Thursday, 03 January 2013 00:16
Case comment by Stacy F. Robertson:
In Moore V. British Columbia (Education), the Supreme Court of Canada delivered a unanimous decision in which it upheld the ruling of the B.C. Human Rights Tribunal that the North Vancouver School District (the “School District”) discriminated against Jeffrey Moore on the basis of his learning disability when it closed the Diagnostic Centre based solely on financial considerations. The Court also dismissed the discrimination claim against the Province in relation to its bulk funding formula.
Highlights for Boards of Education
The decision of the Supreme Court of Canada highlights two practical realities for school boards in British Columbia:
- School boards are ultimately responsible for providing services in accordance with the School Act while ensuring compliance with the B.C. Human Rights Code;
- Financial considerations alone without a full needs based analysis will not provide sufficient justification for discrimination under the B.C. Human Rights Code.
The Factual Background
To fully appreciate the implications of this case for School Districts, it is helpful to understand the factual background to this matter. Jeffrey Moore was diagnosed by several representatives of the School District with a severe learning disability. The Human Rights Tribunal accepted the evidence of the representatives of the School District that because the Diagnostic Centre was closed, Jeffrey could not get the intensive instruction he needed in the public school. The representatives of the School District recommended that he attend a private school specializing in teaching children with learning disabilities. The Supreme Court of Canada accepted this factual finding by the Tribunal and relied on it in determining that Jeffrey was not provided meaningful access to educational services available to other students generally.
It is important to note that none of the School District’s representatives stated that there were alternative programs or services in the School District available to Jeffrey that would sufficiently or adequately address his needs and provide Jeffrey with meaningful access to the education services that were provided to other students. The conclusion of the representatives of the School District was simply that the services that were previously available, and which Jeffrey clearly needed, were no longer available. With this factual background, any of the alternate services and support provided to Jeffrey would not be sufficient to overcome the finding of discrimination based on the denial of the program which was previously available.
The Legal Analysis
The Human Rights Code provides that it is discrimination to deny a person or class of persons any accommodation, service or facility customarily available to the public on the basis of a prohibited ground without reasonable justification. The issue as stated by the court was “whether Jeffrey has, without reasonable justification, been denied access to the general education available to the public in British Columbia based on his disability, access that must be “meaningful””.
In Jeffrey’s case, due to the closure of the Diagnostic Centre, he was denied meaningful access to the education services available to other students on the basis of his learning disability. The Supreme Court of Canada found that the service customarily available was not special education but meaningful access to education generally. The special education services are simply the vehicle to provide the meaningful access to the education that other students received in the School District. The importance of this key distinction is that Jeffrey was not treated any differently than any other learning disabled student but he was treated differently than other students generally who did have access to meaningful education thus supporting the finding of discrimination.
The Silver Lining for School Districts
The Supreme Court of Canada did provide some relief to School Districts when it noted that a certain margin of deference is owed to governments and administrators in implementing broad aspirational education policies and goals for all students. This highlights the need for School Districts to critically evaluate any program cuts to students with learning disabilities to ensure that alternative programs are put in place or all alternatives to cut other programs that do not affect a protected group under the Human Rights Code have been considered and evaluated. The Supreme Court of Canada focused on a needs based analysis to ensure that learning disabled students have access to meaningful educational outcomes.
The Court recognized that administrators cannot ensure results but programs should be designed to ensure meaningful access is being provided to all students. The Court recognized that School Districts should have some latitude in determining what meaningful access is as long as a proper needs based analysis is being conducted.
A PDF of this case comment is available for download HERE.