January 8, 2013
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:
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:
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:
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).
The SCC’s decision in Moore v. British Columbia (Education) is significant for several reasons:
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:
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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