this appeal from a decision of the Court of Appeal of British
Columbia, the Supreme Court of Canada addressed the question of
whether the BC Human Rights Code provisions respecting
discrimination required the provision of special educational
assistance for learning disabled children. Moore's son had been
receiving support from a Diagnostic Centre until it was eliminated
by the school board due to budgetary requirements.
The BC Human Rights Code requires that all publicly available
services shall not be denied to a person on the basis of a
prohibited ground. The BC Human Rights Tribunal found that the
appropriate comparator group for the purposes of discrimination
analysis was the non-disabled children in his class. On application
for judicial review, the BC Supreme Court disagreed with that
position and found that the appropriate comparator group would be
other learning disabled children. That decision was upheld on
The appeal to the SCC asked it to determine which comparator
group was appropriate. Justice Abella, writing for the Court,
characterized learning assistance programs as essential to the
provision of education as mandated under the School Act. Thus, the
appropriate comparison was between the access to education provided
for non-disabled children and the access to education achieved by a
disabled child. Justice Abella found that the School District's
failure to consider how closure of the Diagnostic Centre would
affect learning disabled students.
The Court stopped short of finding the Province responsible for
discrimination stemming from the closure of the Diagnostic Centre,
despite the fact that the budgetary pressures faced by the School
Board were created by Provincial budget cutbacks. The decision
treads a fine line between protecting individual rights and
interfering with legislative and executive functions. These are
dangerous waters for the courts, where they are effectively
substituting their own discretion for that of the local School
District. Nevertheless, the decision was delivered by a unanimous
Court. The long term effects of the decision remain to be seen, but
it seems apparent that the courts are now in a position to exercise
significant oversight of the disposal of today's limited
budgets, at least at the sub-ministerial level.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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).