Summary

34041

Frederick Moore on behalf of Jeffrey P. Moore v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education, et al.

(British Columbia) (Civil) (By Leave)

Keywords

Human rights - Duty to accommodate.

Summary

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Human Rights — Discriminatory practices — Duty to accommodate — Mental or physical disability — Right to equality — Goods and services — Right to dignity — British Columbia Human Rights Tribunal (the “Tribunal”) finding prima facie individual and systemic discrimination when the respondents failed to ensure that the needs of the applicant’s dyslexic son and other severely learning disabled (“SLD”) students were appropriately accommodated — Reviewing judge quashing tribunal decision on the basis that the tribunal incorrectly identified the “service that was customarily available to the public” and the comparator group, and that there was insufficient evidence for a discrimination analysis — Appellate majority finding applicant had not established that the accommodation his son received was below the legislative standard — How is the “service” in “service customarily available to the public” statutory human rights provisions construed — Did the majority of the BC Court of Appeal err by taking an overly narrow approach that undermines human rights protections — How is the comparator chosen under statutory human rights legislation — Did the majority of the BC Court of Appeal err in interpreting Auton (Guardian ad Litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, as mandating a narrow approach to the comparator group that undermines statutory human rights protections, such that persons with disabilities can only compare themselves to others with disabilities — Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”), s. 8.

Two complaints were filed by the applicant alleging individual and systemic discrimination by The Board of Trustees School Division No. 44 (North Vancouver) (the “District”) and Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education (the “Ministry”), for failing to accommodate his son’s severe learning disability (dyslexia) in the provision of his education program, contrary to s. 8 of the Code. The Tribunal found prima facie individual discrimination when the District and the Ministry failed to ensure that the son’s disability needs were appropriately accommodated when he was not provided with sufficiently early or intensive and effective remediation. There was prima facie systemic discrimination by the District when it cut services to SLD students disproportionately, without analyzing the impact on them or ensuring that there were sufficient alternative services in place. There was prima facie systemic discrimination by the Ministry when it under-funded the actual incidence of SLD students by imposition of a cap on funding for “high incidence/low cost” disabled students, when it under-funded the District resulting in significant cuts to services to SLD students, when it focussed its monitoring only on spending and fiscal concerns, and when it failed to ensure that early intervention and a range of services for SLD students was mandatory. Neither the District nor the Ministry were found to have established undue hardship.