The Supreme Court of Canada recently released its decision in the case of Moore v. British Columbia (Education) 2012 SCC 61, regarding the right to special education programming and services in order to access core educational objectives. The Court stated that for students with severe learning disabilities, special education is “the ramp that provides access to the statutory commitment to education made to all children” in the province.
When Jeffrey Moore’s family initially filed their Human Rights complaint, Jeffrey was a primary school student with a severe learning disability who needed intense remedial instruction. By the time he had reached grade 3, he was receiving 5 hours a week of one-on-one assistance from various Board staff, in addition to private tutoring at home, and yet he continued to struggle. His family was therefore extremely concerned to learn that the Board intended to close its Diagnostic Centre, which offered a segregated setting with more intensive supports for students with learning disabilities. In light of this program cut, two Board staff members advised the family that Jeffrey could only receive the level of service he needed to remediate the effects of his dyslexia at a private school which specialized in teaching children with learning disabilities.
The Moore family took the advice and enrolled Jeffrey in the recommended private school, where he remained until he graduated from high school. They also filed a human rights complaint alleging that Jeffrey was discriminated against on the basis of his disability. Now eighteen years later, the Supreme Court of Canada has upheld the original decision of the British Columbia Human Rights Tribunal, which ordered that the Board reimburse the family for the costs related to his attendance at private school, and pay a further $10,000.00 in damages for pain and suffering.
The Ontario Human Rights Code, like the B.C. Code, provides that it is discriminatory to deny a service on the basis of a prohibited ground, such as a disability. The Supreme Court of Canada clarified that the “service” in this case is the access to educational objectives available to all students, rather than special education. Further, the Court held that the appropriate comparator group is typically developing students accessing the core curriculum, not another subset of students with disability related needs.
The court acknowledged that the B.C. legislature included broad aspirational language in the preamble to the School Act and the policy documents put into evidence. This was not interpreted by the Supreme Court of Canada to mean that school boards are accountable for achieving particular goals or outcomes for all students. However, the Court did state that school boards have an obligation to ensure that students are given meaningful access to the education services that school boards provide, and where this is not the case, there is a justified finding of a prima facie case of discrimination.
In Ontario the Education Act prescribes the duties of school boards, which include, among other things, the promotion of student achievement and well-being and the delivery of effective and appropriate education programs to pupils. School boards must therefore, ensure that all pupils have the opportunity to achieve these goals.
When discrimination has been established by an applicant, the burden shifts to the respondent to justify the conduct or practice which resulted in the discrimination. The Supreme Court of Canada in Moore considered the following findings:
- the decision to close the Diagnostic Centre was purely a financial one, and not based on pedagogy favouring integration, or a response to an assessment of the efficacy of the program;
- at the time the decision was made, the Board had made no analysis as to alternative accommodations to be provided to students with severe learning disabilities and had no alternative plans in place for meeting the needs of students who relied on the Centre’s intensive remedial assistance;
- when school opened that September, the only services available to students with severe learning disabilities were those already available in schools, which had previously been provided to students with less severe needs.
While the Supreme Court of Canada noted that financial constraints were a “relevant consideration”, it did not give them any weight in determining whether the Board was justified in its actions. Rather, the Court went on to state that accommodation is not a question of “mere efficiency” and in this case, the Court accepted evidence that the Board, in its attempts to achieve a balanced budget, made disproportionately large cuts to special education, while programs such as the ‘Outdoor School’ were maintained. The Court concluded that “such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students”.
The Supreme Court of Canada’s decision has in essence affirmed that school boards, and other large government funded institutions, will rarely, if ever, be able to rely on the financial undue hardship justification available pursuant to the Ontario Human Rights Code. When resources are scarce, program enhancements to the regular curriculum can only be justified once a school board has ensured that students with disabilities have been provided with sufficient programming and services to enable them to access the core educational objectives set out in the Education Act for all students.
It is worth noting that the Board’s process for decision making in Moore lacked several procedural features intrinsic to Ontario’s statutory scheme. The provision of accommodations for students with disability related educational needs in Ontario are outlined in each school board’s Special Education Plan. Moreover, a statutory committee, the Special Education Advisory Committee, which is comprised of community representatives who are advocates for disability associations, has an opportunity to provide public consultation and feedback regarding a school board’s draft Plan. A Special Education Plan is also reviewed by a school board’s senior administrators, and must receive the approval of the Board of Trustees and be submitted to the Ministry of Education. Therefore, the programs and services provided by school boards receive many levels of scrutiny not evident in the process considered in Moore.
Students with disabilities in Ontario may also receive the protection of a case review by an Identification and Placement Review Committee. Parents have the right to appear before the Committee, have their preferences considered in determining their child’s special education identification and placement, may request information about recommendations for programs and services for their child, and have a further statutory right of appeal if they disagree with the Committee’s identification and/or placement decision. Even under the extraordinary financial circumstances faced by a Ministry appointed Supervisor for the Ottawa-Carleton District School Board in Jimmo v. Ministry of Education (Ottawa-Carleton), the court required the Board to provide parents with the right to an Identification and Placement Review Committee meeting considering the identification and placement of their child.
Ontario school boards that follow the statutory requirements arguably have a far more defensible decision making process with respect to the provision of special education programs and services for students with disabilities than the Board in Moore.
Lastly, it must be noted that Moore involved the cancellation of a well-established program whose efficacy as a means of accommodation was easily established. If the Moore family had been requesting that the Board implement a new program or service, the evidentiary burden of showing that their son was not being adequately accommodated might have been more onerous.
Given the procedural differences which distinguish special education decisions in Ontario from the budget-driven process considered in Moore, school board’s need not necessarily treat the Supreme Court of Canada’s ruling as an indication that special education programs and services can never be cut or amended in circumstances such as our current climate of fiscal restraint. However, if budgetary considerations require cutbacks, school boards in Ontario must still proceed with amendments to their Special Education Plans as well as Identification and Placement Review Committee decisions. These procedural steps should assist school boards to ensure that, despite cutbacks, sufficient accommodations are provided to students with disabilities to ensure that they can access meaningful education consistent with the expectations identified in the Education Act.
Notwithstanding the procedural distinctions outlined above, Ontario school boards should certainly give careful consideration to the Supreme Court of Canada’s admonition that “special education is not a dispensable luxury”.
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Gillian Tuck Kutarna
Miller Thomson LLP
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