State failure to provide special education is discriminatory

Moore v British Columbia (Education), 2012 SCC 61 (9 November 2012) Summary

The Supreme Court of Canada has held that the School Act creates a statutory commitment to the education of all children in British Columbia, making the provision of special education a statutory commitment and not a dispensable luxury.

Facts

Jeffrey Moore (the plaintiff) suffered from severe dyslexia and required special education at his public school. In Grade 2, the local school District psychologist recommended that he attend the local Diagnostic Centre instead of public school, as he needed additional remedial support.

When the Diagnostic Centre was closed by the District due to financial constraints, the plaintiff’s parents enrolled the plaintiff in a private school which was able to provide him with the learning support he required to reach his full potential. The plaintiff then attended the private school until Grade 12.

The plaintiff’s father filed a complaint on his son’s behalf with the BC Human Rights Tribunal (the Tribunal) against the school District and the Province on the grounds that his son had been denied “a service customarily available to the public” under section 8 of the British Columbia Human Rights Code.

History of Proceedings

BC Human Rights Tribunal

The BC Human Rights Tribunal found that the District and Province’s closure of the Diagnostic Centre amounted to discrimination against the plaintiff and ordered a range of systemic remedies for the District and Province to implement. The Tribunal also awarded the plaintiff’s family:

  • the amount of tuition paid for the plaintiff to attend a private school;
  • half of the transportation costs involved in attending the private school; and
  • $10,000 for injury to the plaintiff’s dignity, feelings and self respect.

Reviewing Judge (first instance appeal)

The reviewing Judge set aside the Tribunal’s decision, finding no discrimination.

Court of Appeal

The Court of Appeal dismissed an appeal against the reviewing Judge’s decision.

Decision

The Supreme Court of Canada allowed an appeal overturning the Court of Appeal’s decision and reinstated aspects of the Tribunal’s decision in favour of the plaintiff on the basis of unjustifiable discrimination. However, the Supreme Court overturned the Tribunal’s orders for systemic legislative change. In reaching its decision, the Supreme Court held that the School Act created a statutory commitment to education made to all children in British Columbia, making the provision for special education a statutory commitment and not a dispensable luxury.

The Supreme Court had to consider two key issues:

  • Question 1: Whether the Plaintiff had, without reasonable justification, been denied meaningful access to the general education available to all children in British Columbia based on his disability?
  • Question 2: Whether the District’s conduct (in closing the Diagnostic Centre) was justified?

In answer to Question 1, the Supreme Court found that there was prima facie discrimination on the basis of insufficiently intensive remedial assistance provided by the District for the plaintiff’s learning disability such that he could not get access to the education that he and all children of British Columbia are entitled to. The following considerations heavily influenced that finding:

  • The District, its employees and its experts had identified that the plaintiff required intensive remediation in order to have meaningful access to education;
  • The closing of the Diagnostic Centre took place without knowing how the needs of its students would be addressed; and
  • The plaintiff’s family was told that these disability services could not otherwise be provided by the District.

In answer to Question 2, the Supreme Court found that the discrimination was not justified, despite the budgetary crisis, because there were options other than closing the Diagnostic Centre to address the budgetary crisis. That finding was on the basis of the following facts:

  • The District’s funding cuts were disproportionately made to special needs programs.
  • Some discretionary school programs (such as an outdoor learning school) were retained.
  • There had been no assessment, financial or otherwise undertaken by the District to consider alternatives or accommodate students’ special needs if the Diagnostic Centre was closed.
  • The District’s failure to consider financial alternatives undermined its main argument that the closure was justified as the District in financial difficulty had no other options – in order to decide that it had no other options, the District would have had to at least consider what other alternatives were available.

Commentary

Although possibly an interpretive approach limited to the Canadian jurisdiction, this decision provides scope for interpreting the purpose of an Act (in this case the School Act) as the basis for an enforceable “statutory commitment”. In this case, the purpose of the School Act that “all learners … develop their individual potential and … acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy” was found to be a statutory commitment.

The decision is available online at: http://canlii.ca/en/ca/scc/doc/2012/2012scc61/2012scc61.html

Richard Griffin is a Lawyer at Lander & Rogers.

MichelleBennettChild Rights, Discrimination & Equality