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Investigating Complex Cases
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In past blogs, I’ve talked about the duty to accommodate in the context of creed, and specifically about the scope of the ground of creed and how employers could determine whether or not a religious belief was sincerely held. A recent decision of the Court of Queen’s Bench of Alberta has provided some additional guidance in the context of a human rights complaint relating to the provision of services.
In Webber Academy Foundation v. Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII), the Court considered an appeal of a Tribunal decision under the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 that determined:
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.
Submissions of the parties
As summarized in the decision, the two students identified as Sunni Muslims and said that they were required to pray five times a day for approximately 5-10 minutes, with one or two of these times falling within school hours (depending on the time of year). The students were initially permitted to pray in empty classrooms by staff members, but after 16 days their parents were told that prayer was forbidden on campus. Their parents suggested locations they could pray out of view and were told that they could only remain on campus to pray if they did so without bowing or kneeling. When the parents subsequently formally requested accommodation, they were told no, and that “because the policies and procedures of the school had been ignored, the students would not be accepted for enrollment the following year”.
In its response to the Court, Webber Academy submitted that it was a “non-denominational school, fostering an atmosphere where those of many faiths and cultures would feel equally at home.” As such, it said that religious activities could not be carried out by any group on campus and a prayer space could not be provided.
The Alberta Human Rights Act states, “No person shall deny to any person or class of persons any services that are customarily available to the public, or discriminate against any person or class of persons with respect to any services because of religious beliefs.” The Act allows for a contravention of this protection where it is “reasonable and justifiable in the circumstances”.
In its decision, the Tribunal considered the nature of the students’ request and ultimately framed it as a request of Webber Academy to allow them to honour their religious beliefs regarding prayer, finding no distinction between a visible religious practice or a visible religious symbol, such as wearing a cross or a turban. The Tribunal also 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”, rather than “prayer space”, as argued by the Academy.
Having framed the issue, the Tribunal found:
- (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.
In determining part (a), the Tribunal concluded that the students had a sincerely held religious belief that their practice of prayer, at the times requested, was a requirement of their religion, despite expert evidence submitted by the Academy “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.”
The Tribunal found that the contravention was not “reasonable and justifiable” 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.”
Court of Queen’s Bench of Alberta
While the Court considered several issues on appeal, for the purpose of this blog I want to focus on the discussion relating to the students’ beliefs.
In their brief to the Court, Webber Academy argued 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”.
At the Tribunal, the Academy had presented expert evidence from an Islamic law professor to establish that “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.”
The Court found that the Tribunal’s analysis was properly focused on whether the students themselves personally believed that it was necessary to conduct their prayers during the school day and that it would be sinful to miss them, informed in part, given their age, by the interpretation conveyed to them by their parents. The Court’s decision relied on the 2004 Supreme Court of Canada decision in Amselem, which held that it is not necessary for complainants to prove that “their beliefs are objectively recognized as valid by coreligionists…a person must show sincerity of belief, not validity of a particular belief”. The fact that the students had prayed in a similar manner at their previous school was seen as persuasive evidence of their “genuine belief and commitment”, as was the direct evidence from the students, their mothers and other coreligionists that the religious beliefs were sincerely held.
For employers, this decision reinforces that when the nexus between a particular practice and religion generally is not at issue[i], evidence from a complainant to demonstrate that their belief is consistent with the practices and beliefs of others will not be necessary. Accordingly, seeking such expert evidence from employees in response to an accommodation request should not be your first step. Instead, work with the employee to see whether the accommodation can be provided to the point of undue hardship considering the principles of inclusion, dignity and full participation for all employees. Lastly, while I note the allure of the argument that an employee’s personal behaviour undermines their claim of sincere belief, (for example, “I’ve seen how they party on the weekend and it doesn’t look very Christian to me”), it was an argument not picked up on by the Court in this case and is not likely to be an appropriate consideration when presented with an employee’s religious accommodation request.
About the Author: Toronto Employment Lawyer Cory Boyd has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.
[i] For an example of a situation where the nexus is unclear, see the case of the Rastafarian and the Personal Care Worker I wrote about previously