Moore v. British Columbia (Education), 2012 SCC 61
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.
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?
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:
- The school district’s failure to assess Jeffrey’s learning disability early; and
- 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:
- The school district’s underfunding of severe learning disability programs;
- The school district’s decision to close the Diagnostic Centre; and
- 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:
- The creation of the high incidence/low cost cap classification for special education funding;
- The underfunding of the school district;
- Failure to ensure necessary services, including early intervention, as mandatory for students with disabilities; and
- Failure to monitor the activities conducted by the school districts.
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.
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
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.
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:
- They have a characteristic protected from discrimination under the Human Rights Code;
- That they have experienced an adverse impact with respect to the service; and
- 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.
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.
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.
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.
Treatments of Selected Theoretical Perspectives
|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|