The Ontario Human Rights Tribunal and the Provincial Implications of Moore v British Columbia
It has been nearly two years since the Supreme Court of Canada (“SCC”) released its unanimous decision in Moore v British Columbia (Ministry of Education),  3 SCR 360 [Moore]. That decision considered the applicability of human rights legislation within the context of public services delivered to students with disabilities. At the time, commentators questioned the extent to which the decision would be applied in Ontario. This issue was addressed last summer by the Ontario Human Rights Tribunal (“OHRT”) in RB v Keewatin-Patricia District School Board, 2013 HRTO 1436 [RB]. This comment details the Moore and RB decisions and the effect they have had on special education services.
Jeffrey Moore, a student at North Vancouver School District No. 44, was identified as having a learning disability in kindergarten and was diagnosed with dyslexia in Grade 2. The District operated a diagnostic centre that provided intensive services for students with severe learning disabilities, but due to financial pressure the program was cut when Jeffrey became eligible in Grade 3. Jeffrey attended his regular District school until Grade 3 without any notable accommodations for his dyslexia. In Grade 4 he transferred to a private school which specialized in learning disabilities.
Jeffrey’s father filed an application to the British Columbia Human Rights Tribunal (“BCHRT”) on behalf of his son alleging he was not appropriately accommodated by the District or the Ministry of Education.
A. BCHRT, BCSC, BCCA
The BCHRT found that the District and the Ministry of Education discriminated against Jeffrey by failing to provide appropriately intensive instruction following the closing of the diagnostic centre. The Tribunal ordered the reimbursement of the Moores’ private school tuition and the funding of early education programs for students with severe learning disabilities.
The government applied for judicial review of the matter and the Supreme Court of British Columbia (“BCSC”) overturned the decision. The court found there was no discrimination because the BCHRT had erred in comparing Jeffrey to the general student population instead of the special needs students. In doing so, it lifted the comparator group analysis required in making an equality claim pursuant to the Charter. The British Columbia Court of Appeal (“BCCA”) affirmed the BCSC decision.
On appeal to the SCC, Moore presented two questions. First, what is the appropriate test to be applied in statutory human rights claims? Second, what is the nature and extent to which the duty to accommodate should be applied within the context of special education?
The SCC’s treatment of the first issue has already been discussed on this website. To summarize, the Court rejected the interpretation of the Charter‘s comparator group analysis provided by the BCSC and BCCA. It confirmed the traditional test for establishing discrimination formulated in Ontario Human Rights Commission v Simpsons-Sears,  2 SCR 536 [O’Malley]. Justice Abella found that, if Jeffrey was only compared to other students with special education needs, “full consideration” would not be given to whether he had “genuine access to the education that all students in British Columbia are entitled to.” Further, the comparator group analysis allowed for adverse policy outcomes as the District could cut all services for children with disabilities and be immune from claims of discrimination.
According the the SCC, to demonstrate prima facie discrimination, a complainant must show they have a characteristic protected under a statutory human rights code, that they then experienced an adverse impact, and that the protected characteristic was a factor in the adverse impact. Once this has been established, the burden shifts to the respondent to justify the claim.
In her treatment of the second question presented by Moore, Abella found that “adequate special education … is not a dispensable luxury” but a “ramp that provides access to the statutory commitment to education made to all children in British Columbia.” The Court’s decision establishes the highly individualized human rights approach within the context of the provision of education services. In this case, the evidence showed that Jeffrey was provided various resources and supports. However, the test does not stop there. Although Jeffrey received accommodation in the form of learning assistance, the SCC found that this was not the accommodation appropriate for Jeffrey given his individualized needs.
Following the release of Moore, questions arose regarding the application of the decision to special education services in Ontario. Some law firms instructed client school boards that the effects of the decision would be minimal because the procedural features established under Ontario’s Education Act, RSO 1990, c E.2, are more developed than the procedural features established under British Columbia’s School Act, RSBC 1996.
As stated in the above, Moore‘s application in Ontario was addressed in RB. The decision dealt with an application submitted by the mother of R.B., a child diagnosed with an intellectual disability who had a history of aggression and behavioural issues in the classroom. In defending the application, the school board relied on an earlier Tribunal decision Schafer v Toronto District School Board, 2010 HRTO 403, which held that in order to establish discrimination under the Ontario Human Rights Code, the evidence must demonstrate that the accommodations provided by the school were significantly inappropriate and inadequate.
Moore significantly changed this standard:
In the language of Moore, I must determine whether R.B. was denied meaningful access to an education based on all of the evidence before me and if he was, the burden shifts to the respondent to establish that R.B. was incapable or that it could not have accommodated R.B. without incurring undue hardship. There is no suggestion that R.B. did not have the capacity to learn. Therefore the only issue is one of accommodation (RB, para 22 [emphasis added]) .
In RB, the applicant was successful in establishing her son had been denied meaningful education when his EA support was cut in half in Grade 2, when he did not have an appropriate behaviour management plan from Grade 2 onward and when he was excluded from school without appropriate educational instruction. Remedying these issues was not seen as an undue hardship on the school board.
Prior to Moore, the success rate for special education cases at the HRTO was very low. The applicant’s success in RB shows that the re-formulation of the test could lead to more successful claims for discrimination in the future.