This case considers the appropriateness of advancing new arguments on judicial review, not considered by the original decision-maker, and how the court ought to address those issues. The appellant in this case advanced new Charter arguments that were first raised with the Court of Appeal. The Court of Appeal concluded it would be inappropriate for it to hear these arguments for the first time without a complete factual record. The matter was remitted back to a new panel for consideration.

Administrative law – Decisions reviewed – Human Rights Tribunal – Judicial review – Appeals – Procedural requirements and fairness – Standard of review – Correctness – Human rights complaints – Religion – Charter of Rights and Freedoms – Discrimination

Webber Academy Foundation v. Alberta (Human Rights Commission Director), [2018] A.J. No. 689, 2018 ABCA 207, Alberta Court of Appeal, June 1, 2018, J. Watson, P.A. Rowbotham and J.D.B. McDonald JJ.A.

The appellant, Webber Academy Foundation (“Webber”), appealed the judgment upholding the decision of the Alberta Human Rights Tribunal (the “Tribunal”) that held Webber unlawfully discriminated against two high school students by prohibiting them from performing prescribed forms of prayer on the Webber campus.

Webber is a private school in Calgary and a self-described “non-denominational” educational facility. The students were Sunni Muslims; they prayed five times a day. The prayers included speaking aloud, bowing and kneeling. After some attempts at accommodating the students, they were eventually advised by Webber that prayer was not permitted on campus because it was a non-denomination school. Webber said they would not provide prayer space for the students. Further, Webber advised that because the school policies had not been followed, the students would not be enrolled the following year. The parents of the students filed complaints with the Tribunal alleging that Webber discriminated against the students in the provision of its services by prohibiting them from praying at the school.

The Tribunal found in favour of the students. The Tribunal found that the students were requesting the ability to pray at campus, not dedicated prayer space, as Webber put it. The Tribunal applied the prima facie discrimination test set out in Moor v. British Columbia (Ministry of Transportation) 2012 SCC 61. The Tribunal rejected Webber’s argument that it had a reasonable justification defence because it was a non-denomination facility. Specifically, the Tribunal rejected Webber’s submission that “non-denominational” meant that no prayer or religious practice could be allowed. Instead, the Tribunal said that non-denominational simply meant that the school was not promoting or specifically affiliated with a religious denomination.

The chamber’s judge upheld the Tribunal’s decision. Webber appealed to the Court of Appeal. After the chamber’s judge filed its decision, Webber served notice that it was challenging the constitutionality of the Tribunal’s decision, as well as section 4 of the Alberta Human Rights Act, pursuant to section 2(a) of the Charter of Rights and Freedoms. In essence, on Appeal for the first time, Webber argued that its Charter rights to freedom of conscious and religion, and freedom of association were unreasonably infringed. Additionally, Webber argued the Tribunal failed to recognize the Charter rights of the entire school community and Webber to a secular, non-denominational education.

The Court of Appeal’s decision dealt with whether it was appropriate for it to hear this Charter argument now, given that it had not been raised before, and procedurally what was the best way to proceed.

The Court of Appeal held that it would be inappropriate for it to consider the Charter issues raised by Webber and that a complete record was needed. While the Court of Appeal noted that not every Charter issue requires such a complete record; in this case, it was necessary since there was no evidence at the Tribunal level regarding the freedom of conscious and religion of the school community and the community’s views of secularism, both of which were central to Webber’s argument. The Court of Appeal also concluded that a new panel needed to hear the Charter matter. The court noted various inconsistencies and problems with the Tribunal’s original decision. For instance, the Tribunal operated on the assumption that the students were not asking for prayer space, but simply the ability to pray. Yet, at the same time, it said the students were asking for space large enough to conduct their prayers comfortably. The Court of Appeal characterized the Tribunal’s reasoning on this and other issues, as confusing at best and unreasonable. Further, the Court of Appeal said these factual issues were interconnected to the Charter issues raised by Webber. In other words, the original Tribunal’s finding could not be isolated from the new Charter issues. Consequently, a new panel was necessary to review all of the evidence and argument, including the Charter issue, from a fresh perspective.

As a word of caution for future cases, the Court of Appeal stated, in obiter, that parties wishing to raise Charter issues ought to do so with the administrative body of first instance. The court noted that it was unfortunate how matters proceeded in this case, but that the Charter issue was simply too important to dismiss on the appeal.

Accordingly, the appeal was allowed and the matter, including the new Charter issue, was remitted to a new panel of the Tribunal for consideration.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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