Canada: The Supreme Court Of Canada’s Latest Take On Discrimination And The Duty To Accommodate

Last Updated: November 15 2012
Article by David G. Wong

In a landmark decision, the Supreme Court of Canada has confirmed that individuals with disabilities are entitled to "meaningful" access to services customarily available to the public, just like any member of the general public, even where providing that access may create significantly increased obligations on the service provider. As well, the Court reaffirmed that the duty to accommodate requires that respondents consider alternatives in order to justify their conduct. However, in terms of remedy, the Court explained that the only difference between individual and systemic discrimination cases is quantitative and that remedies must be limited to the complaint.

In Moore v. British Columbia (Education), 2012 SCC 61, Jeffrey Moore was a child with a severe learning disability. Jeffrey's father filed a human rights complaint with the British Columbia Human Rights Tribunal (the "Tribunal") against the North Vancouver School District (the "District") and the B.C. Ministry of Education alleging that Jeffrey had suffered discrimination because of his disability and had been denied a service customarily available to the public. The 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 amounted to discrimination under the Human Rights Code (the "Code"). Notably, this was not a case in which the Canadian Charter of Rights and Freedoms was considered.

Both the British Columbia Supreme Court and the majority of the British Columbia Court of Appeal held that for the purposes of the discrimination analysis, Jeffrey ought to be compared to other special needs students rather than the general student population, and that to do otherwise was to invite an inquiry into general education policy and its application. Both the British Columbia Supreme Court and Court of Appeal overturned the finding of discrimination.

In its consideration of the case, the Supreme Court of Canada first explained that the prohibition against discrimination in a service customarily available to the public in the Code meant that if a service was ordinarily provided to the public, it must be available in a way that does not arbitrarily or unjustifiably exclude individuals by virtue of their membership in a protected group. The Court held that in this case, the "service" at issue was education generally, not "special education" and that defining the service as "special education" would relieve the Province and District of their duty to ensure that no student was excluded from the benefit of the education system by virtue of their disability. It would also risk descending into the rejected approach of "separate but equal".

The Court stressed that the denial of "meaningful" access to the service based on a protected ground will justify a finding of prima facie discrimination. Prima facie discrimination in this case was established on the basis that the District recognized Jeffrey's requirement for intensive remediation in order to have meaningful access to education, but had nevertheless closed the District's Diagnostic Centre which would have provided him that remediation and advised the Moores that the services could not otherwise be provided by the District.

After finding prima facie discrimination, the Court then went on to consider the duty to accommodate, or, as the Court framed it, "whether the District's conduct was justified". At the outset of this analysis, the Court explained that it must be shown that alternative approaches were investigated and that the prima facie discriminatory conduct must also be "reasonably necessary" in order to accomplish a broader goal; in other words, "an employer or service provider must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual". The Court acknowledged that there was no doubt that the serious financial constraints on the District were a relevant consideration but explained that accommodation is not a question of "mere efficiency". The District's failure to consider financial alternatives completely undermined the District's argument that it was justified in providing no meaningful access to education for Jeffrey because it had no economic choice; in order to decide that it had no other choice, it had at least to consider what those other choices were. On this basis, the Court upheld the Tribunal's finding of discrimination as against the District.

As for remedies, the Tribunal had ordered that the Moores be compensated for the tuition for Jeffrey's schooling and damages for injury to dignity, but also "systemic remedies" directing the Province and District to take steps to address the systemic discrimination. In regards to these remedies, the Court explained that the only difference between systemic and individual discrimination is quantitative:

The inquiry is into whether there is discrimination, period. The question in every case is the same; does the practice result in the claimant suffering arbitrary – or unjustified – barriers on the basis of his or her membership in a protected group. Where it does, discrimination will be established.

The Court went on to explain that while a remedy for an individual claimant may have a systemic impact, it must still flow from the claim. In overturning the systemic remedies ordered by the Tribunal, the Court pointed out that the Tribunal is an adjudicator of the particular claim that is before it, "not a Royal Commission".

In the result, the Court upheld the finding of discrimination against the Moore's and upheld the orders that they be reimbursed for the costs of Jeffrey's private schooling as well as for damages to injury and dignity.

This decision makes it clear that treating those with disabilities similar to others with disabilities, rather than the general population, is prima facie discriminatory. As well, it confirms that even where financial constraints play a significant role in the decision-making process, alternatives must be considered if a decision that would otherwise be discriminatory is to be justified.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions