In this appeal from a decision of the Court of Appeal of British Columbia, the Supreme Court of Canada addressed the question of whether the BC Human Rights Code provisions respecting discrimination required the provision of special educational assistance for learning disabled children. Moore’s son had been receiving support from a Diagnostic Centre until it was eliminated by the school board due to budgetary requirements.
The BC Human Rights Code requires that all publicly available services shall not be denied to a person on the basis of a prohibited ground. The BC Human Rights Tribunal found that the appropriate comparator group for the purposes of discrimination analysis was the non-disabled children in his class. On application for judicial review, the BC Supreme Court disagreed with that position and found that the appropriate comparator group would be other learning disabled children. That decision was upheld on appeal.
The appeal to the SCC asked it to determine which comparator group was appropriate. Justice Abella, writing for the Court, characterized learning assistance programs as essential to the provision of education as mandated under the School Act. Thus, the appropriate comparison was between the access to education provided for non-disabled children and the access to education achieved by a disabled child. Justice Abella found that the School District’s failure to consider how closure of the Diagnostic Centre would affect learning disabled students.
The Court stopped short of finding the Province responsible for discrimination stemming from the closure of the Diagnostic Centre, despite the fact that the budgetary pressures faced by the School Board were created by Provincial budget cutbacks. The decision treads a fine line between protecting individual rights and interfering with legislative and executive functions. These are dangerous waters for the courts, where they are effectively substituting their own discretion for that of the local School District. Nevertheless, the decision was delivered by a unanimous Court. The long term effects of the decision remain to be seen, but it seems apparent that the courts are now in a position to exercise significant oversight of the disposal of today’s limited budgets, at least at the sub-ministerial level.