by Nicole Cooper (Associate) and Mitchell Grimmer (Articling Student) Discrimination Webber Academy Foundation v Alberta (Human Rights Commission), 2023 ABCA 194 [Webber]: In this recent decision from the Alberta Court of Appeal, currently on leave to appeal to the Supreme Court of Canada, the Court considered the issue of customary Muslim practices in the context of a secular private school. The matter dated back to 2012 when the parents of two students filed complaints on behalf of their children alleging that there was a failure to accommodate when students were prevented from engaging in their on-campus prayers. While teachers at the school initially provided a separate space for the students and their prayer obligations, the school later revoked these accommodations. At the Tribunal level, the Tribunal held that it did not have jurisdiction to consider Charter remedies. However, they followed the Supreme Court of Canada’s decision in Doré v Barreau du Quebec, [2012] 1 SCR 395 [Doré] which established that administrative decision makers, like the Tribunal, must exercise their jurisdiction in accordance with Charter values. Ultimately, the Tribunal found that the school had unlawfully discriminated against the students by not providing accommodations for on-campus prayers. The decision was appealed to the Alberta Court of King’s Bench, where Justice Neufeld upheld the Tribunal’s decision and the finding of discrimination. The school appealed the decision for several reasons, including that the chambers judge failed to properly consider the school’s Charter rights. The Court of Appeal held that in this case, the Charter value at issue was related to a specific Charter right and therefore, it was appropriate for the Tribunal to uphold jurisprudence considering infringement of that right. The Webber decision illustrates how administrative bodies, including the Alberta Human Rights Tribunal, may interpret and apply Charter values in the course of their decision making. John v Edmonton Police Service, 2023 AHRC 87 [John]: This recent Tribunal case considered the developing issues of implicit and unconscious bias. In John, the complainants were two Black men who witnessed a white woman committing a crime. One of the complainants performed a citizen’s arrest while the other called 911. When police arrived, the men were pepper sprayed, arrested, and treated differently from the white woman. While gender was not explicitly identified as a ground of discrimination in the complaint, the Tribunal nevertheless considered the intersection of race and gender in the events that unfolded and the police officers’ perceptions. Notably, the parties relied upon expert witnesses who testified as to the nature of implicit biases. The Tribunal referenced the recent Supreme Court of Canada decision, R v Le, where the Court took judicial notice of the fact that minorities have disproportionate levels of contact with police and the criminal justice system and such differential treatment is often based on deep, underlying biases. The Tribunal concluded that the complainants had been discriminated against by the Edmonton Police Service. This case signals that the AHRC may be considering further issues of implicit or unconscious bias and that such complaints will often require expert evidence. Screening and Availability of Alternative Forum Grewal v Sofina Foods Inc., 2023 AHRC 46: This matter illustrates the increasing tension arising when a complaint is more appropriately dealt with in another forum or through another proceeding. Pursuant to section 21(1)(a)(iv) of the Alberta Human Rights Act, the Director may dismiss a complaint if the complaint is being, has been, will be or should be more appropriately dealt with in another forum. Grewal involved a complaint for discrimination in the workplace. However, the complainant’s union had also filed a grievance alleging the respondent failed to reasonably accommodate her. The respondent argued that the complaint should be dismissed because the issues in the complaint were dealt with more appropriately in the grievance process. The Tribunal ultimately agreed with the respondent and held that grievance arbitration was the primary forum for labour disputes, despite the fact that the complainant’s grievance touched upon human rights issues. The Tribunal made clear that grievance arbitration will be the appropriate forum where human rights issues arise in an organized labour context (so long as the relevant collective agreement permits adjudication of human rights issues). Conclusion Not only are recent legal issues increasing in both substantive and procedural complexity, but the Tribunal is also developing a plethora of jurisprudence within these areas as cases have and will to continue to develop. While there is some backlog to the complaint status within the Tribunal, the Chief of the Commission and Tribunals emphasized the AHRC’s goal to reduce backlog and improve efficiency in the complaint process. There are new processes to get complaints through, but training in the Director’s office will be necessary, to allow for more comprehensive analyses moving forward.