Financial Hardship Not Justification for Reduction in Accommodation Services

June 25, 2013

The Supreme Court of Canada decision in the case of Moore v. British Columbia (Education) regarding the right to special education programming and services in order to access core educational objectives was much talked about this year.

The Supreme Court of Canada upheld the original decision of the British Columbia Human Rights Tribunal, which ordered that the school board reimburse the family for the costs related to the student’s attendance at private school, and pay a further $10,000.00 in damages for pain and suffering.

The “service” was access to educational objectives available to all students.  The comparator group was typically developing students accessing the core curriculum, not another subset of students with disability related needs.

The Supreme Court found that school boards have an obligation to ensure that students are given meaningful access to the education services provided, and where this is not the case, there is a justified finding of a prima facie case of discrimination.

The Supreme Court’s decision 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.

It is worth noting that the school board’s process for decision making in Moore lacked several procedural features intrinsic to Ontario’s statutory scheme. 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 school board in Moore.

If budgetary considerations require cutbacks to special education programming, 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.

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