Private School in Calgary Appeals Human Rights Prayer Decision

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Two high school students at a private school in Calgary were discriminated against on the basis of their Sunni Muslim religion. A human rights complaint based on the Alberta Human Rights Act was filed in February 2012 and subsequently heard at the Alberta Human Rights Tribunal. The case was appealed to the Court of Queen’s Bench by Webber Academy, and the matter was recently concluded at the end of August 2016. The Court of Queen’s Bench sought to review how the tribunal framed the issues, the factual findings on the evidence, and the legal tests were used.

The two students are both Sunni Muslims, and are required to pray five times a day with one to two of the prayers occurring during school time. The prayer itself takes five to ten minutes and requires about the same amount of space that a chair takes up. The two boys and their families asked for a private space anywhere in the school where the boys could conduct their prayer, and stressed that the space did not have to be the same each time, and that they would pray wherever space was available. For three weeks the two students conducted their one to two prayers a day. There was an instance in which one of the boys was praying in a corner in the library and was interrupted by Dr. Webber (the Vice President of Administration), who asked repeatedly “what are you doing?” This upset the complainant, and at this time, both of the students felt anxious and shameful about praying at school. After being students at the school for three weeks, the boy’s mothers’ received a phone call from Dr. Webber who told them that prayers were forbidden on the school’s campus and that the boys must go off-campus during their school day if they insisted on praying. This statement was contrary to the information the families had been given on a tour, where they claimed they were told that the prayers would be accommodated for. A meeting occurred after the phone call between the mothers and Dr. Webber. The parents suggested numerous venues on campus where the children might pray without anyone seeing them, but Dr. Webber insisted that if bowing or kneeling was included in the practice that it could not occur at the school.

It is notable that while the school is non-denominational, it allows students to wear crosses, turbans, and facial hair for religious reasons. Webber Academy’s website also advertises that the campus seeks to create “an atmosphere where young people of many faiths and cultures feel equally at home.” One would think from this information that while the school did not affiliate with any particular religion, that it would accommodate people of all religious backgrounds.

The prohibition of Sunni Muslim prayer and refusal to provide an empty classroom or small space to conduct the prayer constituted prima facie discrimination based on the three-part Moore test. Webber Academy argued that this test was not comprehensive enough; however, the court found that being the most recent and relevant Supreme Court of Canada authority, that the tribunal was correct in applying it. After discrimination was proven to exist the tribunal considered the “Grismer” test where the onus shifts to the defendant to prove on a balance of probabilities that the discriminatory standard is justified and accommodation of the practice would incur undue hardship. However, the Academy failed to meet this test. The school claimed that because it was non-denominational and free of religious influence that it would not allow these two students to pray. The school at the time allowed prayer that did not involve bowing or kneeling and it allowed for religious clothing to be worn. It was not proven that it was justifiable to discriminate against the boy’s five minute long prayer, nor was it proven that accommodation would cause undue hardship. The court decided that the tribunal correctly applied the relevant legal tests and upheld the tribunal’s decision to award damages for the humiliation and embarrassment that the two students endured.

 

 

 

 

1 Comment on "Private School in Calgary Appeals Human Rights Prayer Decision"

  1. Luke Prior | 23/10/2016 at 5:02 pm |

    I find it to be (sadly) amazing that some schools/employers/quasi-public bodies are still making the mistake of failing to accommodate individuals in these cases. Especially after the Meiorin [[1999] 3 SCR 3] and Renaud [[1992] 2 SCR 970] decisions by the SCC, where the bar for “undue hardship” in accommodation is set high, it’s appalling that seemingly simple measures to accommodate are not being adapted de facto. Religion/creed has always been a recognized ground of discrimination within this paradigm.

    Two areas where I think there’s arguably a justification for discrimination are: i) When there’s a novel ground of discrimination being forwarded by the claimant (eg. physical appearance or economic status – neither of which I believe has been recognized in Human Rights legislation). Or ii), when undue hardship might actually result from accommodation. There are some cases where discrimination has been justified on this ground. See, for instance, Andres v Canada Revenue Agency [246 L.A.C. (4th) 384, 120 C.L.A.S. 245]. The ground of discrimination here was religion, though undue hardship resulted from the need for too many days off by the employee, and their failure to be flexible in the accommodation process.

    In this case, though, I think the school should have known better.

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