British Columbia (Minister of Education) v. Moore et al., 2010 BCCA 478

• Judge: Rowles, Saunders and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 29, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 478;(2010), 294 B.C.A.C. 185 (CA)

B.C. v. Moore ( 2010 ), 294 B.C.A.C. 185 (CA);

  498 W.A.C. 185

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. NO.002

Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education (respondent/petitioner) v. Frederick Moore on behalf of Jeffrey P. Moore (appellant/respondent) and 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) and British Columbia Human Rights Tribunal (respondents/respondents) and British Columbia Teachers' Federation, Council of Canadians with Disabilities, and Learning Disabilities Association of Canada (intervenors)

(CA035936)

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) (respondent/petitioner) v. Frederick Moore on behalf of Jeffrey P. Moore (appellant/respondent) and Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education and British Columbia Human Rights Tribunal (respondents/respondents) and British Columbia Teachers' Federation, Council of Canadians with Disabilities, and Learning Disabilities Association of Canada (intervenors)

(CA035937; 2010 BCCA 478)

Indexed As: British Columbia (Minister of Education) v. Moore et al.

British Columbia Court of Appeal

Rowles, Saunders and Low, JJ.A.

October 29, 2010.

Summary:

Moore was a severely learning disabled student (SLD). He had dyslexia. A human rights complaint was filed against the Province 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, 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.

Civil Rights - Topic 980.1

Discrimination - Duty to accommodate - General - [See Civil Rights - Topic 1153 ].

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 1153

Discrimination - Education - Discrimination on basis of disability - Moore was a severely learning disabled (SLD) student (dyslexia) - SLD students received individualized special education services in addition to or in place of the general curriculum - Moore received extensive educational support services, but an intensive remedial and individualized program (DC1) recommended for Moore was not available because of funding cuts - The alternative to DC1 was intensive remediation offered at a private independent school specializing the learning disabilities, which Moore eventually attended - There was no expert consensus, at the time, on what constituted an effective remediation program - Following a complaint, the Human Rights Tribunal found that Moore and other SLD students were discriminated against under s. 8(1) of the Human Rights Code, as they were denied an educational service customarily available to the public on the basis of mental disability - In allowing a judicial review application, the judge held that the Tribunal erred in finding discrimination in the absence of disparate treatment - The services customarily available to the public under s. 8(1) were special education services provided to special needs students (not general education services) and the comparator group for the SLD students was other special needs students without severe learning disabilities (not all students attending school) - The British Columbia Court of Appeal affirmed the reviewing judge's decision - The School District and Province, by terminating the DC1 program or otherwise, did not deny Moore or any other SLD student an accommodation, service or facility customarily available to the public - The service customarily available to the public was special education services provided to special needs students and the comparator group was other special needs students who were not severely learning disabled - SLD students were not denied special services - There was no evidence that they received less intense or effective remediation after the DC1 program was terminated - The essence of the complaint was "ineffective" remediation rather than "differential" treatment - The court stated that "a finding of denial of a service, or of discrimination regarding that service, cannot be based upon controversial expert testimony that other steps might have been more beneficial. ... [Moore] was entitled to no more than a conscientious and reasonable attempt to identify his condition and to address his needs. That occurred in the present case. No further legal analysis is required. There was no denial of service or discrimination with respect to its delivery". - See paragraphs 163 to 188.

Cases Noticed:

British Columbia v. Bolster et al. (2007), 236 B.C.A.C. 46; 390 W.A.C. 46; 63 B.C.L.R.(4th) 263; 2007 BCCA 65, leave to appeal denied (2007), 378 N.R. 399; 262 B.C.A.C. 318; 441 W.A.C. 318 (S.C.C.), refd to. [para. 11].

Auton et al. v. British Columbia (Minister of Health) et al. (2002), 173 B.C.A.C. 114; 283 W.A.C. 114; 6 B.C.L.R.(4th) 201; 2002 BCCA 538, refd to. [para. 22].

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; 151 D.L.R.(4th) 577, refd to. [para. 22].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 37].

Vancouver Rape Relief Society v. Nixon et al. (2005), 220 B.C.A.C. 109; 362 W.A.C. 109; 47 B.C.L.R.(4th) 203; 2005 BCCA 601, refd to. [para. 39].

Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 (2006), 222 B.C.A.C. 213; 368 W.A.C. 213; 54 B.C.L.R.(4th) 252; 2006 BCCA 58, refd to. [para. 39].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 40].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1; 140 D.L.R.(4th) 1, refd to. [para. 41].

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, refd to. [para. 41].

International Forest Products Ltd. v. Sandhu et al. (2008), 255 B.C.A.C. 183; 430 W.A.C. 183; 82 B.C.L.R.(4th) 35; 2008 BCCA 204, refd to. [para. 41].

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; 176 D.L.R.(4th) 1, refd to. [para. 42].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228; 311 N.R. 313; 2003 SCC 68, refd to. [para. 42].

British Columbia Government and Service Employees' Union v. Public Service Employee Relations Commission (B.C.) (2002), 172 B.C.A.C. 154; 282 W.A.C. 154; 4 B.C.L.R.(4th) 301; 2002 BCCA 476, refd to. [para. 43].

British Columbia Public School Employers' Association v. British Columbia Teachers' Federation (2003), 183 B.C.A.C. 201; 301 W.A.C. 201; 15 B.C.L.R.(4th) 58; 2003 BCCA 323, refd to. [para. 43].

Schafer et al. v. Canada (Attorney General) et al. (1997), 102 O.A.C. 321; 149 D.L.R.(4th) 705; 35 O.R.(3d) 1 (C.A.), refd to. [para. 44].

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; 181 D.L.R.(4th) 385, refd to. [para. 46].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 52].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303; 40 D.L.R.(4th) 577, refd to. [para. 90].

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; 102 D.L.R.(4th) 665, refd to. [para. 90].

B. v. Human Rights Commission (Ont.) - see Human Rights Commission (Ont.) v. A et al.

Human Rights Commission (Ont.) v. A et al., [2002] 3 S.C.R. 403; 294 N.R. 140; 166 O.A.C. 1; 2002 SCC 66, refd to. [para. 90].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 90].

Board of School Trustees of School District No. 44 (North Vancouver) v. Jubran et al. (2005), 211 B.C.A.C. 161; 349 W.A.C. 161; 39 B.C.L.R.(4th) 153; 2005 BCCA 201, refd to. [para. 92].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321; 133 D.L.R.(4th) 1, refd to. [para. 95].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161; 142 D.L.R.(4th) 385, refd to. [para. 95].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 112].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 112].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 113].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 117].

Commission scolaire régionale de Chambly v. Bergevin - see Commission scolaire régionale de Chambly v. Syndicat de l'enseignement de Champlain et autres.

Commission scolaire régionale de Chambly v. Syndicat de l'enseignement de Champlain et autres, [1994] 2 S.C.R. 525; 169 N.R. 281; 62 Q.A.C. 241; 115 D.L.R.(4th) 609, refd to. [para. 145].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577, refd to. [para. 148].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241; 72 D.L.R.(4th) 417, refd to. [para. 149].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381; 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113; 2004 SCC 66, refd to. [para. 149].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321, appld. [para. 164].

Renaud v. Board of Education of Central Okanagan District 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; 95 D.L.R.(4th) 577, refd to. [para. 177].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 177].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 180].

Wynberg et al. v. Ontario (2006), 213 O.A.C. 48; 82 O.R.(3d) 561; 269 D.L.R.(4th) 435 (C.A.), refd to. [para. 181].

Statutes Noticed:

Human Rights Code, R.S.B.C. 1996, c. 210, sect. 1 [para. 31]; sect. 3 [para. 91]; sect. 8(1) [paras. 15, 31].

Authors and Works Noticed:

Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), pp. 375 [para. 51]; 409 [para. 121].

Holmes, Elisa, Anti-Discrimination Rights Without Equality (2005), 68(2) Mod. L. Rev. 175, generally [para. 113].

Moreau, Sophia, Equality Rights and the Relevance of Comparator Groups (2006), 5 J.L. & Equality 81, generally [para. 113].

Reaume, Leslie, Postcards from O'Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter, in Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 375 [para. 51].

Wright, Andrea, Formulaic Comparisons: Stopping The Charter at the Statutory Human Rights Gate, in Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 409 [para. 121].

Counsel:

F. Kelly and K. Milne, for the appellant;

L. Greathead and E.W. Hughes, for the respondent, H.M.T.Q. in Right of British Columbia;

L.N. Bakan, Q.C., and D.J. Bell, 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);

D.E. Paluck and J. Connell, for the respondent, British Columbia Human Rights Tribunal;

D.C. MacDonald and R. Trask, for the intervenor, British Columbia Teachers' Federation;

G. Brodsky, K. Brooks and Y.J. Peters, for the intervenor, Council of Canadians with Disabilities;

Y.M. Henteleff, Q.C., and T. Beasley, for the intervenor, Learning Disabilities Association of Canada.

These appeals were heard on May 4-8, 2009, at Vancouver, B.C., before Rowles, Saunders and Low, JJ.A., of the British Columbia Court of Appeal.

On October 29, 2010, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Rowles, J.A., dissenting - see paragraphs 1 to 162;

Low, J.A. (Saunders, J.A., concurring) - see paragraphs 163 to 188.