Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442

Court of Queen’s Bench of Alberta Citation: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 Date: 20160810 Docket: 1501 04787 Registry: Calgary Between: Webber Academy Foundation Applicant - and - Alberta Human Rights Commission (Director), Farhat Amir (On Behalf of Sarmad Amir), and Shabnam Nazar (On Behalf of Naman Siddique) Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.H.

Poelman _______________________________________________________ Table of Contents I Introduction . 2 II Complaints . 3 III Alberta Human Rights Act 4 IV Tribunal Decision . 5 V Standard of Review .. 9 VI Characterizations: Students’ Request and Services Customarily Available . 9 VII Prima Facie Discrimination . 11

A. Introduction . 11 B. Application of the Test 12 1. Characteristic Protected from Discrimination . 12 2. Adverse Impact 13 3. Religious Belief a Factor in Adverse Impact 14 VIII Reasonable Justification . 15 A. Introduction . 15 B. Application of the Test 15 1. Rational Connection . 15 2. Good Faith . 16 3. Reasonably Necessary . 16 4. Conclusions . 17 IX Evidence of Pre-Enrollment Meeting and School Tour 18 A.

Summary of Evidence . 18 B. Need for Reasonableness (Transparency and Intelligibility) in Findings . 20 C. Effect of Fact Findings on Finding of Discrimination . 22 X Expert Evidence of Dr. Ahmed . 23 XI Damages . 23 XII Conclusions . 24 I Introduction [ 1 ] A tribunal under the Alberta Human Rights Act , R.S.A. 2000, c. A-25.5, decided that Webber Academy unlawfully discriminated against two high school students by prohibiting them from performing prescribed forms of prayer on campus. The students, in grades nine and ten, sought to perform their prayers in private.

They testified that according to their personal Sunni religious beliefs, the prayers were mandatory, at least during parts of the school year, during times they were on campus. [ 2 ] This decision arises out of an appeal, not a rehearing, of the human rights complaints.

It therefore involves a review of how the tribunal framed the issues to be decided, what factual findings it made on the evidence, what legal tests it identified as governing the issues before it, and whether it reasonably applied those tests to the evidence. [ 3 ] The two students who are the subject of the complaints will usually be referred to simply as “the students” and the term “complainants” will typically refer to the students and their mothers, who have been involved on their behalf throughout the incidents and pursuit of the complaints. II Complaints [ 4 ] Ms. Farhat Amir and Dr.

Shabnam Nazar, on behalf of their fourteen-year-old sons Sarmad Amir and Naman Siddique, submitted identical complaints to the Alberta Human Rights Commission on February 13, 2012. On the forms they indicated that they were complaining about Webber Academy in the area of goods, services or facilities, on the ground of religious beliefs. [ 5 ] The details were set out in an attached document. Paraphrased, it may be summarized as follows: (

a) The students are Sunni Muslims, required to pray five times a day. At least one of these prayers, and no more than two (depending upon the time of year), must be performed during school hours. (

b) They were admitted to Webber Academy on December 1, 2011, and until December 17 their prayers were facilitated by members of teaching staff and non-teaching staff in empty offices and classrooms. (

c) On Saturday, December 17, their mothers received telephone calls from Dr. Neil Webber, President and Chairman, informing them that prayer was forbidden on the school’s campus.

(

d) In meetings on December 19 and 21, the parents proposed a number of venues on campus where the children might pray without anyone seeing them. Dr. Webber, however, would only allow them to remain on campus if they prayed without bowing or kneeling. (

e) A final meeting occurred on January 25, 2012, when the parents said they were simply seeking a space that would accommodate the children to stand, bow and kneel safely – not dedicated prayer space. No more than five minutes would be required for each prayer. They were told they would have to leave the property if they wished to carry out their prayers. Dr. Webber explained that he did not mind meditation or non-descript prayer, but bowing and kneeling was too overt. (

f) The parents responded with a formal written request for accommodation on February 3, 2012. In response, Dr. Webber refused to provide the requested accommodations, and stated that because the policies and procedures of the school had been ignored, the students would not be accepted for enrollment the following year. [ 6 ] Webber Academy submitted a response, which may be summarized as follows: (

a) It is a non-denominational school, fostering an atmosphere where those of many faiths and cultures would feel equally at home. This meant that Webber Academy “is not a place where religious activities are to be carried out by members of any religious group on campus.” (

b) In pre-admission discussions, Ms. Diane Lever, Director of Admission, advised the students’ mothers “that Webber Academy was a non-denominational school and as such we would not be able to accommodate their request for a prayer space.” (

c) The problem of prayer space arose again during a school tour which led to the parties exchanging positions and, ultimately, notification that the students would not be able to pray on campus and would not be able to enroll for the following school year. III Alberta Human Rights Act [ 7 ] The complaints were submitted and the tribunal’s decision was made pursuant to the Alberta Human Rights Act . Thus, the tribunal’s decision and this appeal are governed by the relevant provisions of that Act . [ 8 ]

Section 4 protects individuals from discrimination in the area of goods, services, accommodations or facilities on grounds of religious beliefs. It provides as follows: 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 public, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons or of any other person or class of persons. Notwithstanding

section 4, the Act provides for limited exceptions.

Section 11 states as follows: 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. [ 9 ] Where a contravention of

section 4 is found, the tribunal has broad remedial powers, set out in

section 32, as follows: Section 32 (1) A human rights tribunal (

a) shall, if it finds that a complaint is without merit, order that the complaint may be dismissed, and (

b) may, if it finds that a complaint has merit in whole or in part, order the person against whom the finding was made to do any or all of the following: (

i) to cease the contravention complained of; (ii) to refrain in the future from committing the same or any similar contravention; (iii) to make available to the person dealt with contrary to this Act the rights, opportunities or privileges that person was denied contrary to this Act; (iv) to compensate the person dealt with contrary to this Act for all or any part of any wages or income lost or expenses incurred by reason of the contravention of this Act; (

v) to take any other action the tribunal considers proper to place the person dealt with contrary to this Act in the position the person would have been in but for the contravention of this Act.

(2) A human rights tribunal may make any order as to costs that it considers appropriate.

... [ 10 ] Finally, a tribunal’s decision is subject to an appeal to this court, as provided in

section 37: 37(1) A party to a proceeding before a human rights tribunal may appeal an order of the tribunal to the Court of Queen’s Bench by application filed with the clerk of the Court at the judicial centre closest to the place where the proceeding was held. . . . 37(4) The Court may (

a) confirm, reverse or vary the order of the human rights tribunal and make any order that the tribunal may make under

section 32, or (

b) remit the matter back to the tribunal with directions. ... [ 11 ] A tribunal, consisting of one or more members of the Alberta Human Rights Commission, may be appointed to deal with the complaint (section 27). In this case, a three-person tribunal was appointed. In most cases, as here, the director of the Commission has carriage of the proceeding (section 29), although the complainants are also parties who are entitled to appear and be represented by counsel (section 30). IV Tribunal Decision [ 12 ] The present proceeding is an appeal from the tribunal’s decision, not a new hearing.

Thus, it is important to have close regard to what the tribunal decided and its reasons. [ 13 ] After an introduction and overview of the positions of the director (adopted by the complainants) and Webber Academy, the tribunal focused extensively on “framing the analysis” and making initial findings.

A central issue was whether, as submitted by Webber Academy, the complainants were seeking a designated prayer space or a space dedicated only to prayer; or, as the director and complainants argued, the request was for the students to be able to pray, with flexibility in where that occurred. [ 14 ] The tribunal referred to the complainant’s form of prayer as described by the student Mr. Siddique.

It involved raising his hands over his head, going into a bowing position, standing up again, going into prostration (putting his hands on the floor, his knees on the floor, and his head on the floor), going into a sitting position, going back into prostration, and then coming back up and standing – all while reciting a number of phrases and quotations from the Qur’an in Arabic. This constituted one unit of prayer, and four units were required. At the very end, instead of standing up again, he sat back down, recited a short supplication, and then ended the prayer.

The sequence took five to ten minutes. [ 15 ] The tribunal accepted evidence from Dr. Nazar that Dr. Webber stated he did not want a visible prayer, but making a cross in the corner would be okay.

A Webber Academy witness distinguished between wearing a religious “symbol” such as a turban, which was acceptable as a state of being; and prayer, which was a visible activity that required prayer space. [ 16 ] The tribunal rejected Webber Academy’s framing of the issue as a request for “prayer space,” observing that the space required was only slightly larger than the space required to be occupied by a person, and about the same as sitting in a chair. It did not accept a distinction of any significance between a visible religious practice or a visible religious symbol.

It found the complainants were requesting Webber Academy to allow them to honour their religious beliefs regarding prayer. [ 17 ] The tribunal described a conflict in the evidence relating to discussions at pre-enrollment meetings. Dianne Lever, Director of Admissions, testified that she told the parents and students that the school was non-denominational, therefore no prayer space would be allowed; Vicki Grenier, Admissions Assistant, testified to overhearing this statement. Her evidence was said to be of little assistance, because she was not present for the entire discussion.

The students’ mothers said they were told prayers at school would not be a problem, and Mr. Siddique recalled a similar response. [ 18 ] The students began attending classes on December 1, 2011. On December 13, their mothers were given a tour during which, according to Dr. Nazar’s testimony, she asked Ms. Lever to thank the teachers for providing a place to pray, to which Ms. Lever responded “don’t thank me, thank the teachers.” Ms.

Lever testified that her response was “don’t thank me because I didn’t give permission.” She also testified that a request for space to pray was not really brought up on the tour, and only in reflecting afterwards did she realize that Dr. Nazar was looking around for places to pray. [ 19 ] The tribunal reviewed Ms. Lever’s testimony, noting her uncertainty about how she might respond to certain religious practices. The tribunal found this reduced the reliability of her evidence about communicating with the parents, and further stated that “Ms.

Lever’s lack of clarity about how to handle a visible religious practice, even now, coupled with the inconsistencies in her testimony support our conclusion that Ms. Lever did not clearly articulate or convey that prayer was not allowed at the time the requests were raised.” They found the testimony of the students and their mothers to be “more accurate and reliable and consistent with the balance of the evidence as a whole.” In

summary, they found the students’ need to pray was discussed with Ms. Lever prior to enrollment and a generally positive indication of acceptance was given, and that on the tour Ms. Lever indicated a spot in the library where the students could pray. [ 20 ] On December 17, 2011, Dr. Webber telephoned the parents to say the school was “non-denominational” and the students could not pray on school premises. The tribunal found that this was the first clear communication from Webber Academy that the students could not pray on campus.

[ 21 ] The students’ parents testified that in subsequent meetings Dr. Webber refused to allow prayer in private areas such as an outside garage, corridor, basement, behind trees or a closet. Instead, the students would have to go off campus. They testified that he suggested students could pray quietly in their head or quickly make a cross if no one was aware of the prayer, but did not want other children to see bowing or kneeling. [ 22 ] In correspondence, the parents requested a “nominal space being provided to perform prayers” and permission to be excused from class if necessary.

A dedicated prayer space was not necessary to meet the requirements. However, they could not accept a requirement that the children leave campus to pray, as it would require a disproportionate amount of time and was potentially dangerous, especially during inclement weather. [ 23 ] Dr. Webber responded in correspondence, reminding the parents that at the time of admission, they were told by Ms.

Lever “that we are a non-denominational school and as such we would not be able to accommodate space for prayers.” He referred to a legal opinion that Webber Academy was under no obligation to accommodate their request, because it does not make physical accommodations for any other student to practice religion, and Webber Academy is a non-denominational school, an integral part of its character.

He reiterated that there was no permission to have prayer space at Webber Academy, and since the policies and procedures were being ignored, the students would not be accepted for enrollment the following school year. [ 24 ] There was an incident on February 10, 2012 when Mr. Siddique was praying in the library. He was about to commence prostration when he was interrupted by Ms. Webber, Vice President of Administration, who asked repeatedly “what are you doing?” He was upset by the incident. Ms. Webber testified that she heard Mr.

Siddique praying, and interrupted him to ask what he was doing and see if he was all right. [ 25 ] The tribunal found that Ms. Webber abruptly interrupted a quiet prayer. It acknowledged that Mr. Siddique was praying in violation of a directive, but was attempting to fulfill his religious obligations as he understood them.

In its view, the manner of physical intrusion and interruption contributed to a sense of shame and humiliation. [ 26 ] The tribunal then turned to consider how to characterize the relevant “services” and “public” in this case, within the meaning of the provision that no person shall deny to or discriminate against any person with respect to services, accommodation or facilities that are customarily available to the public (my paraphrase of

section 4 of the Act ).

The tribunal defined “the service and facility customarily offered by Webber Academy to include: educational programs and other supportive services and facilities including the use of Webber Academy campus and facilities” (para 49) and defined the “public” as the “student body.” It was significant to the tribunal, when considering the scope of service and facility, that the students were minors and attended for full days, thus being dependent upon the school to meet their needs throughout the day. [ 27 ] Accordingly, the tribunal rejected Webber Academy’s argument that it did not fall under the Act because prayer space is not a service it customarily makes available to its public.

The tribunal emphasized that prayer space was not the service being offered. Rather, the service was education and other supportive services and facilities allowing meaningful access to education. [ 28 ] The tribunal then addressed the evidence of the students, their mothers and some religious advisers, finding that the students and their parents had a sincerely held religious belief that their practice of prayer, at the times requested, was a requirement of their religion.

It rejected Webber Academy’s expert evidence indicating that exceptions during school attendance were well recognized in Islamic law, and arguments that certain current and historical practices of the students and their parents raised questions about the sincerity of their beliefs. [ 29 ] In applying its determination of how to frame the issue and its factual findings, the tribunal found that there was a prima facie discrimination contrary to

section 4 of the Act , because: (

a) The students’ desire to pray during school hours was based on a sincerely religious belief; (

b) The students were not allowed to pray on campus and were refused re-enrollment to Webber Academy, thus experiencing an adverse impact with respect to the educational services and related facilities of Webber Academy; and (

c) Their religious belief, a protected characteristic under the Act , was the basis for Webber Academy’s denial of services and discrimination with respect to its services. [ 30 ] Having found prima facie discrimination, the tribunal turned to whether it was reasonable and justifiable, thus giving a defence under

section 11 of the Act .

That involved consideration of whether “Webber Academy adopted the standard for a purpose or goal that is rationally connected to the function being performed,” whether it “adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal,” and whether the standard was “reasonably necessary” to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship. [ 31 ] With little analysis, the tribunal accepted that Webber Academy met the first two requirements.

However, it failed on the third, because there was no evidence that the students’ prayer practices would be a religious influence on other students, other overt religious observances were permitted, initial allowance of prayers had been easily accommodated, and Webber Academy had not undertaken any assessment of whether allowing the students’ prayers would amount to a hardship for Webber Academy. [ 32 ] The tribunal awarded Mr. Amir $12,000 and Mr. Siddique $14,000 as damages for distress, injury and loss of dignity.

Some factors considered were the tribunal’s finding that Webber Academy had given the impression before enrollment that something could be worked out regarding the prayer requirements, and that within three weeks of enrollment, the students were forbidden to pray on campus, causing them significant upset and feelings of humiliation. V Standard of Review

[33] Principles of administrative law, reformulated and simplified in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190, and numerous decisions interpreting and applying it, apply to statutory appeals as well as applications for judicial review:Mouvement laἵque québécois v. Saguenay (City), 2015 SCC 16, 382 D.L.R. (4th) 385, para. 38. The tribunal is a specializedadministrative body, with expertise. That is because the legislature has conferred on it decision-making authority on a particular,assigned subject matter: Alberta (Information and Privacy Commissioner) v.

Alberta Teacher’s Association, 2011 SCC 61, [2011] 3S.C.R. 654, para. 1; Nor-Man Regional Health Authority Inc v. Manitoba Association of Healthcare Professionals, 2011 SCC 59, [2011]3 S.C.R. 616, para. 53. In addition, the tribunal’s expertise can be seen from its composition.

All members must possess a law degree andexperience, knowledge or training in human rights or administrative law: Commission Bylaws, section 13 (3), passed pursuant to section17 (1) of the Act. [34] The standards of review that apply to various questions on appeal were succinctly set out by Ross J. in Association ofProfessional Engineers and Geoscientists of Alberta v. Mihaly, 2016 ABQB 61.

I can do no better than set out her statement of thestandards, which I respectfully adopt: [48] Questions of procedural fairness are reviewed on the basis of whether the proceedings met the level of fairness required by law:Wright v. College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267 at para. 31, 355 DLR (4th)197 . . . . [49] Questions of law concerning the

interpretation of the Alberta Human Rights Act, RSA 2000, c A-25.5 . . . are reviewed forreasonableness, unless they are “of central importance to the legal system and fall outside the adjudicator’s specialized area of expertise”:Saguenay at paras. 46-48. [50] The test for prima facia discrimination is reviewed on the correctness standard: Stewart [Stewart v.

Elk Valley Coal Corporation,2015 ABCA 225] at paras. 47, 56-57, citing Saguenay at paras. 46-48. [51] A lack of evidence in the record to support a Tribunal’s decision is reviewed on the reasonableness standard: Bombardier[Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39]. ... VI Characterizations: Students’ Request and ServicesCustomarily Available [35]

Section 4 of the Act, quoted in its entirety earlier and paraphrased in its essential elements here, states that no person shalldeny to any person, or discriminate against any person with respect to, any services or facilities that are customarily available to thepublic, because of religious beliefs. [36] The parties agree that, as in Berg v. University of British Columbia, (SCC), [1993] 2 S.C.R. 353, 102 D.L.R.(4th) 665, here the “public” for

section 4 purposes is the student body of Webber Academy. The difference concerns whether there was adenial of or discrimination with respect to any services or facilities “customarily available to the public.” Resolving that issue requirescharacterizing what the students were seeking and how that relates to the services offered to Webber Academy’s student body – its“public.” [37] The tribunal rejected as factually inaccurate Webber Academy’s characterization of the students’ request as being for “prayerspace” (para. 20).

It found that the space required for the requested prayer was “only slightly larger than the space occupied by aperson,” and about the same as if the person were sitting in a chair. The tribunal’s characterization was that the students “were requestingWebber Academy allow them to honour their religious beliefs regarding their prayer” (para. 20). [38] Determining what was requested by the students is primarily a factual matter and thus reviewable on a reasonablenessstandard. There was evidence to support the tribunal’s finding on this point.

In addition to the express basis for its finding, there wasevidence that the students were willing to perform their prayers in any private place, such as an unused room or behind a tree outside.While the complainants occasionally used the term “prayer space,” there was ample evidence on which the tribunal could find that theywere not seeking dedicated space – only somewhere they could perform prayers for five to ten minutes in an unobtrusive way.

In otherwords, they wanted permission to go somewhere to pray privately for a few minutes, and that place could be different from time to time. [39] It must then be determined whether what the students requested was a service or facility customarily available to the WebberAcademy public, which means determining what Webber Academy offers to the student body.

The tribunal took a broad view: “[t]hisTribunal defines the service and facility customarily offered by Webber Academy to include: educational programs and other supportiveservices and facilities including the use of Webber Academy campus and facilities” (para. 49). [40] In this appeal, Webber Academy does not articulate clearly how its services and facilities should be described.

Its focus,rather, is on arguing that the applicable service to be considered is what the students were requesting, namely the provision of prayerspace, something that was never “customarily” available because it had never been offered to any segment of the student body. In effect,Webber Academy argues that if the specific thing requested is not customarily available to the student body, it is not within therequirements of

section 4 of the Act. [41] For its approach, Webber Academy relies on portions of 1984 and 1986 Queen’s Bench decisions and 1990 and 2011decisions from, respectively, an individual sitting as a board of inquiry under the Individual’s Rights Protection Act, R.S.A. 1980 c.I-2,and the British Columbia Human Rights Tribunal, respectively. However, the Supreme Court of Canada has set out clearly the requiredapproach in Berg and Moore v. British Columbia (Ministry of Education), 2012 SCC 61, 351 D.L.R. (4th) 451. The tribunal was correctin using those cases to guide its approach to interpreting

section 4 and applying it to the case before it. [42] In Berg, which involved a complainant’s participation in a master’s program in nutrition, the court noted that the “School

exists to provide accommodations, services or facilities to its students which will further their education and social activities relating to the School” (para. 64). The complainant developed an emotional instability after her admission to the program, on the basis of which the director denied her a key for after-hours access to the school building and a faculty member refused to complete a rating sheet to support her application for a dietetic internship at a hospital.

The court found that the school facilities were part of the relationship between the university and its students, since they were a necessary adjunct to the educational process, and thus the key was likened to the educational and recreational services of the school generally: (para. 66).

Similarly, the rating sheet (in effect, much like a transcript) was an incident of the educational relationship between faculty and students: (para. 67). “The key and rating sheet,” held the Court, “were incidents of this public relationship between the School and its students” (para.78). [ 43 ] In Moore , the complainant was a learning disabled student who was enrolled in a public school system. For financial reasons, the specialized intensive remediation which he required was no longer available. The Court held that, under a

section equivalent to

section 4 of our Act , the “service” was education generally, and the special education required by the complainant was the means by which students with learning disabilities could get meaningful access to the general education services available to the public served by the respondent. (paras. 26 to 29). [ 44 ] Analogously, in this case the services and facilities Webber Academy customarily made available to its public were non- denominational educational programs and other supportive services and facilities incidental to those programs – or to use the language of Moore , the means by which those programs could be accessed by students.

As in Berg , Webber Academy has a discretion in the types and scope of incidental services and facilities it offers. Examples could be the types of sporting events, hours of access to facilities and the range of courses taught.

However, the discretion must not be exercised on prohibited grounds of discrimination: Berg , para. 75 . [ 45 ] Thus, the tribunal was correct in concluding “that Webber Academy, as a private school, offers services and facilities customarily available to the public and does not have an ‘unfettered discretion’ to summarily refuse a student’s request to perform a religious obligation on its campus”.

Webber Academy’s discretion to set policies regarding student conduct “does not give a private school license to exercise their discretion in denying the services or use of facilities in a discriminatory fashion” (para. 51). [ 46 ] Further, to define the services and facilities addressed in

section 4 of the Act as proposed by Webber Academy – that is, to define them as identical to the specific “service” requested by the students – would make the provision almost meaningless. A respondent could refuse any request because it does not “customarily” provide it. So, for example, a school could say it will not provide wheelchair access for facilities to someone with a physical disability: it has never done so before, and thus it is not something customarily available to its public. Equating the services and facilities customarily available to the public in

section 4 with the thing requested by a complainant simply defines away the issue. VII Prima Facie Discrimination A. Introduction [ 47 ] The tribunal applied the three-part test set out in Moore to determine whether there was prima facie discrimination; in other words, whether the evidence showed an adverse impact on the students caused or contributed to on the ground of their religious beliefs.

If so, Webber Academy would have the burden of proving that its policy was justifiable. [ 48 ] Webber Academy submitted, both before the tribunal and on this appeal, that the Moore test was inadequate because it failed to incorporate a “comparator analysis” as used in Kelly v. B.C. (Ministry of Public Safety and Solicitor General) , 2011 BCHRT 183 . [ 49 ] As I will address presently, there is room within the Moore approach for a comparator analysis, although it is doubtful that it is required.

In any event, the tribunal was correct in identifying the Moore test as applicable, being the most recent relevant Supreme Court of Canada authority. It has been recognized in Alberta as the applicable test: Telecommunications Workers Union v. Telus Communications Inc , 2014 ABCA 154 , [2014] 6 W.W.R. 217, para. 28 ; SMS Equipment Inc v. CEP Local 707 , 2015 ABQB 162 , 18 Alta. L.R. (6th) 74, para. 72 . [ 50 ] Thus, to establish prima facie discrimination, it must be shown that: (

a) The complainant has a characteristic that is protected from discrimination; (

b) The complainant has experienced an adverse impact; and (

c) The protected characteristic was a factor in the adverse impact. B. Application of the Test 1. Characteristic Protected from Discrimination [ 51 ] The tribunal found that the students had a characteristic protected from discrimination under the Act , because of their sincerely held religious beliefs. Webber Academy disputes this finding, arguing that “at the very least, the patent inconsistencies between the Complainants’ stated beliefs and actual practices, contextualized by the expert evidence of Dr.

Ahmed, should have caused the Tribunal to examine whether the demand for prayer space was in accordance with their sincerely held beliefs” (Brief, para. 141). [ 52 ] Webber Academy argues that the tribunal gave inadequate consideration to the expert testimony of Dr. Rumee Ahmed, assistant professor of Islamic law at the University of British Columbia; that Dr.

Ahmed’s testimony established there was no religious obligation to adhere strictly to prayer times during school hours, because leading and majority opinion among the four major Sunni schools of Islamic law consider attendance at school a valid reason to delay prayer; and that some practices of the students and their

parents show a willingness to skip or miss regular prayer. [ 53 ] The tribunal reasonably considered Dr. Ahmed’s evidence in detail as part of its determination of whether the students’ practice of prayer in the manner and at the times requested was based on their sincerely held religious belief (paras. 58 to 68).

It also considered the testimony of the students, their mothers and three members of the Muslim community: Mahdi Qasqas, director of youth services in Calgary, who had become a mentor for the students; Imam Fayaz Tilli, a Calgary imam and a religious leader with the Muslim council in Calgary; and Birju Dattani, a PhD student, legal academic and non-practicing barrister living in London England (involved in the Calgary Muslim community while growing up, and a close friend of Mr. Qasqas).

Messrs Qasqas and Dattani attended one of the meetings between the students’ mothers and Webber Academy staff. [ 54 ] However, the essence of the tribunal’s decision on religious beliefs was based upon its finding that the students personally believed it was necessary to conduct their prayers during scheduled times and it would be sinful to regularly miss them.

The students, as accepted by the tribunal, believed that their obligations come from the Qur’an and the sayings of the Prophet as conveyed to them by their parents – recognizing that at the relevant time, the students were in grades nine and ten respectively. It found that Dr.

Ahmed’s opinion did not establish that the students could miss prayers without consequence to their personal and sincerely held religious beliefs and obligations, and that nothing in his opinion challenged the sincerity of belief of the students or their parents. [ 55 ] In addition to accepting the evidence of the students, the tribunal accepted the testimony of the principal of Rundle College, where the students attended after Webber Academy, that the students practiced their prayer without significant disruption for the two years they attended his school.

The tribunal considered this strong evidence of a genuine belief and commitment by the students to their prayer practices. [ 56 ] Thus, the tribunal rejected arguments based on the contention that there were many valid schools of thought within Islamic law that would have permitted the students to miss or delay their prayers, and instead focused on the personal beliefs of the students. In doing so, the tribunal correctly followed the approach established in Syndicat Northcrest v. Amselem , 2004 SCC 47 , 241 D.L.R. (4th) 1.

As Webber Academy notes, Amselem addressed freedom of religion under the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms . Webber Academy argued that therefore it should not be applied to this case. However, Amselem ’s mandated approach to determining what religious beliefs are protected applies with equal force to the Act here.

None of the distinctions between the Charters and the Act make a difference on that point. [ 57 ] Amselem holds that for complainants relying upon freedom of religion, it is not necessary to prove their beliefs are objectively recognized as valid by coreligionists. Nor is it appropriate for courts to inquire into that question; rather, a person must show sincerity of belief, not validity of a particular belief: para 43. Courts are not arbiters of scriptural

interpretation, or responsible for making decisions among competing doctrines: paras 44 through 46. [ 58 ] “This approach to freedom of religion,” stated the court, “effectively avoids the invidious interference of the State and its courts with religious belief. The alternative would undoubtedly result in . . . value-judgment indictments of those beliefs that may be unconventional or not mainstream” (para. 55). The Amselem approach is sound, and even more important as society becomes increasingly diverse and secular.

What were once mainstream religious beliefs and practices often have become minority positions. [ 59 ] In my view, the tribunal correctly focused on a determination of whether the students sincerely held their religious beliefs regarding the form and times of prayer. There was ample evidence from the students, their mothers and their coreligionists to support the tribunal’s finding that the religious beliefs were sincerely held. [ 60 ] Finally, Amselem does not support the reliance placed by Webber Academy on expert evidence.

It is open to a complainant to adduce expert evidence, the court held, to demonstrate consistency of belief with the practices and beliefs of other adherents, as this may be relevant to a demonstration of sincerity. However, it is not necessary. In the words of the court, “[r]eligious belief is intensely personal and can easily vary from one individual to another. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom we seek to protect” (para. 54). 2.

Adverse Impact [ 61 ] The tribunal found that the students suffered an adverse impact with respect to the services and facilities denied by Webber Academy, by not being allowed to pray on campus and being refused re-enrollment for the following school year. [ 62 ] Webber Academy does not seriously challenge this finding, although in another context submits that differential treatment must be established to prove prima facie discrimination under the Act.

As noted earlier, this is not expressly required as a consideration under the Moore test, but the argument can be addressed as part of the question of whether the students experienced an adverse impact with respect to the service or facility. [ 63 ] Webber Academy’s argument was expressed as follows: Simply put, the impugned non-denominational policy demands the same respect for a non-sectarian environment from every student, regardless of their belief system. Second, the service sought by the Complainants, namely prayer space, is not available to any student of Webber Academy.

The Tribunal’s Decision effectively compels Webber Academy to provide a benefit for the exclusive enjoyment of the Complainants. Webber Academy did not refuse admission to the school and did not prevent the Complainants from accessing the service it does make available to its students: the provision of an education and a place in which to absorb that education. It further agreed they could take time off from class if needed.

However, prayer space cannot be conceptualized as a requirement of this education. [Brief, para. 111.] [ 64 ] Webber Academy’s argument is premised on a mistaken characterization of the issues, as addressed earlier. The students wanted to be allowed to conduct private prayers of a few minutes in length, in whatever unobtrusive place was available, because they considered this necessary to follow their religion while attending school for complete days. It would give them meaningful access to the

education and facilities which Webber Academy customarily made available to its student body.

In being denied their right to pray, theywere being treated differently from other students whose religious beliefs in the form of head coverings and facial hair were permittedduring their attendance at school, even advertised by Webber Academy, despite the fact that those observances were contrary to the usualpolicies applicable to Webber Academy students. [65] Thus, while the tribunal was not required to address the question of whether there was differential treatment, there was ampleevidence showing that differential treatment existed. 3.

Religious Belief a Factor in Adverse Impact [66] Finally, the tribunal found that the students were denied services, namely re-enrollment and the ability to exercise theirreligious prayer on campus.

These denials were based on the students’ religious beliefs, which clearly connects the protected ground ofreligion to the adverse impacts of refusal to allow prayer and denial of enrollment: para. 79. [67] In summarizing its conclusions, and paraphrasing Moore, the tribunal found that prima facie discrimination had beenestablished, because “[a]fter having met all of the eligibility and admission requirements . . ., the Students were thereafter deniedmeaningful access to Webber Academy (in all its facility and service offerings) based on their religious belief, a protected ground” (para.81, original emphasis). [68] This was a reasonable finding based on the evidence.

VIII Reasonable Justification A. Introduction [69] Having found prima facie discrimination, the tribunal considered whether, to paraphrase

section 11 of the Act, a contraventionshould be deemed not to have occurred because Webber Academy established the prima facie discrimination was reasonable andjustifiable in the circumstances. [70] To address whether Webber Academy met its onus of establishing this defence, the tribunal correctly identified the test as theone set out in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Counsel of Human Rights), (SCC), [1999] 3 S.C.R. 868 (commonly known as “Grismer,” the name of the claimant and appellant).

The test in Grismer is as follows: Once the plaintiff established that the standard is prima facie discriminatory, the onus shifts to the defendant to prove on a balance ofprobabilities that the discriminatory standard is a BFOR [bona fide occupational requirement] or has a bona fide and reasonablejustification.

In order to establish this justification, the defendant must prove that: (1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed; (2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and (3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodatepersons with the characteristics of the claimant without incurring undue hardship. [Para. 20.] B. Application of the Test 1.

Rational Connection [71] The tribunal found that Webber Academy’s standard, which had evolved (that is, developed in unwritten form, in response tocircumstances), could be expressed as “no overt prayer or religious activities on school property” (para. 86).

The purpose for thestandard, as determined by the tribunal, “was to foster a non-denominational identity that ensures Webber Academy’s students are placedin a learning environment that is ‘free of religious influence’ ” (para. 88). [72] Neither the standard or the purpose was articulated in any of Webber Academy’s written materials, such as handbooks andinformation packages. They were pieced together as the issue with the students and their mothers developed, and in testimony before thetribunal.

Thus, they were developed in an ad hoc way to deal with a specific problem that arose. [73] Having identified the standard and the purpose, the tribunal then identified the “function being performed” as educationalservices and facilities, and observed that a school could create an identity that includes setting standards for the conduct of students andstaff “in the particular learning environment and on its campus” (para. 90). [74] It concluded by finding that Webber Academy had established a rational connection between Webber Academy’s purpose andthe function it performed, noting that the standard’s validity is not addressed at this stage (para. 90).

This finding is not challenged. 2. Good Faith [75] The tribunal readily found that Webber Academy had adopted its position in good faith, thus meeting the second element ofthe test. Again, this finding is not challenged. 3. Reasonably Necessary

[ 76 ] Finally, the tribunal considered whether the standard (of no overt prayer or religious activities on campus) was reasonably necessary to accomplish its purpose of fostering a non-denominational identity. [ 77 ] At various times in its decision, the tribunal referred to the few written references to religion that appeared in Webber Academy’s public information. It will be helpful to collect them here: (

a) The Parent-Student Handbook stated on its first page that “Webber Academy is a non-denominational, co-educational, university preparatory school offering Junior Kindergarten to Grade 12.” On page six, it stated that “at Webber Academy, we believe in,” among other things, “creating an atmosphere where young people of many faiths and cultures feel equally at home.” At page 24 of the same document, it is stated that “head coverings which have a cultural or religious significance are permitted and may be worn,” but other head wear may not be worn in the building at any time. Page 23 stated that “boys are to be clean-shaven.” (

b) On Webber Academy’s website page for “Admissions,” a student with a turban, mustache and beard was prominently shown, along with two other students, thus conveying the acceptance of students of many backgrounds and faiths. (

c) In a statement on “our beliefs and values” from the website, the board and school faculty were stated to believe in “creating an atmosphere where young people of many faiths and cultures feel equally at home.” There followed a list of what is expected from students, such as respect for others, being truthful and honest, being courteous, and so forth. After this list of virtues, the document closed with the words “these are timeless values, honoured by all the world’s great religions. They are essential to becoming a whole person, developing integrity and building lasting relations with others.” (

d) The “Webber Academy information package” also contained the statement that Webber Academy is “non-denominational.” [ 78 ] When questioned about how one would know that prayer was not allowed at Webber Academy, Dr. Webber testified that it was “because it is reflected in our parent/student handbook that we’re a non-denominational school” (quoted in decision, para. 93). Ms.

Webber defined the term “non-denominational” as providing students with “an academic atmosphere that does not include a religious practice” and “it’s a place where you don’t have students conform to any one belief or prefer one belief or another” (para. 96). [ 79 ] The tribunal referred to a dictionary definition of “non-denominational” as “not restricted to or associated with a religious denomination,” and accepted a statement given by the principal of Rundle College who defined non-denominational as “we are not promoting or specifically affiliated with any denomination” (para. 97). It did not accept Dr.

Webber’s view that a non-denominational school can reasonably be interpreted as meaning that no prayer or religious practice would be allowed. [ 80 ] The tribunal went on to consider Webber Academy’s concern that allowing the student’s prayer practices would force Webber Academy to adopt the view that religious observance belongs in a school setting. The tribunal rejected this concern, finding that the students were not attempting to establish any particular view, but were merely fulfilling their religious obligation of praying when the time for prayer occurred during school hours.

Further, the tribunal noted that the students were seeking to pray privately, and that allowing two of nine hundred students to pray behind closed doors for a few minutes would be insignificant in the context of religious identity, affiliation or influence. [ 81 ] The tribunal also noted the numerous authorities recognizing that religion is an integral aspect of a person’s life, and that schools must allow and accommodate religious observances (such as kirpans and turbans) despite policies to the contrary.

The tribunal found that “[t]he evidence overwhelmingly supports that accommodation of the prayer was possible and it would not have been an undue hardship to accommodate the Students’ requests to pray on campus” (para. 118). In arriving at its conclusion, the tribunal had reference to the practices of others schools which it found helpful, but not determinative. It also noted the testimony of Dr.

Webber that the school did not contemplate any hardship aspects – they had a policy which they believed was important to enforce. [ 82 ] In further support of its finding on undue hardship, the tribunal noted that four staff members participated in facilitating prayers for the first two and a half weeks of the students attendance, and that other overt religious obligations such as the wearing of a turban were permitted as an exception to school policy. [ 83 ] The tribunal’s findings that the standard imposed by Webber Academy on the students was not reasonably necessary to accomplish its purpose of fostering a non-denominational identity were reasonable, founded on the evidence. [ 84 ] Webber Academy did not seek to justify its standard on the basis of a financial or logistical hardship.

Thus, those are not a consideration. Its justification on the basis of needing to ensure consistency with its non-denominational character fails for a number of reasons. [ 85 ] None of Webber Academy’s explanatory and promotional material would lead to the conclusion that it sought to exclude all forms of religious expression from its campus. Rather, it conveyed the message that it would welcome adherents of all faiths and cultures, including those whose religious beliefs involved some overt indication of their beliefs. [ 86 ] The students’ prayer practices would be carried out in private, for short periods.

It would usually occur outside of class times (but if necessary, Webber Academy allowed their absence from class during prayer time). Thus, these religious practices would be less obvious to staff and other students than other overt religious observances already permitted, even welcomed, by Webber Academy. 4. Conclusions [ 87 ] The tribunal correctly identified the legal tests to be applied in considering whether a defence under

section 11 of the Act was made out. The standard for applying that test on the case before it is reasonableness. I am satisfied that the tribunal’s conclusions were reasonable. There was ample evidence to support its findings.

IX Evidence of Pre-Enrollment Meeting and School Tour A.

Summary of Evidence [ 88 ] Webber Academy argues that the tribunal erred in dealing with the evidence concerning the pre-enrollment meeting on November 29, 2011 and the December 13, 2013 school tour, primarily in failing to adequately make and explain findings of credibility. [ 89 ] The November 29, 2011 meeting was attended by the two students, their mothers, and Ms. Lever, Webber Academy’s Director of Admissions. Ms. Grenier, Admissions Assistant, was present during parts of the meeting, but was in and out. Testimony about the meeting was given by all of these witnesses, except for Mr. Amir. [ 90 ] Ms.

Amir and Dr. Nazar testified that they specially discussed the students’ requirement for space to pray, and were told by Ms. Lever that it would not be a problem. Mr. Siddique said Ms. Lever said something to the effect of “we can see if we can work out something,” and “there probably would be some kind of empty space” where they could pray. [ 91 ] This testimony was squarely contradicted by Ms. Lever. She testified that Mr. Siddique had attended a classroom visit earlier that day, after which both mothers requested a further meeting (in addition to an earlier one on November 10). The meeting was held in Ms.

Lever’s office, with the door open. Ms. Grenier was in and out of the room organizing application paperwork. [ 92 ] Ms. Lever confirmed that she was asked about prayer space and “I indicated no, I’m sorry, we are a non-denominational school, and we would not be able to provide prayer space for their children, that we have many children of different faiths and cultures at the school, and they do not receive a spot for prayer. So I indicated that no, we did not have that” (transcript, 856-857). She further testified that the issue came up again.

Her response was “I had indicated yet again, that, no, we would not be able to provide prayer space and that, you know, that is something that would have to be taken into consideration before enrolling the children” (858). [ 93 ] Ms. Lever testified that Ms. Grenier was present when Dr. Nazar raised the issue of prayer. Mrs. Amir also testified that the request for prayer space was raised in the presence of Ms. Grenier, although she testified that Ms. Lever’s response was that there would not be a problem. [ 94 ] Ms. Grenier testified that she heard the request for prayer space and Ms.

Lever’s response that the school was non- denominational and did not provide prayer space to its students. Further, she recalled having a conversation with Ms. Lever about the subject after the meeting, and they “were both quite surprised that the families were asking for prayer space because we’ve never dealt with the situation before” (895). [ 95 ] On December 13, 2011, Ms. Lever and the two parents went on a tour of the main school building. Dr. Nazar testified that she arranged the tour with the intent of locating space for prayer. During the tour, she testified to thanking Ms.

Lever for providing prayer space, and then described Ms. Lever’s response as follows: And then I thanked her for the school providing the space, and I even said that, Make sure that you thank the staff members that they’re providing this facility. I mean, they’re providing the space for the kids to pray. And she said, Don’t thank me. You can thank them. They are the ones who are doing it. And I said, Sure. But, of course, you know, as a school, I said, Thank you very much. And during that meeting, she said, What about here in the library?

And she pointed out like that to a corner and said, What about in that corner? Can they pray there? And I said, yeah, absolutely. That’s actually a very good idea. When there is nobody around, they can pray there, otherwise an empty classroom or anything. And she said, yeah, okay. [147] Ms. Amir, although a witness, did not testify about any discussions during the tour regarding prayer. [ 96 ] Ms. Lever, again, gave very different testimony.

She observed that the tour was unusual, as the students had already been attending for about two weeks, and the parents were not asking questions about facilities, curriculum or teaching methodology. Her testimony on whether there was discussion about prayer space was as follows: Q. Okay. What was discussed about prayer space? A. It really wasn’t brought up outright. On the tour, I remember, in the library, Shabnam Nazar was looking arounds corners and in behind bookshelves and – and, you know, may have commented about that there might be a spot to pray.

And I had indicated again, no, we do not provide prayer space. And she thanked me for providing prayer space; I said well, don’t thank me because I did not give permission for this. And I then questioned where this was being done, and who had given them permission, because I had clearly indicated prior to enrollment that we would not be able to provide this for them. And, so, it was a shock to me. I was very surprised that someone would be thanking me for something that I had clearly indicated “no” to.

And at that time, I do believe that I brought up that we have many people of many faiths and cultures at the school, students and staff, and that we have a – you know, a head of school who is Jewish, for example, who must leave the school on occasion to fulfill her religious requirements. So I was giving – I was reiterating that it is not provided for anyone, not even staff members at the school. And – and I was just in shock.

And the tour ended and then I went immediately to our administrative offices and asked if this is something that they knew about or they were aware of, because I felt, as director of admission, if that was something someone had given permission for, that I would know about it and I would have been told, because, again, I’m the first point of contact and should know these things if I’m touring people. Q. At any time during this tour did you identify places were there could be suitable prayer space? A. No, I didn’t.

Q. Did you ask any questions of either of the mothers about their manner of prayer, how they pray, or anything of that nature? A. Never. Q. And you talked about what you did after the tour. I just want to be clear, so how did the tour end? A. That’s pretty much what I remember. Where it ended is when Dr. Nazar thanked me for providing prayer space for her children, and I was very surprised and said, well, don’t thank me, because I did not give permission for this. And I – I kept quiet because I was surprised and I kept fairly quiet. I wanted to find out how this came about. Q. Okay.

So, then, you identified the next steps that you took, and if you’ve said it, I’ve forgotten, so I just want to be clear. Who did you speak with after the tour? A. I believe I went directly into Ms. Barbara Webber’s office, our vice president of administration. I would have gone directly to Dr. Neil Webber’s office, however, he would likely have been busy with someone, and – so then I went to her office. Q. And we know that Dr. Webber called the two families on November 17 th . Between the 13 th and the 17 th , did you have any further involvement in this issue? A. No.

I left it up to Barb Webber and – and Neil Webber to deal with at that point. [864-866] [ 97 ] Thus, the tribunal was presented with sharply conflicting evidence on a point it clearly considered significant, given its review of the evidence and its findings. At the pre-enrollment meeting, all the evidence established that there was a discussion about whether the students could pray on campus. The complainants’ testimony was to the effect that Ms. Lever assured them it would be allowed, or would not be a problem. Ms.

Lever’s testimony was that she gave a firm refusal, and the matter would have to be considered further before enrollment. Similar conflicts arise with respect to the school tour, although Ms. Amir (who was present) gave no testimony about such a discussion during the tour. B. Need for Reasonableness (Transparency and Intelligibility) in Findings [ 98 ] Ms. Grenier’s evidence strongly corroborated Ms. Lever’s version of the discussion at the pre-enrollment meeting, which the tribunal in effect acknowledged.

However, it completely disregarded her testimony on the following basis: However, she acknowledged she did not hear the entire conversation because she was in and out of the office. We find Ms. Grenier’s evidence to be of little assistance in that she was not present for the entire discussion of the Students’ religious beliefs and prayer requests. [Para 23.] That was an unreasonable basis for setting aside evidence going to the heart of the conflicting testimony the tribunal sought to resolve. It does not matter whether Ms.

Grenier was present for the entire meeting if she was present for the critical part of the discussion. [ 99 ] The tribunal concluded “that Ms. Lever did not clearly articulate or convey that prayer was not allowed at the time the requests were raised” (para. 29), based on what it found to be uncertainty regarding a relatively straightforward question, which was a hypothetical, thus lessening the reliability of her evidence. The tribunal’s basis for this conclusion was as follows: . . . At the hearing, Ms.

Lever was asked what she would do if she saw someone who was Catholic cross themselves at a meal or take out their rosary beads while on campus at Webber Academy. She responded: I might approach them and ask them what they are doing. I don’t know. I would have to probably seek administrative direction, but being the Director of admissions, I don’t normally, you know, go in and discipline the children because I’m not one of their teachers. So I don’t really know what I would actually do in that situation because I – I haven’t been in that situation at school. Moments earlier Ms.

Lever had defined “non-denominational” as: “Non-denominational”, to me, meant that we would welcome children of all different faiths and cultures, that we wouldn’t have open practices of faith, that that would be something that families would take care of on – outside of school time, and that our focus would be academic. If Ms. Lever was clear about Webber Academy’s school policies on religion it is to be reasonably expected that she would know what to do when seeing a student visibly display a religious observance.

Her response and uncertainty, with a relatively straightforward question, highlights her uncertainty and lessens the reliability of her evidence in relation to her communications with the Parents about Webber Academy’s policies on religious practices. Ms. Lever initially testified that her response to being asked to thank the teachers was to ask questions of the Parents about who was allowing prayer and then offer explanations that not event staff members can pray on campus. Subsequently, she testified that upon being asked to thank the teachers she became very quiet and the tour ended. Ms.

Lever’s lack of clarity about how to handle a visible religious practice, even now, coupled with the inconsistencies in her testimony support our conclusion that Ms. Lever did not clearly articulate or convey that prayer was not allowed at the time the requests were raised. The Students and the Parents were all consistent in their evidence regarding the initial discussions held. Further, the Students openly approaching staff and teachers in their first few weeks of school to enable performing their prayers, is consistent with an understanding that prayer was acceptable.

We find that the Students’ and Parents’ version of the initial conversations prior to enrollment are more accurate and reliable and consistent with the balance of the evidence as a whole. By way of

summary, we find the Students’ need to pray was discussed with Ms. Lever prior to enrollment and a generally positive indication of acceptance was given. We further find that on the tour, Ms. Lever indicated a spot in the library were the Students could pray. [Tribunal decision, paras. 27 to 30.]

[100] The tribunal’s explanations for not accepting Ms. Lever’s evidence, particularly in light of its corroboration by Ms. Grenier, areunreasonable. Her response to the hypothetical question about Catholics crossing themselves or taking out rosary beads is an honest,straightforward response, on the spot, to a matter she had never encountered. By “inconsistency,” the tribunal appears to be referring toMs. Lever’s response to Dr. Nazar’s offer of thanks for the students being allowed to pray, and whether she asked follow-up questions.Ms.

Lever’s entire testimony on these points, reproduced above, displays no inconsistency of any material nature. [101] It is doubtful that the first couple of weeks of school is more consistent with the complainants’ version than Ms. Lever’s. Allthat occurred was that the students were being accommodated with places to pray in a fashion unknown to school administration. Thosefacts can be squared with either version of the pre-enrollment meeting and school tour. The tribunal did not explain why the eventscorroborated the complainants’ testimony. [102] As Mahoney J. held in Syncrude Canada Ltd v.

Saunders, 2015 ABQB 237, 26 Alta. L.R (6th) 83, “where there are majorinconsistencies or contradictions with the testimony of key witnesses, or where there is otherwise conflicting evidence, the trier of factmust carefully asses the evidence and make credibility findings” (para 43); and “where a finding of credibility is not properly articulatedin a decision-maker’s reasons, the decision lacks the necessary transparency and intelligibility required in the decision-making process”(para 48), citing authority on the last point.

His statement of a tribunal’s responsibility finds support in the seminal case of Dunsmuir,where it was held that “[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency andintelligibility within the decision-making process” (para. 47); and in Telus Communications Inc v. Telecommunication Workers Union,2014 ABCA 199, 575 A.R. 325, para. 28. [103] The tribunal was required to resolve the inconsistency in testimony, and was entitled to prefer the evidence of the complainantson grounds that were reasonable, that is, transparent and intelligent.

Here, the tribunal’s reasons for preferring the complainants’ versionof pre-enrollment discussions about prayer over the version given by Webber Academy lacks transparency and intelligibility. Perhapsthe tribunal did not believe that Ms. Lever and Ms. Grenier were truthful in their testimony. If so, it was required to state that conclusionand give reasons. Or it may have had other reasons for preferring one version of events over another, but again was required to articulatethose reasons intelligibly. C.

Effect of Fact Findings on Finding of Discrimination [104] I have found that the tribunal failed in its obligation to provide transparent and intelligible reasons for factual findings regardingpre-enrollment communications. I must consider whether my conclusions on this point justify setting aside the tribunal’s decision. [105]

Section 4 of the Act allows a remedy whether the discrimination on prohibited grounds is with respect to denying the service(for example, refusing admission) or discriminating with respect to the service (such as not allowing meaningful access to the service orits ancillary facilities). Thus, if Webber Academy’s evidence were accepted, and the tribunal found that it had clearly warned thecomplainants that no prayers could be said on campus, the tribunal would still have been required, by law, to hold that Webber Academyhad unlawfully discriminated against the students.

The law prevents Webber Academy from adopting, or applying, policies that result indiscrimination on prohibited grounds, unless they can show the discrimination was reasonable and justifiable. [106] While not argued, I add that even on facts most favourable to Webber Academy, a defence of waiver by the complainants oftheir human rights would not be available. It has been well established that human rights are a matter of public policy, created for thebenefit of the community, inherent to the dignity of every individual, and cannot be waived or contracted out of: Ontario (Human RightsCommission) v.

Etobicoke (Borough), (SCC), [1982] 1 S.C.R. 202, at 8 to 9; Central Okanagan School District No. 23v. Renaud, (SCC), [1992] 2 S.C.R. 970, paras. 23 to 25; and Dickason v. University of Alberta, (SCC),[1992] 2 S.C.R. 1103, 95 D.L.R. (4th) 439, para. 116. Further, it is highly unlikely that waiver would be made out on these facts, even ifit was open as a possible defence. [107] I therefore conclude that even though the tribunal’s findings on the pre-enrollment communications and school tour wereunreasonable, in law they could have no effect on whether Webber Academy unlawfully discriminated against the students.

In its properplace, I will address whether my conclusions on the tribunal’s fact findings have any effect on damages. X Expert Evidence of Dr. Ahmed [108] Webber Academy also argues that the tribunal gave inadequate consideration to Dr. Ahmed’s evidence, confining it to thequestion of sincerity of belief. [109] For reasons given earlier, expert evidence of the content of a body of religious doctrine is of limited relevance when consideringalleged discrimination based on religious beliefs. The tribunal carefully addressed Dr. Ahmed’s evidence, and gave it the relevancerequired under Amselem. [110] Further, Dr.

Ahmed’s analysis of the prayer calendar adds little. While there was some confusion in the evidence about whetherthe students would be required to pray during school hours for only three to four months during the school year, or through the entireschool year, ample evidence indicates that for at least some material portion of the school year their beliefs required them to pray duringschool hours. [111] In my view, the tribunal made no errors in considering and applying Dr. Ahmed’s evidence. XI Damages [112] The tribunal awarded damages for distress, injury and loss of dignity in the amount of $12,000 for Mr.

Amir and $14,000 for

Mr. Siddique. The latter was slightly higher to take into account the tribunal’s finding that Mr. Siddique had developed problems withpersistent fear about praying on public grounds. [113] The damages awards are at the high end of the range for damages given by other human rights tribunals for this head ofdamages.

However, they are within the range of what has been held acceptable by tribunals and courts, and therefore intervention wouldnot be warranted on that basis. [114] One of the factors the tribunal took into account was its finding that “these Parents and Students were given the impression byWebber Academy, in advance of enrollment that something could be worked out regarding the Students’ prayer requirements,” and Dr.Nazar testified that if she had known otherwise her son would not have been enrolled (para 129).

For reasons given earlier, the tribunal’sfindings on this point were unreasonable, although I concluded it did not give rise to setting aside the finding of unlawful discrimination.It remains to consider whether Webber Academy is entitled to relief regarding the remedy, namely the amount of damages. [115] I conclude that the tribunal’s decision on damages should stand, for two reasons. [116] First, Dunsmuir held that judicial review “is also concerned with whether the decision falls within a range of possible,acceptable outcomes which are defensible in respect of the facts and law” (para. 47).

We have been reminded that judicial review doesnot mean that every element of the reasoning must independently pass a reasonableness test, but that the focus must be based on theadequacy of both the decision-making process and the decision itself, as a whole: Telus, para. 22 (citing Law Society of New Brunswickv. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, para. 56). [117] Second, human rights legislation is remedial, not punitive: Act, section 32 (1)(b)(iv) and (v); North Vancouver School District No. 44 v. Jubran, 2005 BCCA 201, 253 D.L.R. (4th) 294, at para. 115.

Thus, the emphasis must be on how discrimination affectedcomplainants, not on the blameworthiness of respondents, even though the latter may be a factor. [118] I interpret the tribunal’s findings on damages to have been based mainly on how the students were affected by Webber Academyforbidding them to pray on campus, which also affected how they felt at the campus generally and when encountering administrationstaff. In addition to feelings of humiliation and embarrassment, they were upset in being unable to complete their education at the leadingacademic institution they had chosen.

The tribunal, in my estimation, placed relatively little weight on the pre-enrollmentcommunications and focused on the compensatory element of damages. That was the correct approach. [119] Taking into account the requirement to review the decision according to the range of possible, acceptable outcomes according tothe facts and the law, I am satisfied that the damages awarded were reasonable. XII Conclusions [120] Webber Academy characterizes the tribunal’s decision as a “precedent-setting decision with far reaching implications” (Brief,para. 3).

With respect, that is not an accurate characterization. [121] The tribunal applied well-established principles of law. For many years, public and private schools have been required to adhereto human rights legislation in offering their educational services to the public. As only one example, in Sehdev v. Bayview Glen JuniorSchools Ltd., 1998 Carswell Ont 3315, (ON HRT), 9 C.H.R.R. D/4881 (Ont. Brd.

Inq.) a private school with a strictuniform policy was found to have unlawfully discriminated against a Sikh student in prohibiting him from wearing a turban, because aslight liberalization of the dress code would not compromise the school’s objectives. It did not matter that there were many other schoolsavailable to the student with less strict dress codes.

Discrimination is permitted only when reasonable and justifiable as determined bywell-established principles. [122] Webber Academy, to its credit, adopted a public policy of welcoming young people of many faiths and cultures, and toexemplify its policy, published photographs of students with turbans and facial hair even though these practices contravened usual schoolpolicies. [123] For some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school andthe students from time to time.

Its policy thus discriminated against the belief of the complainant Sunni Muslim students as compared, forexample, to students who overtly averred their religious affiliation by forms of dress and grooming. There was no demonstrated hardship,let alone undue hardship, motivating this policy. [124] For the reasons given, Webber Academy’s appeal is dismissed. Heard on the 29th day of April, 2016. Dated at the City of Calgary, Alberta this 10th day of August, 2016.

G.H. Poelman J.C.Q.B.A. Appearances: Janice Ashcroft, Q.C. for the Tribunal, Alberta Human Rights Commission Thomas W.R. Ross and K.C. Gummer, Student-at-Law for the Applicant, Webber Academy Foundation Jim Foster for the Respondent, Alberta Human Rights Commission Farhat Amir and Shabnam Nazar for Sarmad Amir and Naman Siddique (self represented) (no written or oral submissions)