On August 10, 2016 the Court of Queen's Bench of Alberta released its judgment upholding an Alberta Human Rights Commission ("AHRC") decision related to students praying on an independent school's campus. The Court upheld $26,000 in damages awarded to two high school students (the "Students") as a result of their private school, Webber Academy Foundation ("Webber Academy"), prohibiting them from conducting their prayers on campus. This case reinforces a school's obligation to provide reasonable accommodations for students' religious beliefs and practices.
AHRC Decision1
On February 13, 2012, two complaints were filed to the AHRC against Webber Academy, alleging discrimination against the Students contrary to ss. 4(a) and 4(b) of the Alberta Human Rights Act (the "Act"). The sections provide:
4. No person shall
a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or
b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public2
The complainants alleged that Webber Academy discriminated against the Students by not allowing them to perform short prayers on campus in accordance with their religious beliefs. They argued that they hold sincere religious beliefs and that it would not have imposed undue hardship on Webber Academy to accommodate them. Webber Academy refused to re-enroll the Students for another school year for failure to follow its policies and procedures as a result of their praying on campus. Further, the Students argued that by refusing to re-enroll them, Webber Academy acted contrary to s. 4 of the Act.
Webber Academy argued that "the provision of prayer space" is beyond the scope of s. 4 of the Act and, in any event, there was no differential treatment of the Students as compared to other students. It argued that being non-denominational is an integral part of Webber Academy's identity, and prayers on campus challenged this identity. Webber Academy claimed it offered accommodation by allowing the Students to miss class to leave campus to pray.
The AHRC concluded that the services and facilities Webber Academy customarily offered to the public (the student body in this case) included educational programs and other supportive services and facilities, including the use of the campus. The Students highlighted that the student body is reliant on Webber Academy to meet their needs during the day, while Webber Academy argued it has discretion in the delivery of the services offered. The AHRC concluded that Webber Academy did not have an “unfettered discretion” to summarily refuse a student's request to perform a religious obligation on its campus.3 The discretion did not extend to allow Webber Academy to deny the use of facilities or services in a discriminatory fashion.
The AHRC accepted oral evidence given by the Students and acknowledged the sincerity of their beliefs related to the practice of prayer in the manner and at the times they requested. The Students highlighted the adverse impact of not being able to pray on campus, specifically, they were refused re-enrollment. There was clear evidence that the reason not to re-enroll the Students was based on the fact that they wanted to pray on campus. As a result, the AHRC found the Students had been subject to prima facie discrimination by Webber Academy.
Webber Academy argued that any discrimination was reasonable and justified pursuant to s. 11 of the Act and should, therefore, be deemed not to contravene s. 4. Section 11 provides:
11. A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.4
The AHRC accepted that the discrimination would be "reasonable and justified" if the standard in question was rationally connected to the function being performed, was adopted in good faith and was reasonably necessary to accomplish the particular purpose or goal.5
The AHRC accepted that Webber Academy's purpose was to foster a non-denominational learning environment free from religious influences, and found a rational connection between this goal and the prohibition against the Students praying on campus. The AHRC also accepted that Webber Academy adopted this position in good faith, believing it was necessary to accomplish its goals of being secular. The AHRC did not accept that being a non- denominational school could reasonably be interpreted as meaning that no prayer or religious practice would be allowed. Further, there was no evidence to establish that the Students' prayers would be a religious influence on any other individuals or that the Students aimed to impose their beliefs on others at Webber Academy. They only wished to quietly and discretely fulfill their religious obligations.
The AHRC highlighted that the duty to accommodate goes as far as "undue hardship."6 The AHRC concluded that the Students' request was quite easy to accommodate. The Students required little space to do their prayers, no special equipment, and the location for prayers was flexible. A philosophy of secularism was not a reasonable and justifiable reason to refuse the Students' request.
The AHRC also noted that Webber Academy accommodated religious head coverings and facial hair. Webber Academy commented that this was different than praying because the latter is an "activity". The AHRC rejected this distinction and found that Webber Academy's proposal to allow time for the Students to pray off campus did not meet the reasonableness threshold. Allowing the Students to pray off campus was not a reasonable alternative because it could be unsafe for the Students.
In conclusion, the AHRC held that Webber Academy's policy of maintaining a non- denominational educational environment did not preclude Webber Academy from accommodating the students. It would not have created undue hardship for Webber Academy to do so. The AHRC awarded the Students a total of $26,000 in damages for distress, injury and loss of dignity.
Court Of Queen's Bench Decision7
The Court undertook a judicial review of the decision of the AHRC. Webber Academy argued that prayer space was not something "customarily" offered. Further, if an accommodation requested is not customarily available to the student body, it is not within the requirements of s. 4 of the Act.
The Court agreed with the AHRC that Webber Academy's policy discriminated against the Students. In his decision, Poelman J. wrote, “The law prevents Webber Academy from adopting, or applying, policies that result in discrimination on prohibited grounds, unless they can show the discrimination was reasonable and justifiable."8
The Court did not find the discrimination to be reasonable or justifiable. Rather, it concluded that, "There was no demonstrated hardship, let alone undue hardship, motivating this policy."9 The Court refused to interfere with the AHRC's award of damages, and held that it was within the range of reasonable past awards by tribunals and courts.
Conclusion
Schools must consider their obligations to accommodate the religious practices of students to a point of undue hardship. In this case, Webber Academy's desire to foster a non-denominational identity and learning atmosphere was not prioritized over the sincere religious beliefs of its students. As such, the Court affirmed a school's obligation to accommodate religious beliefs, as well as a school's role in emphasizing the importance of multiculturalism and promoting tolerance and respect for diversity.
1Amir and Nazar v Webber Academy Foundation, 2015 AHRC 8, 2015 CarswellAlta 2574 ["AHRC Decision"].
2Alberta Human Rights Act, RSO 2000, c A-25.5, at s 4 ["The Act"].
3AHRC Decision, supra note 1 at para 51, citing University of British Columbia v Berg, 1992 Canlii 89 (SCC), [1993] 2 SCR 353.
4 The Act, supra note 2 at s 11.
5British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868, 1999 CanLII 646 at para 20.
6Central Okanagan School District No. 23 v Renaud, 1992 Canlii 81 (SCC), [1992] 2 SCR 970.
7Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442, 2016 CarswellAlta 1498.
8Ibid at para 105.
9Ibid at para 123.