The Supreme Court of Canada has substantially overturned a judgment of the BC Court of Appeal in Moore v. British Columbia (Education), finding that a Board of Education discriminated against a dyslexic student by cutting an intensive remediation program without adequate consideration of how it would provide services to special needs students in the absence of the program.

In Moore, the complainant was a dyslexic elementary school student who required significant learning intervention in order to learn to read. He received in-school support but it was determined that 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’s attendance. A number of Board employees suggested that with the closure of the Centre the Board could not provide intensive remediation and suggested the student enroll in a local independent school as an alternative.

The parents brought a complaint against the Board claiming the closure of the Centre was discriminatory. The complaint also alleged that the provincial special needs funding model was systemically discriminatory.

Initially, the BC Human Rights Tribunal determined there was discrimination by both the Board and the Province. It held that the closure of the Centre prevented meaningful access to 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 tuition and also ordered it to pay $10,000 for injury to the complainant’s dignity. Significant and far reaching orders were made against the Province requiring it to remedy the systemic discrimination found against special needs students.

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

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

The Court determined that the Tribunal had correctly framed the issue, and that it was not access to special needs education, but access to education itself that was the basis of the discrimination claim. It found that special education services are the means by which special needs students obtain access to the general education that it is the mandate of the public school system to provide. The question for the Court was whether, without reasonable justification, the complainant has been denied that meaningfulaccess.

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

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

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

Notably, the Court refused to find systemic discrimination against the government. It held that a Human Rights Tribunal is “an adjudicator of the particular claims that is before it, not a Royal Commission”. It set aside all of the orders that were made against the government.

This judgment is significant for Boards of Education and may affect the manner in which they approach their budget discussions. The judgment does not require specific programs to be in place, and recognizes that deference must be given to Board decisions. However, the Court noted that the case will have broad remedial repercussions for how other students with severe learning disabilities are educated. As a result, Boards will need to be cautious in the decisions they make and the priorities they set for the allocation of their limited resources.

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