Course:Law3020/2014WT1/Group C

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

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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.

North Vancouver 1990's

Issue

Was the conduct of the school district and Province in violation of section 8 of the British Columbia Human Rights code in failing to provide the necessary educational assistance for Jeffrey Moore as a special needs student?

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 systemic 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 the 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.

Supreme Court of British Columbia

Upon judicial review, the Supreme Court of British Columbia found that the Tribunal had erred in comparing Jeffrey’s situation to that of the general student population, asserting that the proper comparator group is that of other special needs students.

The Tribunal decision was set aside.

British Columbia Court of Appeal

The Court of Appeal agreed with and upheld the judicial review decision.

Dissent

Rowles J.A. held that the appeal should be allowed. Special education within the school system is the means by which meaningful access to educational services are achievable by students with learning disabilities. The use of the comparator analysis by the court was unnecessary and inappropriate. The Tribunal's finding of discrimination should be allowed.

Supreme Court of Canada Decision

Supreme Court of Canada, Ottawa

The Supreme Court of Canada agreed with the Tribunal and dissent at Appeal level on discrimination, finding individual discrimination against Jeffrey by the school district in violation of the human rights code. The Supreme Court of Canada corrected the comparator group analysis used in the lower courts. There was no finding of systemic discrimination by either the school district or Province.

Discrimination

Under section 8 of the British Columbia Human Rights Code:

Conduct is discriminatory if,

[a] person …without a bona fide and reasonable justification den[ies] to a person or class of persons any accommodation, service or facility customarily available to the public’ on the basis of a prohibited ground.

The Court held that the relevant service in this case was not just special needs education itself, but the means by which those students get meaningful access to the general education services commonly available to all of British Columbia’s students.

Prima Facie discrimination is found when complainants can assert that:

1. They have a characteristic protected from discrimination under the Human Rights Code;
2. That they have experienced an adverse impact with respect to the service; and
3. That the protected characteristic was a factor in the adverse impact.

Once prima facie discrimination is found, the burden shifts to the respondents to justify the conduct or practice.

There was no dispute that Jeffrey’s disability was a characteristic protected under the human rights code and that Jeffrey suffered adverse effects as a result. The school district was undeniably under financial constraints, however, as the school district undertook no assessment of alternative measures to accommodate special needs students its conduct was not justified. Further, some discretionary cutbacks were made while others, such as the Outdoor School, were not. Systemic discrimination was held to be an important factor in establishing a human rights complaint, but it was too remote to determine in this case. The Court held the claim should be centered on the individual, Jeffrey.

Comparator Groups

The Court disagreed with the use of the comparator analyses made by the lower courts. It was held that comparing Jeffrey only to other special needs students did not allow full consideration as to whether or not he had genuine access to the education all students in British Columbia are entitled to. Further, this method risks perpetuating the very disadvantage and exclusion of special needs students from mainstream society that human rights codes intend to remedy.

Decision

Held, the appeal was allowed in part as discrimination was found by the school district against Jeffrey Moore in violation of section 8 of the British Columbia Human Rights Code.

Remedies

The Supreme Court of Canada allowed the Tribunal remedies of reimbursement of tuition costs and damages for pain and suffering, but overturned the Tribunal's systemic remedies against the school district and province.

Traditional Natural Law Theory: Law for the Common Good

St-thomas-aquinas

Natural Law theorists believe that there is a source of law that exists separate from human creation and can be accessed by use of reason. Natural Law theory purports that human beings can use their rationality to discover what the natural law is through divine revelation, studying the order of the natural word, or by studying human nature. The source from which Natural Law emerges is thought to be unchanging and universal, therefore it follows that Natural Law itself is always the same for all people in all places at all times. Natural Law theory views law as being inherently and necessarily intertwined with morality. A law which is not objectively, morally good will not be considered a valid law by Natural Law theorists. The Natural Law position demands that law must intend to achieve an end that is objectively good and rationally defensible. In order for Natural Law theorists to accept a law as valid, it must be aimed at a moral objective. Therefore, Natural Law theorists have adopted the maxim: "an unjust law is no law at all". The Natural Law view is that if a law is unjust, then it is not genuine, and so we do not have a general moral obligation to obey it. St. Thomas Aquinas explores Natural Law theory and describes law as "nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated". According to Aquinas, in order to be valid a law must:

1) pertain to reason;

2) be directed to the common good;

3) be made by a valid lawmaker; and

4) be promulgated.

Application to Moore v. British Columbia (Education)

In Moore, the law that we will evaluate in terms of Natural Law is Section 8 of the British Columbia Human Rights Code which states:

Discrimination in accommodation, service and facility

8 (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

(2) A person does not contravene this section by discriminating

(a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or

(b) on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

Does the law follow practical reason?

For Thomas Aquinas, practical reason in regards to the law is concerned with how we ought to achieve the common good. Natural Law proposes that law itself provides the practical reason by which we can achieve universal happiness. Therefore, it follows that because Section 8 directs us to action and establishes what is considered reasonable, it provides the necessary steps towards satisfying the common good. Section 8 conveys that discrimination without reasonable justification is not tolerated and provides the practical methods for coming to the conclusion that discrimination exists in any specific case. In order "to demonstrate prima facie discrimination [under Section 8], complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under the human rights statutes. If it cannot be justified, discrimination will be found to occur (paragraph 33)". Section 8 provides the process that is required to establish a finding of discrimination and eliminating discrimination from our society will in effect promote the common good. This methodology conforms to the practical reason that is necessary to satisfy the first condition in order to be considered valid law under the Natural Law theory perspective.

Is the law directed toward a common good?

The purpose of Section 8 in the context of Moore is to protect individuals in society from being discriminated against. Where it can be proven that an individual has been denied a service due to their disability, and that service is customarily available to the public, it is deemed contrary to Section 8 of the Human Rights Code. A law that serves to protect human rights is undoubtedly embodied with the promotion of the common good because it aims at enforcing equality. Natural Law theorists like Thomas Aquinas submit that happiness is the common goal of all humans. Discrimination by definition has the effect of treating humans unequally; those who are made to feel unequal may see themselves as inferior, which could reasonably manifest significant degrees of unhappiness for those who are discriminated against. Attaining the common good is not concerned with determining what is good for certain people, but rather that which is good for the entire community. The happiness of the whole can be attained by adhering to the common good, which serves the best interest of all members of a community. Since the aim of Section 8 is to promote and enforce equal opportunity and fair treatment for all, Section 8 serves to secure that which promotes happiness for the whole community. The School Act which was in effect in the case of Moore stated that "the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy. This declaration of purpose is an acknowledgement by the government that the reason all children are entitles to an education, is because a healthy democracy and economy require their educated contribution" (paragraph 5) . The intention of this provision is indisputably directed at the common good because it aims at creating a healthy democracy and economy, it follows that any law which serves to protect and maintain that intention is itself a proponent of the common good. In Moore, Section 8 provides protection and remedy from being discriminated against on the grounds of being denied special education. Education is a vital tool in the pursuit of the common good and societal happiness. Indeed, "special education shares the basic purpose of all education: the optimal development of individuals as skillful, free, and purposeful persons, able to plan and manage life and to realize highest potential as individuals and as members of society" (paragraph 39). The goal of improving society through education is in itself directed towards the common good. Discrimination is unjust; therefore, a law which serves to eliminate discrimination would be directed towards rectifying that injustice by virtue of adhering to the common good.

Is the law made by a valid lawmaker?

Natural Law theory sees the valid lawmaker as the representative source which governs the whole community. The ruler of a community holds their position by reason of the natural order and therefore is naturally fit to rule. In British Columbia, the law is created by the legislature, which is comprised of members who are elected by the community. In as much as Thomas Aquinas was not an advocate of the democratic government, he would likely concede to the fact that the legislature is the most appropriate lawmaker we have available in the case at hand. As the legislature is chosen by the community to represent the best interest of the whole, it would satisfy the Natural Law condition that law be made by a valid lawmaker.

Is the law promulgated?

Promulgation of the law is concerned with making the law written and known to the public. According to Thomas Aquinas, a law which is unknown to the community cannot be expected to be obeyed. Viewed through the lens of Natural Law, it is an essential component of justice that a valid law be promulgated because it is a necessary condition for the law to obtain its force. As Section 8 is embodied within the Human Rights Code of British Columbia, it is written and available to the public. The entire community can come to know and access this law which protects against discrimination, and as such, it satisfies the promulgation condition which is required to be considered valid law in light of the Natural Law theorists position.

Conclusion

Thomas Aquinas would likely agree with the decision in Moore because Section 8 satisfies all of the necessary Natural Law conditions to be considered valid law and its purpose is to eliminate situations of societal discrimination which in effect, promotes overall happiness within the community. Additionally, Thomas Aquinas would likely contend that as the law against discrimination is aimed at an objectively moral goal of creating fairness and equality, it adheres to the desire of Natural Law theorists to achieve the common good. Therefore, as Section 8 is valid law, Thomas Aquinas would submit that we are compelled to obey to it. A Legal Positivist would likely agree with this decision in Moore as well because utilitarianism is concerned with maximizing pleasure and happiness for the greatest number of people and so it can be thought of as attaining towards the common good of the community. That is, the common good can be achieved by maximizing pleasure and happiness for the greatest number of individuals.

Liberty and Paternalism

Liberty and Paternalism depart from previous legal theories and is concerned with the proper limits of law. Both theories have a presumption in favour of liberty for the individual as an inherent right, and any interference by the state on that liberty must be justified.

There are several valid justifications for a law’s restriction of liberty:

• The Harm Principle

The harm principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society.

• Paternalism

Paternalism allows for the restriction of individual liberty by law if it protects others from harm through the exercise of that individual’s liberty in harming themselves.

• Legal Moralism

Legal Moralism allows the restriction of individual liberty by law where the individual’s actions undermine societal morals and values.

• The Offence Principle

The offence principle allows for the restriction of individual liberty by law if it ensures that the sensibilities of others are not unduly offended.

John Stuart Mill and Liberty

Mill begins with the presumption of liberty for all individuals. He then is concerned with the proper limits of authority in law on that liberty and feels that liberty itself is inherently difficult and must be carefully controlled.

Mill notes the concept of liberty itself sets limits on authorities through:

• Political Liberties or Rights

Certain immunities of which it is regarded as a breach of duty for an authority to infringe. This is seen today in Canada through our enshrined rights in the Canadian Charter of Rights and Freedoms and provincial rights codes, including the British Columbia Human Rights Code.

• Constitutional Checks

A system that requires consent from a body of some sort that represents the interests of the community in reviewing the power of authorities. This is seen today in Canada through our Parliamentary system and democratic self-government, whose powers are derived from and embodied in the Constitution.

Harm Principal

Mill feels the fundamental party to protect in society is that of the individual. Society provides that protection through law. As society provides protection, Mill asserts that we, as individuals, have a necessary obligation in return to contribute to the maintenance of that society, defend it as necessary, and ensure that we do not contribute to the harm of others within it. As such, Mill believes in a strict application of the Harm Principle. Prevention of harm itself is not only a sufficient justification for the limiting of individual liberty through law, but prevention of harm is a necessary condition of legitimate interference with liberty.

Tyranny of the Majority

Mill notes the popularity of self-government and democratic rule, in which the public itself becomes a part of the authority that controls the limits on liberty. The inherent problem with self-government is the danger of creating a Tyranny of the Majority. The Tyranny of the Majority is when society itself becomes the tyrant and collectively imposes its power over the individuals who compose it. Society can and will often pass its own mandates, and if it passes mandates that are incorrect or not necessary, through social tyranny the power of those mandates can become oppressive, enforce conformity, and leave fewer avenues for individuals to escape from improper limits on their liberty. The Tyranny of the Majority includes social tyranny through prevailing opinions and feelings. Mill feels that there needs to be a limit on the inference of collective opinion with individual independence and finding proper limits is necessary to protect liberty and prevent political despotism.

Exceptions to the Rule of Liberty

Mill notes that the right to liberty does not apply to children under the age limits set by law for adulthood or to ‘nonage’ societies that are ‘backwards’ in their social development. Mill notes that these parties must be protected by others with more mature faculties against harm from their own actions and the actions of others in society.

Gerald Dworkin and Paternalism

Paternalism challenges Liberty and expands on the idea of the harm principle as a justification to limiting individual liberty. Paternalism argues that interference with individual liberty is not only justified in prevents harm to others, but is also justified if it prevents harm to the individual on themselves. This is also true in cases where prevention of individual harm incidentally leads to prevention of harm to third parties. Paternalistic interference preserves autonomy, which Dworkin asserts is analogous to liberty.

Dworkin introduces several other justifications for limits on liberty:

• Limiting liberty is allowed where action o the individual produces irreversible and destructive changes of personal liberty/autonomy. In example, through irrational choices or addiction.
• Limiting liberty is allowed where individual decisions are made under extreme psychological pressure and the risks associated are not freely chosen or understood. In example, suicide or confessions.

Contrasting Liberty and Paternalism with Other Theoretical Treatments

Many of the concepts considered as valid justifications for the limits of law fit within the moral framework of earlier theories set forth by Legal Positivists and Natural Law theorists. For example, the Harm Principle itself is partly founded on the interests of every person not to be seriously harmed by others. This interest is certainly a requirement of the common good found in both Legal Positivism and Natural Law. Further, this type of common good supports an integration of morality within the legal framework. However, it should be noted that Liberty and Paternalism theorists will stress the fact that it is liberty itself which allows for expression of moral values, therefore, justification of law comes from restraint on limiting liberty through creation of social rights which embody moral values preventing harm in society, not through justification that the moral values themselves create or justify law. Essentially, it is the presumption of liberty that allows for moral values in the first place.

Application of Liberty and Paternalism to Moore v. British Columbia (Education)

Liberty and a System of Rights

The Supreme Court of Canada in Moore v. British Columbia (Education) uphold the presumption of individual liberty; specifically, the liberty of students to develop their individual potential and acquire the knowledge and skills needed to contribute to a healthy democratic society through education. This liberty is protected in the acknowledgement by the provincial government that there is an inherent right to access to education under section 8 of the British Columbia Human Rights Code. Further, the Code sets out the limits of which the government must adhere in order to prevent discrimination against individuals on the basis of this right and the liberty it protects. These facts strongly follow Mill’s concept of individual liberty and the idea that the creation of a system of political rights and liberties is one method to ensure authoritative powers do not infringe indvidual liberty.

Protection of Children Under Liberty

It is important to note that the Court stresses the importance of how all children should be afforded equal opportunities to develop their full potential through education. In fact, the Court goes as far as to stress the importance of protection of children against the harm of receiving poor education or limited access to the education available. In Jeffrey’s case, at the Tribunal level, experts clearly agreed that Jeffrey suffered as a result of having poor access to facilities to address his learning disability and noted sufficient access to those facilities in the public school system would have benefited him in the long run. The Court here submits that the public school system has a duty to provide sufficient access to education for all students, including those with learning disabilities. These ideas fit Mill's presumption that the doctrine of Liberty is only applicable to those of mature faculties and that those who do not have these faculties, children under the legal age of adulthood or ‘nonage’ societies, must be protected by those who do against harm from their own actions (in this case, Jeffrey's) and actions of others (in this case, the school district and Province).

Application of the Harm Principle as Justification for Limits on Liberty

The idea of protection of children against harm easily brings in the Liberty theory of the Harm Principle as set out by Mill. The Harm Principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society. In Jeffrey’s case, the ‘others’ in society are those children with special educational needs, and the ‘harm’ that occurs is their inability to access education to allow full liberty to develop their skills and knowledge as a contributing individual in society. As the Tribunal and Supreme Court of Canada noted, the actions of the school district did not meet this justification. Their actions were stressed as being one of economic need in allowing the cutbacks to the programs for special needs students that Jeffrey required. Further, the actions by the school district indiscriminately allowed some programs, such as the Outdoor School, while cutting others, such as the Diagnostic Centre. At no point did the actions of the school district seek to prevent harm to special needs students in the education system, of which, had the school district sought to do so it may have allowed the limits they imposed under the Harm Principle. This is extremely prevalent in the decision by the school district to not even consider alternative options for special needs students in their public schools before cutting the programs completely.

Application of Paternalism as Justification for Limits on Liberty

Paternalism notes that not only are limits against liberty justified in situations of prevention of harm to others, as stressed by Mill, but Dworkin allows limits against liberty as justified in situations of prevention of harm to the individuals through their own actions. In this case, the ‘harm’ would be to Jeffrey as an individual in his own actions when failing to have a sufficient education that would aid in his development as an intelligent adult (of which all students are entitled to under the British Columbia Human Rights Code). Again, however, the school districts actions were primarily economically-motivated and did not seek to prevent harm in any way, and therefore, the findings of the Tribunal and Supreme Court of Canada in discrimination against special needs students are well-founded as Paternalism also does justify their limits on liberty.

Conclusion

Mill and Dworkin would most likely agree with the Supreme Court of Canada's decision on Moore v. British Columbia (Education) as the Court's decision strongly valued the presumption of inherent individual liberty and the rights that arise thereof. Further, the Court's decision that the limits the school district imposed on the public school system and on Jeffrey's access to education as infringing individual liberty was well-founded as the limits did not fit under either Mill's or Dworkin's possible justifications for a limit on liberty (in either the Harm Principle per Mill or Paternalism per Dworkin).

Treatments of Selected Theoretical Perspectives

Legal Perspectives		Philosophers
	Natural Law	Thomas Aquinas
	Legal Positivism	John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
	Separation Theory	HLA Hart and Ron Fuller
	System of Rights	Ronald Dworkin
	Liberty and Paternalism	John Stuart Mill and Gerald Dworkin
	Law as Efficiency	Susan Dimock
	Feminist Jurisprudence	Patricia Smith and Catharine Mackinnon