The Supreme Court changes direction.

• Author: McKay-Panos, Linda
• Position: Human Rights Law

The case law on disability and discrimination has had its highs and lows over the past decade and a half. A recent decision of the Supreme Court of Canada, Moore v British Columbia (Education) 2012 SCC 61 ("Moore"), provides hope for those with disabilities, particularly learning disabilities, and their families.

First, it should be noted that Moore is a case based on British Columbia's Human Rights Code, rather than the Charter. However, in many human rights cases, the courts rely on discrimination case law based on the Charter (particularly Charter section 15(1)).

Jeffrey Moore's father, Frederick, filed a human rights complaint against School District No. 44 (North Vancouver) and the British Columbia Ministry of Education alleging that Jeffrey had been discriminated against because of his disability and had been denied a service customarily available to the public contrary to B.C.'s Human Rights Code, section 8. Jeffrey had a severe learning disability and the intense remedial instruction he needed for his dyslexia was not available in the public school system. Based on the recommendation of the public school psychologist, Jeffrey was enrolled in specialized private schools that charged tuition (paid by his family). The Human Rights Tribunal concluded that the failure of the public school system to give Jeffrey the support he needed to have meaningful access to the educational opportunities offered by the Board was discrimination under the Human Rights Code. In addition, the Tribunal ordered that Jeffrey's parents be reimbursed for the costs related to his attendance at private schools, as well as $10,000 for pain and suffering (para 20). The Tribunal also found that there was systemic discrimination by the District because of the underfunding of the Severe Learning Disabilities programs and the closing of a Diagnostic Centre aimed at providing services to students with severe learning disabilities. Thus, the Tribunal ordered a wide range of systemic remedies against both the District and the Province of B.C.

The Supreme Court of B.C. overturned the Tribunal's decision, finding that Jeffrey's situation should be compared to other special needs students and not to the general student population. This failure to compare Jeffrey with the appropriate comparator group had tainted the whole discrimination analysis and, as a result, the Court overturned the Tribunal's decision. A majority of the B.C. Court of Appeal agreed with the B.C. Supreme...