Webber Academy Foundation v. Alberta (Human Rights Commission Director)

Appeal from decision under Alberta Human Rights Act that school discriminated against students by prohibiting them from performing prayer on campus.

[2016] A.J. No. 802

2016 ABQB 442

Alberta Court of Queen's Bench

August 10, 2016

G.H. Poelman J.

The complainants (respondents on appeal), parents of two teenage students, complained to the Alberta Human Rights Commission (the "Commission") that the respondent Webber Academy (appellant on appeal) discriminated against the students by denying them goods, services, accommodation or facilities because of their religious beliefs. Webber Academy refused to accommodate the students’ request to perform prayer during school hours and refused the students’ enrollment for the following year.

The Commission found Webber Academy discriminated against the students because their desire to pray during school hours was based on a sincerely held religious belief, the students were not allowed to pray on campus and were refused re-enrollment, and the students’ religious belief, a protected characteristic under the Alberta Human Rights Act, R.S.A. 2000 c. A-25.5, was the basis for Webber Academy’s denial of services and its discrimination with respect to its services. The Commission held that Webber Academy’s discrimination was not reasonable and justifiable, a defence under the Act, because there was no evidence that the accommodation would cause undue hardship. In particular, there was no evidence the students’ prayer practices would be a religious influence on other students and there was evidence other overt religious observances were permitted and that initial allowance of the students’ prayers had been easily accommodated. The Commission awarded damages for distress, injury, and loss of dignity.

Webber Academy appealed to the Alberta Court of Queen’s Bench. The court dismissed Webber Academy’s appeal on the following grounds:

1. The Commission's finding of discrimination was reasonable, based on the test set out in Moore v. British Columbia (Ministry of Education), 2012 SCC 61. The Commission found prima facie discrimination had been established because after having met all of the eligibility and admission requirements for Webber Academy the students were thereafter denied meaningful access based on their religious beliefs.

2. The Commission’s conclusion the discrimination was not reasonable and justifiable in the circumstances was reasonable based on the test set out in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Counsel of Human Rights), [1999] 3 S.C.R. 868. The court held the Commission's finding that the standard imposed by Webber Academy on the students was not reasonably necessary to accomplish its purpose of fostering a non-denominational identity was reasonable and founded on the evidence. In particular, none of Webber Academy’s explanatory 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 involve some overt indication of their beliefs. The students’ prayer practices would be carried out in private, for short periods, and would be less obvious to staff and other students than other overt religious observances already permitted, and even welcomed, at Webber Academy.

3. The Commission failed to provide transparent and intelligible reasons regarding certain conflicting evidence in relation to a pre-enrollment meeting and school tour where Webber Academy’s prayer policy was raised with the complainants; however, the court held that even if the Commission had found that Webber Academy clearly warned the complainants that no prayers could be said on campus, the Commission would still have been required by law to hold that Webber Academy had unlawfully discriminated against the students because, as a matter of public policy, a defence of waiver of human rights is not available. In the result, even though the Commission’s findings in relation to this issue were unreasonable, in law they could have no effect on whether Webber Academy unlawfully discriminated against the students.

The damages award was upheld on the basis that it appropriately focused on the compensatory element of damages and, while at the high end of the range, was reasonable as it was within the range of possible, acceptable outcomes according to the facts and the law.

The court dismissed Webber Academy’s appeal.