Schifer v City of Edmonton, 2024 AHRC 1 (Dickins), is a new Alberta Human Rights Tribunal decision where (1) a union entered a settlement on behalf of its membership and that prevented a member from bringing a human rights complaint, and (2) an employee’s argument that masking and testing discriminated against him on the basis of a religion he founded, failed.
This case is important because it involves the enforceability of a settlement and release that the union entered on behalf of a member of the bargaining unit, and because it deals with the challenging issue of religious accommodation during the pandemic.
Facts
The following were the facts summarized by the AHRT:
- The complainant Wolfgang Schifer worked for the City of Edmonton
- Schifer was a member of the Canadian Union of Provincial Employees (CUPE)
- The complainant was unvaccinated
- Under a pandemic workplace policy in 2021, the employer, City of Edmonton, required the complainant to wear an approved mask in the workplace and provide negative results of rapid testing in order to be present in the workplace
- The complainant complained to the union that the requirement for masking discriminated against him on the basis of religious belief as set out in the tenets of the Fellowship of the Wolf Edmonton, which he founded in 2018. He requested an exemption from masking
- The City of Edmonton denied the request for a masking exemption
- The complainant agreed to wear an approved mask in order to be allowed to work, but later he did not wish to wear an approved mask
- CUPE had filed a policy grievance on behalf of all of its membership about the City of Edmonton testing policy. CUPE and the City of Edmonton entered a settlement agreement where the City of Edmonton agreed to pay for 75% of the rapid testing costs
- The complainant filed a human rights complaint, alleging discrimination on the basis of religious belief in employment, under section 7 of the Alberta Human Rights Act
- The Director of the Alberta Human Rights Commission dismissed the complaint on the basis that the City of Edmonton had accommodated his religious beliefs by not requiring vaccination but imposing masking and rapid testing for unvaccinated employees, and noted that the complainant had agreed to wear a mask and had refused to attest to his religious beliefs under oath as requested by his employer
- The complainant filed a Request for Review by the Tribunal – which is what is summarized here
Analysis / Conclusion
The complainant’s position was that the Fellowship of the Wolf was opposed to vaccinations, and that his religious beliefs had not been accommodated to the point of undue hardship.
The employer argued that to establish discrimination on the basis of religious belief, a complainant needed to establish that it was not only a subjective religious belief, but also provide some objective basis to indicate that it was a fundamental or important part of expressing that faith. The Tribunal seemed to accept this as correct.
The Tribunal noted that there was no information supporting that the tenets of the Fellowship of the Wolf required its adherents to decline vaccinations, but that he had been accommodated by allowing him in the workplace if he did masking and rapid testing.
The Tribunal adopted the reasoning from the Pelletier decision (decided under Section 4 of the Act, related to goods and services), and indicated that it applied to Section 7 decisions (employment) as well. The quote adopted from Pelletier was as follows:
[37] As the Chief held in the Pelletier section 26 decision, the analysis of restrictions and the limits on accommodation in the situation presented by COVID-19 restrictions must take into account the circumstances as well as common sense:
There is no question that various public health measures and policies introduced by governments, businesses and institutions since the onset of the COVID-19 pandemic have caused inconvenience and hardship. The fact that an accommodation that limits an individual’s ability to peruse grocery products, as a trade-off to limiting the spread of a disease that has reportedly caused the death of 5 million people worldwide, does not mean that it is unreasonable. Further, Courts and Tribunals have recognized that accommodations need not be perfect, or be the complainant’s preferred accommodation. [Callan v Suncor Inc., 2006 ABCA 15] Certainly, the duty on a service provider is to accommodate the needs of an individual to the point of undue hardship. However, the analysis must take all of the circumstances into account, and be applied with common sense. [Commission scolaire régionale de Chambly v Bergevin, 1994 CanLII 102 (SCC)] Here, the respondent was operating in an environment of a world-wide pandemic, with evolving science and health requirements, and attempting to address competing concerns. I cannot find a reasonable basis in the information to refer this complaint to a Tribunal, in order to test whether the respondent failed to accommodate the complainant.
The Tribunal went on to find that there was no reasonable prospect of success to the complaint respecting the face masks.
Respecting the complaint regarding testing, the Tribunal found that the agreement between the employer and CUPE was binding on its membership, and the complaint could therefore not go forward.
My Take
This decision is an important reminder that a trade union can enter agreements on behalf of its member employees that become binding on those employees. There was no much analysis on that point, but other cases have found similarly and this case just re-affirms that.
The leading Canadian authority on religious human rights accommodation is Syndicat Northcrest v Amselem, 2004 SC 47, and it is clear that for a religious belief to qualify for religious accommodation, there must be a sincerely held religious belief.
The result of this decision I am summarizing is not surprising overall, especially given that the complainant refused to swear that his religious beliefs were what he stated them to be.
However, with the greatest respect to the AHRT, I think the requirement from Pelletier and this Schifer case- that something must be objectively grounded in the tenets of a religion in order to qualify for religious accommodation- are not compatible with the direction in Syndicat that the only thing required is a sincerely held religious belief.
I can understand for practical reasons why tribunals have tended to interpret Syndicat the way they have in the context of the pandemic, but we may need the higher courts to revisit this issue and tell us if Syndicat is still good law.
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