On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and meaningful access to education to a student with severe dyslexia was discriminatory. The SCC found, based on the applicable BC legislation, that:

• “education” is a service customarily available to the public; and
• the “special education” required by students with learning disabilities is the means by which such education is meaningfully accessed.

The SCC thus recognized that all children have a right to education, and public school administrators have a positive obligation to ensure learning disabled children have meaningful access to such education. To fulfill this obligation, education administrators must:

• adopt a proactive approach to understand and address how programming changes will affect learning disabled students; and
• fully explore alternative ways to ensure they receive the means they require to be educated.

BACKGROUND

At age four, Jeffrey Moore entered kindergarten at a Vancouver public school.  Educators soon discovered Jeffrey needed additional support to learn to read, so the school provided him with remedial resources.  When Jeffrey was in Grade 2, a school psychologist concluded the remedial instruction was insufficient, and recommended Jeffrey attend the Diagnostic Center, a special needs program implemented and administrated by the School District.

As a result of subsequent Provincial budget cuts, the District closed the Diagnostic Center; it did not first undertake any assessment – financial or otherwise – into the impact of this decision on its ability to educate learning disabled students like Jeffrey, nor did it investigate alternative solutions to ameliorate any such impact or otherwise provide remedial services.  Furthermore, the District kept certain other, discretionary programs – like the Outdoor School Program – intact.  The closure left the District without the necessary remedial resources Jeffrey required.  It recommended Jeffrey’s parents enrol him in a specialized private school; with no alternative, Jeffery’s parents did so, at their own expense.  He remained there until his graduation.

Jeffrey’s father filed a human rights complaint against the Province of B.C. and the District alleging they discriminated against him by denying him a service customarily available to the public because of his disability, contrary to the B.C. Human Rights Code: his education.

TRIBUNAL AND LOWER COURTS

The B.C. Human Rights Tribunal decided the school system’s failure to offer the necessary means to educate Jeffery amounted to individual discrimination by the District, and to systemic discrimination against severe learning disabilities students by the District and the Province. It ordered the District to reimburse the Moores for all costs related to Jeffery’s private school tuition, and to make a further payment of $10,000.00 for pain and suffering.  The Tribunal ordered the District and the Province to correct the systematic discrimination.  Both entities asked B.C.’s Supreme Court to judicially review this decision on the basis it had made a legal error.

The BC Supreme Court ruled the Tribunal had made a legal error by comparing Jeffrey’s situation with that of the general student population rather than that of other special needs students.  Jeffrey’s family appealed this decision to the B.C. Court of Appeal, the majority of which agreed with the Supreme Court’s conclusion.

SUPREME COURT OF CANADA

The SCC unanimously agreed with the Tribunal that the District discriminated against Jeffrey because of his disability by failing to provide him with meaningful access to education.

The SCC ruled Jeffrey’s dyslexia was a “disability”.  The SCC then decided that the “service customarily available to the public” in this case was not merely access to “special education”, but rather to “education” generally.  Thus, the effect of the District’s actions on Jeffrey’s access to education must be compared to that of all students, not of other learning disabled students.

The SCC agreed with the Tribunal that there was ample evidence showing the District failed to provide Jeffrey the education to which he was entitled:

• The evidence was clear that everyone – the District, its employees, and the experts involved in Jeffrey’s case – recognized and agreed that Jeffrey required intensive remedial services to have meaningful access to education.
• The District closed the Diagnostic Center.  Further, it failed to first determine how such closure would affect students with severe learning disabilities, and to first solicit the input of employees with key roles in assisting such students. Before its closure, the District thought the Diagnostic Center was a useful service; the SCC concluded the decision to close the Diagnostic Center was solely financially motivated.
• The District did not create any alternative means to provide Jeffrey with the remedial services he required to access an education: the only option was private school.
• The District’s conduct was not justified for financial reasons.  The budgetary cuts were relevant, but the District disproportionately cut special needs programs. The SCC thus rejected the District’s argument that equality was unaffordable because it failed to consider other financial options to accommodate learning disabled students, and provide them with meaningful access to education, writing “[i]n order to decide that it had no other choice, [the District] had at least to consider what those other choices were”.

Respecting the Province, however, the SCC concluded the Tribunal did not have the authority to impose systemic remedies; furthermore, the complaint was individual to Jeffrey’s case and the impact on students with disabilities in general was not part of the human rights complaint. The SCC thus set aside the Tribunal’s orders against the Province.

Click here to read the SCC’s decision in Moore v. British Columbia (Education).

COMMENT

The SCC’s decision in Moore v. British Columbia (Education) is significant for several reasons:

• The SCC decided under BC legislation that the “service customarily available to the public” is education generally, rather than “special education”, and thus a learning disabled child’s access to education must be compared to access by all children – not only by other learning disabled children.  This effectively raises the bar that education administrators in BC must meet.  For example, in the wake of budgetary cuts, education administrators may decide to cut all special needs programs equally – arguably negatively impacting all learning disabled equally.  However, in light of the SCC’s decision, this could breach human rights legislation.
• The SCC recognized that all BC children have an equal right to meaningful access to education, and imposed a corresponding positive obligation on education administrators to take measures to ensure no student is denied such access because of a disability – regardless of their funding.
• The decision demonstrates that education policies themselves, and not only the manner in which they are implemented, can form the basis of a human rights complaint.

Human rights legislation in all Atlantic Canadian provinces prohibits discrimination based on disability in the provision of a public service, and this decision will potentially have an impact well beyond B.C.  In light of recent budgetary cuts in the education sector imposed by some Provinces the SCC’s decision provides clarity and guidance for education administrators obligated to make program changes. While such administrators are financially dependent on their respective provincial governments, they must be mindful of any positive obligations imposed on them by legislation in their Province, to ensure all students have access to meaningful education when making decisions that could impact the education of students with learning disabilities.

Each Province has set its own standard for access to education by legislation, making a completely uniform overview impossible and requiring a case by case analysis.  However, in general administrators should keep in mind the following when contemplating spending options that could impact the education of learning disabled students:

• Administrators should carefully consider their obligations under applicable provincial legislation to offer consistent access to education.
• Administrators should evaluate – and document such evaluation fully – how budgetary cuts to, or the termination of, educational programs will affect students with disabilities.
• The evaluation should include identification of alternative options, a financial assessment of each, and the input and opinion of key employees working closely with such students.

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Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour and Employment Team to discuss this topic or any other legal issue.

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