Alberta Human Rights Information Service September 30, 2020

In this issue:

Human rights case law: Tribunal decisions
     1. Recent Tribunal decisions
     2. Summary of recent Tribunal decisions

Commission news
     1. The Commission and the community
     2. Update on the Tribunal Dispute Resolution (TDR) process
     3. Human Rights and Multiculturalism Grant projects

Other news
     1. Confronting Racism and Addressing Human Rights in a Pandemic (conference)

HUMAN RIGHTS CASE LAW: TRIBUNAL DECISIONS

1. Recent Tribunal decisions

You can read all Tribunal decisions free of charge on the Canadian Legal Information Institute (CanLII) website.

2. Summary of recent Tribunal decisions

Amir and Saddique v Webber Academy Foundation, 2020 AHRC 58 (Alberta Human Rights Tribunal, August 6, 2020)
Students' private prayer at school does not violate school's secular status
The complainants were two students who attended the respondent school, Webber Academy. The students, who believed in Sunni Islam, requested to pray during school hours for five to eight minutes. The prayer involved standing, bowing, and kneeling. The students were initially permitted a place to pray, but were later prohibited to do so by the school.

The Chair found that the students held a genuine religious belief and that they were denied a quiet private space, customarily available to the rest of the student body, as well as denied re-enrollment for the following school year. The students' religious belief was a factor in these denials.

The Chair considered whether the school's actions were reasonable and justifiable under the Alberta Human Rights Act. The school argued that the students' prayer obligations would overwhelm the school, cause disruption and conflict, and result in dropping enrollment. The Chair rejected the school's argument, finding that the students went on to a new school and prayed without any hardship on that particular private school. The Chair also found that Webber Academy had not shown that accommodating the students' religious belief of a short prayer one to two times per day was an undue hardship.

The Chair considered the school's argument that the students' request violated the school's right to be free from religion. The Human Rights Tribunal cannot make findings of constitutionality of legislation, but does have a duty to take Charter values into account. The school is non-denominational and has no religious affiliation, with members of the school community wanting it to remain that way. However, in this case, the students did not want to perform their religion publicly, but requested a quiet private space to pray. The evidence did not support that this request would infringe on the school and the community's belief that the school was secular. Therefore, there was no infringement on the school's right to be a non-denominational secular institution.

The students were awarded $18,000 each for pain and suffering. Webber Academy has appealed the ruling to the Court of Queen's Bench.

Trudeau v ConSun Contracting Ltd., 2020 AHRC 63 (CanLII) (Alberta Human Rights Tribunal, September 9, 2020)
Video conference testimony does not hinder assessment of witness credibility
An employee made a complaint that his disability was a factor in his termination. The complaint was referred to the Alberta Human Rights Tribunal for a hearing. Currently residing in Saskatchewan, the complainant requested that he testify via video conference so that he would not have to travel to Alberta. Alberta and Saskatchewan are currently discouraging out-of-province travel due to COVID-19. The respondent opposed the application, arguing that credibility was at issue in the case and that in-person cross-examination would be more fruitful.

The Tribunal Chair considered the application for video conference testimony in light of the principles of natural justice. The events of the complaint had occurred six years ago and there is no indication from the provinces when COVID-19 travel recommendations would be relaxed. While the respondent had a right to cross-examination of the witness, the Chair was mindful of cases that had rejected the idea that witness credibility cannot be sufficiently tested on a video conference. Video conference testimony does not deny the Chair the ability to assess the credibility factors that are typically considered in a hearing. The Chair found that the Tribunal's use of technology and the Tribunal Protocol for Virtual Hearings sufficiently addressed these issues. The hearing will proceed as scheduled with the complainant attending via video conference.

COMMISSION NEWS

1. The Commission and the community

  • Providing assistance for self-represented parties: Commission partnering with Pro Bono Students Canada and University of Alberta Law School: This fall, the Commission will be partnering with Pro Bono Students Canada (PBSC) and the University of Alberta Law School on projects that will offer representation for self-represented parties before the Tribunal.

    The project with PBSC, which has run in previous years in Calgary, offers assistance to low-income, self-represented complainants at Tribunal hearings. This year, the program will be extended to Edmonton as well. Self-represented complainants can apply to PBSC, who determines eligibility and can designate a student who acts under the supervision and mentorship of a program lawyer. While the program is independent of the Commission, Tribunal staff (under the leadership of Tribunal Registrar, Laura Ritzen) worked over the summer to negotiate the partnership, and will facilitate contact between interested self-represented complainants and PBSC.

    In a brand new project, the Tribunal is working with the University of Alberta Law School on a pilot program that will offer self-represented parties, both complainants and respondents, the opportunity for assistance at Tribunal Dispute Resolution (TDR). In all cases scheduled for October and November where either the complainant or respondent is self-represented, the Tribunal will send a notice of the availability of representation at the TDR. The participating students are enrolled in the School's Mediation Advocacy course and, similar to the PBSC project, are supported by the course instructors who are lawyers and trained mediators.

    "These projects are great examples of partnerships that leverage community resources," says Michael Gottheil, Chief of the Commission and Tribunals. "They promote meaningful access to justice and provide real-life learning experiences for law students. Working with community partners is something we have always done at the Commission, and expanding these opportunities is so exciting. We know these projects can't serve all the needs of all self-represented parties that come before the Commission, but it's a start and can lead to a lot of learning and innovative ways of achieving access to justice for all."

  • Advancing reconciliation: In recognition of International Day of the World's Indigenous Peoples on August 9, 2020, the Calgary Indigenous Human Rights Circle (of which the Commission is a member) hosted the Advancing Reconciliation webinar. Listen to a diverse panel of Indigenous speakers explore issues of racism and provide practical recommendations for implementing anti-racist practices in organizational settings. Presenters discussed practical ways to overcome systemic racism in organizations using the United Nations Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Commission Calls to Action as the underpinning for reviewing institutional policies, procedures, and programs.

    Webinar panelists included Chief Wilton Littlechild, Samuel Crowfoot (Siksika First Nations Councillor), and Larissa Crawford (founder of Future Ancestors Services).

  • Alberta-bility: On August 21, 2020, the Alberta Accessibility Legislation Advisory Group (of which the Commission is a member) hosted a panel discussion on what accessibility legislation in Alberta would mean for Albertans. The Alberta-bility webinar discussed how the Accessible Canada Act impacts Alberta, the current protections that Albertans with disabilities have, and whether or not Alberta should pursue provincial accessibility legislation.

    Webinar panelists included Michael Gottheil (Chief of the Commission and Tribunals), along with Calgary Ability Network members Greg McMeekin (Chair of the Premier's Council on the Status of Persons with Disabilities) and Sean Crump (President of Universal Access).

  • Human rights and systemic change: On August 27, 2020, the Action Chinese Canadians Together Foundation, in partnership with Act2endracism, presented a community dialogue on human rights and systemic change. This virtual session explored the role of human rights commissions and tribunals, as well as the inherent rights people have beyond human rights laws, treaties, conventions, and charters. Mr. Gottheil highlighted how human rights advancements have come from those communities who have been denied their rights and have demanded justice based on equality and freedom.

    Webinar panelists included Michael Gottheil (Chief of the Commission and Tribunals), Marie Claude-Landry (Chief Commissioner of the Canadian Human Rights Commission), Vincent Wong (secretary for the Toronto Chinese Canadian National Council), and Fo Niemi (co-founder and executive director of the Center for Research-Action on Race Relations).

2. Update on the Tribunal Dispute Resolution (TDR) process

In May 2020, the Tribunal Office implemented a new process for scheduling Tribunal Dispute Resolutions (TDR) that mimics the conciliation scheduling process used by the Case Inventory Resolution Project. Upon receipt of a complaint, parties receive their scheduled TDR date, which is at least six weeks in the future. They are given five days to request a date change.

This process not only reduces the time spent sending numerous emails back and forth with the parties to find an agreeable date, but also assists with scheduling TDRs more quickly and typically for a date that is within three months of when the Tribunal Office received the complaint. This helps ensure that TDR-qualified complaints are settled promptly and other complaints requiring a Tribunal hearing proceed just as quickly. Because of this new process, over 50 TDRs are scheduled to be held by the end of October.

The Tribunal Office has also resumed hearings as of September. Some hearings will be held virtually, while others will be held in-person in COVID-safe hearing rooms. See the Tribunal Hearing Schedule for upcoming dates.

3. Human Rights and Multiculturalism Grant projects

 

Several grant recipients under the Human Rights Education and Multiculturalism Fund (HREMF) have recently completed or provided updates on their funded projects:

  • On July 7, 2020, the Coalitions Creating Equity initiative launched its Response Model to Hate in Alberta toolkit. This resource gives service providers the tools and guidelines they need to effectively respond to hate incidents in Alberta.

    The Response Model includes seven key elements: 1) safety at all stages, 2) trust in the reporting process and the individuals and structures supporting it, 3) a support system that is multilayered and supports the person as a whole, 4) an accessible reporting tool, 5) accountability in reporting, 6) education for organizations, bystanders, service providers, and individuals, and 7) empowerment to take action.

    This toolkit is a step-by-step, easy-to-use guide to help community members, service providers, and witnesses respond promptly and effectively whenever discrimination or a hate-motivated incident occurs.

  • John Humphrey Centre for Human Rights (JHC) collaborated with students, teachers, administrators, and First Nations and Métis liaisons across the province to develop resources for teachers, so they can successfully introduce and integrate Indigenous Reconciliation into their classrooms.

    From a prior HREMF project, JHC identified that middle and high school teachers did not feel confident and knowledgeable in presenting the realities of Indigenous curriculum to their students. The objective of this project was to train teachers and community educators on how to create safe classroom spaces for Indigenous students and their peers while educating on past and present discrimination created by colonial structures. Resources are available online.

  • The Bow Valley College School of Global Access in Calgary enhanced and strengthened their commitment to inclusive learning environments that embody intercultural understanding, a sense of community, and ethical citizenship on campus. Their project focused on increasing staff and faculty intercultural respect and human rights knowledge as they engaged with a large and diverse campus population of newcomers, learners, and colleagues on a daily basis. Feedback from staff, faculty, and students helped to shape a facilitator guide and online resources that will be peer-delivered to staff and faculty as part of their orientation.

  • The Town of Stony Plain took their first steps toward becoming a signatory to the Coalition of Inclusive Municipalities (CIM). As part of their Community Inclusion grant, the Town conducted an inclusion survey in 10 locations within the community. A working group of community members used the Alberta Urban Municipal Association's toolkit to begin discussions on inclusion and diversity. The group has developed an action plan with four themes and a logic model as part of a proposal to Town Council for membership to the CIM.

OTHER NEWS

1. Confronting Racism and Addressing Human Rights in a Pandemic

On September 16, 2020, the Canadian Human Rights Commission and the Canadian Heritage's Anti-Racism Secretariat hosted a virtual conference aimed at reflecting on how white privilege, deeply embedded systemic racism, and unchecked racial biases are affecting Canada's responses and recovery to this pandemic. The online discussion convened advocates and experts from across Canada and across disciplines to raise awareness about the disproportionate negative effects of COVID-19 on Black people, racialized people, Indigenous Peoples, and religious minorities. It also explored options for addressing this ongoing crisis with a human rights-based approach and anti-racist ethical lens.

 

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