Tuesday 1 January 2013

School District Learns Lesson in Accommodation

The duty to accommodate can be one of the most frustrating and confusing issues for employers. The Supreme Court of Canada’s recent decision, Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) offers some guidance on scope of the duty to accommodate, particularly where that accommodation comes at a significant cost.

Like R. v. Cole, mentioned in this blog several times, Moore is not, strictly speaking, an employment law case; it is an education case. Actually, when one thinks about it, Cole was kind of an education case too, but I digress.

Moore involved the provision of special education instruction to Jeffrey Moore, a public school student with learning disabilities. As a result of financial constraints, the school board announced that it would no longer be able to provide the intensive support that Jeffrey had previously enjoyed. In order to continue obtaining the sort of instruction he required, Jeffrey’s only option was to attend private school, at significant cost to his family.

The Moores brought an application before the British Columbia Human Rights Tribunal. The Tribunal concluded that there was discrimination against Jeffrey by the Board and the Province and ordered a wide range of sweeping systemic remedies against both. The Tribunal also ordered that the family be reimbursed for the tuition costs of Jeffrey’s private school. On appeal, the British Columbia Supreme Court set aside the Tribunal’s decision 2008 BCSC 264 (CanLII), finding that there was no discrimination. A majority of the Court of Appeal dismissed the appeal.

The Supreme Court of Canada (Abella J. writing for the Court), however, found that discrimination had occurred and reinstated the Tribunal’s decision.

Relevance to Employment Law

The case is relevant to those in the employment law realm because of the parallels that can be made to the duty to accommodate employees. As the Supreme Court has repeatedly observed, employers have a duty to accommodate their employees’ disabilities to the point of undue hardship. Defining the considerations of and limits to “undue hardship” remains a constant challenge notwithstanding the Court’s redefining of the test.

Comparator Group

At both the BC Supreme Court and the BC Court of Appeal, the case turned on the appropriate comparator group. Both Justice Dillion and a majority of the Court of Appeal held that the appropriate comparator group for any consideration of discrimination was other students with learning disabilities.

In her dissenting opinion at the Court of Appeal, Justice Rowles held special education was the means by which “meaningful access” to educational services was achievable by students with learning disabilities. She found that a comparator analysis was both unnecessary and inappropriate. In her opinion, the Tribunal’s detailed evidentiary analysis showing that Jeffrey had not received sufficiently intensive remediation after the closing of the Diagnostic Centre justified the findings of discrimination. (2012 SCC 61 at para. 25.)

Justice Abella agreed with Justice Rowles, holding that:
I agree with Rowles J.A. that for students with learning disabilities like Jeffrey’s, special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students…
The answer, to me, is that the ‘service’ is education generally.  Defining the service only as ‘special education’ would relieve the Province and District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability.
To define ‘special education’ as the service at issue also risks descending into the kind of “separate but equal” approach which was majestically discarded in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).  Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination.  It is not a question of who else is or is not experiencing similar barriers.  This formalism was one of the potential dangers of comparator groups identified in Withler v. Canada (Attorney General), 2011 SCC 12 (CanLII), [2011] 1 S.C.R. 396. (Paras. 28-30. Quotation omitted.)

Given the facts, Justice Abella had no difficulty in finding that a prima facie case of discrimination had been made out. (See para. 48.)

Economic Hardship

Once a prima facie case of discrimination was made out, the inquiry then turned to whether the District’s conduct was justified. At this stage in the analysis, it must be shown that alternative approaches were investigated. The prima facie discriminatory conduct must also be “reasonably necessary” in order to accomplish a broader goal. In other words, an employer or service provider must show “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.” (Para. 49. Several citations omitted.)

The District’s central (if not sole) argument on this point was economic hardship. Wrote Justice Abella on this point:
There is no doubt that the District was facing serious financial constraints. Nor is there any doubt that this is a relevant consideration. It is undoubtedly difficult for administrators to implement education policy in the face of severe fiscal limitations, but accommodation is not a question of “mere efficiency”, since “[i]t will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.” (Para. 50. Emphasis added. Citation omitted.)

Fatal to the District’s case was the Tribunal’s finding that the District had not given any consideration to the alternatives that it could have offered to Jeffrey and students like him. Wrote Justice Abella on this point:
The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were. (Para. 52. Emboldening added; italics in original.)


Although the Supreme Court never mentions employment law in its decision, it does borrow heavily from employment law decisions such as British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin).

The case is an important reminder on two critical points. First, Human Rights legislation is about actual tangible impacts; therefore, getting the comparator group correct is important. Second, undue hardship entails more than financial considerations. And, more to the point, if financial considerations are the only considerations to be had, then employers must closely examine whether they can nonetheless provide meaningful access (or employment) to those affected by decisions while still meeting their financial objectives.


Employers are therefore reminded that if faced with an employee who requires accommodation, step one is to consider all methods for accommodating that disability, regardless of the cost. If the employer is going to reject an accommodation method, then it must be prepared to explain why. Some expense must be accepted by employers.

If you are an Ontario employer and are faced with such a situation the prudent first step would be to retain experienced legal counsel. The employment lawyers at Kelly Santini LLP have considerable experience in such cases and would be happy to be of service to you.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.

Editing by: Kathleen Whitfield Fletcher | Words Write | kwfletcher@live.com

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