B.C. v. Moore (2012), 328 B.C.A.C. 1 (SCC);
558 W.A.C. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
…………………….
Temp. Cite: [2012] B.C.A.C. TBEd. NO.048
Frederick Moore on behalf of Jeffrey P. Moore (appellant) v. Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Ministry of Education, and Board of Education of School District No. 44 (North Vancouver), formerly known as The Board of School Trustees of School District No. 44 (North Vancouver) (respondents) and Attorney General of Ontario, Justice for Children and Youth, British Columbia Teachers’ Federation, Council of Canadians with Disabilities, Ontario Human Rights Commission, Saskatchewan Human Rights Commission, Alberta Human Rights Commission, International Dyslexia Association, Ontario Branch, Canadian Human Rights Commission, Learning Disabilities Association of Canada, Canadian Constitution Foundation, Manitoba Human Rights Commission, West Coast Women’s Legal Education and Action Fund, Canadian Association for Community Living, Commission des droits de la personne et des droits de la jeunesse, British Columbia Human Rights Tribunal, First Nations Child and Family Caring Society of Canada (intervenors)
(34040; 34041; 2012 SCC 61; 2012 CSC 61)
Indexed As: British Columbia (Minister of Education) v. Moore et al.
Supreme Court of Canada
McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
November 9, 2012.
Summary:
Moore was a severely learning disabled student (SLD). He had dyslexia. A human rights complaint was filed against the Province of British Columbia and the School District, alleging individual and systemic discrimination against Moore and other SLD students in the provision of educational services. Moore alleged a failure to quickly identify his disability and a failure to provide the supports necessary to permit access to educational services available to all students. Moore also challenged the level of services provided to SLD students, arguing that the remediation methods available for SLD students were inadequate.
The B.C. Human Rights Tribunal found that the District and the Province discriminated against Moore and other SLD students by failing to accommodate their learning disabilities in the provision of educational services contrary to s. 8(1) of the Human Rights Code. The District and Province applied under the Judicial Review Procedure Act to quash the Tribunal’s decision.
The British Columbia Supreme Court, in a judgment reported [2008] B.C.T.C. Uned. A86, allowed the judicial review applications and quashed the Tribunal’s decision, finding that the Tribunal erred in finding discrimination in the absence of disparate treatment. The court ruled that the service customarily available to the public under s. 8 was special education services provided to special needs students and that the comparator group for the SLD students was other special needs students without severe learning disabilities. Moore appealed.
The British Columbia Court of Appeal, Rowles, J.A., dissenting, in a judgment reported (2010), 294 B.C.A.C. 185; 498 W.A.C. 185, dismissed the appeals. The Tribunal did not err in finding that Moore and other SLD students were not denied an accommodation, service or facility customarily available to the public, or in selecting the appropriate comparator group. The service in question was general education and the comparator group was special needs students who were not severely learning disabled. Moore and the other SLD students were entitled to special education services in addition to or in place of the general curriculum. As this benefit was provided, there was no basis to continue with the discrimination analysis. Whether the Province and District provided the most effective remediation services was not a basis for finding discrimination. Rowles, J.A., dissenting, opined that the “service” in question was public education services generally, not special education. Rowles, J.A., would also have identified the comparator group as all students attending public school in the Province who did not require additional support and services. Based on those services and that comparator group, Rowles, J.A., concluded that Moore and the other SLD students were discriminated against contrary to s. 8, as their disabilities were not accommodated to the point of undue hardship. Moore and the other SLD students appealed.
The Supreme Court of Canada substantially allowed the appeal. The court restored the Tribunal’s decision that Moore was discriminated against and the personal remedy given to him. However, the court set aside the Tribunal’s finding that the Province was also liable and the systemic remedies awarded.
Civil Rights – Topic 974
Discrimination – Facilities and services customarily available to public – Discrimination on basis of a physical or mental disability – [See
Civil Rights – Topic 1153
].
Civil Rights – Topic 980.1
Discrimination – Duty to accommodate – General – [See
Civil Rights – Topic 1153
].
Civil Rights – Topic 1153
Discrimination – Education – Discrimination on basis of disability – Moore was a severely learning disabled (SLD) student (dyslexia) who needed extensive educational support services – A recommended intensive remedial and individualized program (DC1) became unavailable when the District implemented provincial funding cuts by terminating the program – No consideration was given to how it would provide alternative remediation services – Moore’s parents were told that their only alternative was intensive remediation at a private independent school specializing in learning disabilities, which Moore eventually attended at his parents’ cost – A Human Rights Tribunal found that Moore was discriminated against under s. 8(1) of the Human Rights Code (B.C.) because he was denied a “service” customarily available to the public – The Supreme Court of Canada agreed – “Special education” was not the “service” – It was the means by which SLD students obtained meaningful access to the general education services available to all students – The correct comparator group was all students, not just other special needs students – Otherwise, the District could cut all special needs programs and be immune from discrimination claims – The Tribunal’s conclusion that the remediation services provided by the District were not adequate to give Moore the education to which he was entitled was supported by the evidence – The Tribunal found that although the District faced financial difficulties, it disproportionately cut special needs programs while maintaining some discretionary programs – The District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the DC1 program was closed – Accordingly, the court affirmed the Tribunal’s finding of discrimination, as the District failed to reasonably accommodate Moore – The court affirmed the remedy against the District (cost of tuition for Moore up to Grade 12, half the transportation costs, and $10,000 damages for injury to Moore’s dignity, feelings and self-respect) – However, the finding that the Province was also liable and the systemic remedies ordered by the Tribunal (including retaining jurisdiction to ensure compliance) could not be sustained – The District’s budgetary crisis was due to provincial funding cuts, but the discrimination resulted from the District’s failure to properly consider the consequences of terminating the DC1 program or how to accommodate the affected students – The court stated that “while the Tribunal was certainly entitled to consider systemic evidence in order to determine whether [Moore] had suffered discrimination, it was unnecessary for it to hold an extensive inquiry into the precise format of the provincial funding mechanism or the entire provincial administration of special needs education in or to determine whether [Moore] was discriminated against”.
Cases Noticed:
Brown v. Board of Education of Topeka (1954), 347 U.S. 483, refd to. [para. 30].
Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120, refd to. [para. 30].
Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161, refd to. [para. 31].
Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 34].
University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 34].
Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107, refd to. [para. 34].
VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1, refd to. [para. 34].
Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 49].
Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 49].
Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245, refd to. [para. 49].
Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 49].
Griggs v. Duke Power Co. (1971), 401 U.S. 424, refd to. [para. 58].
Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 59].
Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) – see Action Travail Des Femmes v. Canadian National Railway Co. et al.
Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 61].
Authors and Works Noticed:
British Columbia, Ministry of Education, Mandate for the School System (1989), p. 96 [para. 37].
British Columbia, Ministry of Education, Special Programs: A Manual of Policies, Procedures and Guidelines (1985), ss. 3.1 [para. 39]; 4.1, 4.2 [para. 38].
Brodsky, Gwen, Day, Shelagh, and Peters, Yvonne, Accommodation in the 21st Century, http://www.chrc-ccpd.ca/pdf/accommodation_eng.pdf, p. 41 [para. 31].
MacKay, A Wayne, Connecting Care and Challenge: Tapping Our Human Potential (2008), 17 E.L.J. 37, pp. 38, 47 [para. 34].
Counsel:
Frances M. Kelly and Devyn Cousineau, for the appellant;
Leah Greathead and E.W. (Heidi) Hughes, for the respondent, Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Ministry of Education;
Laura N. Bakan, Q.C., David J. Bell and Kristal M. Low, for the respondent, the Board of Education of School District No. 44 (North Vancouver), formerly known as The Board of School Trustees of School District No. 44 (North Vancouver);
Robert E. Charney and Sarah Kraicer, for the intervener, the Attorney General of Ontario;
Andrea Luey, for the intervener Justice for Children and Youth;
Diane MacDonald and Robyn Trask, for the intervener, the British Columbia Teachers’ Federation;
Written submissions only by Gwen Brodsky, for the intervener, the Council of Canadians with Disabilities;
Anthony D. Griffin, for the interveners, the Ontario Human Rights Commission, the Saskatchewan Human Rights Commission and the Alberta Human Rights Commission;
Rahool P. Agarwal, Christopher W. Cummins and Rowan E. Weaver, for the intervener, the International Dyslexia Association, Ontario Branch;
Brian Smith and Philippe Dufresne, for the intervener, the Canadian Human Rights Commission;
Yude M. Henteleff, Q.C., and Darla L. Rettie, for the intervener, the Learning Disabilities Association of Canada;
Ranjan K. Agarwal and Daniel Holden, for the intervener, the Canadian Constitution Foundation;
Written submissions only by Isha Khan, for the intervener, the Manitoba Human Rights Commission;
Alison Dewar, for the intervener, the West Coast Women’s Legal Education and Action Fund;
Roberto Lattanzio and Laurie Letheren, for the intervener, the Canadian Association for Community Living;
Athanassia Bitzakidis, for the intervener, Commission des droits de la personne et des droits de la jeunesse;
Denise E. Paluck, for the intervener, the British Columbia Human Rights Tribunal;
Nicholas McHaffie and Sarah Clarke, for the intervener, the First Nations Child and Family Caring Society of Canada.
Solicitors of Record:
Community Legal Assistance Society, Vancouver, British Columbia, for the appellant;
Attorney General of British Columbia, Victoria, British Columbia, for the respondent, Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Ministry of Education;
Guild Yule, Vancouver, British Columbia, for the respondent, the Board of Education of School District No. 44 (North Vancouver), formerly known as The Board of School Trustees of School District No. 44 (North Vancouver);
Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;
Canadian Foundation for Children, Youth and the Law, Toronto, Ontario, for the intervener, Justice for Children and Youth;
British Columbia Teachers’ Federation, Vancouver, British Columbia, for the intervener, the British Columbia Teachers’ Federation;
Camp Fiorante Matthews, Vancouver, British Columbia, for the intervener, the Council of Canadians with Disabilities;
Ontario Human Rights Commission, Toronto, Ontario, for the interveners, the Ontario Human Rights Commission, the Saskatchewan Human Rights Commission and the Alberta Human Rights Commission;
Norton Rose Canada, Toronto, Ontario, for the intervener, the International Dyslexia Association, Ontario Branch;
Canadian Human Rights Commission, Ottawa, Ontario, for the intervener, the Canadian Human Rights Commission;
Pitblado, Winnipeg, Manitoba, for the intervener, the Learning Disabilities Association of Canada;
Bennett Jones, Ottawa, Ontario, for the intervener, the Canadian Constitution Foundation;
Manitoba Human Rights Commission, Winnipeg, Manitoba, for the intervener, the Manitoba Human Rights Commission;
West Coast Women’s Legal Education and Action Fund, Vancouver, British Columbia, for the intervener, the West Coast Women’s Legal Education and Action Fund;
ARCH Disability Law Centre, Toronto, Ontario, for the intervener, the Canadian Association for Community Living;
Commission des droits de la personne et des droits de la jeunesse, Montreal, Quebec, for the intervener, Commission des droits de la personne et des droits de la jeunesse;
British Columbia Human Rights Tribunal, Vancouver, British Columbia, for the intervener, the British Columbia Human Rights Tribunal;
Stikeman Elliott, Ottawa, Ontario, for the intervener, the First Nations Child and Family Caring Society of Canada.
This appeal was heard on March 22, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada.
On November 9, 2012, Abella, J., delivered the following judgment in both official languages for the Court.
