2008 BCSC 264 British Columbia (Ministry of Education) v. Moore

Before: The Honourable Madam Justice Dillon

Reasons for Judgment

Counsel for Her Majesty the Queen in Right of the Province of British Columbia	L. Greathead E. W. Hughes
Counsel for The Board of Trustees of School District #44	L. Bakan D. Bell
Counsel for Frederick Moore	F. M. Kelly J. Hadley
Counsel for the British Columbia Human Rights Tribunal	D. Paluck
Counsel for Learning Disabilities Association of Canada	T. F. Beasley Y. M. Henteleff
Counsel for British Columbia Teachers Federation	J. MacTavish
Date and Place of Trial/Hearing:	June 11-14, June 18-22, 2007 July 9-13, 2007
	Vancouver, B.C.

INDEX

			Paragraphs
Introduction			[1] – [5]
Facts			[6]
	(a)	The nature of the disability and required remediation	[7] – [14]
	(b)	Moore’s disability and academic history	[15] – [29]
	(c)	The legislative and policy context of special education	[30] – [43]
	(d)	The financing of SLD students generally and the District in particular	[44] – [62]
	(e)	The District's budget cuts applied to special education	[63] ‑ [73]
Analysis
	(a)	Standard of review	[74] – [77]
	(b)	The service customarily available to the public	[78] – [122]
	(c)	The discrimination analysis: selection of a comparator group	[123] – [148]
Summary and Conclusion			[149] – [150]

Introduction

[1] These two petitions for judicial review seek to quash the decision of the British Columbia Human Rights Tribunal (the “Tribunal”), which found that 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”) discriminated against Jeffrey P. Moore (“Moore”) by failing to accommodate his learning disability in the provision of his education program contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210 (Code). In the alternative, the District and the Ministry seek to quash the decision as it relates to remedies. Both petitions were heard together with consent of the parties. The remedial orders issued by the Tribunal have been stayed pending the outcome of this judicial review.

[2] The hearing before the Tribunal occurred in 2001, 2002 and 2005. Lengthy reasons for decision of the Tribunal were handed down on December 21, 2005 (Moore v. B. C. (Ministry of Education, 2nd School District No. 44), 2005 BCHRT 580 (the Decision)).

[3] The two petitions originate in two complaints filed on behalf of Moore, the first filed in May 1997 against the District alleging discrimination from June 1992 to June 1995, and the second amended complaint, filed in August 1999 against the Ministry alleging discrimination during the same period. The scope of the complaints was the subject of judicial review in this Court to determine production of documents (HMTQ v. Moore et al., 2001 BCSC 336, 88 B.C.L.R. (3d) 343 (Moore)). The complaints, as found in Moore and as described by the Tribunal, alleged two types of discrimination: individual and systemic. The individual case of discrimination against the District alleged that Moore, who suffers from dyslexia, was not provided with sufficiently intensive supports early enough and was not provided with a range of services to allow him to access the education services being offered at Braemar Elementary School (“Braemar”) (Decision, at para. 743). The individual case of discrimination against the Ministry alleged that it under-funded the District, resulting in significant cuts to the services available to Moore (Decision, at para. 743). The systemic case of discrimination against the District was that its severely learning disabled (“SLD”) students were not provided with sufficient supports, or with a range of services to allow them to access the District’s education services (Decision, at para. 744). The systemic case of discrimination against the Ministry was that a cap on funding for “high incidence/low cost” (“HILC”) disabled students was discriminatory, that the Ministry failed to appropriately monitor the delivery of special education services to SLD students, that early identification and a range of services was not mandatory, and that the definition used by the Ministry for categorization of SLD students to entitle them to supplemental education funding was discriminatory (Decision, at para. 744).

[4] The Tribunal found prima facie individual discrimination when the District and the Ministry failed to ensure that Moore’s disability needs were appropriately accommodated in the District because he was not provided with sufficiently early or appropriately intensive and effective remediation (Decision, at para. 827). Prima facie systemic discrimination by the District occurred when services were disproportionately cut to SLD students without analyzing the impact on SLD students or ensuring that there were sufficient alternative services in place (Decision, at paras. 902 and 904). Prima facie systemic discrimination by the Ministry occurred when it under-funded the actual incidence of SLD students by imposition of a cap on funding HILC 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 (Decision, at para. 887). The Tribunal found that neither the District nor the Ministry established undue hardship. The specifics of these findings will be discussed in the course of this judgment.

[5] The arguments of the parties in this judicial review were lengthy and substantial and cannot be adequately summarized. The positions of each party will be referred to as necessary when addressing the individual issues in this judicial review. As a preliminary matter, the Minister sought to introduce new evidence by way of an affidavit of Susan Kennedy to show that the definition of learning disabilities accepted by the Ministry had changed and that an allocation cap on funding certain students had changed. This evidence was available at the time of the hearing and fails the test for admissibility of new evidence established in R. v. Palmer, [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212 (Bain v. Bain, 2008 BCCA 49, at para. 25). The evidence does not form part of the record for this judicial review. This is not a new hearing.

Facts

[6] The facts supporting the findings of discrimination against Moore and SLD students generally are complex. In the order of consideration by the Tribunal, they include the structure of the education system in British Columbia from 1989 to 2002, the program of education funding in the province, the ministerial role in special education policy, the cap on funding for HILC students, the District budget process after the implementation of block funding, Moore’s education history, and the special needs of dyslexic students such as Moore. Counsel for the Tribunal was helpful to distillate the essential facts, which I have relied upon, along with the Decision, to summarize the facts necessary for determination of this judicial review. The Tribunal’s factual findings were not disputed by the Ministry. The District, however, challenged certain conclusions, particularly that Moore should have been provided with specific programs such as Orton-Gillingham and phonemic awareness training during the period of the alleged discrimination and that Moore should have been diagnosed with a severe learning disability earlier than grade two.

(a) The nature of the disability and required remediation

[7] Dyslexia is a learning disability that affects the acquisition of language arts including reading, spelling and written expression in children of otherwise average or above average intelligence. It is a lifelong disability that cannot be reversed, but can be mitigated, especially with early identification and ongoing support. The ability to read is central to accessing knowledge and a child with dyslexia will not be able to read or write at a level of functional literacy without remediation. Dyslexic children lack phonemic awareness, the ability to identify the sounds in a word. The level of support required varies according to the severity of the disability. Accordingly, a range of services is necessary for dyslexic students, from modification in classroom programs to full-time placement in special programs. There are significant, long term consequences for a student as a result of unremediated learning difficulties. Failure to develop early reading skills can result in a chain of negative social and academic reactions.

[8] The expert evidence presented at the hearing showed that there was extensive development of academic knowledge about learning disabilities in the late 1980s and 1990s. The timing of developments and consensus is important to consideration of what was and was not available as services customarily available to the public of British Columbia during the period of the alleged discrimination from 1992 to 1995.

[9] Although there had been academic research in the early 1980s, the implications of the relationship between cognitive processes and reading ability was not fully explored until 1986 when the “Matthew effect” of the chain of negative consequences from lack of reading skills was academically placed in a coherent framework and the need for early identification and remediation was acknowledged. Early identification of children at risk for developing reading difficulties is accomplished through screening starting in kindergarten and grade one. The report of Dr. Bateman, the expert in special education called by Moore, said that early intervention for dyslexics means during kindergarten and first grade, continuing into second grade. The academic knowledge that tests for phonemic awareness could identify children at risk early and then mitigate the effects of cognitive disability was developing rapidly throughout the late 1980s and early 1990s. There was, however, much discussion about the appropriate assessment methods with IQ-achievement discrepancy as the major indicator for learning disability and phonological assessment for identification of reading problems being relatively new. A 1991 Canadian report by Steve Trutch, relied upon by Dr. Bateman, described that formal commercial tests of phonemic awareness were quite new and, although there were informal tests, these were not always accessible (Kalicharan Affidavit, vol. 7, exhibit 27).

[10] The experts at the hearing agreed that a specific test for phonological awareness was eventually developed in 1994 and was first used in British Columbia in 1996 or 1997. Prior to that time, the Jansky de Hirsch screening index was administered to kindergarten students in some school districts to identify children at risk for literacy difficulty. This test overscreens, is not normed for age, and does not identify learning disabilities. In 1996, an authoritative American institute reported, based upon scientific testing of hypothetical theories described over the last thirty years, that the most reliable predictor for reading disability, based upon converging research, was performance on phonemic awareness tests, rather than IQ-achievement discrepancy (Kalicharan Affidavit, vol. 7, tab 26 (National Institute of Child and Human Development (“NICHD”)); Decision, at para. 604. The same study concluded that the term “learning disability” was overly broad and had hindered the reliability of research into the evaluation of assessment techniques in the past.

[11] Early intervention produces better outcomes. Interventions after grade three have to increase exponentially in comparison with earlier interventions because of the growing knowledge gap. Remediation after grade three is more costly and less effective, with the possibility that lost ground may never be recovered. While the effectiveness of early intervention was agreed by all experts who testified, it was not until 1996 that the effectiveness of early intervention was acknowledged by the Ministry in a paper that recommended early intervention programs in the primary grades in all school districts that had not yet implemented such a program. It was not until 1999 that a Ministry special education review team recommended that each school board implement early identification policies and be required to report annually to the Minister about implementation of such policies. While all agreed that early intervention was best, the type of intervention required for a specific disability was not always apparent.

[12] On the basis of expert evidence presented at the hearing, the Tribunal found that there was no general consensus about what constituted effective early intervention or remediation for children with reading disabilities (Decision, at paras. 592-593 and 607). There was also disagreement generally about the best way to teach reading to the general student population. Although there was much work done on the role of phonemic awareness in academic circles in the 1980s and early 1990s, the work did not isolate learning disabilities and it was not taught generally in teacher training in British Columbia. Phonological remedial programs such as Lindamood required extensive specialized training that was not generally available and not recommended by Trutch in 1991 for general adoption by school districts for remedial teachers. No school district in British Columbia or private clinic used this method between 1991 and 1994.

[13] Trutch reported in 1991 that the area of phonemic processing was quite new and that there was no data on the effectiveness of the various methods of teaching. Dr. Bateman’s report showed that consensus was reached in 1995 amongst researchers and clinicians that the whole language approach to teaching reading, which was prevalent in the early 1990s, did not work for students with dyslexia. The whole language approach had been used in both special and general classrooms in British Columbia until about 1991 when it came into question for at risk children. The Tribunal acknowledged the debate about the effectiveness of this approach for SLD students and considered that it was unnecessary to decide the issue. The essential fact, however, is that there was no consensus about what constituted early intervention or what constituted “intensive remediation” of learning disabilities, particularly the most effective remediative program for dyslexic SLD students during the time period at issue. Although there was knowledge about phonemic awareness as early as the late 1950s, extensive research on teaching dyslexic students was not done until the late 1990s. At the time of the Tribunal hearing, there was still debate involving the extent to which phonological awareness training as opposed to visual perception training should be used for early intervention or remediation of children with reading disabilities. The view that phonemic awareness should be taught in kindergarten did not attain authoritative status until the American NICHD report in 1996, notwithstanding studies in 1988 and 1991 that suggested that students benefited from early phonological training (Kalicharan Affidavit, vol. 8, tabs 48, 49, and 50; Decision, at paras. 604-605). The private schools specializing in learning disability in British Columbia did not teach phonemic awareness at this time. The District began an early intervention phonemic awareness program in 1997, before any other school district in British Columbia.

[14] There was also continuing debate about the integration of SLD students into regular classrooms. A psychologist specializing in learning disabilities who testified for Moore did not advocate separate schools for teaching SLD students, but said that the critical issue was the level of support provided regardless of the location. There was agreement that the location where the child is taught is not as critical to success as what actually happens in the setting. Intensive remediation was considered by one expert to mean a minimum of 30 minutes daily of one-on-one instruction. Dr. Bateman considered the duration of remediation to be secondary to the nature of the remediative effort, particularly as it related to phonemic awareness.

(b) Moore’s disability and academic history

[15] Moore started kindergarten at Braemar within the District in September 1991 at age four, one of the youngest students in his class. In February 1992, it was thought that he might have literacy difficulty after administration of the Jansky de Hirsch test. The District was the only district in the province that screened for literacy readiness in 1992. Moore was referred to the School Based Resource Team (“SBRT”) composed of the learning assistance teacher, the classroom teacher, the school psychologist and others. (The Tribunal referred to this group several times in error as the Elementary Learning Resource Team (“ELRT”), which was District based). The SBRT considered whether Moore’s difficulty was related to retrieval problems, a learning disability, or youth. It was noted that he suffered anxiety when asked to identify letters.

[16] Moore was observed in the classroom by the psychologist and learning specialist, was provided with an educational aide in the classroom for 15 minutes, three times per week, and his teacher spent additional individual time with him. Although it was unusual for an aide to provide individual time to a kindergarten student, it was thought that Moore was “unusually disabled”. The school and Moore’s parents discussed whether Moore should advance to grade one. It was decided that his self-esteem would suffer if he was held back and that he would be monitored in grade one.

[17] By January of grade one (January 1993), Moore had made slow progress despite use of the strategies that had been recommended by the psychologist and learning assistance teacher. He was referred to the SBRT who recommended learning assistance from the Learning Assistance Centre (“LAC”). The LAC provided Moore with three 30 minute periods per week on an individual basis with a teacher qualified to teach severely learning disabled students; Moore was the only student at Braemar to receive such individual service. Moore also received assistance from a volunteer tutor trained to work with students with reading disabilities for two 40 minute periods per week. The school used a program for special education in reading that involved phonological awareness through a structured multi-sensory phonics approach, although the concept of ‘phonemic awareness’ was not used in any school between 1992-1995. At the time, the nature of Moore’s difficulty was not known and in March 1993, he was again referred to the SBRT for assessment with the school psychologist.

[18] By May 1993, Moore had been given a full range of psycho-educational testing except for an IQ test. The testing confirmed that Moore lacked phonemic awareness but it was still not clear whether this was due to developmental delay or a symbol retrieval difficulty. An intervention program was recommended, which included the suggestion for Orton-Gillingham, a private therapeutic methodology, or another structured multi-sensory phonics approach to reading. Orton-Gillingham tutors are qualified through a private course that was not part of teacher training in college and no school district in British Columbia used the program during the period 1992-1995. Other phonics and multi-sensory educational strategies were utilized with Moore when he was in the LAC and with school tutors. Moore’s parents paid for private Orton-Gillingham teaching outside the school starting in the summer of 1993 and Moore’s teachers preparatorily met with the Orton-Gillingham tutor in June 1993.

[19] In May of 1993, the SBRT team and the psychologist had decided that Moore, at age six, was too young to do an IQ test because the reliability/validity factors were questionable at his age and the test would not assist in identifying a specific learning disability. Expert evidence at the hearing established that although a full psycho-educational assessment with the IQ test could have been done at the time, it would not have identified a particular disability to affect an intervention program because IQ testing is not necessarily a reliable indicator of achievement for students in grades one and two. There were significant measurement issues and criticism of defining learning disability by discrepancy between ability and achievement at this time. The significance of not doing the IQ test was that such testing was required for designation of Moore as an SLD student.

[20] The Tribunal found it difficult to understand why Moore was not designated as SLD in 1993 because the District psychologist described him in 1998 to a Revenue Canada agent as “one of the worst cases” that she had ever seen and others of unknown disability had been designated SLD in kindergarten and grade one. However, the psychologist also said that it was not apparent at the end of grade one that Moore had a severe learning disability although he had symbol retrieval difficulty. She said she made a judgment that the IQ test would not be beneficial, and that she followed practice established through Ministry policy at the time not to label a child as SLD at age six, but to monitor through grade one and re-assess once a child attained seven years of age. The debate as to whether to label a child as SLD was acknowledged by the Tribunal to have been ongoing at the time and resulted in a “wait and see”/monitoring approach towards Moore in kindergarten and grade one. There is no suggestion that the psychologist did not perform the IQ test purposefully so as not to designate Moore as SLD. It is interesting to note that the private school that specialized in learning disabled to which Moore was sent in grade four did not intake grade one students because it was considered impossible to ascertain whether the student was immature or learning disabled. The District was below its cap on funding for SLD students, as is explained below. Because Moore was not designated as SLD, the District did not receive supplemental funding from the Ministry, he was not designated an aide, and he was not placed on a waiting list for the special program offered within the District for grade three SLD students, called DC1. However, aside from the designated aide, Moore’s intervention plan as developed was the same whether he was designated as SLD or not.

[21] DC1 was a specialized segregated program for up to 18 SLD students in the District who received intensive remediative and individualized programs for two to four months in a separate setting from the regular school. Classes were offered starting in grade three through a group setting, as opposed to an individual setting. Remediation was offered in reading and other subjects with regular participation in the rest of the school program. DC1 was staffed by three teachers, two aides, and a secretary. Following DC1 attendance, a student was followed for up to two years by the DC1 teachers in the regular classroom by helping the classroom teacher to implement a program designed for the student. The District was the only one in the province to offer such a segregated program at the time. Although the Vancouver District offered a segregated 12 week program that was modified in 1997 and ended in 1999, the date of origin of that program was not in evidence.

[22] The same program was in place for Moore’s grade two year, which started in September 1993. He had an individualized education plan. His teachers met with the Orton-Gillingham tutor who reported that Moore had made progress during the summer. He received assistance at the LAC three times per week, had a modified classroom program, and individual tutoring. In January 1994, the headaches that Moore had been experiencing since the end of kindergarten worsened and his parents took him to a neurologist who found no neurological problem, but suggested that his headaches were related to stress from learning difficulty and recommended that a psycho-educational assessment be performed. Moore’s parents provided a copy of the neurologist’s report to the school. Prior to that time, nobody at the school was aware that Moore was suffering from headaches. About the same time, Moore’s teachers again referred him to the SBRT, expressing concern about low academic skills, among other problems. His teachers indicated that Moore needed one-on-one instruction and asked whether DC1 was an option.

[23] A full psycho-educational assessment, including an IQ test, was completed by the District psychologists in April 1994. This was at a time when there was a surge in demand for psycho-educational assessments following implementation of a new collective agreement with teachers. It was concluded that Moore had a symbol retrieval disability, dyslexia. The psychologist recommended that Moore attend DC1 for grade three, which was the only significant change from her earlier recommendations. However, DC1 was closed for financial reasons described below on April 26, 1994. Moore’s parents were advised of the pending closure at a meeting to discuss the assessment near the end of April 1994. At that time, the only alternative discussed for the intensive remediation that Moore required was at a private independent school specializing in learning disabilities. No other alternatives were presented. Moore was designated as SLD on June 6, 1994, pursuant to Ministry criteria, by the District Screening Committee that had been established in September 1993 to consider designation of students.

[24] Moore attended grade three at Braemar in the fall of 1994. However, by that time, Moore’s parents had already decided to remove Moore from the public school system. Unable to secure placement in a private school specializing in learning disabilities for grade three, they requested that Moore be ‘maintained’ in grade three without putting pressure on him before his placement in the specialized private school in grade four. There was no further discussion of optimal remedial services for Moore within the public system. He was provided with all of the supports given earlier plus a special education aide in the regular classroom for four 40 minute sessions per week. Moore received the additional intensive support of the aide as a result of his designation as an SLD student. He continued to receive one-on-one assistance from the LAC teacher, the only student taken from the otherwise group orientation. Overall, Moore received more than 5.5 hours per week of individual remediation from teachers or aides specialized in learning disabilities, aside from the continuing private Orton-Gillingham tutoring. Additional aide hours could have been allocated to Moore through a special request as the number of hours that could be allocated was not limited, although it may not have become available until Moore reached grade four.

[25] The Tribunal found that none of the support provided to Moore in grade three was considered to be “intensive remediation” based upon the cross-examination of the school psychologist. The school psychologist had first testified that the aide supplied intensive remediation, but later said that this was really only available for Moore through the DC1 program or through more private Orton-Gillingham tutoring combined with the school program. There was evidence, however, that there was no consensus or formula for “intensive remediation” at the time as the term is and was vague and variably defined. DC1 was a temporary placement for two to four months unique to the District amongst all school districts in British Columbia and there was no consensus amongst experts as to what constituted an effective remediation program for learning disabilities at the time. Although Moore progressed in grade three, he was significantly below grade level, at the early/mid grade two level by the end of the year.

[26] After leaving Braemar at the end of grade three, Moore attended an independent school specializing in teaching SLD students from grades four to seven where a modified Orton-Gillingham program was part of the individualized education plan. When Moore left after grade seven, he was still reading significantly below grade level, such that it was not recommended that he attend public school for high school. Instead, Moore went to another independent school specializing in the education of disabled children. When he started in grade eight, after four years of specialized programming, his reading was between grade 4.2 and 5.7 levels. His educational assessment at the time revealed a severe learning disability due to cognitive deficits with ongoing difficulties in phonemic awareness, information processing, sequencing, right/left differentiation, speech/sound differentiation, and symbol manipulation. Moore needed maximum supports, both remedial interventions and accommodations, to cope with high school.

[27] The Tribunal concluded that Moore was not provided with the level of support that he needed early enough. Dr. Bateman said that Moore should have been started in an intensive phonological awareness program when he was identified as “at risk” for reading failure in February of his kindergarten year following administration of the Jansky de Hirsch screening test. She said that the Lindamood program was available and known at the time and that following proficiency in phonological awareness, he would have benefited from appropriate phonetics such as Orton-Gillingham. However, there is no conclusion reached that this was the standard between 1992-1995, and Dr. Bateman also said that there was no consensus until 1995 on appropriate interventions for dyslexia. Another expert, Dr. Fiedorowicz, testified that Moore should have been given intensive assistance through the DC1 program in grade one. This was not available in the province generally and not in the District until grade three. Other opinion and generalized debate was against designation as SLD until after grade one. Dr. Fiedorowicz also criticized that the full psycho-educational assessment performed in April 1994 should have been done sooner and that the increasing pattern of support was too little and not soon enough. This was discussed above, with indication that there was no consensus on appropriate remediation for learning disabled students at the time, and certainly not for dyslexic students, and that the debate about designation as SLD in kindergarten and grade one was ongoing while Moore attended Braemar. The experience from the independent schools specializing in learning disability also showed that few students were diagnosed as learning disabled in grade one.

[28] The Tribunal erred in its conclusion that early intervention for reading recovery had been introduced in Vancouver for grade one in 1991 as this program was not introduced until 1995 as a pilot program with full implementation in 1997, and the initiatives for early intervention took place generally in the province after 1995 (Decision, at para. 823; see Kalicharan Affidavit, vol. 17, tab 7, p. 10795). The Tribunal used this example, the only one in the province, to conclude that early intervention was understood in education settings and not just in academe between 1992 and 1994. The fact was that no school district had an early intervention program prior to 1997.

[29] Although there was expert opinion that Moore had been provided with sufficient services to meet his needs despite the closure of the DC1, the Tribunal rejected this opinion because the school psychologist had not recognized other support as intensive remediation, an opinion commented upon above. Further, the Tribunal favoured the academic opinions of Drs. Bateman and Fiedorowicz whilst acknowledging that their recommendations, particularly for phonemic awareness training, were not known or adopted within the teaching profession at the relevant times. The services recommended by Drs. Bateman and Fiedorowicz as most optimal for Moore were not offered or available within British Columbia or generally accepted as the standard remediation for dyslexia from 1992-1995. The Tribunal relied upon a 1998 District report on present services to conclude that SLD students in 1992-1995 were under serviced. The Tribunal concluded that the District should have explored academic literature for other options when Moore failed to progress. Although Moore was provided with an unusual level of specialized service within the District, it was not “intensive enough to meet his disability-related needs” (Decision, at paras. 813-814).

(c) The legislative and policy context of special education

[30] There was a great amount of information about the legislation and funding of education in British Columbia in the Decision from prior to 1982 through to 2006. For purposes here, however, I have attempted to confine my considerations to the legislation, regulations, policies and practices as existed during the period of the alleged discrimination, that is, from 1992 to 1995.

[31] The School Act, S.B.C. 1989, c. 61 (“School Act 1989”), in place during the relevant period, divided responsibilities for the provision of educational services between elected school boards, the Minister, the Lieutenant-Governor in Council, and parents. A person of school age was entitled to enrol in an educational program provided by the board of that school district (School Act 1989, s. 2). An “educational program” was defined in s. 1:

“educational program” means an organized set of learning activities that, in the opinion of

(a) the board, in the case of learning activities provided by the board…

is designed to enable learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy society and a prosperous and sustainable economy.

[32] School boards were required to make an educational program available to all persons who enrolled in a district, subject to the School Act 1989, the regulations, and any orders of the Minister (School Act 1989, s. 94(1)). The board could assign students to educational programs and was responsible for evaluating all of the educational programs that it provided (School Act 1989, ss. 94(4) and (7)). The powers of the board included approval of services for use by students, subject to orders of the Minister (School Act 1989, s. 103). Within these powers, the board of the District decided in which classroom Moore was to be placed, which screening methods would be used to determine if Moore was acquiring reading skills, which methodologies were to be used for teaching, when Moore would be assessed with respect to learning difficulty, how Moore would be designated, whether Moore would be recommended for DC1, and whether to close DC1.

[33] Teachers’ responsibilities included supervising and assessing educational programs and instructing, assessing and evaluating individual students.

[34] A parent could consult with the teacher or administrative officer with respect to the student’s educational program (School Act 1989, s. 4). Moore’s parents regularly consulted. Parents could also challenge program decisions of a board made for a student (School Act 1989, s. 11). The board could make any decision that it considered appropriate and such decisions were final (School Act 1989, s. 11(6)). Moore’s parents did not challenge any decisions made regarding their son.

[35] The Ministry’s powers and obligations as set out in s. 182 of the School Act 1989 included the power to make orders governing the provision of educational programs, determining the general nature of educational programs for use in schools, and preparing a process for the assessment and effectiveness of educational programs. In practice, the Ministry never assessed the effectiveness of decisions made by school boards with respect to programming choices or teaching methodologies, although it monitored for trends. It did not collect data to determine whether specific programs were adequate to meet the needs of special students. When the District decided to close DC1, the Minister wrote to the District in May 1994:

I respect that, under our co-managed education system, school boards are responsible for setting local program priorities. I also understand that, in light of the current financial situation, school trustees have had to make some difficult decisions around issues such as this. The diagnostic centre is one model of delivering services to students. If this program is to be cut, I encourage the School District to look for alternatives to ensure that the students continue to receive appropriate service. Ministry staff would be willing to assist the District in this endeavour.

[36] The Educational Program Order (M263/92), in place during the period from 1992-1995, provided for core education programs and required each board to offer to each student enrolled in grades one to four learning activities in fine arts, language, learning for living, social studies, physical education, mathematics and science. Aside from the requirement that a program exist in each of these areas, the Ministry relied upon the boards’ discretionary powers to decide how to deliver core education services within board designed programs.

[37] While Moore attended public school, the Special Needs Students Order M150/89 provided:

SPECIAL NEEDS STUDENTS ORDER

Handicapped Students

1 (1) A board shall ensure that an administrative officer offers to consult with a parent of a handicapped student regarding the placement of that student in an educational program.

(2) Unless the educational needs of a handicapped student indicate that the student’s educational program should be provided otherwise, a board shall provide that student with an educational program in classrooms where that student is integrated with other students who do not have handicaps.

[38] Data from 1994 showed that most school districts adopted a full inclusion model of delivery of services to special needs students (Exh. 87, the “Johnstone report”). In September 1995, after Moore had left the public school system, the Special Needs Students Order was amended to refer to a “student with special needs” as “a student who has a disability of an intellectual, physical, sensory, emotional or behavioural nature, has a learning disability or has exceptional gifts or talents” (M397/95, s. 1). It also provided that the board should ensure that there was consultation with a parent regarding placement of such a student and that the educational program for such a student should be provided in an integrated classroom setting with students who did not have special needs unless the educational needs of that student indicated that it should be provided otherwise (M397/95, s. 2). This order has remained in effect through to 2006. In December 1995, the Individual Education Plan Order (M638/95) required school boards to ensure that an individual education plan (“IEP”) was designed for a student with special needs as soon as practical after the student was identified by the school and required school boards to deliver services in accordance with the plan (M638/95).

[39] Views as to the best educational practices for special needs students were evolving in the 1990s. This included discussion about integration into neighbourhood schools, the appropriateness of labelling students for the purposes of funding, and the necessity of early identification and intervention. The 1985 philosophy reflected in Ministerial policy (“Special Programs, A Manual of Policies, Procedures and Guidelines” (the “1985 Manual”)) was that special needs students were entitled to an education within the framework of general education in the least restrictive environment possible relative to an individual child’s needs. Individualized education plans were to be developed based upon the child’s strengths and needs rather than generalized labels or categories. Special education was seen as an extension of the regular curriculum modified as necessary to meet the needs of each student. The primary goal was to meet the needs and abilities of all exceptional children in as normal an environment as possible. The recommended service delivery model recognized that a broad spectrum of service delivery be provided extending from placement in a regular class with no special education to special education provided in specialized settings. Most special needs students would be provided with supports in the classroom, but smaller numbers would be removed from the integrated classroom and placed within a range of options. Diagnostic centres such as the DC1 were one option within the cascade model of service delivery.

[40] A discrepancy of two or more years on grade equivalent scores was recognized as significant to signal a learning disorder. British Columbia’s use of a discrepancy model to identify students with learning disabilities was consistent with other jurisdictions at the time. Students suspected of being learning disabled were to have school-based data collected and instructional intervention strategies attempted before being referred for in-depth psycho-educational assessment, which was required before a student could receive additional funding in the SLD category. Pre-referral interventions included classroom strategies in consultation with the learning assistance teacher, referral to the SBRT if unsuccessful, and referral to the LAC. Only after school based interventions had failed did the Ministry policy contemplate a psycho-educational assessment.

[41] The 1985 Manual recognized that 1-2% of students in schools would be severely learning disabled such that educational instruction by conventional methods was almost totally impeded. These students were generally classified as HILC, referring to the fact that these students had conditions that occurred more frequently in the special education population, but were lower cost in terms of the level of services and resources that they required. The other classification of special needs disability was low incidence/high cost (“LIHC”), referring to students whose condition occurred less frequently in the special education population, but were high cost in terms of the level of services and resources that they required.

[42] Special education services were guided by an individualized approach to programs and services. During 1992-1995, it was suggested that SLD students have an individual education plan. This became a requirement by Ministerial Order 638/95. It was acknowledged that some SLD students respond well to short term instruction but could require ongoing support provided by the learning assistance teacher. Others might require long term service in a resource room or self-contained class. Programs for these students were to be progressive as measured against student progress. The school based learning assistance centre was primarily intended to provide assistance to mild to moderately disabled students but also supported SLD students through qualified resource teachers.

[43] In 1993 and 1994, the Ministry undertook a comprehensive review of special education in British Columbia. While a special committee did its work, the Ministry made $30 million new dollars available for special education aimed primarily at severe behaviour problems as identified by the committee. The committee questioned whether the Ministry should be more directive regarding standards for special education and accountability for outcomes. It was known that accountability mechanisms were poor and that delivery of services to special needs students varied throughout the province. It was acknowledged that there was a need to balance the needs of students with available resources. The work of the committee resulted in a new policy in 1995 to replace the 1985 Manual. It included a new definition of learning disability that specifically identified dyslexia and required classroom based remedial intervention through to grade three. In 1996, the Ministry’s 1990s work on early intervention resulted in a background paper to assist school districts interested in establishing early intervention programs and in new funding for early intervention activities.

(d) The financing of SLD students generally
and the District in particular

[44] Following the recommendations of a Royal Commission into education in British Columbia that had reported in 1988 (the “Sullivan Commission”), Part 8 of the School Act 1989, which provided for education financing, was amended in 1990 to institute a block amount of funds provided to school districts for educational programs in each fiscal year. The block amount was determined by multiplying the number of full time students by the average per student amount determined by the Minister in each year. The portion of the block was then allocated to the school district based upon enrolment and district variations in the cost of delivering programs. Districts provided detailed annual budgets to the Minister that could not exceed the district’s share of the block, plus local revenues and appropriated operating expenses, unless a local referendum approved the excess. The Minister of Finance was required to pay each district its allocation from the block plus approved debt service expenses.

[45] A base year (1989/90) was established using the actual costs incurred by districts to deliver services in that year. This included the fiscal framework amount provided by the Ministry in the past for each district based upon reasonable levels of service for identified programs, including special education, that incorporated cost factors and service levels based upon enrolment, special education students, number of schools, geographical dispersion of schools, and distance from Vancouver. It also included amounts raised by districts through supplemental residential property taxes in that year, a process that was no longer allowed except through local electoral referendum. The amount of the block as determined in the base year would be adjusted annually to allow for changes in enrolment, mandated services, and certain economic indicators. The amount of the block established annually was based upon information gathered in previous years such that the funding lagged the financial information by two years. The Ministry decided how the block was to be shared amongst districts and, until 1995/96, used the old fiscal framework based upon 1989/90 levels for this purpose, enhanced by a percentage to raise it to the block level. The effect of the block funding was that larger school districts such as North Vancouver had smaller per student allocated amounts than smaller districts. The block allocation did not take into account an individual district’s obligation under its collective agreements; it was based on province-wide averages for teachers’ salaries. Once allocated, it was up to each district to decide how its share of the block was spent. Districts were not allowed to run deficits (School Act 1989, s. 127(2)).

[46] The School Act 1989 also allowed for targeted funds for specific purposes, which funds had to be used for the stated purpose. It was contemplated that special purpose equalization grants would be used in the early days of block funding to ease the transition and soften its impact to certain districts, including the District. The District received special purpose equalization grants until 1992/93 to soften the impact from block funding and its inability to raise extra funds through local taxation. The initial grant was 70% of funds lost from local taxation and was reduced in each year until 1992/93. After that, the District lost a referendum for additional funding. Due to pressures on educational funding, the equalization grants were not continued and the District suffered its first deficit.

[47] In 1991, the Ministry was concerned that services in special education were eroding due to district budget cuts to special education in order to meet other financial priorities or commitments. The School Act 1989 was amended to add a provision for the funding of special education (Miscellaneous Statutes Amendment Act (No. 2), S.B.C. 1991, c. 14). Section 129.1 provided:

Funding of special education programs

(1) In this section “special education programs” means special education programs as determined by the minister.

(2) Notwithstanding the budget adopted by a board under section 129,

(a) the board shall not, without the prior approval of the minister, reduce or eliminate the amount budgeted for students enrolled in special education programs below the budgeted expenditures for those students for the previous fiscal year, and

(b) the board shall ensure that all funds that the minister, before or after the coming into force of this section, has designated for students enrolled in special education programs are spent on those students’ educational programs.

[48] The Ministry expressed the expectation that additional funding provided for special needs students would be applied for such purposes in accordance with Ministerial Orders and guidelines. This covered HILC students. The District was not in compliance with s. 129.1 in 1991/92 and 1992/93. Guidelines for consideration of requests to reduce spending levels were introduced in May 1993.

[49] In response to concerns about how the block was allocated, the Ministry established a review in 1992 (the “Spangelo report”). The Spangelo report recommended that a resource costing model be used to replace the fiscal framework for distribution of the provincial block. This required defining a common level of service, determining the resources required for delivery of the services, and recognizing actual costs of purchasing the resources. The Spangelo report was also critical of s. 129.1 because it focused on the amount of spending rather than on the effectiveness of the funds that were spent. The report acknowledged the “co‑governance model” in place in British Columbia wherein boards had primary responsibility for managing schools and delivering programs and the Ministry set the broad framework and provided funding.

[50] As a result of the Spangelo report, the Ministry created committees to review the technical mechanics of block funding. The Technical Distribution Group (“TDG”), was to develop a more simple system than the fiscal framework for distribution of the provincial block among the 75 school districts. One of the problems recognized by the TDG was that block funding did not take into account all collective bargaining outcomes. The TDG reported in 1993 and recommended changes that would result in some districts getting an increased share at the cost of a reduction to another district because the total amount of the block remained unchanged. The District would have received approximately $1.5 million in additional funds in 1994/95 had the TDG’s controversial recommendations been implemented. Most of these additional funds would have been allocated to operations and maintenance. Although the District repeatedly requested implementation of the TDG’s recommendations, 50 other districts urged the Ministry not to adopt these recommendations. The first year that implementation could have occurred was 1994/95. It was not until 1995/96 that the recommendations were implemented in part, and not until 1996/97 that they were fully implemented.

[51] From 1990-1995, special education was funded through a per capita amount for learning assistance plus categorical funding for students within certain categories. The District did not inform the Ministry of the number of students who received learning assistance and other services provided through the general per capita amount. The categorical funding, initiated in 1980 to address the needs of students at the severe end of the learning spectrum, was divided into two groups, LIHC and HILC. From 1990-1995, LIHC students were reported to the Ministry on a per student basis because they were not equally distributed between school districts; HILC students were reported on a per school basis. The allocation was not prescriptive as to services but reflected a formula as to how to divide a finite sum of money between 75 school districts.

[52] In 1994, the Ministry targeted or capped the amount that could be spent from the allocation on an education program for students with special needs. Section 129.1 of the School Act 1989 was repealed by the Budget Measures Implementation Act, S.B.C. 1994, c. 4. Section 125.1 stated:

Targeting or capping of allocation

(1) The minister may, in respect of an allocation to a board under section 125(1), provide a direction to the board specifying

(a) a minimum amount or percentage of the allocation that must be budgeted and spent by the board for students enrolled in…

(ii) an education program specified by the minister for students with special needs, and

(b) a maximum amount or percentage of the allocation that may be budgeted and spent for school or district administration specified by the minister.

(2) The minister may vary a direction provided to a board under this section if there is a change in the circumstances under which the direction was made.

(3) A board shall budget and spend its allocation in accordance with any direction of the minister provided to it under this section.

[53] It should be noted that neither sections 129.1 nor 125.1 restricted the maximum amount that could be spent on special education students as districts could allocate amounts from its block funding for this purpose.

[54] Designation as SLD was required for a school district to access additional funding for HILC students. In 1987/88, the Ministry introduced a cap for funding students in this category (the “cap”). The cap was introduced to ensure stability of equitable proportionate funding across the province at a time when assessment practices for designating students varied considerably and there were no clear definitions of students within each category. There was no way to verify the numbers of students reported to be within the cap. For example, there was no clear definition of an SLD student at this time. Moore’s expert, Dr. Fiedorowicz, testified that without a definition providing unequivocal identification criteria, statements about prevalence were guesses. There was also evidence that districts both over and under reported the incidence of HILC students.

[55] In this circumstance, the cap was meant to reflect the analysis that the incidence of HILC students was uniform over the province and to control the increasing number of students that were designated as HILC. Supplemental funding was available only up to a maximum of 3.5% of the total student population, regardless of the actual numbers of students in this category. This figure represented the average number of students in this category, of which 1-2% were estimated to be SLD. In 1989/90, mild intellectual disability students were removed from the HILC and funded on actual incidence. Until 1991/92, districts were funded at the cap regardless of the actual incidence of students in this category. This changed in 1991/92 so that funding was based on actual incidence up to the HILC cap. In 1994/95, severe behaviour students were removed from HILC, funded on actual incidence, and replaced by moderately severe behavioural difficulties within HILC. The cap varied from between 3% in 1989/90 up to 4% in 1993/94. In 1995/96, the system was changed so that each student in a disability category received basic education funding and an incremental amount within the special education function. In 1996/97, it was changed again when each student received core education funding but each district was given an additional core amount up to the 4% cap. During the time that Moore was a student, the cap was at 4%.

[56] A great amount of evidence at the Tribunal focused on whether the cap reflected the actual incidence of students in the HILC category. The Tribunal concluded that the HILC cap was introduced by the Ministry to control the number of designated HILC students while the province knew or had reason to believe that the actual incidence of HILC students exceeded the cap. To the extent that the numbers exceeded the cap, students in need of special education were not funded through the supplemental funding program. The Tribunal said that the cap was discriminatory to the extent that numbers of HILC students exceeded the cap so that these students were not funded with supplemental funds even though districts could fund within their budgets (Decision, at paras. 235, 854). This finding was the basis for the establishment of systemic discrimination against the Ministry (Decision, at para. 868).

[57] In considering special needs funding during the period 1992-1995, the period of the alleged discrimination, it is worthwhile to remember that this was a time when special education was under review. The Tribunal based some of its conclusions on the development of knowledge and financial sophistication during this period that was reported and considered after 1995. That said, hence it is apparent that there were complaints and information from 1991-1993 that districts were providing services to special needs students in excess of the numbers covered by the cap (Decision, at paras. 235-244).

[58] In 1992, a report on education funding recommended a special study on resources required for special needs students and the use of funds within districts for this purpose. The Ministry responded with a special comprehensive independent review in 1993, the Johnstone report. The Johnstone report found in January 1994 that HILC incidence levels varied significantly within and between district categories and recommended examination of the incidence reporting due to changing demographics. The Johnstone report did not recommend removal of the cap as suggested by the Tribunal (Decision, at para. 241). It recommended re-examination of incidence levels based upon current research, current data from other agencies, and reports from districts (Johnstone report, p. 28 (Kalicharan Affidavit, vol. 13, p. 08002)). The Johnstone report represents the most accurate information available at the time.

[59] Throughout these studies, the essential fact remained that increase of the cap amount would have correlatively reduced the overall amounts allocated under the block. The block amount for education was fixed. If a district had received more under the cap, it would have received less under the block allocation so that the net effect was the same. Further, the allocation was not prescriptive as to services and each district could have allocated more to HILC students within its budget as had been done in the Vancouver school district (Decision, at para. 235). Also, each district could allocate the cap amount as it wanted and it was not set based upon a fixed amount per student. This is significant when it is considered that the actual number of students under the cap in the District was below the 4% cap in each relevant year that Moore attended Braemar.

[60] Two issues related to calculation came up within the cap discussion: whether the cap represented the actual incidence of HILC students and whether the estimate of SLD incidence at between 1% and 2% was accurate. The evidence as accepted by the Tribunal showed that the funding was below actual incidence levels of HILC students during 1992-1995 (Decision, at paras. 229, 258, 854-860). The difference identified suggested under calculation of incidence between .3% and .5% (see Exh. 104). However, not all districts reached provincial prevalence levels and others exceeded the levels. The cap was intended to equalize this tendency. Other evidence in 1995 showed that the best Canadian estimate for “students with disabilities serious enough to hamper their educational progress”, a broadly inclusive concept, was between 2% and 4% (Exh. 2, tab 67). The factor of only reporting incidence levels to the cap was first identified in 1997 and was said to occur despite instructions to the contrary from the Ministry (Exh. 85, tab 70, p. 07927). The real issue, however, is whether SLD students in particular were under funded within the supplemental program as the alleged discrimination concerned SLD students.

[61] When the cap was first introduced in 1987/88, the Ministry estimated the incidence of SLD students at 1% - 2%. This was supported by prevalence data at the time (Exh. 104). However, during the period to 1995, there was not general acceptance of the definition of an SLD student and there was no accepted agreement on prevalence rates. The general prevalence rates included all learning disabilities. There was no specific data on the prevalence of SLD students. The Tribunal used documents from 1995-2001 to show that SLD students exceeded 2% (Decision, at para. 247). In fact, as disclosed in a 1994 report, there was no data at the time on the actual prevalence of HILC students generally and no method to determine the incidence with accuracy (Decision, at para. 254). As a result of the 1994 report, it was recommended that districts identify their identification and assessment procedures. The Johnstone report did not identify a significant discrepancy between the reported and actual incidence of SLD students within the 16 school districts that were studied.

[62] The Tribunal noted that Stikine, Quesnel, and Cranbrook reported SLD incidence levels above 2% (Decision, at para. 863). The time period of these reports and the characteristics of these districts are not known. However, it was established that the Stikine was unusual and that it received unique funding. More about the comparison is not known. The 1994 Johnstone report said that smaller school districts tended to report significantly higher incidence levels in this category. Also, it is not known if the Stikine had excess funds or how it allocated its budget in comparison to North Vancouver, which had a particularly unique funding problem because of the loss of the taxation ability and deficit funding from 1992-1995.

(e) The District’s budget cuts applied to special education

[63] The District’s budget was prepared each year based upon the previous year’s figures. In special education, still part of the fiscal framework used for budget purposes within operating expenses, the budget was based upon existing and expected designations and special education aide levels.

[64] As described, the District suffered financially after introduction of block funding and its inability to obtain increased funding through direct taxation within the district. The District made financial cuts in 1991/92, but still suffered a deficit, which was allowed, in the amount of $1.8 million provided that it was retired by 1994. No additional funding was provided by the Ministry, except for the special purpose equalization grant. The District was bound by a collective agreement that affected both the cost of delivering special education and how it allocated its special education funding. The District tried unsuccessfully to renegotiate the collective agreement and froze expenditures.

[65] The funding problem was exacerbated in 1992/93 despite budget reductions for certain programs, including special education, so that the operating budget matched the block allocation. Two diagnostic centres for students with severe behaviour problems were eliminated in 1992 and the teachers re-assigned within the District. This was a signal that intense, individualized assistance in a specialized setting was not sacrosanct in the face of intense budgetary pressures (Exh. 70, Arbitration Award, March 1995 (Kalicharan Affidavit, vol. 8, tab. 70)). In 1993/94, the special purpose equalization grants ended, the District still carried the deficit, and the budget required reduction by a further $2.6 million. Aide hours were cut and administrative staff took a pay cut. The positions of District psychologist, co-ordinator of volunteer services, and .6 FTE from DC1 were eliminated.

[66] The accumulated deficit from the previous year was carried into 1994/95 with Ministry approval. However, this meant that the 1994/95 year began with a $1.12 million deficit that was required to be paid in that year. Troubles were compounded by a collective agreement that extended another year, unlike most other school districts. No additional funding was available to cover committed salary increases. The new collective agreement provided for a district screening committee for the designation of special needs students for purposes of special need supplemental funding and provided for the mainstreaming and integration of special needs students. Once a student was designated as HILC, the collective agreement required a special education aide to assist the teacher in the classroom for a minimum of 2 hours per week, with 7.5 hours per week for an SLD student, subject to increase based upon need without an upper limit. As a result of the new collective agreement, the number of designated students had increased in the fall of 1993, increasing the cost for aides in the budget from 119.81 FTE’s in 1993 to 172.34 FTE’s in 1995.

[67] When the 1994/95 budget was developed in March 1994, the problem of the cost of aide time was proposed to be dealt with either by containing aide time or reducing expenditures in other areas of special education, a specific program within the fiscal framework. It was also proposed to cut five vice-principals, close the French diagnostic centre, cut 12 teachers, and limit school based specialists to 1990/91 levels. In passing the bylaw for the budget, the board of the District noted that it did so because of legislative requirements and not because it met the needs of the students. In so commenting, no direct reference was made to SLD students as opposed to the general student population.

[68] In March 1994, the board proposed closing DC1, the specialized education setting for SLD children, in the 1994/95 school year. It was the only remaining program that pulled students out of the regular classroom setting. It had operated since 1976 and cost $292,500 per year in 1994. Since that time, there had been a policy shift away from segregation of special needs students towards integration into the regular classroom and collective agreements gave no protection to this specialized service. In January 1994, the Ministry had provided funds to the District to facilitate classroom integration by providing training to staff to work with special needs students in the classroom. The District was not obliged to maintain the DC1 under the collective agreement, but was required to provide special education aides to teachers in the classroom. The District Superintendent of Schools testified that he did not consider that it was financially sustainable to have two service delivery models for special learners considering the philosophy of inclusion and the fiscal duress. It was expected that the services provided by DC1 could be provided in the neighbourhood schools through intensified school based resources given that class sizes were smaller if a special needs student was integrated, that aide time was open ended, and that DC1 personnel were to be re-assigned within the District. However, except for these implications, there was no precise plan to replace DC1 and the number of students affected was not ascertained in April 1994 when the final decision to close DC1 was made.

[69] The Tribunal rejected that the philosophy of inclusion was a consideration in the closure of DC1 and concluded that the decision was purely financial. This was based upon the speed of the decision (two weeks) and the fact that memoranda at the time only mentioned financial considerations. However, the Tribunal did not consider the full effect of the collective agreement, which failed to protect such specialized programs and instead provided for increased special aides in the classroom. This limited the financial manoeuvrability of the District. Also, Ministerial order and policy plus the collective agreement at the time favoured integration of special needs students into the regular classroom whenever possible. It was established that the setting of teaching is not the critical component to success. Although policy also called for a range of services to be available for SLD students, the District was the only one in the province to provide DC1, making it obvious that a range of services could be provided outside of that option. Closure of DC1 did not interfere with the designation process or the provision and implementation of IEP’s for each SLD student.

[70] Following the decision to close DC1, the District planned to service SLD children through expanded use of specially trained aides and the use of the learning assistance teachers. The interventions offered to Moore within the learning assistance setting were by a teacher fully qualified to teach SLD students, notwithstanding that the LAC had not previously been envisioned as a forum for instruction of SLD students. Moore’s placement in DC1 would have been temporary, up to four months, and he then would have had the same intervention as was otherwise available. The integration of SLD students into the regular classroom was consistent with Ministry policies, procedures and guidelines as concluded by the audit in December 1994. The closure of DC1 affected the setting for provision of temporary services: the services themselves were provided through the LAC and in the classroom with no reduction in the teacher/aide levels by operation of the collective agreement.

[71] The Tribunal found that the Ministry under funded the District by $1.5 million in the years 1994/95-1996/97, the two years prior to full implementation of the TDG report. The District was the second lowest funded of lower mainland school districts, $1.3 million below the overall average. It was established that the financial crisis that the District experienced would not have occurred if the District had receive an additional $1.5 million per year under the block allocation. If the District had received equitable funding, it would not have cut spending in special education.

[72] Despite the budget deficits, the District was not troubled by the HILC cap on funding for special needs students. The actual incidence of HILC students was always below the 4% cap during 1992-1995. In 1993/94, the District had 3% HILC incidence. In 1994, the District had 3.4% HILC incidence.

[73] As a result of continued deficit financing, the Ministry appointed a trustee to administer the District’s finances in February 1996. The trustee review revealed that the District had engaged in a pattern of inappropriate expenditure in a period of public sector fiscal restraint. He implemented a number of financial reductions unrelated to cutting services for SLD students. The inference is that it was not impossible for the District to have allocated funds in a manner that accounted for students with learning disabilities.

Analysis

(a) Standard of review

[74] All parties agreed that the applicable standard for review is established by s. 32 of the Code, which states that s. 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (ATA) applies to the Tribunal. Section 59 of the ATA states:

Standard of review if tribunal’s enabling Act has no privative clause

59 (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.

(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.

(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.

(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(d) fails to take statutory requirements into account…

[75] The default standard of review for error is correctness, unless the question is one of fact. The deference owed to findings of fact includes primary factual findings and conclusions drawn from them, including inferences and interpretation of evidence as a whole, and credibility (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 15-25). The standard of review on a question of mixed fact and law is the standard of correctness (British Columbia v. Bolster, 2007 BCCA 65, [2007] 4 W.W.R. 405 at para. 124, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 167 (QL)).

[76] The key questions for review in this case are:

1) What is the service in question? Was that service customarily available to the public?

2) Did the Tribunal err in deciding that no comparator analysis was necessary to find discrimination or, in the alternative, in its selection of the comparator group?

3) Did the Tribunal err in finding individual discrimination?

4) Did the Tribunal err in finding systemic discrimination?

5) Did the Tribunal err in finding that undue hardship had not been established?

6) Did the Tribunal err in its remedial orders?

[77] All of these questions are to be decided on the correctness standard.

(b) The service customarily available to the public

[78] The “service” that is the subject of this complaint was the subject of much discussion at all stages of this case. The “(Amended) Particulars of Allegation” filed in 1999 set out the basis for the complaint and are the same for both complaints. As described generally by Shaw J. in Moore, these allegations allege discrimination by the District and the Ministry in failing to provide for the educational needs of Moore as a learning disabled individual with dyslexia. More particularly, they allege failure to provide Orton-Gillingham and demand that the Ministry provide a fully funded Orton-Gillingham based program for dyslexic children in every school district, along with a separate fully funded program “suited to the different ways that dyslexic children learn” in every school district. The particulars went further, demanding that the province fund all independent schools who provide such services and that these schools be used as models within all public schools. In its remedial request, the complaint was refined to demand that a “particular teaching method or program” such as Orton-Gillingham be implemented throughout the public school system.

[79] The particulars alleged that the closure of DC1 left Moore without comparable individual assistance outside the regular classroom and stated that leaving dyslexic children in regular classrooms without teaching them to read had harmful effect. The complainant sought “sufficient and appropriate” services to address Moore’s learning disability. In the request for systemic relief, the complainant sought that the Ministry evaluate the effectiveness of its special education programs in relation to accommodation of students with severe learning disabilities, determine what improvements could be made, and implement the improvements.

[80] The Tribunal concluded that the service at issue in this case was “educational programs offered by the Ministry and the District” (Decision, at para. 707). By this was meant public education services offered generally to the broad public. This was the position taken by the complainant at the Tribunal hearing and before this Court.

[81] The Ministry argued that the service customarily available to the public at issue is special education services because the gist of Moore’s complaint is that he was not provided with an appropriate special education response. The District said that the service at issue was the specific services sought by the complainant, namely, Orton-Gillingham or another like program, early intervention, DC1, and intensive remediation designed specifically for dyslexic students.

[82] The Code is intended to prevent discrimination in the provision of a service as defined in s. 8 as follows:

Discrimination in accommodation, service and facility

8 (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any…service…customarily available to the public, or

(b) discriminate against a person or class of persons regarding any…service…customarily available to the public

because of…physical or mental disability…of that person or class of persons.

[83] This provision (then s. 3 of the Human Rights Act, S.B.C. 1984, c. 22) was recognized in University of British Columbia v. Berg, [1993] 2 S.C.R. 353 at 362 and 371, 102 D.L.R. (4th) 665 (Berg) as limiting the scope of discrimination that is protected under legislation. The purpose of s. 8 of the Code is to ensure that when services are customarily available to the public, they must be made available on a non-discriminatory basis. This means that before a claim of discrimination can succeed, it must refer to a service customarily available to the public. Not all discrimination is prohibited (Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 at 602, para. 52, 133 D.L.R. (4th) 449 (Gould)). Thus, the potential goalposts for a finding of discrimination are defined as within services customarily available to the public.

[84] What is a service customarily available to the public is a question of law as to its meaning and scope, although whether it is customarily available is a matter of fact (Berg, at 369; Gould, at 601; para. 47; H.M.T.Q. v. Crockford, 2005 BCSC 663, 40 B.C.L.R. (4th) 313 at para. 62 (Crockford), rev’d on other grounds 2006 BCCA 360, 271 D.L.R. (4th) 445 (Crockford CA)). The appropriate characterization of the activity in question is a matter of law and must be reviewed on the basis of correctness (Gould, at 589, para. 14).

[85] Without question, the Code, as quasi-constitutional legislation, must be given a broad, liberal, and purposive interpretation (Berg, at 371; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 at paras. 30-31; School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201, 253 D.L.R. (4th) 294, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 260 (QL)). At the same time, its limiting scope must also be given effect. I disagree with the Ministry’s submission that because the purpose section of the Code, s. 3, was not effective until January 1997, after the operative dates of these complaints, that the Code should be read as subservient to the School Act 1989. The generous and flexible interpretation may require stretching a meaning to ensure that the purpose of preventing discrimination is not thwarted in the sense that the complainant will be left without a remedy due to a legalistic technicality (HMTQ et al v. Emergency Health Services Commission et al, 2007 BCSC 460 at para. 152 (B.C. Emergency Health)).

[86] The limitation expressed through the legislative requirement of s. 8 is similar to the preliminary requirement identified in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at para. 28 (Auton) that a finding of discrimination under section 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter), must relate to a benefit or burden imposed by law. A finding of discrimination cannot be based upon discrimination in the provision of services not provided under legislation as to do so is tantamount to dictating to the government what services should be provided. As McLachlin C.J.C. stated in Auton at para. 41:

On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect does not offend this principle and does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner. [citations omitted].

[87] In other words, human rights principles do not mandate a perfect solution (B.C. Emergency Health, at para.156). The same principle was stated earlier but in a different way by Binnie J. in Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at para. 78 (Granovsky) when, in discussing Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577 (Eldridge), he said that the government is not required to provide “extra” services, but was required to provide the services that it said it would provide in a way that was understandable and usable to the deaf.

[88] There are really three questions within this consideration: 1) what is the “service” that is the subject matter of the complaint, 2) what is the “public” that is being served, and 3) was that service customarily available to that public?

[89] A s. 8(a) analysis is service driven. As no indication is given in the Code as to what types of services are included, examination of the jurisprudence is critical. The question is: what service are we talking about? The approach is to identify the service in question based upon the facts before the court.

[90] Berg involved a graduate student at the university who, due to her mental disability, was denied keys to facilitate after hours building access as well as a rating sheet equivalent to a report card, which were both provided to other graduate students. It had been assumed throughout the proceeding that the keys and rating sheet were “services” within the meaning of the Act (Berg, at 373). Although the “public” identified in Berg included all graduate students within the school of nutritional sciences, the services in question were narrowly defined. Lamer C.J.C. considered services to be activities of a provider and recognized that not all activities undertaken are subject to scrutiny just because some are (Berg, at 384). By conceptualizing ‘service’ as activity, care must be taken not to broaden the activity in question to be the same as the object or purpose of such an activity as enshrined in the objects or purpose of enabling legislation.

[91] La Forest J. said in Gould that the analysis of services customarily available should be centered not upon the nature of the enterprise or the service provider but upon the service being offered (Gould, at 605, para. 55). In Gould, the preparation, recording and collection of historical data was not included as part of the service of providing the data to the public and not subject to scrutiny for discrimination (Gould, at 614, paras. 72-77). Similarly, the spectrum of benefits offered through membership was not covered by the Code because it did not give rise to a public relationship (Gould, at 620, para. 86). It is only when the service is held out to the public that it attracts the anti-discrimination prohibition; however, the intention of the service provider is not determinative in whether the service is provided to the public (Gould, at 604, para. 55).

[92] Joyce J. considered the meaning of “service customarily available to the public” in Crockford. The learned justice said at para. 63 that whether the activities are a “service” must be determined with reference to the applicable statute. In that case, although the Crown Counsel Act, R.S.B.C. 1996, c. 87 provided for the delivery of criminal justice, it did not specifically include the charge approval process which was found not to be a “service” within the meaning of the Code. Generally, a service is a benefit provided to one person by another (Crockford, at para. 72). Joyce J. summarized the Tribunal’s analysis of “service” by reference to other human rights tribunal cases. Significant among them is Konieczna v. The Owners Strata Plan NW2489, 2003 BCHRT 38, where the Tribunal took a global view of services provided to members by the strata corporation as opposed to isolating individual aspects of the relationship and excluding them from “service”. In that manner, a particular activity could be considered a subset of a broader public service. Thus, a range of services can be considered the “service”.

[93] In Howard v. University of British Columbia, [1993] B.C.C.H.R.D. No. 8, at para. 33 (QL), the British Columbia Council of Human Rights decided, after reviewing the particulars of the complaint, that the complaint in question for a deaf student who needed an interpreter to access post graduate education services was more about access to education generally as in dealing with admission to educational facilities rather than dealing with the types of ancillary and discretionary services dealt with in Berg. This was because access to the benefit of post graduate educational services would have been eliminated for the complainant without the provision of an interpreter. A similarly broad definition of services to mean “educational services” was adopted in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, 133 D.L.R. (4th) 1, where a teacher’s continued employment after making discriminatory statements in public during his off-duty time constituted discrimination with respect to educational services available to the public. The services there were taken in a broad context to include not only the formal curriculum, but also the informal participation in a school environment.

[94] Hodge v. Canada (Minister of Human Resources and Development), 2004 SCC 65, [2004] 3 S.C.R. 357, at para. 25 acknowledged that while it is important to identify the universe of people potentially entitled to equal treatment in relation to the subject matter of the claim, it may be equally important to reference those who are not included in order to achieve substantive equality. These principles were recognized in the human rights case of HMTQ v. Hutchinson et al, 2005 BCSC 1421, 261 D.L.R. (4th) 171 at para. 85 (Hutchinson), where the nature of the service was distinguished from the means by which the benefit or service was provided or accessed. Hutchinson distinguished Auton as a case involving a legislative scheme that did not offer the particular benefit claimed, as opposed to the situation in Hutchinson, which concerned the application of government policy or administration of the means by which a service was provided. Cullen J. in Hutchinson said that the critical finding in Auton was that the benefit claimed was not a benefit provided by law because it was a matter of discretion, not mandated by legislation. If the government exercised its discretion and provided the service, it would have to be provided in a non-discriminatory manner.

[95] Berg recognized that a government can impose eligibility requirements to ensure that a program or service reaches an intended client group. The government cannot then discriminate among the client group. The identification of a particular client group for a service focuses the inquiry on the appropriate factors of the nature of the service and the relationship that it establishes between the service provider and the service user (Berg, at 386). The requirement is to identify the client group or “public” in a relational as opposed to a numerical sense. It is not correct to assume that a service or facility is available to everyone who desires it. The relationship is, however, to be considered within the context of the nature of the service so that one first identifies the service in question and then asks whether it gives rise to a public relationship between the service provider and the user (Gould, at 606, para. 58). The concept here is that the public must have access to the service or a member of the public must be denied access to a service available to others in the public to found a discrimination claim. This reflects, to some extent, the Auton concept that limits the scope of protection from discrimination under the Charter to benefits provided by law.

[96] In Crockford, Joyce J. recognized that every service has its own public, which can be defined through eligibility criteria (Crockford, at para. 69). As described in Berg at 384, such criteria are a necessary part of most services to ensure that the services reach the intended beneficiaries, thereby avoiding overuse and unnecessary depletion of scarce resources (Crockford, at para. 70). The Code then prohibits discrimination within that public.

[97] The Tribunal must not only determine whether the Code applies, but must also turn its mind to what is customarily available on the facts of the particular case. The importance of the factual finding of “customarily available” was specifically pointed out by Lamer C.J.C. because a “custom” must be sufficiently established and demonstrated so that a deviation from that custom may be attributable to discrimination (Berg, at 370). In Berg, Lamer C.J.C. avoided the question as to whether the existence of a discretion in the provision of a service could insulate the service from the Code as not being “customarily available” because the discretion in that case was habitually exercised in a certain way. Typical and regular exercise of a discretion in a certain way established custom.

[98] In sum, the approach to the determination of what constitutes a “service customarily available to the public” involves a principled approach that includes consideration of the nature of the service and the relationship that it creates between the service provider and the user (Berg, at 384; Crockford, at para. 87). The starting place for such a determination is the applicable legislation. Although it is important that the Code be given a liberal and large interpretation in furtherance of its purposes, the comprehensive legislative framework relative to the service at issue must be addressed (B.C. Emergency Health, at para. 127).

[99] Usually, the service is readily identified and not in issue. However, in this case, the issue as to defining the service that is the subject matter of the complaint and whether it was customarily available to the public during the period of the alleged discrimination, 1992-1995, was repeatedly argued. From the complaint itself, it is apparent that Moore was not claiming access to general education services offered to regular students, but sought an individual program tailored to his special needs as a learning disabled child with dyslexia.

[100] The Tribunal approached the question of what services were in issue by asking whether this case was analogous to either Eldridge or to Auton (Decision, at paras. 684-693). Although the analysis considered the nature of the benefit in those cases, it is apparent that the Tribunal was focused on placing this case within the context of Eldridge rather than placing this case within the statutory framework that requires one to ask what was the nature of the service that was available.

[101] The Tribunal failed to take a comprehensive view of the legislation and based its consideration upon the broadly worded purpose of the School Act 1989 and the importance of education generally, as opposed to the activities of the Ministry and the District that are covered by the legislation (Decision, at paras. 696-702). The Tribunal also extensively reviewed the role of the Ministry in the provision of services, thus concentrating on who had a legal obligation to provide general education services as opposed to the nature of the service itself and the public that it served, eventually concluding that the Ministry’s characterization of the service “…unduly limits the service that they are obliged to provide and that a student is entitled to under the School Act…” (Decision, at para. 695). This conclusion tends towards expansion of the nature of the service by focusing on the quality of the service and entitlement within the question of what was “…necessary and appropriate for [Moore]…” or what should have been provided, rather than to ask whether the services that were provided or denied were provided in a discriminatory manner (Decision, at paras. 703 and 704).

[102] The Tribunal also failed to take into account the true nature of the complaint, which sought specific services for dyslexic children that were not provided within the special needs category, along with the systemic complaint related to the failure to adequately evaluate and monitor special education. It also conflated the issue of “service customarily available to the public” with the ultimate issue of whether discrimination existed by identifying the service in question within the parameters of the discrimination analysis itself and not as a preliminary limiting consideration. By acceptance of the broadest possible service in issue to accommodate the Eldridge analysis, the Tribunal failed to incorporate and rationalize its own findings of fact within its service analysis, which showed that the specific services claimed were not customarily available in British Columbia public schools. This was exacerbated when the Tribunal failed to take a comprehensive view of the legislation in determining the services and public in question, particularly by failing to adequately consider the discretionary aspect of the provision of education programs and the specific accommodation that was already legislatively in place for special needs students. Finally, taking the approach mandated by the case law to analyze the service in issue produces a different result than found by the Tribunal.

[103] The School Act 1989, required all students to be provided with an educational program, which was defined to be an organized set of learning activities that, in the opinion of the board, were designed to enable learners to develop their individual potential. Reading falls within one of the core programs that must be offered to all students by operation of the Education Program Order M263/92. However, the School Act 1989 did not guarantee that all students would be taught to read to a certain level, nor did it specify how each district was to exercise its discretion to provide learning activities directed towards this purpose. The content of a program was at the discretion of the board of a school district and the district had a high degree of discretion with respect to the content of services that each student received. The legislation does not provide for provision of a specific type or quality of educational service. This was in keeping with the purposeful flexibility of an educational program, particularly for special needs children. It was also in keeping with the statutory mandate given school boards to decide how to allocate resources within the school district.

[104] The suggestion that a statutory discretionary delivery model imposes definite obligations to properly instruct or provide according to ascertained criteria is inconsistent with established negligence law in which no duty of care has been found and courts have said that they are inadequately equipped to enquire into the quality of education services (Hicks v. Etobicoke (City) Board of Education, [1988] O.J. No. 1900 (Ont. Dist. Crt.) (Q.L.); R. v. Jones, [1986] 2 S.C.R. 284, 31 D.L.R. (4th) 569; see also Hewko v. B.C., 2006 BCSC 1638, at para. 315 (Hewko)). More particularly, this Court has said that there is no mandatory provision in school legislation that requires the Minister to create or impose any requirements or standards with respect to programs for special needs children (Hewko, at para. 283). School boards have final decision making power with respect to program decisions (Hewko, at para. 284). Within these discretionary services, the government has provided special accommodation for special needs students. The Special Needs Students Order (M150/89) required that special needs students be placed in an integrated environment unless the student’s particular needs indicated otherwise. This was in keeping with the prevalent philosophy of placement within the least restrictive environment possible “within available resources” (1985 Manual, s. 3.1).

[105] It should also be noted that the British Columbia legislation was unlike Ontario’s Education Act, R.S.O. 1990, c. E. 2, s. 8(3), which specified that exceptional children in Ontario were to have available to them “appropriate special education programs”. This legislation was the basis for the s. 15 Charter claim in Wynberg v. Ontario (2006), 82 O.R. (3d) 561, 269 D.L.R. (4th) 435 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 441 (QL) (Wynberg).

[106] The 1985 Manual set out the policy of the government with respect to special education. As described in Hewko at para. 289, the purpose of special education is to enable equitable participation of students with special needs in the education system. It is a comprehensive document expressing particular philosophy and goals, a recommended service delivery model, a special education division within the Ministry, special programs funding, and program guidelines within each of the special needs categories. It required districts to evaluate and research activities to assess their services to reflect and incorporate new knowledge to improve special programs. A broad spectrum of service delivery model was anticipated given the debate about best educational practices. The 1985 Manual called for a continuum of services and a range of options to meet the diverse needs and abilities of disabled children in as normal an environment as possible. It also required that students suspected of being SLD were to be referred for an in-depth psycho-educational assessment after school based data was compiled and instructional intervention strategies were attempted (Decision, at para. 125). Policy required that an IEP be developed for each special needs student based upon identified personal needs, which was to be a modification of general educational programs as necessary. Planning was to be on an individualized basis and reviewed regularly. Ongoing support was to be provided by the learning assistance teacher, although a separate resource room for long term service was also contemplated. There was a plan for additional funding for special needs students.

[107] The point here is that there was a specific government objective to take the characteristics of the special needs student into account and to accommodate them. Accommodation for special needs was a benefit within the general education services that was not offered to the average student. It was offered to learning disabled students only after impairment was identified and then gradually assessed as to the limit of functional impairment with the reticence to label a child as disabled until clearly ascertained.

[108] It is not a situation of complete denial of meaningful access to education services when Moore was provided with an IEP following individual assessment that provided individualized and specialized services to him within the special needs category. The government has considered its education program not only from the perspective of the normal student, but also from the perspectives of multiple types of disabled students. Section 7 of the 1985 Manual defined special needs for purposes of supplemental funding and offered guidance to school boards as to what was understood to be best practices in identification, placement, programming, service delivery, evaluation, and program personnel. It recognized a number of categories of special needs including: moderately mentally handicapped, severely and profoundly mentally handicapped, physically handicapped, visually impaired, hearing impaired, autistic, severe learning disabilities, mildly mentally handicapped, and severe behaviour problems. These groups were regulatorily defined in the July 1995 Ministerial Order M397/95. Criteria for eligibility within each of these categories was specified, based upon knowledge at the time. Special education programs for purposes of funding included learning assistance, special health services, HILC, LIHC, dependently handicapped, gifted, and hospital/homebound.

[109] Eldridge and Auton are both Charter cases. This case is not about a constitutional challenge to government policy or programs of education in place during 1992-1995. Indeed, no such attack was made upon the legislation or policies and Moore’s parents did not challenge program decisions made about their son at the time. Nonetheless, a great deal of argument was focused on whether and to what extent Charter cases applied in the human rights context. The jurisprudence is unclear as to the extent the formal Charter discrimination analysis should apply in the human rights context. While there has been an indication that Charter jurisprudence should be applied in cases with governmental overtones (see Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601, 262 D.L.R. (4th) 360, at para. 39, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No.365), there does not appear to be any clear direction from our Court of Appeal on this issue. Certainly, Charter concepts may be taken into consideration to enhance adjudication of statutory claims as tailored to the nature of each claim. I agree with Leslie A. Reaume (see: Leslie 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 at 375) when she stated:

… Simply put, borrowing from the Charter context to the statutory context is appropriate so long as the exercise enriches the substantive equality analysis, is consistent with the limits of statutory interpretation and advances the purpose and quasi-constitutional status of the enabling statute. The objection raised in this paper is not to the interplay but to the manner in which Charter principles, specifically those articulated in the decision in Law, are imported and then allowed to dominate an analysis which should be driven first by the principles of statutory interpretation, and second by the jurisprudence which has developed specifically in the regulatory context.

[110] For purposes of this part of the analysis, the reasoning in Auton that limited discrimination to benefits provided by law is instructive to consideration of the “services customarily available to the public” limitation within the Code. The discussion here is upon the scope of the limitation as it pertains to defining benefits or denial of benefits that are to then be the subject of a discrimination analysis. If one were to compare the benefits at issue in Eldridge and Auton, keeping in mind the statutory requirement for a service being customarily available to the public and based upon the nature of the service available and the comprehensive attributes of the School Act 1989, regulations and policy, it is apparent that this case does not fall within the breadth of the benefit under discussion in Eldridge.

[111] Eldridge involved deaf claimants who sought equivalent access to core health care services that the government had already decided to fund. A complete and absolute failure to accommodate deaf claimants constituted a denial of core services available to others generally. Auton dealt with claimants who wanted the government to fund additional health care services that were not available to anyone. Auton dealt with access to a benefit that the law had not conferred. The distinction between the two situations was described in Eldridge at para. 92 when La Forest J. clarified that the claim was not for a benefit that the government, in the exercise of its discretion to allocate resources to address various social problems, had chosen not to provide. Rather, the claimants in Eldridge were asking for equal access to services that were available to all. Eldridge involved the regulation of access to existing services rather than a claim for expansion of services. It did not impose a positive obligation upon the government to remedy social inequalities (see Bond, Claire, “Section 15 of the Charter and the Allocation of Resources in Health Care: a Comment on Auton v. British Columbia”, (2005) 13 Health L.J. 253-271; Benjamin L. Berger, “Using the Charter to Cure Health Care: Panacea or Placebo?” (2003) 8:1 Rev. Const. Stud. 20 at 36).

[112] In Moore’s case, it is the extent of his special needs as described in the complaint that provokes consideration of individual programs and placement outside of regular education services. To suggest that the service in question was general education services fails to take into account the specific accommodations that were made for Moore’s differences that placed him within the eligibility criteria for special education services. Unlike in Eldridge, Moore was not completely denied a service; in fact, he was provided with a number of accommodations. To say that the service in question is general education services negates the special education benefits program established by the Minister and the positive actions taken by the District within that benefits program to accommodate Moore. It places the discrimination analysis into an unreal context. The government has taken some measures to ensure that the learning disabled, amongst others, are able to benefit equally from the general education services offered as the core program. The special education program imposed upon the provision of education services was not a facially neutral benefits scheme. The question eventually asks about the way that the Ministry and the District handled dyslexic students in the provision of services that it provided to the public. The Tribunal was not correct to have concluded that the nature of the service was education services.

[113] The special needs program was based upon eligibility criteria, which involved individual assessment with the recognition that different degrees of disability would be treated differently. The claim here is that Moore did not receive enough benefits early enough – “too little too late”. This is not an allegation of denial. “Too little too late” included failure to identify the exact nature of his disability early enough, failure to provide Orton-Gillingham and a phonemic awareness program for dyslexia, and failure to maintain a range of settings for severely learning disabled through closure of DC1. The systemic complaint related to failure to adequately evaluate, monitor, and fund special education generally.

[114] Based upon the activities of the District and the Ministry set out in the governing statute, the regulations, and applicable policies, the nature of the services claimed in the complaint, and upon the accommodations that had already been offered by the Ministry and the District, I agree generally with the submission of the Ministry that the service in question in this case is the provision of special education services. Although the District would further refine the nature of the service to refer back to the accommodations claimed, to isolated aspects within the range of services called special needs education, I find that the true nature of the complaint in this case is more about the range of services that are offered to SLD students, particularly those with dyslexia, within the broad scope of special needs services, rather than specific incidental or ancillary services, notwithstanding the specific nature of part of the claim. I am also mindful to maintain a liberal and generous inclusion and fear that defining the service too narrowly would compromise the potential scope for discrimination in the denial of benefits, particularly as it pertains to services that are “customarily available”.

[115] The Tribunal rejected the Minister’s characterization of the service at issue as “…unduly limit[ing] the service that [the Ministry is] obliged to provide and that a student is entitled to under the School Act” (Decision, at para. 695). However, the question here is not about what benefits should be provided, but about whether the provision or failure to provide services as defined in s. 8 of the Code was discriminatory. As reflected in Auton at paras. 27-28, the goal of ameliorating the position of disadvantaged groups is the goal of anti-discrimination laws. But, the specific role of the Code in achieving this objective is limited to ensuring that when the government chooses to enact benefits, they do so in a non-discriminatory fashion. This limited role reflects throughout this analysis and denies the existence of a positive responsibility of government and others to defeat discrimination in the abstract. In this sense, the limits of the law cannot assuage the feelings of deprivation that may be subjectively felt. The Tribunal failed to focus upon the actual nature of the service provided, but was more concerned at this early stage about the ultimate finding of discrimination. While these questions are not strictly compartmentalized, the limitation in the Code must be given effect.

[116] The public that was served by special education between 1992 and 1995 were grouped together as “special needs” students and described for eligibility and other criteria in section 7 of the 1985 Manual. They were listed above in paragraph 108. Although there were students within the school system with mild to moderate learning disabilities, only students at the severe end were included within special education. It was these groups of students, this “public”, that special education was designed to serve. It was not geared towards the regular student who was not entitled to receive these specialized services. Nor was it geared towards students who suffered milder forms of disability who were not considered in need of special education services.

[117] Although it might be considered apparent that special education services as described above were “customarily available” to the public , the District argued that certain of the services denied and that were the subject matter of the claim were never customarily available to the public during 1992-1995. The Tribunal’s findings of fact support that view. For example, the Tribunal found that the screening for literacy skills through the Jansky de Hirsch screening index as applied to Moore in kindergarten was used only in the District and nowhere else in British Columbia at the time (Decision, at para. 411). It follows that the Jansky de Hirsch diagnostic assessment was also not available elsewhere in the province. There is no other evidence that supports the availability of early screening for literacy skills. A test for phonological awareness was not used until 1996 or 1997 (Decision, at para. 606). Early intervention initiatives including early assessment, intervention, and teacher training were introduced in the province in 2000 (Decision, at para. 202). Similarly, Orton-Gillingham was not offered in any school district in the province in the early 1990s (Decision, at para. 449). Phonemic awareness programs for dyslexic students, including Lindamood, were not available in the province until 1997 (Decision, at para. 607). DC1 was the only pull-out program for SLD students in the province and was offered only once a child attained grade three. The Tribunal’s findings of fact here are unassailable. The Tribunal rejected the District’s characterization of the service as too focused on accommodations that were made available rather than on the core services offered within the District. While I have found that the Tribunal’s characterization of the service at issue as education services was incorrect, I agree that characterization of the service as the District requests focuses the alleged discrimination away from failure to provide accommodations within the special education services that were offered. As previously stated, I do not consider that these claimed incidental services form the basis of the service at issue here.

[118] In Berg, key access and the rating card were agreed to be services incidental to the provision of graduate student services. Here, the provision of special education is the real service at issue and the question as to its adequacy is the basis of the discrimination claim. The fact that discrete, incidental services were not customarily available can go to the question of whether failure to provide the service in question, in this case the provision of special education, was discriminatory. This is the question of whether the failure to provide these discrete services was discriminatory in the sense of whether the failure to provide was related to an enumerated ground and created a disadvantage, or whether the failure was simply due to the fact that it was not an accepted service within the special education field at the relevant time. It is a factor in consideration of whether the special education program was sufficiently responsive to the needs and circumstances of SLD students to point away from discrimination in failure to provide these discrete services. It is not the question of whether failure to provide the services was sufficient in terms of quality.

[119] The Ministry argued that it did not provide any services to the “public” because it was the duty of school boards to devise, deliver, and evaluate educational programs for individual students. Particularly, the Ministry argued that it is not involved in the provision of special education programs. The Ministry said that the Tribunal misunderstood the role of the Ministry and conflated all of the duties by concluding that the Ministry controls education services (Decision, at paras. 708-713). A similar argument was made in Moore, after which Shaw J. concluded at para. 19:

The Ministry asserts that the issues before the Tribunal involving the Ministry are limited to its funding of School District No. 44 and that it is School District No. 44 which is under the duty to provide appropriate educational programs within the allocated funding. Thus, the Ministry argues that any claim of systemic discrimination must be aimed at School District No. 44, and not the Ministry. I cannot accept this argument. In my opinion it seeks to limit the Ministry’s responsibilities to funding only, whereas the Ministry’s duties and responsibilities are far broader than that.

And Shaw J. further stated at para. 26:

Based on all the above provisions of the Schools Act [sic] I conclude that the Ministry’s powers extend well beyond the funding of the School Districts. It follows that allegations of discrimination against the Ministry cannot be limited to the use or misuse of the funding power.

[120] The Court found in Moore that the School Act 1989 empowered the Ministry to make orders governing the provision of educational programs, determining the general requirements for graduation, determining the general nature of educational programs for use in schools, preparing a process for assessment of effectiveness of programs, and doing whatever the Minister considered advisable to effectively administer the School Act 1989. This was separate and apart from the Ministry’s funding responsibilities, which included the power to tell school boards to spend certain money to provide programs to special needs students.

[121] The jurisdiction of the Minister was discussed in Hewko at paras. 281-284 where, in the exercise of these same powers, the Minister put in place the Special Needs Students Order (M150/89) and eventually the Individual Education Plan Order (M683/95). Although Hewko clarified at paras. 283-284 that there was no mandatory provision that required the Minister to create or impose standards with respect to special needs children and that s. 11 of the School Act 1989 gave boards ultimate decision making authority over an individual student’s education plan, this did not detract from the plenary power that provincial governments have over school boards or the power ultimately to exercise supervisory control through the appointment of a trustee (School Act 1989, s. 186; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 S.C.R. 409). The Ministry exercised its discretion under the legislation to provide policy for the provision of special education in the 1985 Manual. To conclude that the Ministry provided special needs education services to special needs students as the “public” within this broad legislative scheme does not ignore pertinent provisions of the legislation and gives a broad and purposive approach to the legislation for the purpose of the Code.

[122] In summary, the Tribunal was incorrect to characterize the nature of the service customarily available to the public at issue here as “education services”. The service at issue here is the provision of special education. The public in question are special needs students. The Tribunal’s finding on this issue permeates the judgment and distorted the discrimination analysis. The Tribunal’s error in incorrectly identifying the service customarily available to the public is such that an order in the nature of certiorari in both petitions could be granted on this point. However, I will continue to consider whether discrimination has been established.

(c) The discrimination analysis: selection of a comparator group

[123] The Tribunal followed the traditional approach in Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321 (O’Malley) in outlining the test for determination of whether discrimination has been established under the Code. The O’Malley test requires that the complainant establish that there is a service customarily available to the public, that he is a member of a disadvantaged group protected from discrimination under the Code, that he was denied the service, and that membership in the protected group was a factor in the denial (Decision, at para. 720). The Tribunal also considered whether the s. 15 Charter analysis in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) (Law) applied in the human rights context and concluded that it provided a “…helpful interpretive framework” (Decision, at para. 734). The Tribunal distinguished Law as a case where equal treatment was sought under a government program, not a situation as here where the discrimination alleged was “…a failure to recognize and appropriately accommodate difference” (Decision, at para. 736). The Tribunal Chair opined that it would be a rare case in which differential treatment suffered by someone in a protected group did not constitute discrimination and concluded that since it was clear that Moore belonged to such a group, the failure to receive “appropriate interventions and supports to address [his] disability [resulted in] discrimination in a substantive sense” (Decision, at paras. 736 and 738). Dyslexic children were unable to access the benefit of education services if their specific needs were not appropriately accommodated.

[124] The Tribunal considered that it was unnecessary, unhelpful and unsuitable to focus on a comparator group (Decision, at paras. 746, 750, and 753). This was because the issue was not whether the claimant was treated equally but whether the actual characteristics of the person had been accommodated so that he could access a benefit otherwise available in society (Decision, at para. 748). Because of this, the question was whether enough has been done to ensure that Moore was able to access the benefits of the education service. The Tribunal said that because this was an issue of access and participation for the disabled, “…the comparison must always be between those who are disabled and those who are not” (Decision, at para. 752). The issue as seen by the Tribunal was whether the Ministry and the District had done what they could to ensure that Moore had access to education services (Decision, at para. 753). Simply put, the Tribunal said that because this case was about access to a benefit, a comparator analysis was not required.

[125] In the alternative, if a comparator group analysis was required, the Tribunal said that the issue in this case is the quality of the education that Moore received and not whether he received a service (Decision, at para. 759). Applying Eldridge, the Tribunal said that a comparator analysis is unnecessary where there is denial of accommodation necessary to achieve equal success; but, if such analysis is deployed, then the appropriate comparator group is other students in the public school system who do not require additional supports or accommodations to access educational services (Decision, at para. 765).

[126] Moore conceded in argument, rightly I consider, that discrimination requires a comparative analysis, but said that this does not imply a “convoluted” analysis in every case and agreed with the comparator chosen by the Tribunal. The District and Ministry agreed that a comparative analysis was required but disagreed with the comparator group that was chosen by the Tribunal. The Ministry said that not only did the Tribunal identify an incorrect comparator group, but it also failed to perform a comparative analysis and instead decided an issue that was not before it in asking whether Moore was provided with an “appropriate” education. The Ministry said that the appropriate comparator group is school aged children with special needs other than learning disabilities. The District linked its comparator group to the funding categories for special program funding under section 129.1 of the School Act 1989.

[127] It has consistently been held since Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 (Andrews) that a claim of distinction and discrimination must be rooted in a comparison of the treatment received by a person with the treatment received by other persons (Andrews, at 164; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566 at para. 29, 140 D.L.R. (4th) 1 (Gibbs); Law at paras. 56-58; Granovsky, at para. 45; Auton, at paras. 51-54; Hutchinson, at para. 88). In B. C. Public School Employers’ Association v. B. C. Teachers’ Federation, 2003 BCCA 323, [2003] 8 W.W.R. 718, at para. 17, Huddart J.A. reasoned by analogy from Charter analysis that implicit in the establishment of prima facie discrimination is consideration of the appropriate comparator. In Granovsky at para. 45, the Supreme Court of Canada stated that identification of the comparator group to which the complainant can claim unequal treatment or discrimination is “crucial”.

[128] The law relating to the choice of comparators was summarized in Auton at paras. 51-54 as follows:

First, the choice of the correct comparator is crucial, since the comparison between the claimants and this group permeates every stage of the analysis…

Second, while the starting point is the comparator chosen by the claimants, the Court must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate…

Third, the comparator group should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination. The comparator must align with both the benefit and the "universe of people potentially entitled" to it and the alleged ground of discrimination…

Fourth, a claimant relying on a personal characteristic related to the enumerated ground of disability may invite comparison with the treatment of those suffering a different type of disability, or a disability of greater severity [citations omitted]. Examples of the former include the differential treatment of those suffering mental disability from those suffering physical disability in Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, and the differential treatment of those suffering chronic pain from those suffering other workplace injuries in Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54. An example of the latter is the treatment of persons with temporary disabilities compared with those suffering permanent disabilities in Granovsky, supra.

Once a comparator group is chosen, all elements of the analysis must proceed on the basis of comparison.

[129] In selection of an appropriate comparator group, the purpose and effect of the legislation must be considered (Law, at para. 57; Granovsky, at para. 47). There must be an appropriate relationship between the group selected for comparison and the benefit that constitutes the subject matter of the complaint (Granovsky, at para. 47). Care must be taken not to define the benefits too narrowly by reference to a target group as to do so may permit factual discrimination against others similarly disabled from other causes (Granovsky, at para. 50).

[130] In Gibbs at para. 32, a case involving an allegation of inadequate benefit, Sopinka J. recognized that comparison with persons without a disability would rarely be successful. This is because there is no meaningful comparison with a group that does not receive the benefit that the complainant says that he was denied. In Granovsky at paras. 49 and 52, the Court rejected able-bodied workers as the comparator group because they did not come within the purpose of the benefits scheme and were not disadvantaged by its effect. Although in Auton at para. 55, McLachlin C.J.C. said that a possible comparator could be non-disabled persons, the Court also said that comparators must be like the claimants in all ways save for characteristics relating to the alleged ground of discrimination.

[131] In this case, the Tribunal did not go beyond identification of the comparator group chosen, regular students, to actually compare the services provided to Moore with the services provided to the identified comparator group who did not require special education services. The Tribunal did not suggest that there were services offered to others that Moore did not receive. He did receive general education services offered to the general student population. There is no evidence that these other students received the specific benefits claimed by Moore including early intensive remediation for reading, individualized education programs, access to DC1, or a system where the pedagogical choices of school boards were monitored and evaluated by the Ministry. Instead, the Tribunal considered whether the services that were provided to Moore were appropriate, not in comparison to others, but in comparison to what academic educator experts said that Moore should have had.

[132] In my view, this takes the question too far and fails to acknowledge the essential limiting provisions in the discrimination analysis. In Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, 142 D.L.R. (4th) 385 (Eaton), the Court recognized that discriminatory effect comes from the failure to recognize actual characteristics and reasonably accommodate them. In meeting the accommodation challenge, the needs of the student should be taken into account and the best solution found so that the disabled are not left “to sink or swim within the mainstream environment” (Eaton, at para. 67). However, finding the best possible accommodation within customarily available services does not impose a requirement to meet all needs. Justice Sopinka’s reference in Eaton at para. 77 to finding the form of accommodation that “…is in the child’s best interests” refers to the individualized nature of the accommodation needed for a child for whom decisions must be made in his or her best interest, an overarching premise in any decision making on behalf of a child. This is not a reference to a broad test of discrimination based upon whether the best interests of an individual have been met, as inferred in an intervenor’s argument before me. It is not a question of quality, but of discrimination. The question is not what should be provided, but whether the failure to provide amounts to the discriminatory denial of benefits (Auton, at para. 41).

[133] To find discrimination, there must first be a distinction drawn between the claimant and others (Eaton, at para. 62; Eldridge, at para. 58; Auton, at para. 48). There must be substantial differential treatment between the claimant and a comparator group (Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at paras. 70-71 (Martin)). As stated in Auton, at para. 48, the question is whether the claimant has been denied a benefit that has been granted to a comparator group, on an enumerated ground.

[134] In Martin, the claimant had chronic pain and the appropriate comparator group was other disabled workers who received specific funding and who did not have chronic pain. Because those who suffered chronic pain did not receive compensation benefits afforded other disabled workers, a distinction was found. Martin involved a comprehensive compensation scheme for all work-related injuries. Auton did not involve a comprehensive scheme for funding of all medically necessary services. In Auton, the appropriate comparator for a child with autism was a person suffering a disability other than a mental disability seeking or receiving core funding for a non-core therapy important for health and which was emergent and only becoming recognized as medically required. Another comparator group was non-disabled persons who were also claiming new non-core benefits. The key to the comparator group in Auton was the link to the benefit sought, that all the groups were requesting new therapies or treatments that were not funded within the medical benefits scheme. McLachlin C.J.C. said at para. 56 that the recent and emergent nature of the therapy claimed cannot be left out of the equation.

[135] In Gibbs, the comparator was between the physically and the mentally disabled when the physically disabled received a benefit and the mentally disabled did not. Sopinka J. considered that physical and mental disability had been treated differently historically. He also considered that the first step was to determine the purpose of the disability or benefits plan, in that case, to compensate those absent from work for health related reasons. He said at para. 33 that comparison of the benefits allocated to employees for different purposes was not helpful in determining discrimination. If benefits were allocated for the same purpose but differed as a result of characteristics that were not relevant to the purpose, discrimination could well have existed.

[136] Relationship to the benefit in question was also key to identification of the appropriate comparator group in Hutchinson. There, a comparison to disabled persons generally living in the community was not appropriate when there was a benefits scheme designed for the self-achievement of independent living for the disabled, which provided funding for non-family caregivers but failed to provide funding for caregivers who were family members. The unique conditions and objectives of the special funding program had to be considered so that the impact of the policy to deny caregiver benefits to family members could be assessed without negation of its relevance to the overall scheme.

[137] Wynberg dealt with a claim by children with autism for “appropriate” educational services. The claimants alleged that the failure to provide a particular early intervention autism program was discriminatory and that not enough had been done to provide funding and resources for autistic children within education services. The Ontario Court of Appeal rejected typically developing students as the appropriate comparator group and said at paras. 110-112:

Since the claim is for "appropriate" special education to meet the needs of the infant plaintiffs, the personal characteristic that grounds the discrimination claim is the particular disability that characterizes the claimant group, namely, autism. The characteristic relevant to qualification for the benefit that a proper comparator group must share with the claimants is that they are exceptional pupils (with disabilities other than the one that grounds the claim) and are therefore eligible to receive their own "appropriate" special education programs and services.

In light of the way this claim is framed, we therefore conclude that typically developing children must be rejected as the appropriate comparator group. They do not share the characteristics relevant to the qualification for the benefit claimed because they are not exceptional pupils and therefore do not qualify for appropriate special education programs or services.

On the other hand, the comparator groups chosen by the trial judge, namely exceptional pupils in the communications category, and exceptional pupils in the physical category, do share with the claimants the characteristic of being exceptional pupils. Therefore, like the claimants, they are entitled to expect the Minister to ensure that they have available appropriate special education programs and services. Section 8(3) of the Education Act requires this. Thus, we agree that they are proper comparators for the purposes of the s. 15(1) analysis.

This finding is consistent with jurisprudence that has determined that it is not appropriate to use a comparator group that does not receive the benefit that the claimant alleges that he has been denied (see Granovsky, Auton, Gibbs).

[138] In Hewko, the parents of an autistic child claimed that his s. 15 Charter rights had been infringed by the failure to integrate the child’s home-based therapy, Applied Behaviour Analysis or ABA, into the classroom. Koenigsberg J. found that neither the Special Needs Student Order (M150/89), nor any other law created a mandatory provision to create or impose requirements or standards with respect to the IEP’s of special needs children. There were, therefore, no mandated core therapies. Although ABA was widely recognized at the relevant time as the most tested and effective learning system for autistic children, there was “…a serious gap in the ‘expertise’ of educators in the area of effective learning systems for children with autism” (Hewko, at para. 332). Regardless of the comparator group selected, the discrimination threshold was not approached. Koenigsberg J. concluded at paras. 337- 340:

What is required to provide access to an education for Darren Hewko is acknowledged and understood. Strict adherence to an ABA based learning system and the availability of ABA-IBI programming and teaching assistants trained to carry it out. It is clear that there is an infrastructure gap. There are too few teachers or teaching assistants or even certified consultants (for designing learning programs) with sufficient training to either properly evaluate home programs, or to deliver such programming in the school system such that the scheme of the School Act failed this child with autism.

However, the facts of this case do not even approach the threshold of discrimination against Darren Hewko on the basis of physical disability or any other criterion. No matter what comparator group one looks at, there is no basis upon which the court can say that in similar circumstances other students attempting access to an education have been treated differently.

For example, considering children with sight or hearing impairments (comparator groups relied upon by the plaintiffs), there was no evidence demonstrating, or allowing an inference, that special needs assistance in the form of trained TA’s or resource materials were identified and made available as soon as these children started to be included in regular classrooms. It would not be surprising to find that lengthy debates were held as to what form of programming would best meet the needs of such children. Nor was there any evidence that there was no time lag between the acceptance by a consensus of experts on the best methodology or methodologies for treatment and the availability of persons qualified to administer the therapy to most, if not all, children.

This court cannot find a Charter breach by the government nor the School Board for the fact, of what for brevity’s sake I will call an infrastructure gap. That gap has been allowed to develop through the choice of priorities and some controversy on the optimal learning programs for children with autism. This has meant that children with a diagnosis of autism or ASD, including Darren Hewko, have not had sufficiently trained teachers or teaching assistants such that they can effectively access an education in a timely fashion.

[139] Applying Auton as illustrated in Wynberg, this claim is about the provision of appropriate special education to Moore whose personal characteristic that grounds his claim is dyslexia, in his case, a severe learning disability. The characteristic relevant to the qualification for the benefit of special education that a comparator group must share is that they are eligible to receive their own special education. As in Wynberg, typically developing children do not share this characteristic because they are not eligible to receive special education services. In this case, the appropriate comparator group in relation to the benefit in question, namely special education services, is special needs students other than those with severe learning disabilities. The purpose of the special education benefits program was to address the special educational needs of students within defined eligibility criteria so that each could develop his individual potential. Similar to Wynberg, the question is then whether differential treatment has been established. Did other special needs students received supports or accommodations that Moore did not receive?

[140] Moore argued that it was not necessary that he adduce evidence of differential treatment as it could be inferred. The petitioners said that it was a fundamental error of the Tribunal to find discrimination in the absence of evidence establishing that Moore was treated differently than other students because of his dyslexia.

[141] In Wynberg, there was insufficient evidence addressing the circumstances of the comparator groups to show that the comparator groups received appropriate special education programs and services that were not available to the claimant. The Court said at paras. 135-136 that to establish differential treatment, the claimant must show that, unlike the comparator groups, they have been denied “appropriate” special education programs and services because they did not receive the particular intervention claimed. The failure to establish that the comparator group received appropriate special education services was sufficient to dispose of the claim. As in Wynberg, Moore sought access to and expansion of special education services at a time when there was no consensus as to what particular methodology was necessary and when it was not clear outside academe what early intervention meant.

[142] Similarly, in Hewko, lack of evidence demonstrating or allowing an inference that the comparator group received early assistance as soon as they entered the classroom or that there was no time lag between acceptance of consensus amongst experts on the best methodologies and availability of persons qualified to administer the methodology, doomed the claim. The fact that there were lengthy debates, as there are here, about the form of programming that best met the needs of autistic children also affected whether the court could say that, in similar circumstances, other students attempting access to an education had been treated differently.

[143] The requirement for proof grounds the claim within a practical relation to time and circumstance rather than allowing a claim to proceed on theoretical notions of discrimination based upon analysis of policy free from proof of differential impact or affect. As in Hewko and Wynberg, there is little evidential basis here upon which this Court can compare the circumstances of any other students within the special needs category to conclude that Moore was treated differently so as to find individual discrimination. There was no evidence that other special needs students received specific resources that were equivalent to early intervention as soon as the student entered the classroom in kindergarten or grade one. Orton-Gillingham and phonemic awareness training was not part of teacher education and not available in any schools. There is no evidence that similarly new or developing programs were offered to other special needs children before general acceptance by boards or that the adaptation of academic views on the best programs for dyslexics lagged behind the adaptation for any other special needs group. As in Hewko, there was an infrastructure gap that the Ministry and districts were working to improve in a time of change in the education system following the Sullivan Commission with its overhaul of the financing system through block funding. It was not shown that the particular testing and assessment methods and phonological remediation recommended for dyslexics that were implemented in the District by 1996 could have been started sooner or that other special needs children had faster adaptation times for specialized testing, assessment, and remediation. DC1 was not the only specialized segregated setting to have closed. Two other segregated units for severe behaviour problems had been closed and the teachers re-assigned prior to closure of DC1 at a time when integration was the norm amongst models for delivery of specialized education as illustrated by the fact that only the District had such a pull out program in the province.

[144] Systemic discrimination also requires proof that practices, attitudes, policies or procedures impact disproportionately on certain statutorily protected groups (Radek v. Henderson Development (Canada) Ltd. and Securiguard Services (No. 3), 2005 BCHRT 302; Crockford CA, at para. 49). Huddart J.A. in Crockford CA at para. 45 adopted the statement from Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114, 40 D.L.R. (4th) 193, that systemic discrimination means practices or attitudes that “…by design or impact [have] the effect of limiting an individual’s or a group’s rights to the opportunities generally available because of attributed rather than actual characteristics.” There must be a demonstrated impact upon an individual or class of people. Huddart J.A. continued at para. 49:

A claim that there has been discrimination against an individual requires that an action alleged to be discriminatory be proven to have occurred and to have constituted discrimination contrary to the Code. The types of evidence required for each kind of claim are not necessarily the same. Whereas a systemic claim will require proof of patterns, showing trends of discrimination against a group, an individual claim will require proof of an instance or instances of discriminatory conduct.

Whether a systemic complaint in relation to policy can proceed when the underlying individual complaint of discrimination has not succeeded is unclear (see British Columbia v. Gregoire, 2005 BCCA 585, 262 D.L.R. (4th) 186, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 23) (Q.L.). Although I accept from Moore that the claim here included systemic discrimination, I do not consider that I need to decide whether the claim for systemic discrimination can proceed in face of the failure of the individual claim for discrimination.

[145] In this case, the Tribunal said that the cap on funding HILC students was discriminatory to the extent the numbers of HILC students exceeded the cap. However, there was no data at the time on actual prevalence and identification procedures were not consistent across the province. The Ministry was working to correct this problem in 1994. While the Tribunal noted that three school districts reported SLD incidence levels above the 2% cap, the characteristics of these districts, their identification practices, and the period of the reports are unknown. It is not known whether or how special education services to SLD students were impacted by the cap in these districts as each district could have budgeted above the cap within its share of the block and the budgets are not known. It was conceded in argument that Moore was not affected by the cap as the District had reported under the cap throughout the relevant period. The evidence also failed to establish that the cap played a role with respect to when Moore was designated as SLD. The failure to perform a full assessment in 1993 was related to Moore’s age, reliability of the test, professional judgment of benefit to Moore in terms of programming, and the prevailing tendency not to label a child as SLD when Moore’s rate of progress was not ascertained. There is insufficient evidence from which this Court can infer that the cap impacted upon SLD students disproportionately to other special needs students who were not affected by the cap.

[146] Nor was there evidence to establish that the closure of DC1 impacted SLD students disproportionately to other special needs students when no other district in the province had a pull out program and the District had eliminated other diagnostic centres. The DC1 was one of many models for delivery of specialized services to SLD and other special needs students and it was not established that this model was more efficacious than other models given that the prevalent practice was the integration of special needs students into the regular classroom. It was not shown that remediation in the school setting was insufficiently intensive in relation to what was available to other special needs students. It was not shown that there was a practice of delisting special needs students in the District as there had been an increase in designations and aide hours after the new collective agreement and the reasons for delisting six students was not established.

[147] The Tribunal’s failure to identify and then to compare the appropriate comparator group crucially tainted the whole of the discrimination analysis. The first element of discrimination, the finding of differential treatment, was not established. Moore has not established that the failure to provide specific early, intensive intervention or remediation as claimed constituted differential failure to ensure the availability of appropriate special education programs and services when these or comparative services were not shown to have been provided to any other students within the special education categories for special needs funding and programming. There is no basis here upon which this Court could infer that other special needs students were provided with special education programs so unique to their needs that academic literature was scrutinized for options to promote individual potential and then those optimal, new programs were implemented regardless of whether they had been integrated into teacher education or the general public education plan.

[148] Similarly, there is a paucity of evidence to support systemic discrimination on a comparative analysis to be able to conclude that SLD students were disproportionately impacted.

Summary and Conclusion

[149] The Tribunal was not correct in its identification of the service that was customarily available to the public. The service that is customarily available to the public that is the subject matter of this claim is special education services provided to special needs students. This error permeated the whole of the discrimination analysis so that the Tribunal was also incorrect in its selection of the appropriate comparator group. There was insufficient evidence of special needs students other than SLD students, the appropriate comparator group, upon which to base a discrimination analysis.

[150] It is not necessary to consider the remaining issues as outlined in paragraph 76. The Petitions are allowed and the Decision is quashed. There shall be no order as to costs, it being my understanding that none were sought. If I am in error, the matter of costs may be addressed in writing upon indication through letter to the Court within one month of the date of the release of this judgment that the matter should be addressed. In that event, a schedule for submissions will be provided.

"J.R. Dillon, J."

The Honourable Madam Justice Dillon

Citation:	*British Columbia (Ministry of Education) v. Moore,*
	2008 BCSC 264