By: Athina Pantazopoulos
There is much discussion in the world of legal education about the “access to justice crisis” in Canada, but very little discussion of what “access to justice” actually means. The recent decision of Webber Academy v Alberta (Human Rights Commission) at the Alberta Court of King’s Bench illustrates that access to justice is about more than just cost and location, it is also about time.
The conversation surrounding access to justice has traditionally been focused on a person’s ability to access lawyers and courts, but a new concept of access to justice is emerging, one that has been called “meaningful access to justice,” which is measured instead by whether a process has adequately addressed and resolved a person’s legal problem. Keep this in mind as we examine the Odyssey of Webber Academy’s legal battle and contemplate whether the legal problem can be said to be adequately addressed when finality is still so far away.
The Webber Academy legal journey began in 2012, when two students filed human rights complaints against the private school, alleging discrimination on the ground of religious beliefs. The students, Mr. Amir and Mr. Siddique, were 14-year-olds of the Muslim faith who transferred into Webber Academy in 2011. From the beginning of their time at Webber Academy, they requested access to a quiet space on campus where they could pray during school hours, as their religious beliefs required. The parents of these students were informed shortly after they began attending that the students would not be allowed to pray on campus and would not be invited back the following year. Webber Academy was a strictly non-denominational school and “overt” religious activity, such as prayer, would not be permitted.
It took until 2015 for a decision to be reached at the Alberta Human Rights Tribunal. By that time, Amir and Siddique had likely graduated from high school and were seeking resolution. The Human Rights Commission had taken carriage of the complaint, and was seeking a direction from the Tribunal that the respondent amend its policies to expressly allow for the accommodation of religious observance, as well as compensation for the students. The Tribunal did find that Webber Academy’s actions constituted discrimination, and that they had violated ss 4(a) and 4(b) of the Alberta Human Rights Act, but declined to direct Webber Academy change its policies.
This matter was not settled yet. Webber Academy appealed the Tribunal’s decision, taking it to the (then) Court of Queen’s Bench in 2016, the Court of Appeal in 2018, and sought leave to appeal to the Supreme Court in 2019 (unsuccessfully). While Amir and Siddique were not directly involved in these appeals, their names continued to be published, and an experience that students described as “humiliating” was publicly rehashed and debated every few years. Adding to this situation, a sense of uncertainty manifested as the Court of Appeal found errors with the Tribunal’s 2015 decision and remitted the case to a new panel at the Tribunal.
Amir and Siddique testified before the Human Rights Tribunal again in 2020, nine years after the initial conflict, this time to determine if the requirement to accommodate the students’ request for a private space to pray infringed upon Webber Academy’s constitutional right to be free from religion. Once again, the Tribunal found that the school discriminated against the students and that accommodating their religious practice would not infringe any constitutional rights or present undue hardship. And once again, Webber Academy appealed the decision to the Alberta Court of Queen’s Bench in 2021 and the Alberta Court of Appeal in 2023.
Which brings us to the present day, 12 years after the initial conflict, and it appears that the matter is finally closed. Webber Academy may continue to pursue leave to appeal to the Supreme Court, but they are running out of options.
This process is not without its purpose. The right to appeal is understood to be an essential practical element of our legal system. The Court of Appeal notes the continued importance of addressing Webber Academy’s repeated appeals in the penultimate paragraph of its 2023 decision:
It is true that the Students have not attended Webber Academy for over ten years and have long since moved on to pursue post-secondary educations. So, while the Tribunal’s order may be moot insofar as the Students are concerned, we do not agree that the Tribunal’s order is “futile” as submitted by the appellant. It reinforces to Webber Academy that an accommodation request must be considered with a view to its legal obligation to accommodate to the point of undue hardship.
Nevertheless, when the automatic response by law students is “I’m so sick of Webber Academy,” you have to imagine how Amir and Siddique feel, especially knowing that Webber Academy has not changed their ways and “justice” has arguably not been achieved.