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” (VIA Rail, at para. 225).
[...]
More significantly, the Tribunal found, as previously noted, that the
District undertook no assessment, financial or otherwise, of what
alternatives were or could be reasonably available to accommodate
special needs students if the Diagnostic Centre were closed.^134
The Moore decision provides significant guidance to practitioners as it is the first
decision of the Supreme Court to consider a disability accommodation case in
education services within a statutory human rights framework. This decision
underscores the highly individualized human rights approach to accommodation
within the delivery of education services and the high standard that must be
imposed on school boards relying on a defence of undue hardship.^135
C. Duty to accommodate and undue hardship at the HRTO
The legal framework outlined in Moore was adopted by the HRTO in the recent
decision in RB v Keewatin-Patricia District School Board.^136 This is the first
decision from the Tribunal that considered and applied the Moore decision in an
education context. The HRTO found that the Applicant was denied ‘meaningful
access to education’, as articulated in Moore.^137 The Tribunal found that a prima
facie case of discrimination was made out, but that the Respondent school board
did not establish an undue hardship defence. The HRTO found that
notwithstanding a difficult relationship between the school and Applicant’s
(^134) Moore, supra note 69 at paras 50, 52.
(^135) See Laurie Letheren & Roberto Lattanzio, “Comparing the Incomparable in Human Rights
Claims: Moore Guidance” (Paper delivered at the Ontario Bar Association, June 7, 2013)
[unpublished] online: ARCH Disability Law Centre
http://www.archdisabilitylaw.ca/?q=comparing-incomparable-human-rights-claims-moore-
guidance. 136
137 2013 HRTO 1436 at paras 213 - 224.^
Ibid at paras 213, 259.