Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241: Physical disability -- Child with physical disabilities identified as being an "exceptional pupil" -- Child placed in neighbourhood school on trial basis -- Child's best interests later determined to be placement in special education class -- Whether placement in special education class and process of doing so absent parental consent infringing child's equality rights

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Equality rights -- Physical disability -- Child with physical disabilities identified as being an "exceptional pupil" -- Child placed in neighbourhood school on trial basis -- Child's best interests later determined to be placement in special education class -- Whether placement in special education class and process of doing so absent parental consent infringing child's s. 15 (equality) Charter rights -- If so, whether infringement justifiable under s. 1 -- Whether Court of Appeal erred in considering constitutional issues absent notice required by Courts of Justice Act -- Canadian Charter of Rights and Freedoms, ss. 1, 15 -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109(1) -- Education Act, R.S.O. 1990, c. E.2, ss. 1(1), 8(3) -- R.R.O. 1990, Reg. 305, s. 6.

The respondents are the parents of a 12-year-old girl with cerebral palsy who is unable to communicate through speech, sign language or other alternative communication system, who has some visual impairment and who is mobility impaired and mainly uses a wheelchair. Although identified as an "exceptional pupil" by an Identification, Placement and Review Committee (IPRC), the child, at her parents' request, was placed on a trial basis in her neighbourhood school. A full-time assistant, whose principal function was to attend to the child's needs, was assigned to the classroom. After three years, the teachers and assistants concluded that the placement was not in the child's best interests and indeed that it might well harm her. When the IPRC determined that the child should be placed in a special education class, the decision was appealed by the child's parents to a Special Education Appeal Board which unanimously confirmed the IPRC decision. The parents appealed again to the Ontario Special Education Tribunal (the "Tribunal"), which also unanimously confirmed the decision. The parents then applied for judicial review to the Divisional Court, Ontario Court of Justice (General Division), which dismissed the application. The Court of Appeal allowed the subsequent appeal and set aside the Tribunal's order. At issue here are whether the Court of Appeal erred (1) in proceeding, proprio motu and in the absence of the required notice under s. 109 of the Courts of Justice Act, to review the constitutional validity of the Education Act, and (2) in finding that the decision of the Tribunal contravened s. 15 of the Canadian Charter of Rights and Freedoms.

Held: The appeal should be allowed.

Per: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The purpose of s. 109 of the Courts of Justice Act is obvious. In our constitutional democracy, it is the elected representatives of the people who enact legislation. While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised except after the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by and pursuant to act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it but also to the people. Moreover, this Court has the ultimate responsibility of determining whether an impugned law is constitutionally infirm and it is important that the Court, in making that decision, have the benefit of a record that is the result of thorough examination of the constitutional issues in the courts or tribunal from which the appeals arise.

Two conflicting strands of authority dealing with the issue of the legal effect of the absence of notice exist. One favours the view that in the absence of notice the decision is ipso facto invalid, while the other holds that a decision in the absence of notice is voidable upon a showing of prejudice. It is not necessary to express a final opinion as to which approach should prevail (although the former was preferred) because the decision of the Court of Appeal is invalid under either strand. No notice or any equivalent was given in this case and in fact the Attorney General and the courts had no reason to believe that the Act was under attack. Clearly, s. 109 was not complied with and the Attorney General was seriously prejudiced by the absence of notice.

While there has not been unanimity in the judgments of the Court with respect to all the principles relating to the application of s. 15 of the Charter, the s. 15 Charter issue can be resolved on the basis of principles in respect of which there is no disagreement. Before a violation of s. 15 can be found, the claimant must establish that the impugned provision creates a distinction on a prohibited or analogous ground which withholds an advantage or benefit from, or imposes a disadvantage or burden on, the claimant. The principles that not every distinction on a prohibited ground will constitute discrimination and that, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination have particular significance when applied to physical and mental disability.

The principal object of certain of the prohibited grounds is the elimination of discrimination resulting from the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society's benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based solely on "mainstream" attributes to which the disabled will never be able to gain access. It is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not prevent the disabled from participation, which results in discrimination against the disabled. The discrimination inquiry which uses "the attribution of stereotypical characteristics" reasoning is simply inappropriate here. It is recognition of the actual characteristics and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.

Disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to these grounds. Disability means vastly different things, however, depending upon the individual and the context. This produces, among other things, the "difference dilemma" whereby segregation can be both protective of equality and violative of equality depending upon the person and the state of disability.

The Tribunal set out to decide which placement was superior, balanced the child's various educational interests taking into account her special needs, and concluded that the best possible placement was in the special class. It also alluded to the requirement of ongoing assessment of the child's best interests so that any changes in her needs could be reflected in the placement. A decision reached after such an approach could not be considered a burden or a disadvantage imposed on a child.

For a child who is young or unable to communicate his or her needs or wishes, equality rights are being exercised on that child's behalf, usually by his or her parents. Moreover, the requirements for respecting these rights in this setting are decided by adults who have authority over this child. The decision-making body, therefore, must further ensure that its determination of the appropriate accommodation for an exceptional child be from a subjective, child-centred perspective -- one which attempts to make equality meaningful from the child's point of view as opposed to that of the adults in his or her life. As a means of achieving this aim, it must also determine that the form of accommodation chosen is in the child's best interests. A decision-making body must determine whether the integrated setting can be adapted to meet the special needs of an exceptional child. Where this is not possible, that is where aspects of the integrated setting which cannot reasonably be changed interfere with meeting the child's special needs, the principle of accommodation will require a special education placement outside of this setting. For older children and those who are able to communicate their wishes and needs, their own views will play an important role in the determination of best interests. For younger children and for persons who are either incapable of making a choice or have a very limited means of communicating their wishes, the decision-maker must make this determination on the basis of the other evidence before it.

The application of a test designed to secure what is in the best interests of the child will best achieve that objective if the test is unencumbered by a Charter-mandated presumption favouring integration which could be displaced if the parents consented to a segregated placement. The operation of a presumption tends to render proceedings more technical and adversarial. Moreover, there is a risk that in some circumstances, the decision may be made by default rather than on the merits as to what is in the best interests of the child. That a presumption as to the best interests of a child is a constitutional imperative must be questioned given that it could be automatically displaced by the decision of the child's parents. This Court has held that the parents' view of their child's best interests is not dispositive of the question.

The child's placement which was confirmed by the Tribunal did not constitute the imposition of a burden or disadvantage nor did it constitute the withholding of a benefit or advantage. Neither the Tribunal's order nor its reasoning can be construed as a violation of s. 15. The approach that the Tribunal took is one that is authorized by the general language of s. 8(3) of the Act. In the circumstances, it is unnecessary and undesirable to consider whether the general language of s. 8(3) or the Regulations would authorize some other approach which might violate s. 15(1).

Per: Lamer C.J. and Gonthier J.: Sopinka J.'s analysis of the arguments made under s. 15(1) of the Charter and his conclusion that the child's equality rights were not violated were agreed with.

Slaight Communications Inc. v. Davidson was incorrectly applied below in that the Court of Appeal found the constitutional imperfection of the Education Act to reside in what the Act does not say -- the statute must authorize what it does not explicitly prohibit, including unconstitutional conduct. Slaight Communications, however, held exactly the opposite -- that statutory silences should be read down to not authorize breaches of the Charter, unless this cannot be done because such an authorization arises by necessary implication. Whatever section of the Act or of Regulation 305 grants the authority to the Tribunal to place exceptional students, Slaight Communications would require that any open-ended language in that provision (if there were any) be interpreted so as to not authorize breaches of the Charter.

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