Friday, 23 March 2012

Some Restraint Please! or Knowing Your Limits

On March 22, 2012, the Supreme Court of Canada (SCC) will hear the appeal of Moore v. BC Ministry of Education.  Among other things, this case will decide whether the BC Human Rights Tribunal has the authority to dictate what services the BC government provides.

Jeffrey Moore started grade school in 1991 and was soon diagnosed as dyslexic.  When he was in grade 3, his parents were advised that he would have a better educational outcome if he enrolled in a publicly funded program tailored for dyslexic children called “intensive remediation”.  But in 1994, the cash-strapped North Vancouver school district defunded the program in an effort to save money—just weeks after Jeffrey had been referred for help.  As a result, the Moore family paid approximately $100,000 over nine years for Jeffrey’s private education.

In 1999, Jeffrey’s father complained to the BC Human Rights Tribunal on Jeffrey’s behalf.  In its 2005 decision, the Tribunal decided that the BC Ministry of Education had discriminated against Jeffrey by failing to provide him with a “service customarily available to the public” under section 8 of the BC Human Rights Code.  This decision means that Jeffrey had a right to be provided a specialized and expensive education at taxpayer expense.

The BC Supreme Court and Court of Appeal have both subsequently decided that the Tribunal’s decision was in error—Jeffrey was not discriminated against.

In my opinion, the Tribunal’s decision was indeed mistaken because it confused equality of opportunity with equality of outcome, and it overstepped its authority by making a public policy decision.

Under the BC School Act, BC children are entitled to enrol in the educational program provided by the public school board where they live.  There is no guarantee of educational success—children are only entitled to an equal opportunity.  The Tribunal erred by confusing entitlement to an opportunity with entitlement to a particular outcome, and held that Jeffrey was therefore entitled to receive intensive remediation so that he would have the same educational outcomes as non-dyslexic students.

In 1990, the North Vancouver school district was in financial dire straits.  The financial crisis persisted for several years, resulting in large deficits despite on-going budget cuts.  On review, the district was found to have engaged in excessive spending during a period of public sector restraint.  In arriving at its decision, the Tribunal failed to appreciate that it lacks the expertise to make decisions regarding the government’s financial capacity to fund social programs—particularly in difficult economic times.

Further, the Tribunal overstepped its authority because the BC legislature never intended to bind itself through the BC Human Rights Code to having to provide highly specialized educational programs for disabled children without regard to cost.  In a similar case from 2004, the SCC held that a legislature is “free to target the social programs it wishes to fund as a matter of public policy”, so long as the program’s benefit is not conferred in a discriminatory manner.  Effectively, the Tribunal attempted to make a public policy decision regarding public school funding while lacking either the expertise or authority to do so.

So was Jeffrey treated differently than other children in BC?  He had access to all the same educational services as other children his age.  And even though Jeffrey faced difficult circumstances, no human rights tribunal should make public policy decisions binding both on the government and taxpayers without regard to cost.

Jeffrey, now in his twenties, has experienced a lot of success—he is a journeyman plumber.  In an April 21, 2009, interview with Katie Mercer in The Province, Jeffrey said that his chosen career “pays quite well and you can really get into it, and right off the bat. You're not paying off a student loan,” and that, “It's a pretty quick way to start making money for someone who wants to have a useful skill and a good income."  

The SSC would be wise to follow BC courts and constrain the authority of the BC Human Rights Tribunal to dictate public policy decisions.

This piece was published by the Vancouver Sun and Troy Media in March 2012.

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