Charter Cases Affecting Canadian Schools

Religious Freedom: Supreme Court Declines to Hear School Appeal

Facts

Webber Academy (the School) is a non-denominational accredited private school in Alberta. Its non-denominational status is mentioned in the Webber Academy Information Package and Parent-Student Handbook.

In November 2011, two students (the Students) applied for admission. Their personal religious beliefs required prayer five times a day. Prayers included bowing and kneeling. Depending on time of year, prayers would occur during school hours. On November 29, 2011, a pre-admission meeting was held. At the meeting, the families asked about accommodation for the Students to pray on campus. The Students and their parents signed the Parent-Student Handbook. The Students were admitted into the School.

For the first weeks, the Students prayed in empty rooms. In December 2011, Dr. Neil Webber, President and Chairman of the School, informed the families that prayer space was not permitted in the non-denominational school. In January 2012, the families sent a written request for the Students to pray on campus. Dr. Webber responded that the School was non-denominational and would not accommodate the request. Further, because School policies had not been followed, the Students would not be enrolled the following year. 

Lengthy Judicial History

The families filed complaints with the Alberta Human Rights Commission (the Tribunal) in February 2012, alleging the School discriminated against the Students in the provision of services by prohibiting them from praying on campus. The complaints were heard in 2014, and a decision rendered in 2015. The School appealed to the Alberta Court of Queen’s Bench in 2016. The Court upheld the Tribunal’s decision. The School appealed to the Alberta Court of Appeal, submitting that its Canadian Charter of Rights and Freedoms (Charter) rights of freedom of religion and freedom of association were unreasonably infringed.

In light of the Charter argument being raised for the first time, the Court of Appeal determined there was a lack of factual foundation to determine the new issues. The Court of Appeal directed the matter back to the Commission to be heard before a new Tribunal. A Notice of Question of Constitutional Law was served on the Alberta Minister of Justice and Solicitor General and the Attorney General of Canada in 2019. Upon rehearing, the Tribunal upheld the complaints, concluding that the School had a duty to accommodate the request for prayer space.

The School appealed the rehearing decision to the Court of Queen’s Bench. The Chambers Judge held the Tribunal’s interpretation and application of the Charter was correct based on the evidence before it (Webber Academy Foundation v. Alberta (Human Rights Commission), 2021 ABQB 541). 

The School appealed to the Alberta Court of Appeal. The Court held that access to quiet prayer space could not be denied on discriminatory grounds. The School had a legal obligation to accommodate such a request to the point of undue hardship (Webber Academy Foundation v. Alberta (Human Rights Commission), 2023 ABCA 194). The appeal was dismissed.

Cause of Action

The School applied for leave to appeal to the Supreme Court of Canada.

Legal Issues

The legal issues at the Alberta Court of Appeal included whether the Tribunal and Chambers Judge erred by: 

• Concluding that there was no infringement of the School’s s. 2(a) Charter right to Freedom of Religion;
• Failing to consider the School’s s. 2(d) Charter right to Freedom of Association; and
• Upholding an ambiguous remedy that was impossible to comply with.

Decision

The application for leave to appeal to the Supreme Court was dismissed, with costs.

Reasons

Freedom of Religion

The School claimed that by imposing an order requiring it to act contrary to its religious beliefs, the Tribunal infringed the School’s freedom of religion under s. 2(a) of the Charter. While the Tribunal understood that freedom of religion also includes a freedom “not to believe” and to “refuse to participate in religious observance”, the key issue on appeal was whether the Tribuna l interfered with the Charter value of freedom of religion and conscience by requiring the School to accommodate the Students.

The Court affirmed the Tribunal’s conclusion that providing students with access to quiet prayer space did not interfere with the School’s right to freedom of religion in a manner that was more than trivial or insubstantial. The School’s non-denominational policy was not affected simply by providing an accommodation.

Freedom of Association

The School submitted that both the Tribunal and the Chambers Judge erred by failing to consider whether its right to freedom of association under s. 2(d) of the Charter was infringed. The School asserted that the Tribunal nullified its non-denominational philosophy and, in doing so, infringed the School’s constitutional right to freely associate. In essence, the School claimed that its freedom to associate with others in pursuit of an educational environment free from the practice of religion was interfered with. The School wished to foster an educational community welcoming of all faiths, arguing that it would change the culture of the school to allow religious practices on campus.

The Court of Appeal accepted that the School, as an educational institution, wished to establish a curriculum free from religious influence (except to the extent that religion was discussed in social studies and history classes). It noted the School permitted exceptions to its uniform policy (allowing head coverings and facial hair for religious reasons) and displayed a Christmas tree each holiday season. The Court found no evidence that the School culture changed during the two weeks that the Students prayed at different locations on campus. It did not accept that accommodating the Students by providing access to a quiet, private space changed the non-denominational character of the School.

Providing space was not a question of cost or lack of physical space. Refusing to accommodate the need to pray, as required by human rights legislation, was not justified. Based on the evidence, the Court found that accommodating the Students did not and would not interfere with the School’s section 2(d) Charter values.

Remedy

The School asserted that the Tribunal’s non-monetary remedy, directing the School to “immediately cease the contravention … and refrain in the future from committing any similar contravention” was ambiguous and impossible to comply with. The Court noted that the Tribunal’s order mirrored the explicit language of the Act and did not leave the School in a position of being unable to determine what circumstances would constitute a contravention. The order placed the School in the same position as any other person required to interpret and comply with the Act.

The issue was student access to a quiet, private prayer space on campus. The Court held there was nothing ambiguous about the Tribunal’s conclusion that access to a quiet, private prayer on campus could not be denied on discriminatory grounds. The circumstances of each situation must be assessed to determine to determine whether and what sort of accommodation is required. The order reinforced that an accommodation request must be considered with a view to the legal obligation to accommodate to the point of undue hardship.

Webber Academy Foundation v. Alberta (Human Rights Commission), 2024 CanLII 22674 (SCC) (Supreme Court of Canada); [appeal from: 2023 ABCA 194 (Alberta Court of Appeal)].

Authored by Anna Zadunayski LLB, MSc.

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