Disability Discrimination in Access to Education

British Columbia (Ministry of Education) v Moore, 2010 BCCA 478 (29 October 2010)

Frederick Moore filed a human rights complaint against the Board of Trustees School Division and the Ministry of Education.  He alleged the Board and the Ministry had discriminated against his dyslexic son Jeffrey and other severely learning disabled (‘SLD’) students by failing to sufficiently accommodate their learning disabilities in the provision of educational services contrary to s 8(1) of the Human Rights Code, British Columbia's anti-discrimination act.

A majority of the Court of Appeal held the fact that the services provided to Jeffrey and other SLD students were not perfect was not relevant as the question in cases such as these was whether the failure to fund certain services amounted to an unequal and discriminatory denial of benefits.  Given SLD students were given the same opportunity to receive a general education, s 8(1) of the Code only required a conscientious and reasonable attempt to identify their condition and address their needs.

Justice Rowles, in dissent, using principles developed from Canadian Charter equality jurisprudence, concluded the right to freedom from discrimination required something more than just the provision of services.  Accordingly, she held it was not an answer to Jeffrey's claim to say that he was provided with an education.  Instead, the Board and Ministry needed to show there was bona fide and reasonable justification for the deficiency in the education Jeffrey received.

Facts

Frederick Moore, on behalf of his son, filed a human rights complaint against the Board and the Ministry alleging they had discriminated against Jeffrey and other SLD students by failing to sufficiently accommodate their learning disabilities in the provision of educational services contrary to s 8(1) of the Code.

According to s 8(1) of the Code, a person must not, without a bona fide and reasonable justification, deny to a person or class of persons any accommodation, service or facility customarily available to the public or discriminate against a person regarding any accommodation, service or facility customarily available to the public because of a mental disability.

Mr Moore argued the Board and the District were responsible for providing free, universal access to public education and in doing so were obliged to provide supports and accommodations to SLD students to allow them to access the benefit of that public education.  He argued the support services available to SLD students were not of a sufficient intensity or effectiveness to allow Jeffrey and other SLD students access to the benefit of public education.

Decision

On appeal, a majority concluded Jeffrey and other dyslexic students were entitled to special education services designed to address their needs.  The fact that those services were not perfect was not relevant as the question in cases such as these is not what a public system should provide (which is a matter for Parliament), but rather whether the failure to fund certain services amounted to an unequal and discriminatory denial of benefits.  Given SLD students were given the same opportunity to receive a general education, s 8(1) of the Code only required a conscientious and reasonable attempt to identify their condition and address their needs.

Relevance to the Victorian Charter

It is useful to note that Rowles J, in her dissenting judgment, considered the applicability of the Supreme Court of Canada's analysis of discrimination under s 15 of the Canadian Charter of Rights and Freedoms.  After noting the Code was essentially aimed at the same general wrong as s 15 of the Charter, she concluded the principles developed from Charter equality jurisprudence guide the adjudication of complaints under the Code.

With that in mind, she reviewed Charter jurisprudence about the right to freedom from discrimination and found that Charter jurisprudence requires not merely that a complainant be accorded some accommodation of their condition, but that the accommodation provided is sufficient to allow meaningful access to the benefit in question.  Therefore, unless the Board and Ministry could show there was bona fide and reasonable justification for the deficiency in the service Jeffrey received, it was not an answer to Jeffrey's claim to say that he was provided with a service.

This analysis confirms the significant role Charter jurisprudence may play in the area of discrimination law.

The decision is at www.canlii.org/en/bc/bcca/doc/2010/2010bcca478/2010bcca478.html.

Susanna Kirpichnikov is a lawyer with Lander & Rogers