This case is a Supreme Court of Canada decision referenced as Moore v. British Columbia (Education), 2012 SCC 61 (CanLII),  3 SCR 360.
We have seen this case referenced in complaints alleging discrimination in employment on the grounds of physical disability.
As quoted from the “Moore” decision:
On appeal from the Court of Appeal for British Columbia:
Human rights — Discrimination — Prohibited grounds — Mental or physical disability — Education — Student with dyslexia attending public school — School district cancelling special education program requiring student to enrol in specialized private school — Whether school district discriminating against student by failing to provide necessary remediation — Human Rights Code, R.S.B.C. 1996, c. 210, s. 8.
Education law — School regulation and administration — Curriculum and education programs — Obligations of school authorities — What constitutes meaningful access to education for students with learning disabilities — School Act, S.B.C. 1989, c. 61.
J suffered from severe dyslexia for which he received special education at his public school. In Grade 2, a psychologist employed by the school district recommended that since he could not get the remedial help he needed at his school, he should attend the local Diagnostic Centre to receive the necessary remediation. When the Diagnostic Centre was closed by the school district, J transferred to a private school to get the instruction he needed. His father filed a complaint with the B.C. Human Rights Tribunal on J’s behalf against the school district and the Province on the grounds that J had been denied a “service . . . customarily available to the public” under s. 8 of the B.C. Human Rights Code. The Tribunal concluded that there was discrimination against J by the District and the Province and ordered a wide range of sweeping systemic remedies against both. It also ordered that the family be reimbursed for the tuition costs of J’s private school. The reviewing judge set aside the Tribunal’s decision, finding that there was no discrimination. A majority of the Court of Appeal dismissed the appeal.
Held: The appeal is substantially allowed.
The purpose of the School Act in British Columbia is to ensure that “all learners . . . develop their individual potential and . . . acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. This is an acknowledgment by the government that the reason children are entitled to an education is that a healthy democracy and economy require their educated contribution. Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.
The “service” to which J is entitled under s. 8 of the B.C. Human Rights Code is education generally. To define special education as the service at issue risks descending into a kind of “separate but equal” approach. Comparing J only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination. If J is compared only to other special needs students, full consideration cannot be given to whether he had meaningful access to the education to which all students in British Columbia are entitled. This risks perpetuating the very disadvantage and exclusion the Code is intended to remedy.
To demonstrate prima facie discrimination under, complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact with respect to a service customarily available to the public; 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. If it cannot be justified, discrimination will be found to occur.
There is no dispute that J’s dyslexia is a disability. There is equally no question that any adverse impact he suffered is related to his disability. The question then is whether J has, without reasonable justification, been denied meaningful access to the general education available to all children in British Columbia based on his disability.
Prima facie discrimination was made out based on the insufficiently intensive remediation provided by the District for J’s learning disability in order for him to get access to the education he was entitled to. J received some special education assistance until Grade 3, but the Tribunal’s conclusion that the remediation was far from adequate to give J the education to which he was entitled, was fully supported by the evidence. The Tribunal found that the family was told by District employees that J required intensive remediation. As a result of the closing of the Diagnostic Centre, a private school was the only alternative that would provide the intense remediation that J required.
The Tribunal found that when the decision to close the Diagnostic Centre was made, the District did so without knowing how the needs of students like J would be addressed, and without undertaking a needs‑based analysis to consider what might replace the Diagnostic Centre, or assessing the effect of the closure on Severe Learning Disabilities students. It was the combination of the clear recognition by the District, its employees and the experts that J required intensive remediation in order to have meaningful access to education, the closing of the Diagnostic Centre, and the fact that the family was told that these services could not otherwise be provided by the District, that justified the Tribunal’s conclusion that the failure of the District to meet J’s educational needs constituted prima facie discrimination.
The next question is whether the District’s conduct was justified. The District’s justification centred on the budgetary crisis it faced during the relevant period, which led to the closure of the Diagnostic Centre and other related cuts. The Tribunal’s findings that the District had other options available for addressing its budgetary crisis should not be disturbed. The Tribunal accepted that the District faced financial difficulties during the relevant period. Yet it also found that cuts were disproportionably made to special needs programs. Despite their similar cost, the District retained some discretionary programs, such as the Outdoor School — an outdoor campus where students learned about community and the environment — while eliminating the Diagnostic Centre.
More significantly, the Tribunal found that the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed. The failure to consider financial alternatives completely undermined the District’s argument that it was justified in providing no meaningful access to an education for J because it had no choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.
The finding of discrimination against the District is therefore restored.
Referred to: Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Withler v. Canada (Attorney General), 2011 SCC 12,  1 S.C.R. 396; Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC),  1 S.C.R. 1219; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC),  3 S.C.R. 624; University of British Columbia v. Berg, 1993 CanLII 89 (SCC),  2 S.C.R. 353; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27,  1 S.C.R. 665; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15,  1 S.C.R. 650; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC),  3 S.C.R. 3; Ontario Human Rights Commission v. Borough of Etobicoke, 1982 CanLII 15 (SCC),  1 S.C.R. 202; Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC),  2 S.C.R. 970; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC),  2 S.C.R. 489; Griggs v. Duke Power Co., 401 U.S. 424 (1971); Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC),  1 S.C.R. 1114; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC),  3 S.C.R. 868.
Statutes and Regulations Cited
School Act, S.B.C. 1989, c. 61, preamble.
School Amendment Act, S.B.C. 1993, c. 6.
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