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The Court disagreed with the conclusion of the Tribunal that discrimination had been proven.
Central to the Court's decision is the application of a comparator group analysis. In the view of the Court, correctly identifying the comparator group and determining that the complainant has been treated differently from the comparator group is crucial to the "first element of discrimination, is there differential treatment." In order to determine whether there is differential treatment, there must be a comparator analysis, the Court reasoned. the comparator group should mirror the characteristics of the claimant group relevant to the benefit or advantage sought except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination. This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. People with disabilities have been excluded from the mainstream of society because structures and services have been designed with able-bodied people in mind.
Paluck Counsel for the Respondent # 1170-605 Robson Street Vancouver, BC V6B 5J3 The Learning Disabilities Association of Canada Thomas F.
Moore Frances Kelly/Kendra Milne Counsel for the Appellant Community Legal Assistance Society 300-1140 West Pender Street Vancouver, BC V6E 4G1 The Board of Trustees School Division No. Bakan/David Bell Counsel for the Respondent Guild Yule & Company 20th Floor - 595 Burrard Street Box 49170 Vancouver, BC V7X 1R7 Her Majesty the Queen in right of the Province of British Columbia as Represented by the Ministry of Education Leah Greathead/Heidi Hughes Counsel for the Respondent Ministry of Attorney General Legal Services Branch 1301-865 Hornby Street Vancouver, BC V6Z 2G3 British Columbia Human Rights Tribunal Denise E.
In the view of the Court, the comparator group necessarily was other students eligible to receive special education, because the comparator group must share the personal characteristics relevant to the qualification for the benefit claimed. The Court concluded that the first element of discrimination, the finding of differential treatment, was not established because the claimant had not established that the specific accommodating measures sought were provided to any other students with special needs funding and programming. The Supreme Court of Canada explained in Eldridge: It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual.
The Court reasoned that "to find discrimination there must first be a distinction drawn between the claimant and others . Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions; see generally M. The blind person cannot see and the person in a wheelchair needs a ramp.
Vancouver, BC V7X 1M6 British Columbia Teachers' Federation Patrick Dickie Counsel for the Intervenor Hastings Labour Law Office 1100-675 Hastings St. Vancouver, BC V6B 1N2 Council of Canadians with Disabilities Gwen Brodsky/Karey Brooks Counsel for the Intervenor c/o Miller Thomson LLP Robson Court 1000 - 840 Howe St.
The reasoning embodied in the decision of the Court below reduces s.
8 of the Human Rights Code to a formal obligation to treat likes alike.
CCD has intervened in this appeal because of a concern that the comparator group analysis adopted by the learned Chambers Judge has the potential to undermine the right of all persons with disabilities to accommodation in a variety of settings. CCD accepts the statements of facts set out in the Appellant's factums.
CCD takes no position on the ultimate disposition of the appeal.