On November 9, 2012, the Supreme Court of Canada released an important decision in Moore v. British Columbia (Education), 2012 SCC 61 that could have serious cost implications for provincial Ministries of Education and school boards across the country dealing with special needs children.  The decision dealt with a young student suffering from a form of dyslexia who was forced to enroll at a private school when funding for some of the services he needed was cut by his school board.

After 15 years of litigation, a 9-0 ruling by the Supreme Court reversed two lower courts’ decisions and substantially agreed with the British Columbia Human Rights Tribunal’s (“BCHRT”) that the school board had discriminated against the student when it cut all funding to the Diagnostic Centre - a program which provided intensive services and individualized assistance to students with severe learning disabilities.  The Supreme Court required that the school board reimburse the student’s parents for the cost of having to send their son to private school, in addition to reimbursing their legal costs.  The Supreme Court also awarded damages of $10,000 to the family.

This decision is receiving national attention because it forces school boards across the country to re-evaluate any future plans to trim back funding for special education in light of shrinking budgets and difficult economic times. 

Facts

Jeffrey Moore was diagnosed with a severe form of dyslexia for which he received special education at his public school.  Students with special needs in the District were supported in many ways, receiving assistance both in and out of the classroom from special education Aides, as well as from learning assistance teachers and tutors.

While Jeffrey was in Grade 2, the District determined that he was in need of intense remedial help for his disability and that he could no longer get the help he needed at his school.  It was recommended that Jeffrey attend the Diagnostic Centre run by the District. However, following the implementation of a new funding model for education across the province, and faced with significant financial and budgetary shortfalls, the Board decided to shut down its Diagnostic Centre.  With the closing of the Centre, Jeffrey’s parents were forced to incur significant expense to enrol their son in a private school, the only alternative available to them that would provide the intense remediation that Jeffrey required, and where he eventually completed high school.

Jeffrey’s father filed a complaint with the BCHRT on his behalf against the school District and the Province on the grounds that his son had been denied a “service customarily available to the public” because of a disability under section 8 of the B.C. Human Rights Code[1].  

At issue was whether or not Jeffrey, a student with special needs, was denied a “service” ordinarily available or provided to other students by the District by virtue of the fact that he had a learning disability, and if so, whether or not the District’s actions were reasonably necessary or justified in the circumstances.

Decision

According to the Supreme Court, the “service” ordinarily available to the public was understood to mean education generally, and not special education.  In particular, the Court held that special education is the means by which those students with special needs get meaningful access to the same general education services otherwise available to all students.  It is the “ramp that provides access to the statutory commitment to education made to all children”.[2]  To hold otherwise would lead to problems for special needs children since it would essentially enable school boards and provincial Ministries of Education to cut all special needs programs and be immune from future claims of discrimination. In other words, defining “services” too narrowly would risk perpetuating the very disadvantage and exclusion from mainstream society that the Code is intended to remedy. 

Interestingly, the Supreme Court recognized that the District did take some steps to assist Jeffrey, but the remediation was far from adequate to give him the educational “service” to which he was entitled.  The District’s justification for its decision to close the Diagnostic Centre was solely for financial and budgetary reasons, and it attempted to argue that it had no other choice.  Disagreeing, the Court stated that “[i]n order to decide that it had no other choice, it had at least to consider what those other choices were”.[3]  In this case, the District had simply not turned its mind to other alternatives, nor did it assess the impact of closing the Diagnostic Centre.  In fact, it maintained certain discretionary programs like an “outdoors program”.

In future, cutting or diverting funding away from special education will be measured against the Supreme Court’s ruling in Moore.  At the very least, school boards will need to provide compelling evidence to justify its decisions to cut funding or close programs necessary for children with learning disabilities to receive a level of education comparable to that of their peers.  When it comes to special education, the consideration must now be whether or not a student with learning disabilities has genuine and meaningful access to the education that all other students are entitled to.