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

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