CCD Factum in the Moore Case

Court of Appeal File No. CA035937

COURT OF APPEAL

ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA, FROM THE ORDER OF THE HONOURABLE MADAM JUSTICE DILLON, OF THE SUPREME COURT OF BRITISH COLUMBIA, IN CHAMBERS, PRONOUNCED FEBRUARY 29, 2008

Between

THE BOARD OF TRUSTEES SCHOOL DIVISION NO. 44

Respondent
(Petitioner)

and

FREDERICK MOORE ON BEHALF OF JEFFREY P. MOORE

Appellant
(Respondent)

and

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTED BY THE MINISTRY OF EDUCATION AND BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL

Respondents
(Respondents)

Court of Appeal File No. CA035936

COURT OF APPEAL

ON APPEAL FROM THE ORDER OF THE HONOURABLE MADAM JUSTICE DILLON, OF THE SUPREME COURT OF BRITISH COLUMBIA, IN CHAMBERS, PRONOUNCED February 29, 2008

Between

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTED BY THE MINISTRY OF EDUCATION

Respondent
(Petitioner)

and

FREDERICK MOORE ON BEHALF OF JEFFREY P. MOORE

Appellant
(Respondent)

and

THE BOARD OF TRUSTEES SCHOOL DIVISION NO. 44 AND BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL

Respondents
(Respondents)

FACTUM OF THE INTERVENOR, COUNCIL OF CANADIANS WITH DISABILITIES

Frederick Moore on behalf of Jeffrey P. Moore
Frances Kelly/Kendra Milne
Counsel for the Appellant
Community Legal Assistance Society
300-1140 West Pender Street
Vancouver, BC V6E 4G1

The Board of Trustees
School Division No. 44
Laura N. Bakan/David Bell
Counsel for the Respondent
Guild Yule & Company
20th Floor - 595 Burrard Street
Box 49170
Vancouver, BC V7X 1R7

Her Majesty the Queen in right of the Province of British Columbia as Represented by the Ministry of Education
Leah Greathead/Heidi Hughes
Counsel for the Respondent
Ministry of Attorney General
Legal Services Branch
1301-865 Hornby Street
Vancouver, BC V6Z 2G3

British Columbia Human Rights Tribunal
Denise E. Paluck
Counsel for the Respondent
# 1170-605 Robson Street
Vancouver, BC V6B 5J3

The Learning Disabilities Association of Canada
Thomas F. Beasley
Counsel for the Intervenor
Coutts Pulver LLP
PO Box 65, 1710-505 Burrard St.
Vancouver, BC V7X 1M6

British Columbia Teachers' Federation
Patrick Dickie
Counsel for the Intervenor
Hastings Labour Law Office
1100-675 Hastings St. W.
Vancouver, BC V6B 1N2

Council of Canadians with Disabilities
Gwen Brodsky/Karey Brooks
Counsel for the Intervenor
c/o Miller Thomson LLP
Robson Court
1000 - 840 Howe St.
Vancouver, BC V6T 2M1

TABLE OF CONTENTS

OPENING STATEMENT

PART 1: STATEMENT OF FACTS

• The Council of Canadians with Disabilities
• Adjudicative Facts
• The Service in Question
• Legal Conclusions

PART 2: ERRORS IN JUDGMENT

PART 3: ARGUMENT

• The Remedial Purpose of the Duty to Accommodate Creates Positive Obligations
• The Decision of the Court Below Fails to Recognize that the Duty to Accommodate Creates Positive obligations
• The Remedial Purpose of the Duty to Accommodate Determines that there is a Constant Comparison that is Inherent in the Duty to Accommodate
• The Supreme Court of Canada has Rejected the Similarly Situated Test
• Applying a Model of Comparator Group Analysis Designed to Identify Differential Treatment is Antithetical to the Duty to Accommodate

PART 4: NATURE OF ORDER SOUGHT

LIST OF AUTHORITIES

Opening Statement

This case is about ensuring that the legal duty to accommodate persons with disabilities is interpreted and applied in a manner that serves its remedial purpose. For people with disabilities the duty to accommodate is a crucial tool for achieving substantive equality. People with disabilities have been excluded from the mainstream of society because societal structures and services have been designed solely with the able-bodied in mind. The remedial purpose of accommodation is to render structures and services equally accessible to persons with and without disabilities.

The reasoning embodied in the decision of the Court below reduces s. 8 of the Human Rights Code to a formal obligation to treat likes alike. This is exemplified by the Court's adoption of a model of comparator group analysis that is designed to prevent difference from being taken into account. As a result, the Court side-stepped the crucial question of whether the claimant was adequately accommodated. In focusing on whether the accommodating measures provided treated all people with disabilities the same, the Court failed to consider the substance of the claim that there had been a failure to adequately accommodate.

Applying a model of comparator group analysis that is designed to serve the goal of preventing differences from being taken into account is, inevitably, antithetical to the goal of substantive equality that the duty to accommodate is meant to achieve. The remedial purpose of the duty to accommodate requires that differences between disabled people and non-disabled people be taken into account. As the Supreme Court of Canada has explained, the "accommodation of differences . . . is the true essence of equality,"[1] and "[t]he principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field."[2]

PART 1: STATEMENT OF FACTS

The Council of Canadians with Disabilities

1. The Council of Canadians with Disabilities ("CCD") was granted leave to intervene in this appeal on December 15, 2008. The CCD is a national, notforprofit umbrella organization representing people with diverse disabilities. CCD's purpose is to secure equality for persons with diverse disabilities in all aspects of law and society. CCD has intervened in this appeal because of a concern that the comparator group analysis adopted by the learned Chambers Judge has the potential to undermine the right of all persons with disabilities to accommodation in a variety of settings.

• Affidavit of Laurie Beachell #1 sworn November 3, 2008 at para. 3

Adjucative Facts

2. CCD accepts the statements of facts set out in the Appellant's factums. CCD takes no position on the ultimate disposition of the appeal. Nor does it take a position with regard to the appropriateness of the specific accommodating measures sought by the complainant. CCD highlights the following findings of fact made by the Tribunal:

i. Education is a service that is made available by the Province to all students. Just as the deaf need sign-language interpretation to allow them to communicate in order to effectively access medical services, students with learning disabilities require supports and accommodations in order for them to benefit from the education service that is offered. Without those supports and accommodations, they cannot learn to read and, without reading, the core curriculum is inaccessible to them.

• Tribunal Decision para. 694

ii. Students, like Jeffrey and others who suffer from dyslexia are in a historically disadvantaged group that is vulnerable both because they are young and because they are disabled. Dyslexia is a severe impediment to learning. Children with dyslexia… are unable to access the benefit of the educational services provided by the Ministry and the districts if their needs are not appropriately accommodated.

• Tribunal Decision para. 738

iii. The District and the Ministry failed to ensure that Jeffrey's needs were appropriately accommodated, in various ways.

• Tribunal Decision para. 827

The Service In Question

3. Regarding the question of whether the complaint of discrimination is with respect to a service customarily available to the public, CCD adopts the analytical approach set out in the factums of the Appellant and the British Columbia Teachers Federation. CCD agrees that the service sought is the service of universal public education, and that special education programs are only a potential means of accessing the service.

Legal Conclusions

4. The Tribunal determined that the service in issue was education services offered generally to the broad public. The Tribunal found that the complainant had been discriminated against based on a failure to adequately accommodate identified disability-related needs. The Tribunal concluded that focusing on a comparator group analysis was unnecessary and unsuitable.

5. The Tribunal found in the alternative that, if a comparator group analysis is necessary, the appropriate comparator group is other students in the public school system who do not require additional supports or accommodations to access educational services.

• Tribunal Decision at paras. 753; 760

6. On judicial review, the Court found the only service in question to be special education. The Court did not determine whether Jeffrey had been denied equal access to the benefits of public education. The Court disagreed with the conclusion of the Tribunal that discrimination had been proven. Central to the Court's decision is the application of a comparator group analysis.

7. In the view of the Court, correctly identifying the comparator group and determining that the complainant has been treated differently from the comparator group is crucial to the "first element of discrimination, is there differential treatment." In order to determine whether there is differential treatment, there must be a comparator analysis, the Court reasoned.

• Court Decision paras. 127; 139; 147

8. The Court then applied the test for identifying the comparator group set out in Auton:

… the comparator group should mirror the characteristics of the claimant group relevant to the benefit or advantage sought except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination. The comparator must align with the benefit and the "universe of people potentially entitled" to it and the alleged ground of discrimination."

• Court Decision para. 128 citing Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 at para. 53

9. Applying the comparator group analysis derived from Auton, the Court rejected "regular" students as a comparator group on the basis that there was no evidence that these other students received the specific accommodating measures sought by the complainant. In the view of the Court, the comparator group necessarily was other students eligible to receive special education, because the comparator group must share the personal characteristics relevant to the qualification for the benefit claimed.

10. The Court concluded that the first element of discrimination, the finding of differential treatment, was not established because the claimant had not established that the specific accommodating measures sought were provided to any other students with special needs funding and programming. The Court reasoned that "to find discrimination there must first be a distinction drawn between the claimant and others . . . . the question is whether the claimant has been denied a benefit that is granted to a comparator group".

• Court Decision at para. 133

PART 2: Errors In Judgment

11. CCD respectfully submits that the Court erred in employing a model of comparator group analysis that is ill suited to the adjudication of a disability accommodation complaint.

12. In particular, the Court erred in determining that to establish discrimination, a disabled student, seeking accommodation in relation to public education, was required to demonstrate differential treatment of disabled students, within the special education categories of funding and programs established for special needs students.

PART 3: ARGUMENT

The Remedial Purpose of the Duty to Accommodate Creates Positive Obligations

13. It is well established that human rights legislation has a unique quasiconstitutional nature, and that it is to be given a large, purposive and liberal interpretation to advance the broad remedial policy considerations underlying it.

• Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at para. 13
• University of British Columbia v. Berg, [1993] 2 S.C.R. 353 at paras. 25-26

14. Giving effect to the remedial purpose of human rights legislation, and the duty to accommodate, which is embedded in human rights legislation, requires that account be taken of the actual conditions of the lives of people with disabilities.

15. The history of persons with disabilities in Canada is largely one of exclusion and marginalization. The Supreme Court of Canada explained in Eldridge:

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions; see generally M. David Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years — What Progress? What Prospects?" (1997), 7 N.J.C.L. 263. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the "equal concern, respect and consideration" that s. 15(1) of the Charter demands.

• Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, para. 56 per La Forest J.

16. People with disabilities have been excluded from the mainstream of society because structures and services have been designed with able-bodied people in mind. For people with disabilities the duty to accommodate is an antidote to the problem of exclusion resulting from the construction of a society based on mainstream attributes to which persons with disabilities will never be able to gain access. In Eaton, the Supreme Court of Canada explained:

Exclusion from the mainstream of society results from the construction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them… It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability

• Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, para. 67

17. Academic literature also drives home the point that the inequality problem that people with disabilities have is not that they are abnormal or flawed. Rather, it is that ableist norms are dominant, and assumed to be deservedly so. In the result, access to structures and services which other people take for granted is not available to people with disabilities. Commenting on that very point, Fiona Sampson writes:

Historically, society has understood the experience of disability as rooted in the individual and has analyzed his/her difference in bio-medical terms. This traditional social construction of disability places the emphasis on the individual's lack of conformity with the non-disabled norm. The traditional social construction of disability has been identified by many authors and academics as the greatest source of disability discrimination in society.

• Fiona Sampson, "Granovsky v Canada (Minister of Employment and Immigration): Adding Insult to Injury" (2005) 17 Canadian Journal of Women and the Law 72.

18. In Eldridge, the Court rejected argument to the effect that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits, as bespeaking a "thin and impoverished vision of s. 15(1)."

• Eldridge v. British Columbia (Attorney General), supra, para. 73

19. Although Eldridge arose under s. 15 of the Charter, its reasoning with regard to the duty to take positive steps to make a service accessible, applies with equal force to s. 8 of the Human Rights Code. Under human rights legislation, the duty to accommodate is also a positive duty. It requires respondents to ensure that services are accessible, subject only to the defence of undue hardship.

• Eldridge v. British Columbia (Attorney General), supra, paras. 73 and 79

20. The remedial purpose of accommodation is to overcome a history of exclusion, and to render services and structures to which the public has access equally accessible to persons with and without disabilities. In Via Rail, which represents a recent application of principles articulated in Eldridge, the Supreme Court of Canada put it this way:

The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right.

• Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650 at para. 121; see also para. 162.

21. It would be wrong to conceive of the duty to accommodate as amounting to a contest between 'people with disabilities' and members of 'the public.' As the Supreme Court of Canada recognized in VIA Rail, people with disabilities are members of the public.

• Council of Canadians with Disabilities v. VIA Rail Canada Inc., supra, paras. 162; 221

22. Reducing the duty to accommodate to a right merely to be treated the same in relation to a benefit that others receive creates a thin and impoverished vision of human rights legislation. Such an approach cannot fulfill the remedial purpose of the duty to accommodate. Giving effect to the remedial purpose of the duty to accommodate necessarily requires recognizing that the duty to accommodate has positive content.

• Court Decision at paras. 115, 131, 130, 132

The Decision of the Court Below fails to Recognize that the duty to Accommodate creates positive obligations

23. The decision of the Court below fails to recognize that the duty to accommodate creates positive obligations, and, consequently, does not give effect to the remedial purpose of the duty to accommodate. As stated above, CCD's submissions concentrate on the comparator group analysis. However, it must be recognized that the issue of the service in question and the comparator group analysis are not strictly compartmentalized. The Court dealt with the question of what is the service, first, as a somewhat independent question. However, a very closely related issue—that of identifying the benefit in issue—also arises as part of the comparator group analysis.

24. Initially, the Court defined the service in issue, narrowly, as special education. For purposes of conducting the comparator group analysis, the Court defined the benefit in issue, even more narrowly, as the specific accommodation requested.

• Court Decision at paras. 78-122; 130-147

25. Having defined the benefit in issue as the specific accommodation sought, the Court then asked whether other students with disabilities had received the specific accommodation requested. Because they had not, the Court concluded there was no differential treatment. The determination that the comparator group was other students with disabilities was not only the result of defining the service in question as special education. It was also the inevitable result of the applying a model of comparator group analysis that requires that the benefit be a benefit that others receive. If the benefit is narrowly defined, and there is no one else who receives it, the entire comparator group analysis unravels. There is no comparability. There is no differential treatment. The claim must fail.

• Auton (Guardian ad litem of) v. British Columbia (Attorney General), supra
• Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357

26. Even if the service in issue were defined as public education, on the Auton/Hodge approach to comparator group analysis, if the benefit in issue is defined as the specific accommodation sought, the claim could still fail because the specific accommodation sought is not provided to others.

27. Further, on the Auton/Hodge approach, even if the benefit in issue is defined as public education, the claim could also still fail because the complainant was not treated any differently from other students who do not require the accommodation.

28. A requirement that the accommodating measure sought be a benefit that others receive is highly problematic for the duty to accommodate. It is intrinsic to the duty to accommodate that positive steps may be required, to make the benefits of public services, such as the education system and the health care system, accessible to persons with disabilities. Moreover, as the Supreme Court of Canada recognized in Eldridge:

The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field.

• Eldridge v. British Columbia (Attorney General), supra, at para. 78

29. The decision of the Court below is predicated on the faulty assumption that the duty to accommodate is merely a duty to find the best accommodation within customarily available special education services.

• Court Decision at para. 122

30. Underlying the Court's approach to both how to characterise the service in question, and the benefit sought, is a crucial problem: a failure to recognize that the duty to accommodate is not merely a negative obligation to refrain from differential treatment between similarly situated people. Nor is it merely a duty to find the best accommodation within a range of existing accommodating measures. Rather, the duty to accommodate is a positive obligation to ensure access to public services, up to the point of undue hardship.

31. As indicated by decisions such as Meiorin, the burden of proving that further accommodation is not possible without incurring undue hardship rests with the respondent. This burden is not easily discharged. It is crucial that a strong analytical distinction be maintained between discrimination and the defence of undue hardship.

• British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3

32. The duty to accommodate is a free-standing duty that flows from the Human Rights Code, to make services accessible, whether or not the specific accommodating measures sought, or indeed any accommodating measures, have been provided to anyone else.

33. CCD asks this Court not to adopt legal reasoning that in effect replicates the historical marginalization of people with disabilities, by artificially confining the discrimination analysis, and the extent of the specific accommodating measures that can be requested to accommodating measures that are already provided to others.

The Remedial Purpose of the Duty to Accommodate Determines that There is a Constant Comparison that is Inherent in the Duty to Accommodate

34. It is not necessary to apply a detailed comparator group analysis in an accommodation case. This does not mean that accommodation entails no comparison among groups. Underlying the remedial purpose of overcoming a history of exclusion, and making society's structures and services equally accessible to person with disabilities is an inherent comparison. That comparison, necessarily, is between persons with disabilities and persons without disabilities with regard to the relatively disadvantageous effects on persons with disabilities of dominant norms designed for persons without disabilities.

35. The comparison is a constant. It is a defining component of the concept of the duty to accommodate. Because, in accommodation cases, the comparison is constant it is unnecessary to discover afresh what the comparator group is on a casebycase basis. In other words, it is unnecessary to conduct a detailed comparator group analysis in an accommodation case.

36. Courts and other tribunals interpreting and applying the duty to accommodate have recognized that it is not necessary to engage in a detailed comparator group analysis. For example, the Ontario Divisional Court judicially reviewed a decision of the Ontario Human Rights Tribunal which had found that the employer, ADGA, discriminated against a probationary employee, Mr. Lane, and failed to take reasonable steps to accommodate him. Mr. Lane suffered from bipolar disorder. He did not disclose his disability at the time of hiring. A few days after he began work he exhibited manic behaviour and was terminated. He filed a human rights complaint. The Tribunal found in his favour. The Divisional Court dismissed ADGA's application for judicial review of the Tribunal's decision. In the judicial review, ADGA took the position that the Tribunal's decision must fail because Mr. Lane and the Commission failed to establish or identify a comparator group against which to measure the treatment of Mr. Lane. The Commission took the position that the comparator group analysis did not apply.

• Lane v. ADGA Group Consultants Inc., [2007] O.H.R.T.D. No. 34; 61 C.H.R.R. D/307

ADGA Group Consultants Inc. v. Lane, [2008] O.J. No. 3076 (Div. Ct.)

37. The Court affirmed there was no need for the Tribunal to determine whether Mr. Lane had established a prima facie case of discrimination with reference to a comparator group. The Court stated that accommodation is a dynamic, individualized process. The Court agreed with the Commission's submissions that:

… the comparator group analysis is inappropriate because a person with a disability who seeks accommodation of his or her needs does not seek to be treated the same way that others are treated. Avoiding discrimination on the basis of disability requires distinctions to be made taking into account the actual personal characteristics of people with disabilities. It is the failure to accommodate needs to the point of undue hardship which results in discrimination against persons with disabilities.

• ADGA Group Consultants Inc. v. Lane, [2008] O.J. No. 3076 at para. 88

38. The Court accepted the Commission's distinction between disability cases where accommodation is sought and cases where a person with a disability seeks identical treatment in the form of equal access to a benefit scheme. The Court stated: "It is the latter cases that may be conducive to a comparator group analysis because the person with a disability is seeking equal access to the same benefit provided to persons with different disabilities."

• ADGA Group Consultants Inc. v. Lane, supra, at para. 91

The Supreme Court of Canada has Rejected the Similarly Situated Test

39. In Andrews, the Supreme Court of Canada rejected the similarly situated test.

• Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143 at paras. 25-30

40. As Fay Faraday has observed, the similarly situated test was rejected for good reason because the choice of comparator group could easily be manipulated to reinforce relationships of profound inequality.

• Fay Faraday, "Access to Social Programs: Substantive Equality Under the Charter of Rights" (2006) 21 N.J.C.L. 111 at p.124

41. In Andrews, the Court recognized that "identical treatment may frequently produce serious inequality." As noted by D. Pothier, by recognizing that identical treatment may frequently produce serious inequality, the Court acknowledged the importance of taking difference into account.

• Andrews v. Law Society (British Columbia), supra, at para. 34
• Dianne Pothier, "The Conundrum of Comparators" paper presented at Strategizing Systemic Inequality Conference (University of Ottawa, March 11, 2005) at p.10

42. Recently in R v. Kapp, the Supreme Court of Canada reaffirmed its commitment to Andrews and to s. 15(1) as a substantive equality guarantee. The Court expressly recalled the admonition of McIntyre J. in Andrews against "a sterile similarly situated test focused on treating 'likes' alike."

• R v. Kapp, 2008 SCC 41 paras. 14-20

43. In R. v. Kapp, the Court also acknowledged that criticism has accrued for the way in which formalism has resurfaced in some of the Court's post-Andrews jurisprudence, "in the form of an artificial comparator group analysis focused on treating likes alike."

• R v. Kapp, supra, at para. 22

44. Attempting to apply an elaborate comparator group analysis poses risk to any discrimination complaint. The risk is that the analysis will deteriorate into a highly formalistic and ultimate sterile similarly situated test. There is an additional and more fundamental problem inherent in applying a similarly situated test to an accommodation case, because the similarly situated test is rooted in formal equality. The duty to accommodate is not about achieving formal equality. Applying a formal equality model to the duty to accommodate leads to perverse results. This point is further developed below.

Applying a Model of Comparator Group Analysis Designed to Identify Differential Treatment is Antithetical to the Duty to Accommodate

45. Comparator group analysis as understood and applied in Auton, Hodge, and in the decision of the Court below, is designed to determine whether a benefit scheme treats similarly situated people differently. This model of comparator group analysis entails a search for evidence of differential treatment of a similarly situated comparator group.

46. Applying a model of comparator group analysis that is intended to determine whether there has been differential treatment of similarly situated groups is antithetical to the duty to accommodate. It is guaranteed to result in defeat for the claimant, and to render the duty to accommodate meaningless. The search for differential treatment will always be fruitless.

47. Comparator group analysis, with its focus on finding differential treatment, is intended to serve a very particular objective of anti-discrimination and equality guarantees, that of preventing difference, or untrue characteristics, from being taken into account. However, as explained by Justice Sopinka in Eaton, preventing differences from being taken into account is only one objective of protections against disability discrimination:

The principal object of certain of the prohibited grounds [referring to s. 15 of the Charter] is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society's benefits and to accommodate them.

• Eaton v. Brant County Board of Education, supra at para. 67

48. This other "equally important objective", accommodation of difference, cannot be served by this model of comparator group analysis, which, for simplicity, may be referred to as a formal equality model of comparator group analysis.

49. In an accommodation case, it makes no sense to engage in a search for differential treatment. The objection of the Moores' accommodation complaint, and of disability accommodation complaints generally, is not that the complainant was treated differently from members of another group based on disability, but rather that there has been a failure to take disability into account with the result that the complainant's access to a service was compromised. The fact that there may have been same treatment of some groups is irrelevant.

50. Requiring a person seeking an accommodation to compare him or herself to other persons with disabilities, who, incidentally, may also be suffering from a lack of accommodation, risks reducing the duty to accommodate to a 'race to the bottom.' It perpetuates the very exclusion from the mainstream that is at the heart of an accommodation claim.

51. It is illogical and counter-productive to require a person seeking accommodation because of disability, to demonstrate that they have been treated differently from anyone else. Quite simply, the goal of accommodating persons with disabilities is not to address different treatment at all. Rather, it seeks to render services, including the education system, accessible to persons with disabilities, taking account of disability-related difference, and making such adjustments to norms and practices as are reasonably possible.

52. The appropriate analytical framework for an accommodation case is clearly discernible from well-established human rights jurisprudence. It does not entail the application of a comparator group analysis. The proper analytical framework, if applied in this case, would require not merely a determination that the complainant was accorded some accommodation, but that there was accommodation up to the point of undue hardship.

• Ontario Human Rights Commission v. Simpsons-Sears (O'Malley), [1985] 2 S.C.R. 536
• British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin")

53. A proper analysis of any discrimination claim is also a contextual analysis. In the case at bar, a contextual analysis would look at the impact of exclusion from the benefits of public education, not by reference to whether other groups on the margins may be equally excluded but by reference to whether children with disabilities are, because of their disability, excluded from the benefit of a fundamental social program that children without disabilities take for granted.

• Faraday, supra, at pp. 124-125

54. The Supreme Court of Canada has never applied a comparator group analysis to an accommodation case. Cases in which the Supreme Court of Canada has applied a comparator group analysis are clearly distinguishable. They are all cases in which what was being sought was same treatment.

• Auton (Guardian ad litem of) v. British Columbia (Attorney General), supra
• Hodge v. Canada (Minister of Human Resources Development), supra

55. Further, cases in which people with disabilities have been compared with other people with disabilities are ones in which the claimants have sought to be treated the same as other people with disabilities, within the terms of targeted social benefit schemes. Those cases are also clearly distinguishable from an accommodation case.

• Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 CHRR D/87 (SCC)
• Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703
• Nova Scotia v. Martin; Nova Scotia v. Laseur, [2003] 2 S.C.R. 504

56. Accommodation is not about same treatment. It is about inclusion for people with disabilities, who have historically been excluded from full participation in society. In an accommodation case, the issue is not whether the claimant has received formal equality of treatment but whether the actual characteristics of the person have been accommodated so that they can access a benefit that is otherwise available.

• Eaton v. Brant County Board of Education, supra at para. 66

57. As McIntyre J. explained, in Andrews v. Law Society of British Columbia, the "accommodation of differences . . . is the true essence of equality". It is imperative that the duty to accommodate be given full effect, to fulfill the right of people with disabilities to substantive equality, and to "foster a society in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia."

• Andrews v. Law Society (British Columbia), supra, at para 31
• British Columbia Human Rights Code, supra, s. 3

PART 4: NATURE OF ORDER SOUGHT

CCD requests this Court expressly clarify that:

1. The central comparison underlying the duty to accommodate is with regard to the disproportionately disparate effects of ableist norms and practices on persons with disabilities, as compared with persons without disabilities. Because this group comparison is a constant in all accommodation cases, it is unnecessary to engage in a case-by-case search to identify the correct comparator group and, accordingly, inappropriate to apply a detailed comparator group analysis.

2. The duty to accommodate is a positive obligation to make services accessible to persons with disabilities. It is unsuitable in a disability accommodation case to apply a model of analysis designed to determine whether there has been differential treatment of similarly situated groups. It is not appropriate to require an accommodation claimant to prove either that they have been treated differently or that they are similarly situated to anyone. Accommodation is an issue of disparate effects on differently situated people, which are the result of norms and practices, which, frequently, do treat everyone the same.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED: March 20, 2009.

Gwen Brodsky
Council of Canadians with Disabilities

Karey M. Brooks
Council of Canadians with Disabilities

List Of Authorities

Case Law	Page
ADGA Group Consultants Inc. v. Lane, [2008] O.J. No. 3076 (Div. Ct.)	16, 17, 18
Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143	18, 19, 22, 23
Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657	7, 14, 19, 22
British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3	15, 21
Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650	12, 13
Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241	11, 20, 22
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624	10, 12, 14, 15
Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 CHRR D/87 (SCC)	22
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703	22
Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357	14, 19, 22
Lane v. ADGA Group Consultants Inc., [2007] O.H.R.T.D. No. 34; 61 C.H.R.R. D/307	17
Nova Scotia v. Martin; Nova Scotia v. Laseur, [2003] 2 S.C.R. 504	22
Ontario Human Rights Commission v. Simpsons-Sears (O'Malley), [1985] 2 S.C.R. 536	21
R v. Kapp, 2008 SCC 41	18, 19
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84	10
University of British Columbia v. Berg, [1993] 2 S.C.R. 353	10
Secondary Sources
Fay Faraday, "Access to Social Programs: Substantive Equality Under the Charter of Rights" (2006) 21 N.J.C.L. 111	18, 21
Fiona Sampson, "Granovsky v. Canada (Minister of Employment and Immigration): Adding Insult to Injury" (2005) 17 Canadian Journal of Women and the Law 72	11
Dianne Pothier, "The Conundrum of Comparators" paper presented at Strategizing Systemic Inequality Conference (University of Ottawa, March 11, 2005)	18

Legislation

Case Law	Page
British Columbia Human Rights Code, R.S.B.C. 1996, c. 210	i, 12, 23

• [1]Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 169
• [2]Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 78