From Equal Access to Individual Exit: The Invisibility of Systemic Discrimination in Moore

Abstract

This article explores the implications of the Supreme Court of Canada decision in R. v. Moore, 2012 SCC 61, wherein the Court narrowed a systemic discrimination claim for equal access to public education by children with learning disabilities, to an individual claim by one learning disabled child alone.

In Moore, the Supreme Court upheld a finding of discrimination against a local District School Board in the Province of British Columbia for failing to provide the claimant, Jeffrey Moore, with the learning supports he required in the public school system. The SCC, however, dismissed the claim against the Province and struck the systemic remedies, which included requiring the Province and District to monitor and assess special education services and to ensure that all school districts have a range of services in place to meet the needs of severely learning disabled students. The only remedy upheld by the SCC was compensation to the Moores, including the costs associated with private school tuition for their son.

The case comment traces the narrowing of the case from a systemic claim at the trial level to an individual claim at the SCC. The factual context of the continued absence of monitoring of, and standards for assessing, special education services is discussed. The lack of system-wide standards and monitoring remains a critical impediment to equitable access to education by children with special needs. The substantive and strategic implications of the SCC’s individualized analysis in Moore for future human rights claims which challenge patterns of discrimination in public service delivery are explored. The individualized analysis and remedy risk promoting publicly-funded exit from the public school system rather than fulfilling the statutory goals of the Human Rights Act and Schools Act of inclusivity and equity.

Keywords: Human Rights, Systemic Discrimination, Substantive Equality, Disability, Special Education, Supreme Court of Canada