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School Board Discriminated by Closing Special Needs Program
November 9, 2012

The Supreme Court ofCanada has substantially overturned a judgment of the BC Court of Appeal in Moorev. British Columbia (Education),finding that a Board of Education discriminated against a dyslexicstudent by cutting an intensive remediation program without adequateconsideration of how it would provide services to special needs students in theabsence of the program.

In Moore, the complainant was a dyslexicelementary school student who required significant learning intervention inorder to learn to read. He received in-school support but it was determinedthat he would be better served by attending the Board’s Diagnostic Centre.However, due to budget cuts, the Centre was closed prior to the complainant’sattendance. A number of Board employees suggested that with the closure of the Centrethe Board could not provide intensive remediation and suggested the studentenroll in a local independent school as an alternative.

The parents broughta complaint against the Board claiming the closure of the Centre wasdiscriminatory. The complaint also alleged that the provincial special needsfunding model was systemically discriminatory.

Initially, the BCHuman Rights Tribunal determined there was discrimination by both the Board andthe Province. It held that the closure of the Centre prevented meaningful accessto public education for the complainant that was available to other students.It ordered the Board to pay the costs of the complainant’s independent school tuitionand also ordered it to pay $10,000 for injury to the complainant’s dignity. Significantand far reaching orders were made against the Province requiring it to remedythe systemic discrimination found against special needs students.

On judicial review,the BC Supreme Court held that the Tribunal had erred by comparing thecomplainant to the general school population and should have compared him toother special needs students. The Court overturned the Tribunal and concludedthere had been no discrimination. The Court of Appeal, in a split decision,upheld the judgment of the BC Supreme Court.

A unanimous SupremeCourt of Canada substantially overturned the BC Court of Appeal and reinstatedthe Tribunal decision as it related to the order that the Board reimburse theparents for the independent school tuition that they had paid, as well as theaward of damages for injury to dignity.

The Court determinedthat the Tribunal had correctly framed the issue, and that it was not access tospecial needs education, but access to education itself that was the basis ofthe discrimination claim. It found that special education services are themeans by which special needs students obtain access to the general educationthat it is the mandate of the public school system to provide. The question for the Court was whether, withoutreasonable justification, the complainant has been denied that meaningful access.

The Court held thatbased on the record, there was ample evidence to suggest that the Boardemployees were aware that the complainant required intensive remediation andthat they could not provide these services once the Centre had closed. Therefore,a prima facie case of discrimination wasestablished. The next question then, is whether the closure decision could bejustified. This required the Board to show three things: (1) that alternateapproaches were investigated; (2) that the conduct was reasonably necessary toaccomplish a broader goal; and (3) that it could not have done anything elsereasonable or practical to avoid the negative impact on the complainant.

The Court acceptedthat financial considerations could be taken into account by a court ortribunal when determining whether a decision could be justified. Nevertheless,the Court held that in this case the Board undertook “no assessment, financialor otherwise, to what alternatives were or could be reasonably available toaccommodate special needs students if the Diagnostic Centre were closed.”

Since the Board hadfailed to consider alternatives to the cuts to the Centre, it could not successfullyargue it had no other choice but to make the decision it did. The Court wouldnot interfere with the Tribunal’s findings that the Board had other options toaddress its budgetary crisis. It thus upheld the finding of discrimination.Having found that the complainant had been discriminated against and that theBoard had not justified that discrimination, the Court concluded he wasentitled to a substantial remedy.

Notably, the Courtrefused to find systemic discrimination against the government. It held that aHuman Rights Tribunal is “an adjudicator of the particular claims that isbefore it, not a Royal Commission”. It set aside all of the orders that weremade against the government.

This judgment issignificant for Boards of Education and may affect the manner in which theyapproach their budget discussions. The judgment does not require specificprograms to be in place, and recognizes that deference must be given to Boarddecisions. However, the Court noted that the case will have broad remedialrepercussions for how other students with severe learning disabilities areeducated. As a result, Boards will need to be cautious in the decisions theymake and the priorities they set for the allocation of their limited resources.

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

Please contactPartners Keith Mitchell or Page Kendall if you have any questions relating tothe information presented in this article.