Special Education Law in Canada

• Author: Brenda Bowlby and Lauri Reesor
• Pages: 259-285

259

CHAPTER 9

Special Education Law in Canada

Brenda Bowlby and Lauri Reesor1

A. INTRODUCTION

“Special education,” from a pedagogical perspective, refers to the special-

ized program s, services, and i nstruct ion provided to students who, bec ause

of mental/cognitive or physica l disabilities or both or because of a h igh

level of gifte dness, are other wise unable to benet fr om regular educat ion

to the same degree as most of their peers. These students are generally

referred to as “st udents with specia l needs” or “exceptional student s.”

“Special education law” encompasses the statutory and regulatory

laws (including ministerial2 directives, orders, and g uidelines) that govern

the admi nistration of specia l education within publ ic education systems3

1 Lauri Rees or is a partner i n the Ontario l aw rm Hicks Morle y,andhas a practice

that involve s extensive work w ith school board s on special educa tion, human

rights, a nd education law iss ues. Brenda Bowlby, who wa s apartnerin t he rm,

retired i n 2015 after 33 years of pr actice with t he rm, havi ng worked extens ive-

ly with scho ol boards on speci al education, hu man rights, a nd education law

through h er career.

2 Generally, the min istry or dep artment resp onsible for education i n each juris-

diction is c alled “the Mi nistr y of Education,” “the Dep artment of Educa tion,”

or “the Min istry of Le arning,” or has a n ame that inc ludes education and ot her

responsibi lities, for exa mple, Nova Scotia’s Depar tment of Education a nd Early

Childh ood Development. Ou r use of the phrase “m inister ial” or “minis try” in

this ch apter is intended a s a generic reference t o all. The ter m “minister ial direc-

tives” wi ll refer to min isteria l directive s, orders, and gu idelines col lectively.

3 The provision of educa tion is a provinci al matter un der the Constitut ion Act, 1867

(UK), 30 & 31 Vict , c 3, reprinted i n RSC 1985, App II, No 5. Conseq uently, the pro-

vision of spec ial education l aw is also a provi ncial or terr itorial respon sibility.

260 / Brenda Bowlby and Lauri Reesor

and which dene the legal rights of students with special needs as well

as the legal ri ghts of parents to be involved in and to c hallenge decisions

regarding t he special education provided to their children with specia l

needs. These provisions taken toget her form a legal framework for the

provision of speci al education.

In each jurisdiction, the legal framework under which specia l educa-

tion is provided opera tes alongside other laws th at impose legal princ iples

that have an impact on the way students with disabilities are treated in

the provision of education services. Foremost a mong these are laws t hat

require equitable treatment of protected groups within society, includi ng

childre n with disabilities. 4 Key laws are the Canadian Charter of Rights and

Freedoms5 and local hu man rights stat utes. Courts and tr ibunals have iden-

tied principles a rising from the Charter a nd from human r ights legis-

lation that d irectly inuence how sp ecial education is deli vered in Canada.

In addition, t he principles of common law — in partic ular, principles

arising f rom the admi nistrative law area of the common law — impose

limits on the exercise of power by government and govern ment agents

and actors in order t o prevent abuses of power and to ensure t hat citizens

are treated fa irly from a procedural per spective. These principles apply to

school boards in the provision of special education to their exceptional

pupils.

It is not possible in one chapter t o provide a detailed re view of the legal

framework for special education in every jurisdiction in Canada. There-

fore, we will foc us on the common general procedural approaches emer-

ging from these legal frameworks as well as signicant dierences, and

provide examples f rom individua l jurisdictions. We will review the im-

pact that t he Charter and the com mon law principles of admin istrative law

have had on the provi sion of special education by gove rnments and school

boards. Fina lly, since there is an intersect ion between human rights a nd

4 While the Unive rsal Declaration of Human Rights, GA Re s 217(III), UNGAOR, 3d

Sess, Supp No 13, UN Doc A/810 (1948) ha s undoubtedly ha d an inuence on bot h

the developmen t of human right s laws in Canad a and on the grow th of special

education to en sure accessibi lity of education t o all, the foc us of this cha pter

will be on Ca nadian law s. Numerous legal a rticles have be en written ab out the

impact of th e Universal Declaration of Human R ights on human rig hts law in Can-

ada; see, for e xample, Willi am Schabas, “C anada and th e Adoption of the Univer-

sal Declaration of Human Ri ghts” (1998) 43 McGill Law Journal 403.

5 Section 2, Par t I of the Constitution Act, 1982, being Schedule B to t he Canada Act

1982 (UK), 1982, c 11 [Char ter].