Course:Law3020/2014WT1/Group C

Moore v. British Columbia (Education), 2012 SCC 61

Facts

Jeffrey Moore suffered from a severe learning disability, dyslexia, and required intensive remedial instruction. In the early stages of schooling, Jeffrey received assistance with his disability within the public school system. It was eventually determined that Jeffrey required further intensive remedial instruction outside the public school system at the local Diagnostic Centre; however, due to government cutbacks, the Diagnostic Centre was set to be closed and the assistance Jeffrey required was only available via the private school system. Jeffrey consequently completed his schooling at various private schools specializing in teaching children with learning disabilities.

Jeffery's father, Frederick Moore, subsequently filed a human rights complaint against School District No. 44 (North Vancouver)and the British Columbia Ministry of Education claiming a violation of section 8 of the British Columbia Human Rights Code, on the grounds that Jeffrey had suffered discrimination and had been denied a 'service' customarily available to the public, an education.

Judicial History

British Columbia Human Rights Tribunal

The Tribunal agreed with expert and witness opinion that Jeffrey required intensive remedial instruction to assist with his disability. The Tribunal found both individual discrimination against Jeffrey and systemic discrimination by the school district and province of British Columbia.

Findings of Discrimination by the District

The Tribunal found individual discrimination in violation of the Human Rights Code against Jeffrey by the school district, as a result of:

1. The school district’s failure to assess Jeffrey’s learning disability early; and 2. The school district’s failure to provide appropriate intensive remedial instruction following the closing of the Diagnostic Centre.

The Tribunal found system discrimination in violation of the Human Rights Code against students with severe learning disabilities by the school district, as a result of:

1. The school district’s underfunding of severe learning disability programs; 2. The school district’s decision to close the Diagnostic Centre; and 3. The school district’s inability to consider reasonable alternatives for disabled student before cutting available services despite financial constraints.

Findings of Discrimination by the Province

The Tribunal found systemic discrimination in violation of the Human Rights Code against students with severe learning disabilities by the province of British Columbia, as result of four administration problems, namely:

1. The creation of the high incidence/low cost cap classification for special education funding; 2. The underfunding of the school district; 3. Failure to ensure necessary services, including early intervention, as mandatory for students with disabilities; and 4. Failure to monitor the activities conducted by school districts.

Remedies

The Tribunal ordered that the Moore family be reimbursed for the costs of Jeffrey’s private school tuition and $10,000.00 in damages for pain and suffering. Further, the Tribunal ordered a wide range of sweeping systemic remedies against both the school district and province.

Based on these finding, the Tribunal ordered reimbursement for costs related to Jeffrey's enrollment at private school, as well as, $10,000.00 in damages for pain and suffering.

The Supreme Court of British Columbia allowed for application for judicial review. It was determined at judicial review that Jeffrey's situation was comparable to other special needs candidates and not to the general population. This failure to properly identify and compare Jeffrey to the appropriate comparator group skewed the discrimination analysis. The Tribunal decision was set aside.

The judicial review decision was appealed. The Court of Appeal agreed with the decision that the correct comparator group was other special needs students, dismissing the appeal. This decision was appealed to the Supreme Court of Canada.

Supreme Court of Canada Decision

The Supreme Court of Canada overturned the decisions at the trial and appeal levels and upheld the Tribunal decision. The District failed to provide proper services for special needs student in accordance with the School Act and its related policies.

-still funding other programs - Outdoor school - cannot put that above special needs students - 'service' in s8 means education generally not special needs education - appropriate comparator group is all students not special needs students

It is accepted that students with disabilities require special accommodation in order for them to benefit from the education system. Without such special education, the disabled are unable to receive e

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