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The Supreme Court of Canada’s Latest Take on Discrimination and the Duty to Accommodate

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Labour, Employment and Human Rights Bulletin

In a landmark decision, the Supreme Court of Canada has confirmed that individuals with disabilities are entitled to “meaningful” access to services customarily available to the public, just like any member of the general public, even where providing that access may create significantly increased obligations on the service provider. As well, the Court reaffirmed that the duty to accommodate requires that respondents consider alternatives in order to justify their conduct. However, in terms of remedy, the Court explained that the only difference between individual and systemic discrimination cases is quantitative and that remedies must be limited to the complaint.

In Moore v. British Columbia (Education), 2012 SCC 61, Jeffrey Moore was a child with a severe learning disability. Jeffrey’s father filed a human rights complaint with the British Columbia Human Rights Tribunal (the “Tribunal”) against the North Vancouver School District (the “District”) and the B.C. Ministry of Education alleging that Jeffrey had suffered discrimination because of his disability and had been denied a service customarily available to the public. The Tribunal concluded that the failure of the public school system to give Jeffrey the support he needed to have meaningful access to the educational opportunities offered by the Board amounted to discrimination under the Human Rights Code (the “Code”). Notably, this was not a case in which the Canadian Charter of Rights and Freedoms was considered.

Both the British Columbia Supreme Court and the majority of the British Columbia Court of Appeal held that for the purposes of the discrimination analysis, Jeffrey ought to be compared to other special needs students rather than the general student population, and that to do otherwise was to invite an inquiry into general education policy and its application. Both the British Columbia Supreme Court and Court of Appeal overturned the finding of discrimination.

In its consideration of the case, the Supreme Court of Canada first explained that the prohibition against discrimination in a service customarily available to the public in the Code meant that if a service was ordinarily provided to the public, it must be available in a way that does not arbitrarily or unjustifiably exclude individuals by virtue of their membership in a protected group. The Court held that in this case, the “service” at issue was education generally, not “special education” and that defining the service as “special education” would relieve the Province and District of their duty to ensure that no student was excluded from the benefit of the education system by virtue of their disability. It would also risk descending into the rejected approach of “separate but equal”.

The Court stressed that the denial of “meaningful” access to the service based on a protected ground will justify a finding of prima facie discrimination. Prima facie discrimination in this case was established on the basis that the District recognized Jeffrey’s requirement for intensive remediation in order to have meaningful access to education, but had nevertheless closed the District’s Diagnostic Centre which would have provided him that remediation and advised the Moores that the services could not otherwise be provided by the District.

After finding prima facie discrimination, the Court then went on to consider the duty to accommodate, or, as the Court framed it, “whether the District’s conduct was justified”. At the outset of this analysis, the Court explained that it must be shown that alternative approaches were investigated and that 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”. The Court acknowledged that there was no doubt that the serious financial constraints on the District were a relevant consideration but explained that accommodation is not a question of “mere efficiency”. The District’s failure to consider financial alternatives completely undermined the District’s argument that it was justified in providing no meaningful access to 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. On this basis, the Court upheld the Tribunal’s finding of discrimination as against the District.

As for remedies, the Tribunal had ordered that the Moores be compensated for the tuition for Jeffrey’s schooling and damages for injury to dignity, but also “systemic remedies” directing the Province and District to take steps to address the systemic discrimination. In regards to these remedies, the Court explained that the only difference between systemic and individual discrimination is quantitative:

The inquiry is into whether there is discrimination, period. The question in every case is the same; does the practice result in the claimant suffering arbitrary – or unjustified – barriers on the basis of his or her membership in a protected group. Where it does, discrimination will be established.

The Court went on to explain that while a remedy for an individual claimant may have a systemic impact, it must still flow from the claim. In overturning the systemic remedies ordered by the Tribunal, the Court pointed out that the Tribunal is an adjudicator of the particular claim that is before it, “not a Royal Commission”.

In the result, the Court upheld the finding of discrimination against the Moore’s and upheld the orders that they be reimbursed for the costs of Jeffrey’s private schooling as well as for damages to injury and dignity.

This decision makes it clear that treating those with disabilities similar to others with disabilities, rather than the general population, is prima facie discriminatory. As well, it confirms that even where financial constraints play a significant role in the decision-making process, alternatives must be considered if a decision that would otherwise be discriminatory is to be justified.

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