Comedian Guy Earle and restaurant owner Salam Ismail appealed the tribunal ruling that said they discriminated against Lorna Pardy when Earle unleashed a torrent of homophobic insults during a 2007 comedy show.
The tribunal heard that Earle began the insults when he saw Pardy kissing her partner and the situation escalated to a profanity-laden rant, where Earle repeatedly attacked the woman's sexuality.
Earle even confronted the woman, pushing her and breaking her sunglasses.
The challengers claimed part of the Human Rights Code was unconstitutional and infringed on their right to freedom of expression.
Justice Jon Sigurdson noted in his ruling that comedic expression may be protected, even when it's in poor taste.
But he noted: "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."
Earle's lawyer argued comedy club patrons must have thick skins and hecklers must know they will be targeted for insults.
"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," the judge said. "It does not follow that comedy clubs are zones of absolute immunity from human rights legislation."
Both Earle and Ismail also asked the court for a review of the award of damages against them.
The tribunal ordered Earle to pay the woman $15,000 and Ismail to pay $7,500 for injury to Pardy's dignity, feelings and self-respect.
The petitioners claimed the damages were excessive compared to other awards and unreasonable because the tribunal didn't consider a number of other factors including that Pardy didn't get up and leave the show, and there was insufficient evidence of her claims of post-traumatic stress order.
But the judge upheld the award, saying Earle exacerbated the effect on the woman when he lied about the incident during a media interview six months after the confrontation.
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