CCD Chairperson's Update - Special Edition

Moore v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education and the Board of Education School District No. 44
(North Vancouver)

Summary of Key Points

The Supreme Court of Canada Decision

On November 9, 2012, the Supreme Court of Canada (SCC) handed down a landmark decision on disability rights. The Moore case says that students with disabilities are entitled to receive the accommodation measures they need to access and benefit from the service of public education.  In this regard, the Court said that adequate special education is not “a dispensable luxury”.  The Court acknowledged that such measures serve as “the ramp that provides access to the statutory commitment to education made to all children in British Columbia.”

The Council of Canadians with Disabilities (CCD) intervened in the B.C. Court of Appeal and the SCC.  CCD was represented by Gwen Brodsky, Yvonne Peters and Melina Buckley in the SCC appeal.  CCD challenged the lower court rulings which said that to get accommodation, persons with disabilities must show that they have been treated worse than other persons with disabilities. CCD argued that requiring this kind of comparison—which can lead to a race to the bottom—is unnecessary and inappropriate.  CCD’s position is that when an exclusionary barrier is identified, the next step is to provide accommodation to remove the barrier.  CCD’s argument relied on a long line of human rights cases that say that the right to nondiscrimination means that service providers and others must take positive steps to accommodate and remove barriers to provide access for persons with disabilities.  CCD is pleased that the SCC agreed with this approach.

Facts of the Moore Complaint

As a child, Jeffrey Moore was diagnosed with a severe learning disability and he required  intensive remediation to learn to read.  For the first couple of years of his education, he received a range of support services.  However, due to funding cuts by the Province, the North Vancouver School District eliminated a program very important to Jeffrey’s education.  Jeffrey was advised by school officials that the intensive remediation he required could only be obtained by attending a private school. 

Jeffrey moved to a private school, and the costs had to be paid by his parents.  Jeffrey’s father filed a complaint with the B.C. Human Rights Tribunal against the school district and the Province alleging that Jeffrey had been discriminated against because of his disability and been denied a “service customarily available to the public”.

The Proceedings

1. The Tribunal

The B.C. Human Rights Tribunal held an extensive hearing.  The Tribunal, having heard all of the evidence, found that students like Jeffrey needed a range of educational services, and that because of program cuts made by the North Vancouver School District, students were unable to access the supports they needed.  The Tribunal concluded that there was both individual discrimination against Jeffrey and systemic discrimination against students with severe learning disabilities in general, for which the Province and the School District were responsible.

2. The B.C. Supreme Court

The Province of B.C. and the North Vancouver School District appealed to the B.C. Supreme Court.  The Court said that to establish discrimination, Jeffrey’s situation should be compared to the treatment of other students with disabilities. Because there was no evidence that Jeffrey had been treated worse than other students with disabilities, the Court concluded that there was no discrimination.  The Tribunal decision was overturned.

3. The B.C. Court of Appeal

In a further appeal, the majority of the B.C. Court of Appeal agreed with the B.C. Supreme Court.  However, one judge, Rowles J.A., who adopted CCD’s analysis, did not agree.  Justice Rowles explained that special education is the means by which “meaningful access” to educational services was achievable by students with learning disabilities.  And Justice Rowles said that she agreed with CCD that it is neither necessary nor helpful to conduct a detailed comparator group analysis in an accommodation case.

4. The Supreme Court of Canada

The Moores were granted leave to appeal to the Supreme Court of Canada.  The SCC confirmed the Tribunal’s central finding that there was discrimination by the School District.

Additional Key Points in the SCC Decision

• A central issue at every stage of this case was how to identify the service customarily available to the public: is it “special education” or “general education”?  The SCC said that it was general education.  Special education is the means by which students like Jeffrey get meaningful access to general education available to all students.
• Students with learning disabilities need to be accommodated so that they can benefit from educational services.  The SCC said it was like the interpreters needed in the Eldridge case.  It is not an extra or special service, but rather the measures needed for students to benefit equally from the education system. And the measures must be adequate to ensure meaningful access.
• Defining special education as the service in question could lead to a separate but equal, or, as CCD counsel Gwen Brodsky has said, ‘back of the bus’ approach for persons with disabilities.  The SCC firmly rejected this approach.  The SCC said that if Jeffrey was only compared with other special needs students, service providers would be free to cut programs for all persons with disabilities without being held accountable.  This, the SCC says “risks perpetuating the very disadvantage and exclusion from mainstream society the [human rights] Code is intended to remedy.”
• Another issue in the case was whether the School Board actions were justified, in light of provincial government cuts to provincial funding.  However, the SCC ruled that to establish that the program cuts were unavoidable, the school board had to have at least considered if other options were possible, which it did not do. 

Conclusion

The Moore decision is an important victory for CCD.  Moore (SCC) reaffirms that human rights law requires service providers to make their services accessible to persons with disabilities. This means that where a barrier is identified, the service provider must provide accommodation to overcome that barrier, unless to do so would cause an undue hardship.  Our challenge is to turn these important court decisions into positive results in the daily lives of persons with disabilities.

All school districts must now take a proactive approach to budgeting and programming, to ensure that the rights of students with disabilities to accommodation are taken into account.  Good faith budgeting by provincial governments will also be crucial.  For the most part they control the purse strings. School districts make program choices within budgetary envelopes determined by provincial governments.  It took the Moores fifteen years to get a positive decision from the Supreme Court of Canada.  Other children and families should not have to repeat their battle.