! According to The Ez, that isn't supposed to happen!

As well, the natural check on American-style over-litigation – the financial, time and emotional cost of suing, and the risk of costs being awarded to the defendant – were not in play. The government of Alberta carried the investigation against us, and, had the case not been dismissed, would have prosecuted us before a tribunal. The complainants didn’t have to spend a dime or a minute – and the law prohibited me from collecting costs when I won.

Actually, I thought Ezra had scored a legitimate point with this argument. And I am still unsure of how the various HRCs may or may not be allowed to ding a complainant if their case does not meet the standard. But apparently it can happen.

Ah But You See Now Real Money Is Involved

To their credit, the Harper government has largely (wholly?) ignored calls from its political base to repeal Section 13 of the CHRA. However, it didn't take long for them to indicate their displeasure with the BCHRT's decision re Construction and Specialized Workers' Union Local 1611 obo Foreign Workers v. SELI Canada, in which foreign workers were judged to have been

...given inferior accommodation, denied any choice about what to eat . . . [and] worked side by side with Europeans who were paid substantially more than they were for performing substantially the same work.

On the Dec 14th, Jason Kenney said:

“I am very concerned by the recent decision of the B.C. Human Rights Tribunal regarding wages for temporary foreign workers, particularly in light of the fact that these workers were being compensated at the same level as Canadian workers, and had voted to decertify the union that filed the complaint."

A rather complex ruling, and I admit to having only skimmed the thing so far, but its clear that even this brief statement contains a number of distortions. For one thing, the complaint was in regards to the wages of a number of South American workers vs. their European counterparts (Seli being an Italian company that digs tunnels all over the planet), not vs. home-grown Vancouver workers.

For another, while it is true that a number of the complainants voted to no longer be represented by their union, this vote, arranged by the company, was itself judged to be a retaliatory act against the complainants:

The crux of the Union’s retaliation complaint is a petition which the Employer presented to members of the Complainant Group for signature. It was written in Spanish. Translated, it says: “I no longer wish the Union to represent me before the Human Rights Tribunal.” (para. 21)

The result: $10,000 for each employee, an appeal by Seli Canada, and a bit of finger-wagging by the federal government.

H/t Shotgun Blog.