Webber Academy Foundation v Alberta (Human Rights Commission), 2021 ABQB 541

Court of Queen’s Bench of Alberta Citation: Webber Academy Foundation v Alberta (Human Rights Commission), 2021 ABQB 541 Date: 20210714 Docket: 2001 10263 Registry: Calgary Between: Webber Academy Foundation Appellant - and - Alberta Human Rights Commission (Director), Alberta Human Rights Commission (Tribunal), Sarmad Amir and Naman Siddique Respondents Corrected judgment: A corrigendum was issued on August 3, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision

of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I. Overview – Procedural History [ 1 ] In November of 2011, Sarmad Amir and Naman Siddique (the “Students”) were accepted for admission into Webber Academy (the “Academy”). They were fourteen years old. According to their Sunni Muslim religion they were required to pray five times a day, at varying times depending on the position of the sun.

The prayers were to be performed by kneeling, bowing over into a prostrate position and then standing, while reciting the prayers. [ 2 ] Prior to admission, the Students and their mothers believed that the Academy was prepared to let them do their prayers at school, although no dedicated prayer space would be made available. For the first two weeks, school staff made that accommodation, allowing the Students to use spaces such as empty classrooms to perform their prayers.

However, when senior school administrators found out what was happening, the Students were told that religious practices were not allowed at the school, and their conduct was thus prohibited. [ 3 ] A series of meetings and email communications followed. The Academy offered to allow the Students to leave classes and go to an off-campus location such as a nearby mosque to perform their prayers.

The mothers of the Students rejected that solution on the basis that it could compromise the safety of the Students. [ 4 ] The Students continued to pray on campus (on one occasion joined by their mothers) in defiance of the Academy’s direction. They were told that they would not be accepted for re-enrollment for the following school year. They then transferred to another private school, which was prepared to accommodate their prayer rituals on campus. [ 5 ] A complaint was filed with the Alberta Human Rights Commission (“AHRC”) in 2012.

After investigation, the Director of the Commission found that the complaint had merit. The Academy disagreed and litigation commenced. Nine years later it has not yet stopped. II. Litigation History [ 6 ] Following a lengthy hearing, during which seventeen witnesses gave evidence, the Human Rights Tribunal issued its first decision regarding the Students’ complaints: Amir and Nazar v Webber Academy Foundation , 2015 AHRC 8 [ Hearing No. 1 ]. [ 7 ] The Tribunal rejected the arguments of the Academy that it was not in breach of the Alberta Human Rights Act (“ AHRA ”).

The Tribunal found that the Academy had not demonstrated that its “rigid and unwritten policy of disallowing these Students to observe their sincerely held prayer practice is reasonable and justifiable”, and that it “has not provided the tribunal with sufficient evidence to establish that it would be an undue hardship for Webber Academy to permit the Students to pray on campus during school hours” ( Hearing No. 1 at para 119). [ 8 ] The Tribunal’s decision was appealed to this Court by the Academy, pursuant to s. 37 of the AHRA .

By decision dated August 10, 2016 the appeal was dismissed: Webber Academy Foundation v Alberta (Human Rights Commission) , 2016 ABQB 442 [ First ABQB Decision ]. [ 9 ] Justice Poelman commenced his analysis by endorsing and adopting the standard of review for the statutory appeal as articulated by Ross J of our Court in Association of Professional Engineers and Geoscientists of Alberta v Milhaly , 2016 ABQB 61 , as follows: [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 for reasonableness, 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 ]. ( First ABQB Decision at para 34 ) [ 10 ] Employing this standard of review, Justice Poelman discussed in detail the arguments advanced by the parties regarding the manner in which the Tribunal applied the evidence to the determination of discrimination under s. 4 of the AHRA , and whether the discrimination could be justified under s. 11 .

He concluded that while not perfect, the decision applied well-established principles of

human rights law, and that on the evidence, the Academy had in its policy discriminated against the Students on the basis of their religious beliefs. He also found that on the evidence there was “no demonstrated hardship, let alone undue hardship, motivating this policy.” ( First ABQB Decision at para 123 ) [ 11 ] The Academy appealed the decision to the Alberta Court of Appeal ( Webber Academy Foundation v Alberta (Human Rights Commission) , 2018 ABCA 207 ) [ ABCA Decision ]).

In its appeal, it raised for the first time the argument that the Tribunal’s decision infringed the Charter rights of the Academy and its school community ( i.e. parents, teachers, staff and students). [ 12 ] The Court of Appeal found that to evaluate the appeal, it was to step into the shoes of the Chambers judge in review of the Tribunal’s decision. Therefore, the standard of the review on appeal remained the same as it was before the Court of Queen’s Bench: ABCA Decision at para 32. [ 13 ] The Court of Appeal found that the Tribunal had made a number of errors in its decision.

These included “muddled thinking” as to whether the Students had initially requested “prayer space” on campus and the importance of that issue ( ABCA Decision at para 54); and an error in failing to resolve the inconsistency of evidence between the parents and school officials regarding the discussion of prayer space. Moreover, the Chambers Judge did not adequately explain the effect of a warning from the Academy to parents regarding its prohibition of demonstrative religious rituals.

It is possible that a clear, advanced warning to parents that such practices were not allowed on campus could have constituted a factor in concluding that the policy was reasonable in the circumstances (and hence not in conflict with s. 4 of the AHRA ). This was left unanswered. [ 14 ] The Court of Appeal made no finding on the warning or waiver issue, but noted that such questions could be reviewed from a fresh perspective when a new panel was constituted.

This was required in any event in order to assess the constitutional arguments raised by the Academy on appeal with the benefit of a “contextual evidentiary foundation”: ABCA Decision at para 48. [ 15 ] The Court of Appeal provided limited guidance on the evidence it was expecting to be presented on rehearing to establish such a foundation. It did, however, comment as follows in para 50: The appellant disagrees with the Tribunal’s definition of “non-denominational” and argues that it has a right to offer “secular” education.

But there is no evidence regarding the freedom of conscience and religion of the school community and the school community’s views on secularism. The views of the school community should not be presumed.

Additionally, there is also no evidence of the beliefs of the Webber Academy students and teachers, and limited evidence from some parents, which would support any finding of infringement of their religious freedoms and freedom of association, or provide context for the Charter challenge. [ 16 ] It then went on to direct the matter back for a rehearing before a new panel to be determined with appropriate evidence and argument on all the issues in order to make the necessary findings...within the jurisdiction of the Tribunal.

If there are remaining any discrete Charter constitutionality questions notably as to s 4 of the Alberta Human Rights Act , the Tribunal shall refer any such questions under the Charter by way of a stated case to the Court of Queen’s Bench for resolution. (para 52) [ 17 ] This decision was released on August 6, 2020. The Rehearing Decision [ 18 ] A rehearing was conducted by a new panel, as per the Court of Appeal direction: Amir and Siddique v Webber Academy Foundation , 2020 AHRC 58 [ Hearing No. 2 ]. [ 19 ] Eight days of oral testimony was received. The Academy called evidence from the school’s founder (Dr.

Webber), a member of its Board of Directors, administrative staff, teachers and parents.

They testified as to the school community’s educational philosophy and policies; the value placed on maintaining a “non-denominational” or “secular” educational setting; the circumstances surrounding the Students’ admission to the school and request to perform prayers; and the potential consequences of allowing prayers to be performed on campus. [ 20 ] The Director of the Alberta Human Rights Commission called evidence from the Students and their mothers; a Webber Academy parent who supported the complaints; an educational director employed by the Calgary Public Board of Education; and the principal of the private school that accepted and accommodated the Students after they left the Academy.

The latter two witnesses testified to practices employed at other schools to accommodate requests for the opportunity to perform prayers at school. [ 21 ] The Tribunal found that the Academy had discriminated against the Students on the basis of religion.

It ordered the Academy to pay damages of $18,000.00 to each of them; to refrain in the future from the same or similar contraventions; and to have a school administrator attend or subscribe to an educational program on the duty to accommodate. [ 22 ] As will be discussed later in these reasons, after deciding that there was discrimination, and no undue hardship to the Academy in accommodating the Students’ request for a “quiet, private place to pray”, the Tribunal turned its attention to the Charter rights issue raised by the Academy before the Court of Appeal and again at the rehearing.

It found that the Academy’s policy had a rational connection with the right of freedom of religion, but that there was no infringement of that right because the Students’ prayer request could be easily accommodated. Hence there was no need to engage in the balancing of the infringement of the Students’ Charter rights and those of the Academy and its school community, and no need to refer the constitutionality of s. 4 of the AHRA to the Court of Queen’s Bench for determination.

Appealing the Rehearing Decision [ 23 ] The Academy appeals the tribunal’s decision on rehearing. Again, it does so pursuant to s. 37 of the HRA, which provides for a statutory right of appeal: Appeal 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. [ 24 ] In its written submissions, the Academy alleged a variety of errors. These included: 1.

An erroneous finding that the denial of a quiet private place to pray was a denial of services customarily available to the school community, and hence within the ambit of s. 4 of the HRA; 2. An erroneous finding that the Academy discriminated against the Students by refusing them re-enrolment in the following school year based on their religious practices (as opposed to their defiance of school rules); and 3.

An erroneous finding that accommodation of the Students’ prayer request would not infringe the Charter rights of the Academy and its school community. [ 25 ] In oral argument, the Academy focussed on the Charter issue. I will do likewise in this decision. Before doing so however, it is necessary to return to the question of standard of review. I discuss that next. III. Standard of Review [ 26 ] The determination of an appropriate standard of review for decisions of administrative tribunals has been one of the most confused, and confusing, questions in Canadian law.

At its root, this confusion is the manifestation of two competing imperatives. The first is the determination of our Courts to ensure that the rule of law is maintained and reinforced by the judicial system. The second is the acknowledgement of our Courts of the increasing pervasiveness of regulation of all aspects of our society by administrative decision- makers.

This requires the Courts to give more leeway to administrative tribunals to dispense justice on matters within their jurisdiction in order to improve access to justice for all those affected. [ 27 ] Absent specific legislative direction, the scope and form of judicial oversight of administrative decision-makers has been left for determination on a case-by-case basis, with predictably unpredictable results.

Each judge has their own perspective regarding the relative importance of these competing imperatives. [ 28 ] In Dunsmuir v New Brunswick , 2008 SCC 9 [ Dunsmuir ], the Supreme Court of Canada introduced a new, contextual approach to the determination of standard of review. A number of criteria were articulated for determining whether, in any given case and on what questions, the standard of review would be reasonableness or correctness.

Lower courts were instructed not to re-invent the wheel by embarking on a new standard of review in each case if the issue had already been determined in previous decisions: para 57. [ 29 ] Despite the progress made under the contextual approach in Dunsmuir , it generated its own set of problems in application by lower Courts. Ultimately, the Supreme Court determined that a fresh approach was required.

That approach was articulated in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ]. [ 30 ] Vavilov replaced the Dunsmuir contextual approach to standard of review with a new and simplified framework. The fundamental change was to create a presumption that the standard of review of an administrative decision will be reasonableness. In support of that presumption, the Supreme Court also provided additional guidance as to how reasonableness is to be assessed.

The focus is to be on considering the outcome of the decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified: para 15. [ 31 ] Of importance to this case, the Supreme Court in Vavilov also identified exceptions to the presumption of reasonableness as the standard of review. Two exceptions of note are: (

i) where there is a statutory right of appeal (on leave or otherwise); and (ii) where the decision under review involves questions that the rule of law requires to be answered on a standard of correctness, such as constitutional questions, questions of law of central importance to the legal system, and questions related to the jurisdictional boundaries between one or more administrative bodies: para 17. [ 32 ] For statutory appeals, such as appeals under s. 37 of the HRA, the standard of review to be applied is the appellate standard.

That is, palpable and overriding error on questions of fact or mixed fact and law and correctness on extricable questions of law. For trial and appellate judges this standard is straightforward, familiar, and should be much simpler to apply than that of reasonableness as now defined. Where the issue in question is constitutional, whether in a statutory appeal or otherwise, the standard of review of correctness is also straightforward and simple to apply.

While deference may be shown on underlying findings of fact, the ultimate result is either correct or not and the reviewing court is free to substitute its view for that of the administrative decision-maker. [ 33 ] The law regarding what constitutes a palpable and overriding error is also well established. It has two components: (

i) the error must be one that is obvious, or plain to see, and (ii) the error must be to go to the root of the decision: Sunshine Village Corporation v Boehnisch , 2020 ABQB 692 at paras 94 and 95 . [ 34 ] With these principles in mind, I return to the errors in the Tribunal’s decision alleged by the Academy.

IV. Did the Tribunal err in finding that the Academy’s policy constituted discrimination under the HRA? [ 35 ]

Section 4 of the HRA provides as follows: Discrimination re goods, services, accommodation, facilities 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, age, 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. [ 36 ] The Academy concedes that in a case such as this, the “public” referred to in s. 4(

a) constitutes the student body: University of British Columbia v Berg , 1993 Can LII 89 (SCC). [ 37 ] It argues that the Tribunal erred in finding that the Academy customarily provided a “service” to its students in the form of quiet, private places that could be used for their personal needs, and that provision of a quiet, private place to pray fell within the same kind of service.

The Academy argues that on the evidence before the Tribunal, a quiet, private place to pray cannot reasonably be compared to places such as washrooms, infirmaries, and study areas and that the evidence was clear that no such places were customarily provided for religious observance. [ 38 ] In my view, the question of whether the Academy’s policy constituted discrimination under s. 4 of the AHRA was clearly one of mixed fact and law.

It is reviewable on a standard of palpable and overriding error. [ 39 ] If the Tribunal’s findings as to the nature of services that were customarily made available to the student body was in error, that error is certainly not obvious. At best, the Academy has an arguable position to advance for the proposition that prayer space is distinguishable from space for attendance to other personal needs, but an argument is not enough to satisfy the appellate standard of review. V.

Did the Tribunal Err in finding that the Students suffered an adverse impact from the discrimination? [ 40 ] The Academy argues that even if the Tribunal was correct in making a prima facie finding of discrimination, it nonetheless erred in finding that the Students experienced an adverse effect with respect to the service in question.

This is one of the prerequisites for a finding of discrimination under the case law: Moore v British Columbia (Ministry of Education) , 2012 SCC 61 . [ 41 ] The Academy says that the Tribunal incorrectly found two adverse effects—being denied a quiet private place because they wanted to use it for prayer, and being denied re-enrollment for the following school year after they continued to pray after being directed otherwise. It argues that the Students were not denied re-enrolment because of their continued praying, but because they failed to follow school rules by praying.

Relying on Stewart v Elk Valley Coal Corp. , 2017 SCC 30 , it says that this constituted an error of law. [ 42 ] Once again, I find that this question is one of mixed fact and law, and is reviewable on a standard of palpable and overriding error. I do not find any such error in the Tribunal’s reasoning. Indeed, it seems clear to me that the Students suffered an adverse impact from the School’s policy, both in terms of the denial of the opportunity to pray and the punishment for their failure to abide by the policy. There was no reviewable error here. VI.

Did the Tribunal err by failing to properly consider Charter values in arriving at its decision? [ 43 ] The Charter of Rights and Freedoms governs the relationship between government and Canadians by protecting fundamental rights and freedoms from unjustified infringement by the state. It does not impose rights and obligations as between Canadians, leaving that to statutory regimes or the Common Law. [ 44 ] Human rights legislation, on the other hand, governs the full spectrum of social and commercial relationships.

It imposes rights and obligations on government, corporations and individuals in order to ensure that all persons are equal regardless of enumerated characteristics, including race, religious beliefs, color, gender, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation: AHRA s. 16(1) (a). [ 45 ] While the Alberta Human Rights Commission does not have a mandate to protect and enforce the Charter rights of Albertans, it is empowered, like other administrative tribunals, to decide questions of law before it.

In the course of administering its home statute, it is obligated to have due regard for the values underlying the Charter . There are three clear entry points for the introduction of those values: (

i) where the human right in question is one of the rights enumerated in the Charter (such as freedom of religion); (ii) in considering whether accommodating the complainant’s characteristic would constitute an undue hardship to the person alleged to be acting in a discriminatory fashion; and (iii) in determining whether short of undue hardship, the discrimination was nonetheless reasonable and justifiable in the circumstances and hence excused under s. 11 of the AHRA .

[46] In this case, the Tribunal first addressed the question of whether the Academy had discriminated against the Students,pursuant to s. 4 of the AHRA. As discussed earlier, it found that a prima facie case of discrimination had been made out on the facts. [47] It then addressed whether the Academy had satisfied its burden of proof on a balance of probabilities that accommodation ofthe request for a quiet place to pray would constitute an undue hardship, as that term has evolved in human rights case law.

The Tribunalfound that the evidence of the Academy witnesses on the practical effects of accommodation were essentially that allowing the Students’request “would overwhelm the school’s physical plant and create disruption, conflict and dropping enrolment”. The Tribunal thenrejected that position, saying that it was unsupported on the evidence.

For essentially the same reason, the Tribunal then found that thediscrimination was neither reasonable nor justifiable in the circumstances, and therefore not justified under s. 11 of the AHRA. [48] It was only after making the latter finding that the Tribunal turned to the issue of whether requiring such accommodationwould infringe the Charter rights of the Academy and its community.

This was the question that the Alberta Court of Appeal foundneeded to be addressed based on evidence presented in a new hearing. [49] The Tribunal commenced this portion of its decision by properly summarizing the task before it, as per Doré v Barreau duQuebec, 2012 SCC 12 at para 184, stating that: The Supreme Court of Canada in Doré confirmed that “administrative decision-makers must act consistently with Charter values” andheld that in the context of adjudicated administrative decisions, one applies a judicial review analysis to determine whether the decision-maker took sufficient account of Charter values.

The analysis, similar to that employed when dealing with the constitutionality of a law,balances the government’s objective as expressed in the law against the extent to which it interferes with the Charter right. The analysismust show that there is “an appropriate balance between rights and objectives, and the purpose of [the] exercise is to ensure that therights at issue are not unreasonably limited.” Proportionality requires that the decision interfere with the Charter right no more than isnecessary given the statutory objective.

The decision would be unreasonable if the Tribunal failed to engage this analysis ordisproportionately limited a Charter right. [50] The Tribunal then engaged in a lengthy discussion of case law regarding freedom of religion, including the prerequisites forestablishing an infringement of such a right per SL v Commission scolaire des Chênes, 2012 SCC 7 [Chênes]; the inclusion, withinfreedom of religion protection, of the freedom not to believe, to manifest one’s non-belief and to refuse to participate, per Mouvementlaïque Québécois v Saguenay (City), 2015 SCC 16; and the right of a private Catholic School to teach a government-mandated course onethics and religious culture from a Catholic perspective, per Loyola High School v Quebec (Attorney General), 2015 SCC 12. [51] The Tribunal noted the Academy’s position that a requirement to accommodate the Students’ request would infringe on theAcademy’s constitutional right to be free from religion.

The Tribunal agreed with the Academy that the school community had a sincerebelief in being “non-denominational”, and that there was a sufficient nexus with conscience and religion in that belief to bring it withinthe scope of constitutionally-protected religious beliefs. [52] However, on the facts, it disagreed with the contention that such beliefs would be interfered with by accommodating theStudents’ request for a quiet, private place to pray.

This was held for essentially the same reasons that were given for not finding unduehardship under the conventional test set out in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council ofHuman Rights), (SCC), [1999] 3 SCR 868.

That is, that there was no evidence of an actual interference with the belief,given the ease with which the Students could be (and, for two weeks, had been) accommodated. [53] The Academy argues that the Tribunal erred by ignoring the clear and consistent evidence of its witnesses that they had asincere and honestly held belief that the school should be non-denominational and secular, and that forcing the Academy toaccommodate prayer on campus would interfere with that belief.

It says that ... criticizing the School Community for not providing evidence of how permitting prayer interfered with their religious belief to be freefrom prayer, is like asking a Christian to provide evidence that God exists.

There is no requirement to provide evidence of the reason fora belief, just that it is a sincerely held one. [54] It also argues that this error was compounded by the Tribunal relying on irrelevant evidence as to other accommodationswithin the school, such as allowing turbans as evidence that the School Community’s beliefs would not be infringed by accommodatingthe Students. [55] In my view, the Tribunal had ample evidence before it to conclude that the Students’ request could be accommodated withoutinfringing the personal religious beliefs of the Academy administrators and the rest of the School Community.

Virtually every witness,including Dr. Webber himself, testified that such an accommodation would not impinge upon their personal religious beliefs. Thewitnesses included parents who were Christian, Hindu, Sikh, and Muslim. [56] At the same time, the evidence presented by the Academy witnesses also supported the fact that as a community they shared acommon educational philosophy. That philosophy, they said, was that religious practices should be separate from education.

Whilestudents from all religions were welcome, religion was not to be sponsored by or practiced at the Academy. [57] The “freedom of conscience and religion” guaranteed by s. 2(

a) of the Charter is based on the exercise of free will. That is thefreedom to believe in the religion of one’s choice, whether the most fundamental in nature, or that of committed atheism, or anywhere inbetween. Where that freedom is constrained by legislation or those acting under legislative authority, it falls to administrative tribunalsand the courts to assess and resolve the friction.

This must be done in a way that that properly reflects the scope and purpose of theCharter values or rights at issue, and the legislation giving rise to the conflict: Law Society of British Columbia v Trinity WesternUniversity, 2018 SCC 32 at para 209 [Trinity Western]. [58] The test for demonstrating an infringement of one’s s. 2(

a) rights is two-fold. First, the claimant must show that he or shesincerely believes in a practice or belief that has a nexus with religion: Trinity Western at para 223, citing Syndicat Northcrest vAmselem, 2004 SCC 47, at para 56; Ktunaxa First Nation v British Columbia (Forests, Lands and Natural Resource Operations),

2017 SCC 54 at para 68 ; Multani v Commission scolaire Marguerite-Bougeoys , 2006 SCC 6 , at para 34 . Second, there must be an objective analysis of the interference caused by the impugned state action. The interference must be more than trivial or insubstantial: Trinity Western at para 236 . [ 59 ] In this case, the Tribunal properly found that the evidence presented on behalf of the Academy showed that the School Community members testifying before it had a sincere belief. This belief was that there were to be no religious activities on campus.

The Tribunal went on to accept that: in general, a policy of no religious practices demonstrative of religious affiliation could be rationally connected to maintaining the perception and reality of the school’s non-denominational nature and its purpose of providing an academic environment free of religious influences. (at para 105) [ 60 ] As noted earlier, the Appellant complains that the Tribunal operated on a double standard in dealing with the issue of interference with religious beliefs.

This was because the Tribunal, in dealing with the Students’ religious beliefs, accepted without objective evidence that five daily prayers were essential to the Students’ religious beliefs. The Tribunal then demanded objective evidence of interference with the School Community’s belief in a religion-free environment to assess the impact of an adverse decision concerning the Complaint on the School Community’s s. 2(

a) Charter rights. [ 61 ] I am somewhat sympathetic to the Academy’s argument on this issue. Religious beliefs are by their nature highly personal and inherently incapable of objective proof – including beliefs rooted in a desire to be free from religion. However, the Appellant mischaracterizes this as a double standard, because the Students’ beliefs in multiple daily prayers is analyzed at the initial ‘sincere belief’ stage. In contrast, evaluation of the School Community’s interference falls under the second stage, which considers whether an infringement was more than trivial or insubstantial.

This latter evaluation is objective and warrants evidence. This is mandated by the case law (see Chênes at paras 23-24 ). To do otherwise would enable a claimant to effectively decide her own case by defining her perceived interference to fit the relief sought. [ 62 ] The Tribunal’s decision regarding the infringement issue is set out at paras 205 to 209: ...the evidence does not support a finding that this belief or practice was or would be interfered with by allowing students to pray in a private, quiet space.

As counsel for Alberta submitted, this is not a case where the complainants wanted to perform their religious activities publicly, they were not intent on recruiting converts and this was not a case where a religious group sought to provide instruction with respect to religion. [206] I find that there is no infringement upon the respondent’s belief, practice or intention that the school remain non-denominational and secular.

Webber Academy allows exceptions to its dress and uniform policies so that students may wear symbols of their religious faith and there is no evidence that this in any way detracts from its non-denominational or secular nature. The school does not object to students praying covertly; this is not perceived to be an activity that detracts from the non-denominational or secular nature of the school. None of the witnesses testified that allowing the students to pray in a quiet, private place affected their own personal conscience or beliefs.

When the complainants in this case were given access to a private room in the administration offices, in order to conduct their prayer, the school community was not even aware it was happening. When the complainants were permitted to pray at the back of a classroom during a tutoring session, there were no complaints. [207] Allowing students to conduct their prayers in a quiet, private place does not make religion part of the school, does not detract from the school’s primary objectives and priorities, and does not link the school to a particular religion.

It is no more obtrusive than permitting the display of religious symbols or permitting grace before a meal.

Allowing students to identify themselves as followers of a specific religion through exceptions to the dress and uniform policies, displaying a Christmas tree or allowing students to go to a private quiet place to pray does not mean the school is condoning, supporting or approving of religion on campus. [208] Given my finding that there is no infringement on the right of the respondent to maintain a non-denominational, secular institution, there is no further need to engage in the proportionality analysis as described in Doré . [209] I find that there would have been no undue hardship in allowing the complainants’ request for a quiet, private, space on campus where they would be able to perform their obligatory prayers. [ 63 ] In my view, the Tribunal properly decided that there would be no infringement of the Webber Academy School Community’s s. 2(

a) Charter rights if it was required to accommodate the Students’ prayer request. The Tribunal carefully reviewed the evidence given by the Academy’s administrators, staff and parents. It noted the concerns expressed by witnesses regarding the potential impacts of accommodating the prayer requests (even though the Students had long since left the school, with no indication on the record of the Tribunal’s original decision having created any such impacts).

It noted that other accommodations of religious practices had been made from time to time, and that the Students had successfully transferred to an equally prestigious private school without difficulty. It noted that during the period in which the Students’ prayers were accommodated at the Academy, no one noticed the praying – let alone felt impacted by it. [ 64 ] I also agree with the Tribunal that absent a finding of infringement of the Charter rights of the School Community, there was no need for it to engage in a proportionality analysis, per Doré . [ 65 ] Accordingly, I find that the Tribunal’s

interpretation and application of the Charter was correct, based on the evidence before it. VII. Did the Tribunal err in finding that the discrimination by the Academy was not reasonable or justified under

Section 11 of the AHRA ?

[ 66 ] While the Tribunal’s Charter analysis was correct, its analysis of whether the discrimination was reasonable and justified under s. 11 of the AHRA was insufficient and warrants comment. The evidence given by the members of the School Community fell short of showing, on a balance of probabilities, that their freedom of religion would be interfered with if the Academy was forced to allow prayer on campus.

It does not follow, however, that the educational philosophy underlying a private school, including its position on the practice of religion within the school, is not relevant or worthy of consideration when an assessment is made under s. 11 of the AHRA as to whether a discriminatory policy is reasonable and justified in the circumstances. [ 67 ]

Section 11 of the AHRA states: Reasonable and justifiable contravention 11 A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravene the Act shows that the alleged contravention was reasonable and justifiable in the circumstances. [ 68 ] It is commonplace for private schools to have admission mandates that are on their face discriminatory in nature.

For example, a faith-based private school may well be based on a founding principle that the education provided will be presented from its own perspective, and that activities at the school will not only accommodate certain religious practices and ceremony, but participation in such activities will be required. Similarly, a private school founded on academic excellence may set standards that cannot be met by average students, let alone those with learning disabilities. Private or independent all-boys and all-girls schools exist across the country.

In a diverse, pluralistic society, there is a place for such institutions and policies, even though they may have the effect of discriminating against those who do not share the educational philosophy espoused, and may consider themselves to be left on the outside looking in. [ 69 ] In developing admission and operating policies that have the potential to discriminate on the basis of protected characteristics under the AHRA (such as religion), it is incumbent on an institution such as the Academy to do so in a clear and deliberate fashion. To begin with, this is simply good governance.

The long – and no doubt expensive – history of litigation in this case is demonstrative of that. Clear and early communication of school policy is also fundamentally fair to prospective and existing students and their families. It is a worthwhile goal in itself. [ 70 ] It is also relevant in defending claims of unjust and unreasonable discrimination, should they arise.

By communicating, in advance, the educational philosophy of the school, the policies by which that philosophy is implemented, and the consequences of breach of those policies, a private school demonstrates why those policies are reasonable and justifiable. Prospective students are afforded the opportunity to make an informed choice as to whether the school’s values and beliefs conform with their own and whether to attend the institution.

This clearly bears on the question of whether the discrimination inherent in the policy is reasonable or justifiable in the circumstances. [ 71 ] In this case, the Tribunal found that communication of the Academy’s policy on providing “a quiet private space to pray” may have been relevant in determining the nature of services ordinarily made available to the student body but was not relevant with respect to whether there was an agreement or understanding between the parties.

This was because but for very limited circumstances, people cannot agree to waive their rights and responsibilities under the AHRA : Hearing No. 2 at para 78. [ 72 ] With respect, this misses the point raised by the Court of Appeal in remitting this case back to the Tribunal.

The Court of Appeal directed that the Tribunal hear evidence relating the communication of the Academy’s policy to the Students and their mothers and consider the importance of that evidence in determining whether, inter alia , the discrimination against the Students was reasonable and justified under s. 11 of the AHRA : ABCA Decision at paras 58-63.

The Court of Appeal did not invite the Tribunal to dismiss the relevance of such evidence to a s. 11 determination out of hand. [ 73 ] Although the Tribunal failed to follow the direction of the Court of Appeal on this point, in my view this did not give rise to a palpable and overriding error. It is clear from the evidence that the policy of the Academy was unwritten, and was not clearly communicated until after senior school administrators learned that the Students had been performing prayers in the school with the cooperation of more junior staff members for approximately two weeks.

Accordingly, the articulation and advance communication of the Academy’s policy, such as it was, would not have assisted the Academy in the result. VIII. Conclusion [ 74 ] This dispute has been before the AHRC and the Courts for almost a decade. The issues raised at all levels are important and, as is often the case when different religious beliefs, rights, and obligations are involved, difficult. [ 75 ] Employing the standard of review now dictated under Vavilov , I have found that the decision taken by the Tribunal must stand.

On matters of mixed fact and law, the decision contained no palpable and overriding error. In interpreting and applying the Charter of Rights and Freedoms , the Tribunal’s decision was methodologically correct. The only portion of the decision that was incorrect was its failure to assess and evaluate the evidence of prior communication of the Academy’s policy of no prayers on campus in the context of s. 11 of the AHRA . That error was in my view clear, but not material in the result given the evidence before the Tribunal. [ 76 ] The appeal is dismissed. Heard on the 1 st day of April, 2021.

Dated at the City of Calgary, Alberta this 14 th day of July, 2021.

R.A. Neufeld J.C.Q.B.A. Appearances: David J. Corry, Q.C. and Amy-Lynn Kosick for the Appellant Sarah V. Coderre for the Respondent Alberta Human Rights Commission (Director) Melissa Luhtanen for the Respondent Alberta Human Rights Commission (Tribunal) _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.A.

Neufeld _______________________________________________________ The full style of cause is: Webber Academy Foundation v Alberta Human Rights Commission (Director), Alberta Human Rights Commission (Tribunal), Sarmad Amir, and Naman Siddique. The appearances should read: David J. Corry, Q.C. and Amy-Lynn Kosick, for the Appellant.