Court File No. 24668

IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

IN THE MATTER of an Appeal to the Supreme Court of Canada from the Court of Appeal for Ontario dated February 15, 1995, pursuant to leave to intervene granted by this Honourable Court on June 8, 1996.

BETWEEN:

THE BRANT COUNTY BOARD OF EDUCATION

Appellant

- and -

CAROL EATON AND CLAYTON EATON

Respondents

- and -

CANADIAN FOUNDATION FOR CHILDREN, YOUTH AND THE LAW,

LEARNING DISABILITIES ASSOCIATION OF ONTARIO,

ONTARIO PUBLIC SCHOOL BOARDS ASSOCIATION,

THE DOWN SYNDROME ASSOCIATION OF ONTARIO,

PEOPLE FIRST OF CANADA, COUNCIL OF CANADIANS WITH DISABILITIES,

CONFÉDERATION DES ORGANISMES DE PERSONNES HANDCAPÉE

DU QUEBEC, CANADIAN ASSOCIATION FOR COMMUNITY LIVING

ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF QUEBEC and

ATTORNEY GENERAL OF BRITISH COLUMBIA

Intervenors

FACTUM OF THE INTERVENORS

COUNCIL FOR CANADIANS WITH DISABILITIES

CONFÉDERATION DES ORGANISMES DE PERSONNES

HANDICAPÉES DU QUEBEC, CANADIAN ASSOCIATION FOR

COMMUNITY LIVING AND PEOPLE FIRST

1. This is an Appeal by the Brant County Board of Education (the "School Board") from the Order of the Ontario Court of Appeal dated February 15, 1995 (the "Decision"), reversing the Order of the Divisional Court which had denied an Application for Judicial Review of the Decision of the Ontario Special Education (English) Tribunal (the "Tribunal") dated November 19, 1993.

2. The Council of Canadians with Disabilities (the "CD"), the Confederation des Organismes de Personnes Handicappes du Quebec ("COPHAN:), the Canadians Association for Community Living (the "CACL") and People First of Canada ("People First") (collectively the "Coalition") are organizations which represent persons with disabilities across Canada and focus upon disability right. Its mandate is to enhance and promote the equality rights of people with disabilities ad to educate the public about those rights.

3. The Coalition has been granted leave to intervene in the appeal of this matter pursuant to the Order of this Honourable Court dated June 8, 1996 with respect to:

(a) section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982 (the "Charter"); and

(b) the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code").

PART I - THE FACTS

4. The Coalition repeats and relies upon the facts set out in the Respondents' factum. To the extent possible, for the purposes of this intervention, the Coalition will not address any factual disputes which are specific to this appeal.

PART II - THE ISSUES ADDRESSED BY THE COALITION

ISSUE ONE

5. The Coalition submits that the Education Act [cite] and the relevant regulations thereunder (collectively the "Act") or alternatively, the Tribunal's Decision infringe Emily Eaton's equality rights under s. 15(1) of the Charter [Appellant's Issues 3(i), (ii) and (iii)].

ISSUE TWO

6. The Coalition submits that the special education scheme under the Act is not "protected" from Charter scrutiny by s, 15(2) of the Charter [Appellant's Issue 3(iv)].

ISSUE THREE

7. The Coalition submits, in the alternative, that the Act infringes Emily' equality rights under s. 1 of the Code.

OTHER ISSUES

8. In its fifth issue, the appellant asserts that the court of Appeal found "that parents have the right to choose whether their child's equality rights will be overridden" and to waive the child's equality rights. This assertion mischaracterizes the Court of appeal's decision. In fact, the Court held only that where the parents agree on behalf of their child that he or she should be educated in a special class there is no constitutional impediment to such a placement. Had the Court gone as far as alleged by the appellant, the Coalition would have objected to that part of its decision; as it did not the Coalition will not address this issue.

9. The Coalition will not address issues 1, 2, 3(ii)(a) and (b), 4 or 6 as framed by the appellant. Similarly, the Coalition will not address purely factual issues. Instead, the Coalition will focus on the proper analytical framework to be applied in considering the education of all students with disabilities.

PART III - ARGUMENT

ISSUE ONE - SECTION 15(1) OF THE CHARTER:

A. Overview of the Coalition's Position

10. The Coalition submits that:

(a) in providing education to a student with disabilities, there is a presumption in favour of a regular classroom setting (with appropriate support);

(b) when analyzed in its social, historical and political context, the placement of a student with disabilities in a segregated classroom without his or her consent is discriminatory within the meaning of section 15 of the Charter;

(c) any derogation from a regular classroom placement must, therefore, be justified by the relevant school board.

B. The Proper Analytical Framework

(a) Interpreting the Charter - General

11. This Honourable Court held in R. v. Oakes that the provisions of the Charter are to be purposively and generously interpreted.

R. v. Oakes, [1986] 1 S.C.R. 103 at 136

Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 155-56

R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344

RWDSU, Local 580 v. Dolphin Delivery, [1986] 2 S.C.R. 573 at 603

Hills v. Attorney General (Canada), [1988] 1 S.C.R. 513 [per L'Heureux-dube J.] at 558

(b) The Guarantee of Equality

12. The equality guarantees in the Charter are found in section 15(1), which provides:

Every individual is equal before the law and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 per McIntyre J. at 170

13. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. The overall purpose of section 15 if "to remedy or prevent discrimination against groups subject to stereo typing, historical disadvantage and political and social prejudice in Canadian society."

R. v. Swain, [1991] 1 S.C.R. 933 at 992

Andrews v. Law Society of British Columbia, supra at 171

(c) Elements of a Section 15(1) Analysis

14. A Section 15(1) analysis involves two distinct yet interrelated steps. The claimant must first demonstrate that there has been a denial of "equal protection" or "equal benefit" of the law, as compared to some other person. The claimant must then show that the denial constitutes discrimination. In order for a finding of discrimination to be made out, the claimant must show that:

((a) the denial rests on an enumerated or analogous ground; and

(b) the unequal treatment is based on the stereotypical application of presumed or personal characteristics.

Miron v. Trudel, [1995] 2 S.C.R. 418 at

Thibaudeau v. Canada, [1995] 2 S.C.R. 627 at

Egan v. Canada, [1995] 2 S.C.R. 513 at

15. Only rarely will a distinction made on an enumerated or analogous ground amount to discrimination. Faced with a denial of equal benefit based on an enumerated or analogous ground, one would be hard-pressed to show that the distinction is not discriminatory.

Miron v. Trudel, supra at 487

16. The appellant argues that the distinction drawn in this case is based upon a relevant characteristic (i.e. disability) and, therefore, is not discriminatory within the meaning of section 15(1). As McLachlin J. made it clear in Miron v. Trudel, however:

Relevance is only one factor in determining whether a distinction on an enumerated or analogous ground is discriminatory in the social and political context of each case. A finding that the distinction is relevant to the legislative purpose will not in and of itself support the conclusion that there is no discrimination. The inquiry cannot stop there; it is always necessary to bear in mind that the purpose of s. 15(1) is to prevent the violation of human dignity and freedom through the stereotypical application of presumed group characteristics … it does not follow from a finding that a group characteristic is relevant to the legislative aim that the legislator has employed that characteristic in a manner which does not perpetuate limitations, burdens and disadvantages in violation of s. 15(1). This can be ascertained only by examining the effect or impact of the distinction in the social and economic context of the legislation and the lives of the individuals it touches. [Emphasis added]

Miron v. Trudel, supra at 488

17. Adopting a "relevance test" is, in the Coalition's submission, improper for two important reasons. First, such a test permits distinctions based on enumerated or analogous grounds which, in turn, violates the purpose of section 15(1). Second, it blurs the line between the analyses under sections 15 and 1. As this Honourable Court clearly stated in Andrews v. Law Society of British Columbia, an analysis within section 15 of whether the distinction is reasonable leaves little to section 1 because, in determining reasonableness, one must look at the conflicting state interest and determine if its importance outweighs the denial of equality.

Andrews v. Law Society of British Columbia, supra at

(d) Elements of the section 1 Analysis

18. Assuming the claimant is able to demonstrate an infringement of section 15(1), the onus then shifts pursuant to section 1 to the party supporting the discriminatory conduct to demonstrate with persuasive and cogent evidence that the law constitutes a limit which is reasonable and demonstrably justifiable in a free and democratic society.

R. v. Oakes, supra, at 136-137

Hogg, supra, at 52-19 and 52-20

19. The shift of the burden is appropriate. As McLachlin J. wrote in Miron v. Trudel:

[The shift in the burden] places the duty of adducing proof upon the parties who are in the best position to adduce it. … It is the state's law that has violated the individuals' equality on suspect grounds , and it is the state that most appropriately defends the violation. To require the claimant to prove that the unequal treatment suffered is irrational or unreasonable or founded on irrelevant considerations would be to require the claimant to lead evidence on state goals, and often to put proof of discrimination beyond the reach of the ordinary person. Nor is the resultant burden unjust to the state; while it is open to the state to attempt to differentiate on suspect stereotypical grounds, it must be prepared to justify such suspect differentiation if it wishes its laws to stand. [Emphasis added]

Miron v. Trudel, supra at 485

20. The burden imposed upon the party seeking to justify a violation of equality rights is a particularly onerous one. That party must demonstrate that:

(a) the impugned legislation addressed a "pressing and substantial: objective;

(b) the legislative measure is rationally connected to the objective;

1. the impugned legislation impairs rights and freedoms as little s possible;

and

(d) a proportionality exists between the important of the objective and the injurious effects of the impugned legislation.

R. v. Oakes, supra at 138-40

21. In conducting a section 1 analysis, the Court must be guided by the values and principles essential to a free and democratic society. According to Dickson C J., these values include:

respect for inherent dignity of the human person, commitment to social justice and equality, accommodation of wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance participation of individuals and groups in society.

R. v. Oakes, supra at p. 136

C. Applying the Analytical Framework to Emily Eaton's Placement

(a) Fundamental Importance of Education

22. No Charter analysis of the placement of students with disabilities can proceed without an appreciation for the fundamental importance of education. Education is the principal means by which children acquire the skills they require to become contributing members of society. As articulated by this Honourable Court in Jones v. the Queen.

Whether one views it from an economic, social, cultural or civic point of view, the education of the young is critically important in our society. From an early period, the provinces have responded to this interest by developing schemes for compulsory education. Education is today a matter of prime concern to government everywhere. Activities in this area account for a very significant part of every provincial budget. Indeed, in modern society, education has far-reaching implications beyond the province, not only at the national, but at the international level. Much of what was said by the Supreme Court of the United States … in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) at p. 493, has application here:

Today education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even services in the armed forces. It is the very foundation o good citizenship. Today it is a principal instrument i[n] awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. [Emphasis added]

Jones v. The Queen, [1986] 2 S.C.R. 284 at 297

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) at p. 493,

McLeod v. Board of Trustees, [1952] 2 D.L.R. 562 at p. 564 (B.C.C.A.),

23. Education is about more than simply teaching students to read and write. it is the means by which children are prepared for citizenship, for participation in the community. This will occur most effectively where education enable students to remain a part of their community while they learn.

1. Emily Eaton's Placement draws a Distinction based on an

Enumerated Ground

24. The provisions of the Act governing the placement of "exceptional" students draw distinctions between students based on personal characteristics enumerated in section 15(1) of the Charter, including physical and/or mental disability. Emily is subject to the assessment and placement provisions of the Act precisely because she has a disability. Her disability is a personal characteristic which she shares with other students with disabilities.

(c) Emily Eaton's Placement is Discriminatory

25. In determining whether Emily's placement in a segregated classroom setting is discriminatory, regard must be had for the historical disadvantage suffered by persons with disabilities. Society's recognition of their treatment is reflected in the fact that physical and mental disability are enumerated grounds in section 15(1) of the Charter and section 10(1) of the Code.

26. Persons with disabilities have often been perceived by the greater community as being "child-like" in terms of their physical and mental capacities and capable of attaining only a finite and predetermined level of development and independence. As a result, persons with disabilities have been excluded from mainstream society and denied access to experiences and opportunities otherwise enjoyed by the able-bodied population. By way of example, persons with disabilities were, until recently, educated as a matter of course in segregated classrooms.

The history of discrimination against disabled persons, which the Charter sought to redress and prevent, is a history of exclusion.

Ratushny, E., "Implementing Equality Rights: Standards of Reasonable Accommodation with Legislative Force", Righting the Balance, Canada's New Equality Rights, 258 - 259

Leshner v. Ontario (1992), 16 C.H.R. D/184 at D/195, paras. 63, 65-66

27. The placement of a student with a disability in a segregated school setting imposes burdens upon the student not otherwise borne by able-bodied students. A disabled student with one or m ore disabilities is forced to bear the stigma associates with the exclusion and separation from the greater student community. This stigma, in turn, undermines the student's self-esteem and perception of self-worth. Placing a student with disabilities in a segregated classroom condemns them to a life of isolation. Labelling them as segregated students becomes a distinctive self-fulfilling prophecy.

Snell, Martha "Replacing Cascades with Supported Education" (1994), Journal of Special Education, Vol. 27, No. 4, pp. 393-409 at 395

28. It is also important to recognize that the nature of the disadvantage experienced by persons with disabilities in other cases may be exacerbated where there are multiple disabilities or where intersecting grounds of discrimination exist, for example, where a persons with a disability is also a female or a person of colour.

Duclos, N., "Disappearing Women: Racial Minority Women in Human Rights Cases", [cite date] 6 C.J.W.L. 25 at pp. 40-50 especially note 58 at 44

Canada (A.G.) V. Mossop, [1993] 1 S.C.R. 554 per L'Hereux-Dube (in dissent) at pp. 645-646

[recent cases]

29. In addition, the placement of a student with disabilities in a segregated setting denies the student benefits otherwise enjoyed by able-bodied students. Such student is denied the benefit of socialization and interaction with able-bodied students. She is denied the opportunity to observe how adults and students interact and relate to one another. Insofar as her placement in a segregated classroom limits o curtails her exposure to her able-bodied peers, she is deprived of the opportunity to educate and enlighten them about her disability and, more importantly, her ability to contribute in a meaningful way to the community. In summary, she is denied the critical opportunity to realize her full physical, mental and emotional potential.

30. These burdens and deprivations are inconsistent with each student's fundamental rights:

(a) to an education in the regular classroom setting;

(b) to have their special needs accommodated in the regular classroom setting (with appropriate support); and

(c) not to be denied a regular classroom placement that their special needs cannot be accommodated without undue hardship.

31. International human rights instruments underscore the significance of integration into all aspects of society as the foundation of equality rights guarantees for persons with disabilities. Canadians courts have considered and relied upon such instruments in resolving related issues arising under Canadian law.

Declaration of the Rights of Disabled Persons, Resolution 3447 (XXX), United Nations General Assembly, 30th Session, 9 December 1975.

"Improving the Situation of Disabled Women of All Ages", World Conference of the United Nations Decade for Women: Equality, Development and Peace, United Nations General Assembly, 105th Plenary Session, December 18, 1979, adopted July, 1980, Nairobi, Kenya.

International Bill of Human Rights, Resolution 217-A (III), United National General Assembly , 16 December 1948, (United Nations Department of Information, Yearbook of the United Nations 1948-49, page 535, Lake Success, New York: United Nations, 1950)

Declaration of the Rights of the Child, Resolution 1386 (XIV), United Nations General Assembly, united Nations General Assembly Declaration of the Rights of the Child, Resolution 1386 (XN), 20 November 1959 (United Nations Department of Information, Yearbook of the United Nations 1959, page 198, lake Success, New York; United Nations, 1960).

Huck v. Canadian Odeon Theatres Limited, supra at D/2686,

Cameron v. Nel-Gor Castle Nursing Home (1984), 5 C.H.R.R. D/2170 at D/2170 - D/2171, paras. 18290 - 18301; aff'd on appeal Ont. Div.

Ct., September 17, 1985; leave to appeal refused by Ont. C.A., November 25, 1985

Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 at 1056-57

R. v. Videoflicks Ltd. [SCC Cite]

32. Accordingly, the Coalition submits that the Court of Appeal correctly held that Emily Eaton's placement in a segregated school setting without her consent (as acticulated by her parents) constitutes a discriminatory distinction based on an enumerated personal characteristic, her disability. As such, it constitutes a violation of her equality rights as articulated in section 15(1) of the Charter.

(d) Emily Eaton's Placement Cannot be Justified under Section 1

33. Having demonstrated that the placement of a student with a disability in a segregated setting without their consent is discriminatory, the onus shifts to the School Board to justify the placement. In Coalition's submission, the onus placed on the School Board is an inordinately high one having regard to the life-defining nature of education [Expand].

34. In accordance with the principles and values articulated in R. v. Oakes and among other things, the School Board must present clear, cogent evidence that Emily Eaton's placement impairs her equality rights as little as possible. As stated above, the Coalition does not propose to address the evidence led in the case and repeats and relies upon the position taken by the Respondents in paragraphs [ ] to [ ] of their factum.

ISSUE TWO - SECTION 15(2) OF THE CHARTER

A. Purpose of Section 15(2)

35. While section 15(2) has not been directly considered by this Honourable Court, lower courts have held that the section is intended to protect legislation which singles out a group for preferential treatment in order to cure a disadvantage; to ensure that section 15(1) does not, in the name of equality, prohibit legislators from taking measures which are designed to achieve equality for a particular disadvantaged group. It was included in the Charter to "silence the debate that rages elsewhere" over the legitimacy of affirmative action.

R. v. Willocks (1995), 22 O.R. (3d) 552 (Gen. Div.) at 570

36. A legislative scheme in an "affirmative action program" if it positively discriminates against a traditionally advantaged group for the purposes of ameliorating the conditions of a disadvantaged group.

Manitoba Council of Health Careworkers v. Bethseda Hospital (1992), 88 D.L.R. (4th) 60 at p. 68 (Man. Q.B.)

37. If the guarantee of equal protection and benefit under section 15(1) is to have real effect, section 15(2) must be construed as limited to its purpose. Section 15(2) was not intended to save from scrutiny all legislation intended to have a positive effect. As Houlden J. A. of the Ontario Court of Appeal expressly acknowledged in Ontario Human Rights Commission v. Ontario:

Section 15(2) provides that section 15(1) does not preclude ameliorative programs and as such can be understood as an interpretative guide to section 15(1); it does not preclude review of ameliorative programs where some aspect is discriminatory. [emphasis in the original]

Ontario Human Rights Commission v. Ontario (1994) 19 O.R. (3d) 387 at p. 427 citing H. Orton, "Section 15, Benefits Programs and Other Benefits at Law: The Interpretation of Section 15 of the Charter since Anders" (1990), 19 Man. L. J. 288 at 299

B. Whether Section 15(2) is Applicable in this Case

38. The Appellants' assertion that the placement scheme under the Act constitutes an "affirmative action" programme within the meaning of section 15(2) is a mischaracterization of the nature and effect of the scheme. The identification and placement of students labeled as "exceptional" under the Act was not designed nor does it have the effect of ameliorating the conditions of students with disabilities. In fact, it perpetuates the very kind of disadvantage historically experienced by persons with disabilities.

39. Moreover, it is a perversion of section 15(2) to say that it will permit discrimination where the state operator of a "special" program attempts to force an individual to partake of that "special" program against her will. A placement scheme which mandates segregated placement for students with disabilities excludes those students from the necessary educational and socialization process requisite to achieve their role as participating adult citizens. Segregation permits the historical and ongoing discrimination experienced by persons with disabilities in the larger society to thrive, reinforces the identification of persons with disabilities as different or "other", and excludes them from full social participation available to other citizens.

ISSUE THREE - THE EQUALITY PROVISIONS OF THE CODE

A. Overview of the Coalition's Position

40. Given its reliance on the Charter, the Court of Appeal did not expressly rely on the Code in rendering the Decision. However, the Decision is consistent with equality rights principles under the Code as well as the Charter. As an alternative, if for any reason the Charter is not available in this case, the Coalition submits that the Decision can be sustained by reference to the Code instead.

B. The Code

(a) Interpreting the Code

41. The Code is quasi-constitutional in nature and a fundamental law which declares public policy. It has primary over legislation which conflicts with the rights it protects and is cast in wide terms. Both the Code's subject matter and its stated purpose suggest that it not be interpreted narrowly or restrictively. The rights enunciated in the Code must be given their full recognition and effect, and courts should not search for ways and means to minimize these rights and enfeeble their proper impact. A corollary principles to a purposive interpretation of the Code requires that any exceptions or defences in the legislation must be narrowly construed.

Code, s. 47

Ontario Human Rights Commission and O'Malley v. Simpson-Sears, [1985] 2 S.C.R. 536 per McIntyre J. at p. 456-7

Canadian National Railways v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 per Dickson J. at pp. 1134-1138,

Insurance Corp. of B.C. v. Heerspink, [1982] 2 S.C.R. 145 per Lamer J. at p. 158,

Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 per McIntyre J. at p. 156

Ontario Human Rights Commission v. Ontario (1994) 19 O.R. (3D) 387 at p. 394

Ontario Human Rights Commission v. Etobicoke, [1982], 1 S.C..R. 202 per McIntyre at pp. 207-208

Gohm v. Domtar Inc. (1990) 12 C.H.R.R. D/161 (Ont. Bd. Inq.) at p. D/170 - D/171, para. 60; aff'd 39 C.C.E.L. 214 (Ont. Div. Ct.),

Lepofsky D. M., "The Duty to Accommodate: A Purposive Approach" (1992), 1 Cdn. Lab. L.J. 1 at p. 5,

42. The Code and the Charter each apply independently to the matters within their respective jurisdictions. Nevertheless, the jurisprudence regarding each is applicable to the interpretation of the other.

Andrew v. Law Society of British Columbia, supra, at 175-176,

Ontario Human Rights Commission v. Ontario, supra, at

(b) Equality Rights - General

43. The preamble of the Code articulates the goal of full integration into and inclusion in the community for all individuals:

Whereas it is public policy in Ontario to recognize the dignity and worth of ever person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels part of the community and able to contribute fully to the development and well-being of the community and the Province….

Code, preamble

44. Part I of the Code articulates the right to equal treatment to all persons with disabilities in several areas, including the right to equal treatment "with respect to services, goods and facilities" as set out in section 1. Section 9 of the Code further guarantees that "no person shall infringe or do, directly or indirectly, anything that infringes a right." "Equal" is defined by section 10(1)(e) of the Code and means "subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination".

Code, sections 1, 9 and 10

45. As under the Charter, unintended or indirect discrimination is prohibited under the Code:

The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. Is it the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

Ont. Human Rights Comm. v. Simpson-Sears, supra, at 547

46. The purpose of human rights legislation for persons with disabilities has been detailed in human rights jurisprudence:

The purpose of such legislation is to guarantee, inter alia, to disabled person that they will not be excluded by society and that they enjoy a real, and not simply hypothetical, right to equal opportunity with other individuals to make for themselves the lives that they are able and wish to have through their fullest possible integration into and participation in society. Isolation is probably the best ally of preconceived notions about a group or category of person identified by a personal characteristic. It fosters ignorance, which leads to and nurtures prejudice and discrimination. It is to counter these very scourges that human rights legislation has been adopted.

Howard v. University of British Columbia (1993), 18 C.H.R.R. D/353 (BC Council of HR) at D/358, para. 32 citing Robinson v. Canada (Armed Forces) (1992), 15 C.H.R.R. D/95 at D/121, para. 94 (Can. Trib.),

47. Protection of individual dignity lies at the heart of human rights legislation. Equal treatment under the Code requires treatment which furthers the promotion of individual dignity for members of disadvantaged groups.

Code, preamble

Canadian National Railways v. Canada (Human Rights Commission), supra at 1137

Ont. Human Rights comm. and O'Malley v. Simpson-Sears, supra at 546,

Huck v. Canadian Odeon Theatres Limited (1985), 6 C.H.R.R. D/2682 at D/2686, paras. 20174-20175 (Sask. C.A.), leave to appeal refused June 3, 1985 (S.C.C.),

Tomen v. O.T.F. (No.3) (1990), 11 C.H.R.R. D/223 (Ont. Bd. Inq.) at D/236, para. 79 and D/238 para. 95,

Lepofsky, D. M. , supra at 5-7,

Guidelines for Assessing Accommodation Requirements for Persons with Disabilities under the Ontario Human Rights Code, 1981, as amended, at 5, 16-17

48. The Code ensures the promotion of equal rights by guaranteeing both quality of treatment and equality of opportunity. The critical component of equal treatment under the Code will only be satisfied when, from the perspective of the disabled person, equal treatment has been achieved.

Roberts v. The Queen in Right of Canada, supra,

Huck v. Canadians Odeon Theatres Limited, supra, at D/2687

Tomen v. O.T.F. (No. 3), supra,

Ghosh v. Domglass Inc. (No. 2) (1992), 17 C.H.R.R. D/216 at D/223 paras. 44 - 47 (Ont. Bd. Inq),

Leshner v. Ontario (1992), 16 C.H.R.R. D/184 at D/195, para. 63

Attis v. New Brunswick School Dist. No 15 (1991), 15 C.H.R.R. D/339 at D/354, paras. 84-85; application for judicial review allowed in part on without discussion on point(1991), 86 D.L.R. (4th) 749 (Q.B.), appeal allowed without discussion on point (1993), 110 D.L.R. (4th) 241 (C.A.); [1996], 133 D.L.R. (4th) 1 (S.C.C.)

(c) Equality Rights - Education

49. Segregating members of disadvantaged groups in the provision of educational services has been found to be discriminatory under the Code. A recent Ontario Board of Inquiry has commented on why segregation was found to be unacceptable in the Brown v. Board of Education case and why material equalization was insufficient in promoting true equality:

The Court held that racially separate schools could never deliver equality in the quality of education or in preparation for life. Education, they reasoned, provides a foundation of good citizenship, awakens children to cultural values, and helps them to adjust normally to their environment. Education was held to contain qualities incapable of objective measurement which material equalization could not in itself address. Separation on the basis of race only was held to generate a "feeling of inferiority as to their status in the community" and to be inherently unequal. [Emphasis added]

Leshner v. Ontario (supra) at p. D/195, paras. 63, 65 - 66

Lewis v. York Regional Board of education, [cite]

50. The right to equal treatment "with respect to services" is a broadly defined right under the Code and includes the right to equal treatment with respect to education.

University of British Columbia v. Berg. [1993] 2 S.C.R. 353 at 371-373

51. The Code applies to all aspects of the service relationship. Education must be viewed in a broad context as including not only the formal curriculum but also the more informal aspects of education that come through interchange and participation in the whole school environment. Moreover, the Code does not distinguish between discrimination in the admissions process and discrimination in the provision of accommodations, services and facilities to those already admitted to the service of education. Chief Justice Lamer stated in University of British Columbia v. Berg:

[such] a distinction would allow such institutions to frustrate the purpose of the legislation by admitting students without discrimination and then denying them access to the accommodations, services and facilities they require to make their admission meaningful.

University of British Columbia v. Berg, supra, at 379 and 381-82

Attis v. New Brunswick School District, No 15, supra

(d) Discrimination under the Code

52. In order to determine whether discrimination has occurred, the facts must be examined from the perspective of the member of the disadvantaged group who is seeking to enforce her/his equality rights. This does not require that the person making that assessment be a member of that disadvantaged group, but rather that she or he makes a conscious effort "to understand the impact that [the conduct] may have on a member of" such a group.

Ghosh v. Domglass Inc. (No. 2) , supra at

Leshner v. Ontario, supra at

Attis v. New Brunswick School District, No 15, supra at

53. Chief Justice Lamer has articulated a relation approach to determining whether discrimination has occurred. In considering whether discrimination has occurred, the crux of the determination is the nature of the services themselves and the relationship they establish between the school and its students.

University of British Columbia v. Berg, supra, at 3987

(e) The Duty to Accommodate

54. Under the Code, discriminatory treatment may only be justified when a respondent can demonstrate that it cannot accommodate the needs of a person with a disability without undue hardship. The Supreme Court of Canada has expressly stated that the duty to accommodate requires that the respondent undertake more than minimal efforts.

Code, s. 17

Commission Scolaire Regionale de Chambly v. Bergevin, [1994] S.C.J. No. 57 at 17, paras. 26-29

Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 982 and 984-985

Ontario Human Rights Commission v. Simpson-Sears, supra at 558-559,

55. Both the courts and human rights tribunals have approached the duty to accommodate in a purposive manner, attempting to provide equal access to education for people who would otherwise encounter serious barriers to entry. The duty to accommodate requires the respondent to take substantial or meaningful steps to accommodate the requirement of the claimant:

This is essential if the aim of human rights legislation is to be fulfilled. Anything less defeats the purpose of such legislation and makes it a hollow enactment of little value …

This principle is so important that McIntyre J. speaking for a unanimous Court in O'Malley, supra, indicated that a reasonable accommodation was an integral aspect of equality. It thus can be taken that the duty to accommodate is a fundamentally important aspect of human rights legislation and an integral part of the right to equality….

Commission Scolaire Regionale de Chambly v. Bergevin, supra, at 16,

Ont. Human rights Comm. v. Simpson-Sears, supra at 554-555,

Gohm v. Domtar Inc., supra, at D/275,

D. APPLICATION OF THE FRAMEWORK TO STUDENTS WITH DISABILITIES UNDER THE ACT

56. As set out in paragraphs [ ] through [ ] of our factum above, with either the application of the Charter or the Code, the Court of Appeal has correctly held that placement of Emily Eaton in a segregated school setting without her consent (as articulated by her parents) constitutes an infringement on her equality rights and as such, it is up to the School Board to demonstrate whether such discriminatory treatment could ever be legally justified.

57. Accordingly, the Coalition respectfully submits that the appellant's appeal should be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

________________________

David W. Kent

________________________

Melanie A. Yach

McMILLAN BINCH

Barrister and Solicitors

P.O. Box 38, South Tower

Royal Bank Plaza

Toronto, Ontario

M5J 2J7

________________________

Geri Sanson

SANSON & HART

Barrister and Solicitors

123 Edward Street, Suite 701

Toronto, Ontario

M5G 1E2

Counsel for the Coalition