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DISCRIMINATION - Prohibited grounds - Religion - Context - Education

Tuesday, July 10, 2018 @ 10:16 AM  

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Appeal by the Academy from a decision confirming a Human Rights Tribunal decision that the appellant unlawfully discriminated against two high school students by prohibiting them from performing prescribed forms of prayer on campus. The Academy was a non-denominational private school. The two students were Sunni Muslims who were required to pray several times a day. Staff members facilitated the prayer in spare rooms or offices. The Tribunal accepted that the parents raised the students’ need to pray prior to enrolment and they received a generally positive indication of acceptance from the appellant and that during the school tour, a representative indicated a spot in the library where the students could pray. Subsequently, the parents were advised that prayer was not permitted at the Academy because it was a non-denominational school. The Academy proposed that the students could pray during school hours, but off campus or on campus without saying the prayers out loud, bowing or kneeling. The parents alleged that the Academy discriminated against the students in the provision of its services by prohibiting them from praying on campus.

The Tribunal concluded that the Academy offered services and facilities customarily available to the public and it did not have an unfettered discretion to summarily refuse a student’s request to perform a religious obligation on its campus. The Tribunal found the students experienced an adverse impact regarding the services provided by the Academy and their use of its facility because the students were both refused re-enrolment and denied a chance to exercise their religious prayer on campus. It concluded that the Academy’s rigid and unwritten policy of not allowing students to observe their sincerely held religious prayer practices on campus was not reasonable or justifiable. For the first time on appeal, the Academy challenged the constitutionality of s. 4 of the Alberta Human Rights Act.

HELD: Appeal allowed. The entire matter was remitted to a new panel. The Charter issues could not be determined on the existing record. The Tribunal recognized that the students were asking for space sufficiently large to allow the children to bow, kneel and stand safely yet held that the students were only asking the Academy to allow them to honour their religious beliefs regarding their prayer. Neither the Tribunal nor the chambers judge explained the significance to their analysis if the request was for prayer space. The Tribunal’s conclusion appeared at best confusing, and without further elaboration of its reasons, the conclusion was not reasonable. The chambers judge identified the correct standard of review for this issue but in finding the Tribunal did not err, he applied the correct test on this issue incorrectly. The Tribunal also failed to give adequate reasons for preferring the parents’ version of the discussions surrounding the pre-enrolment meeting and school tour between the parents and the school administrators. The Tribunal erred in failing to resolve the inconsistency in testimony and failing to give reasons that were transparent and intelligible. While this Court could not determine the challenge to the constitutionality of s. 4 of the Alberta Human Rights Act, there was considerable social importance in resolution of conflicts between Charter rights and other rights.

Webber Academy Foundation v. Alberta (Human Rights Commission Director), [2018] A.J. No. 689, Alberta Court of Appeal, J. Watson, P.A. Rowbotham and J.D.B. McDonald JJ.A., June 1, 2018. Digest No. TLD-July92018003