The Supreme Court Changes Direction: Disability and Discrimination

The Supreme Court Changes Direction: Disability and Discrimination

humanrightsThe case law on disability and discrimination has had its highs and lows over the past decade and a half. A recent decision of the Supreme Court of Canada, Moore v British Columbia (Education) 2012 SCC 61 (“Moore”), provides hope for those with disabilities, particularly learning disabilities, and their families.

First, it should be noted that Moore is a case based on British Columbia’s Human Rights Code, rather than the Charter. However, in many human rights cases, the courts rely on discrimination case law based on the Charter (particularly Charter section 15(1)).

Jeffrey Moore’s father, Frederick, filed a human rights complaint against School District No. 44 (North Vancouver) and the British Columbia Ministry of Education alleging that Jeffrey had been discriminated against because of his disability and had been denied a service customarily available to the public contrary to B.C.’s Human Rights Code, section 8. Jeffrey had a severe learning disability and the intense remedial instruction he needed for his dyslexia was not available in the public school system. Based on the recommendation of the public school psychologist, Jeffrey was enrolled in specialized private schools that charged tuition (paid by his family). The Human Rights Tribunal concluded that the failure of the public school system to give Jeffrey the support he needed to have meaningful access to the educational opportunities offered by the Board was discrimination under the Human Rights Code. In addition, the Tribunal ordered that Jeffrey’s parents be reimbursed for the costs related to his attendance at private schools, as well as $10,000 for pain and suffering (para 20). The Tribunal also found that there was systemic discrimination by the District because of the underfunding of the Severe Learning Disabilities programs and the closing of a Diagnostic Centre aimed at providing services to students with severe learning disabilities. Thus, the Tribunal ordered a wide range of systemic remedies against both the District and the Province of B.C.

The Supreme Court of B.C. overturned the Tribunal’s decision, finding that Jeffrey’s situation should be compared to other special needs students and not to the general student population. This failure to compare Jeffrey with the appropriate comparator group had tainted the whole discrimination analysis and, as a result, the Court overturned the Tribunal’s decision. A majority of the B.C. Court of Appeal agreed with the B.C. Supreme Court, stating that he should not have been compared to the general student population. One dissenting Justice would have allowed the appeal, holding that special education was the means by which meaningful access to educational services was achieved by students with learning disabilities.

The Supreme Court of Canada (SCC) agreed with the dissenting Justice, and held that if Jeffrey was compared only to other special needs students, full consideration cannot be given to whether he had had genuine access to the education that all students are entitled to in British Columbia.

The SCC next looked at whether B.C. or the District had any justification for their conduct (e.g., in closing the Diagnostic Centre). While the Tribunal had accepted that the District faced financial difficulties, it also found that the cuts were disproportionably made to special needs programs. Also, the District had not looked at any alternatives that could be made available to accommodate special needs students if the Diagnostic Centre were closed. Thus, the finding of discrimination against Jeffrey was restored.

However, the SCC declined to uphold the Tribunal’s finding that systemic remedies were necessary. The Tribunal had ordered the following :

  • That the Province allocate funding on the basis of actual incidence levels, establish mechanisms ensuring that accommodations for Severe Learning Disabilities students are appropriate and meet the stated goals in legislation and policies, and ensure that districts have a range of services to meet the needs of Severe Learning Disabilities students.
  • That the District establish mechanisms to ensure that its delivery of services to Severe Learning Disabilities students meet the stated goals in legislation and policies, and ensure that it had a range of services to meet the needs of Severe Learning Disabilities students.
  • The Tribunal remained seized of the matter to oversee the implementation of its remedial orders.

The SCC held that since the claim was made on behalf of Jeffrey, the remedies should address his situation. The other systemic remedies were too remote. While evidence of systemic discrimination was admissible to demonstrate discrimination against Jeffrey, the remedy should address the individual complaint.

Some disabilities advocates are disappointed that the systemic remedies were not upheld, but this does not mean that other people cannot benefit from the ruling in the case. If they are in the same situation as Jeffrey, they can complain to the Human Rights Tribunal or they can expect that the Province and District will provide appropriate assistance so as to avoid future human rights complaints.



Linda McKay-Panos
Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

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