British Columbia (Ministry of Education) v Moore: Comparing Approaches to Comparator Groups in the Context of Anti-Discrimination Legislation
In many ways, to ask a question is to answer it. That is to say, by framing a problem in one way instead of another, an adjudicator sets out on a line of inquiry that from the outset cannot be ideologically neutral, conditions the scope of possible answers, and defines the realm of possible results. Often in judgments, crucial but unstated analytical premises are taken for granted or pushed below the surface. On March 22, 2012, the Supreme Court of Canada (SCC) will hear an appeal from the British Columbia Court of Appeal in British Columbia (Minister of Education) v Moore, 2010 BCCA 478 [Moore], a case in which the majority and dissent diverged precisely because of how problems were framed, groups defined, and conclusions drawn.
In this case, Moore appeals a decision quashing the findings of the Human Rights Tribunal that the Ministry discriminated against him by failing to accommodate his learning disabilities in the provision of educational services, contrary to s. 8 of BC’s Human Rights Code, RSBC 1996, c 210. The appellant suffered from severe dyslexia, requiring a specialized one-on-one remediation program that had been closed by the Ministry for financial reasons. As a result, Moore’s only remaining alternative was to enrol in a private school specializing in learning disabilities.
Under the Code, the onus is on the complainant to establish a prima facie case of discrimination by showing that, on a balance of probabilities, (1) the service at issue is one that is customarily available to the public, (2) the complainant is a member of a group possessing characteristic(s) protected by the Code, (3) the complainant was denied the service or was discriminated against in the provision of the service, and (4) the protected characteristic was a factor in the denial or discrimination. Once this is established, the onus shifts to the respondent to demonstrate that it had a bona fide and reasonable justification for its discriminatory conduct.
The reasons of the majority of the Court of Appeal were short and to the point. Low J. concluded that Moore did not establish the denial of a service or discrimination in the provision of education services since accommodation programs cannot be measured against a standard of perfection. Moore’s circumstances should have been compared to those of other special needs students without severe learning disabilities rather than to the general student body.
By framing the relevant comparator group as students with special needs, the majority also, in effect, narrowed its analysis to focus only on the specialized remedial services provided by the respondent. In examining the facts through this narrowed lens, it was clear that the school board had provided both types of students with specialized educational programs, albeit ones that fell short of the program discontinued by the Ministry for financial reasons. Once framed in this way, therefore, the question of discrimination lent itself to the answer that “the appellant and other severely learning disabled students were given the same opportunity to receive a general education.”
Rowles J.’s dissent – comprising most of the judgment – picked up on the analytical moves the majority had made in framing the question and the relevant comparator group as it did, questioning the policy implications of such a framing. First, she accused the majority of moving away from the prima facie approach under human rights legislation that was set out by the SCC in cases like Ont Human Rights Comm v Simpsons-Sears,  2 SCR 536, and British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3. Second, she questioned two key analytical approaches the majority had used to reach its conclusion: the characterization of “services” and the identification of the relevant comparator group.
The nature of the service provided was key to the case since it framed the rest of the analysis as establishing whether or not Moore was adequately accommodated. A respondent is not required to accommodate up to the standard of perfection (i.e. such as those services and facilities equivalent to those offered at the specialized private school) but to the point of undue hardship. Rowles J. found that the service at issue was the provision of general education.
In other words, Moore was seeking accommodation, albeit in the form of specialized education services, to enable him equal access to “mainstream” education that is available to all students. Thus, the facts were analogous to those in Eldridge: the failure to provide funding for sign language interpreters during medical services violated s. 15 of the Charter on the basis that deaf persons, without such interpreters, received a lower quality of medical services than the general public.
The majority, on the other hand, characterized the services as specialized education services, thereby conflating the service provided by the province with the means of accommodation. The problem with the majority’s approach is that it effectively conducted a ‘like circumstances’ test (i.e. all students with disabilities were treated alike therefore discrimination was not made out), despite McIntyre J.’s warning in Andrews that such a test must, in essence, be supplemented by an objective element that would help determine the actual adequacy of services provided.
Another key analytical move made by the majority – one inextricably tied to the characterization of “services” – was the identification of the relevant comparator group. Although the s. 15 jurisprudence has moved away from a strict requirement that claimants identify the correct comparator group from the outset or risk having their entire claim fail late in the process, equality inevitably remains a comparative concept. Thus, Rowles J. warns that “danger lies in allowing the comparator group analysis to become overly formulistic and restrictive, thereby undermining substantive, at the expense of formal, equality.”
Rowles J., having defined “services” as general education, reached the conclusion that the corresponding comparator group was the general public. In comparing Moore’s educational services with those of the public, she concluded that he had experienced discriminatory treatment. The majority, having defined “services” as specialized education, reached the conclusion that the corresponding comparator group was special needs students who did not suffer from severe learning disabilities. Vis-à-vis this group and the specialized services provided to them, Moore had not been discriminated against.
Finally, this case is noteworthy in that it provides an opportunity for the SCC to weigh in on the convergence between s. 15 jurisprudence and anti-discrimination statutes. The degree to which the s. 15 framework should inform (or supplement) the statutory O’Malley test was discussed by Rowles J. and has been debated in the academic literature (see, for example, Leslie A. Reaume, “Postcards from O’Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter,” in Fay Faraday, Margaret Denike and M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law, 2006) 373). The question that the SCC may address is whether or not the similarities and differences between s. 15 and anti-discrimination statutes justify a common approach to equality and, if so, how to craft an test that does not impose a heavier burden on claimants in the private context.
Overall, the strength of the dissent in Moore is not simply in the result reached but in the approach used in reaching it. Rowles J. explicitly justified her analytic choices (how to frame “services” and how to define the relevant comparator group) by focusing on substantive equality, the ultimate goal of anti-discrimination legislation. Her approach also implicitly acknowledged the fact that there is rarely one, predictable way of applying legal tests that is dictated exclusively by the terms of the tests themselves and the facts on the ground. Rather, to frame a problem one way over another is, in reality, to condition an answer to it.