Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
Sign Up for Free March 29, 2022 Virtual Conference on the Past, Present and Future of Making Ontario’s Education System Fully Inclusive and Accessible for Students with Disabilities – Marking The 25th Anniversary of the Eaton v. Brant County Board of Education Case
March 18, 2022
Sign up to watch an extremely interesting and important online three-hour event on March 29, 2022, starting at 3 pm Ontario time. This conference marks the 25 year anniversary of the Supreme Court of Canada decision in Emily Eaton v Brant County Board of Education. It will look at the past, present and future of the struggle to ensure that students with disabilities are fully included in, can fully participate in, and fully benefit from Ontario schools at all levels.
Organized by Inclusion Action in Ontario and the ARCH Disability Law Centre, this event appeals to anyone interested in tearing down the many disability barriers in Ontario schools that hurt students with disabilities. There will be amazing speakers, such as Emily Eaton’s father Clay Eaton, the lawyers who argued the case on behalf of Emily Eaton all the way up the court system, and retired Justice Louise Arbour, who decided the case in the Ontario Court of Appeal.
Below we set out the announcement of this event from its organizers, including the list of speakers. The conference is open to anyone and everyone. There is no charge to attend. To register for this conference, go to https://sites-airdberlis.vuturevx.com/18/3869/landing-pages/paula-boutis—inclusive-education-as-the-foundation-for-inclusive-communities—pb-fwd.asp
The AODA Alliance is delighted to be invited to participate in this event. AODA Alliance Chair David Lepofsky will speak about the need for Ontario to swiftly enact a strong and effective Education Accessibility Standard that implements the final report of the K-12 Education Standards Development Committee, of which he was a member.
For its part, the AODA Alliance has tenaciously advocated for over 11 years to use the Accessibility for Ontarians with Disabilities Act to achieve this goal. For example, since 2009, we have led the province-wide campaign to get the Ontario Government to enact a strong and effective Education Accessibility Standard under the AODA.
Did you know that a quarter of a century ago, a heroic family tried to use Canada’s court system to advance the right to inclusive education for students with disabilities? Their frustrating, uphill battle was a multi-year roller coaster ride, with twists, turns, exciting ups and depressing downs. To mark the Eaton case’s 25th anniversary, this conference will hear from several key participants in the Eaton legal battle itself as well as experts who have worked on this cause since that case.
In Emily Eaton v. Brant County Board of Education, an Ontario family battled tirelessly for years against an Ontario public school board that insisted that their child be educated in a special education classroom that was restricted to students with disabilities. The family wanted her to receive her education in the regular classroom, which included both students with disabilities and those with no disabilities.
The case eventually reached the Ontario Court of Appeal. Justice Louise Arbour (who later was appointed to the Supreme Court of Canada) ruled in Emily’s favour, for a majority of the Ontario Court of Appeal. Justice Arbour’s ruling was the strongest and best implementation of the guarantee of equality to people with disabilities in the Charter of Rights in the first decade of that provision’s operation.
Rather than comply, the school board appealed the case to the Supreme Court of Canada. In a real setback for students with disabilities, the Supreme Court of Canada ruled against Emily. The disconnect between the Supreme Court’s decision and Emily’s actual reality was palpable. It was a cruel irony that as the case worked its way up the courts, Emily switched from the public school board to a Catholic school board which placed her in a regular classroom.
The harmful elements of the Supreme Court’s Eaton decision have subsequently been supplanted by later decisions, such as the Supreme Court’s landmark decision under the Charter of Rights in Eldridge v British Columbia  3 SCR 624 and its decision under human rights legislation in Moore v. British Columbia (Education).  3 S.C.R. 360
Would you like to learn more about the Eaton case? Below we set out excerpts about the Eaton case from an extensive law journal article written by AODA Alliance Chair David Lepofsky, that was published in the National Journal of Constitutional Law in 1997. That article looked at all the decisions of Canadian courts on equality for people with disabilities that were decided in the first decade in which Charter section 15 was in effect. That article uses the term “integration” which has since been superseded by the term “inclusion”.
You can see the efforts by the AODA Alliance on behalf of students with disabilities by visiting the AODA Alliance website’s education page.
You may also want to catch the captioned and widely viewed talk by AODA Alliance Chair David Lepofsky on tips for parents of students with disabilities on how to advocate for their child’s disability-related needs at school.
Announcement of the March 29, 2022 Retrospective on the Case of Emily Eaton v. Brant County Board of Education
March 29, 2022, 3 p.m. to 6 p.m.
Inclusive Education as the Foundation for Inclusive Communities: Reflections on the 25th Anniversary of the Eaton Decision and the Future of Inclusive Education in Ontario
Inclusion Action in Ontario (IAO) and ARCH Disability Law are pleased to host two panels on the state of the law and practice of inclusive education in Ontario for students with disabilities.
The importance of inclusive education cannot be overstated. There is a widespread view that inclusion of students with disabilities is the norm in Ontario. In practice, there remains a significant emphasis on segregation of students with disabilities throughout Ontario’s education system, which has resulted in separate services and separate lives for our most vulnerable citizens. The barriers remain high in the workplace, including for lawyers with disabilities.
Nearly three decades ago, the Eaton family embarked on a journey to have their daughter, Emily, included in the regular classroom. The Brant County Board of Education determined through its Identification, Placement & Review Committee that she should be placed in a special education classroom. While the case made its way through the courts all the way to the Supreme Court of Canada, the family moved Emily to the Catholic board, which placed her in a regular classroom for the duration of her school experience.
The legal panel will reflect on the 25th anniversary of this seminal decision, as well as where we’ve gone since and where we need to go. Our education panel will feature leading education practitioners and families on the ground in schools and on school boards, where inclusive education is either systemically adopted or practised solely out of the extraordinary efforts of families who insisted it should be so. Through advocacy, lawyers and families will be better equipped to support inclusive education for students with disabilities.
3:00 p.m. – Opening and Welcome Remarks – Paula Boutis, IAO President and Counsel with Aird & Berlis LLP, and Robert Lattanzio, ARCH Disability Law Clinic, Executive Director
3:10 to 4:15 p.m. – Panel 1: The Right of a Student With Disabilities to Inclusive Education: The Past, Present and Future
Our first panel of esteemed jurists and legal professionals will reflect on the Eaton decision and its impact on inclusive education in Ontario;, significant jurisprudence since that time and the future of inclusive education law in Ontario for students with disabilities.
Moderator: Paula Boutis
In a pre-recorded message, Retired Supreme Court of Canada Justice Louise Arbour, then a judge of the Ontario Court of Appeal and who delivered the Court’s reasons in Eaton, will offer her reflections on the time and place of the decision.
Justice Anne Molloy, Superior Court of Justice, Janet Budgell, Vice President with Legal Aid Ontario, and the Hon. Stephen Goudge, now a retired judge of the Ontario Court of Appeal, will reflect on their experiences as part of the ARCH legal teams that argued this matter on behalf of Emily Eaton before the Court of Appeal for Ontario and the Supreme Court of Canada.
Robert Lattanzio will reflect on the overall system of special education, the more recent jurisprudence and needed reform to continue towards the removal of barriers for persons with disabilities in schools and ultimately in the workplace, including in the legal profession.
David Lepofsky, retired Crown Counsel and Chair of the AODA Alliance, will speak to the proposed education standards now being considered by the government.
4:15 p.m. – BREAK
4:30 – 5:30 p.m. – Panel 2: Inclusive Education Practice on the Ground
Moderator: Paula Boutis
Sonia Spreafico, Board Member, Inclusion Action Ontario, and parent to a son currently experiencing an inclusive high school education in the Peel District School Board.
Dr. Jacqueline Specht, Director of the Canadian Research Centre on Inclusive Education, Western University
Karen Congram, Head, Special Education, Stratford District Secondary School, and parent to a daughter with Rett Syndrome
Karen Sheydwasser, Education Assistant, Dr. Margaret-Ann Armour School in Edmonton
Panellists will speak to good pedagogical practices and inclusive education strategies on the ground, as educators and/or parents.
5:30 p.m. – On behalf of the family, remarks by Clay Eaton, father to Emily Eaton and retired educator and former President of Inclusion Action Ontario
5:40 p.m. – Closing Remarks – Paula Boutis and Robert Lattanzio
Excerpts from “M. David Lepofsky, A REPORT CARD ON THE CHARTER’S GUARANTEE OF EQUALITY TO PERSONS WITH DISABILITIES AFTER TEN YEARS – WHAT PROGRESS? WHAT PROSPECTS?”, Published in National Journal of Constitutional Law Volume 7 Number 3 1997 – 7 NJCL 263-431
The most principled and purposive treatment of the disability equality guarantee in the direct discrimination context during s. 15’s first decade is the Ontario Court of Appeal’s seminal decision in Eaton v. Brant (County) Board of Education. In Eaton, the parents of a 10 year old girl with cerebral palsy resisted the school board’s efforts to remove the child from a regular classroom and place her in a segregated class for children with disabilities. The Ontario Court of Appeal held that segregation of a child with disabilities in a separate class for children with disabilities, against the child’s wishes as expressed by the child’s legal representatives, contravenes Charter s. 15(1). Segregation against the child’s wishes could only occur if the school board can show under Charter s. 1 that there is no alternative for meeting the child’s needs in the regular classroom, or otherwise in a less restrictive environment. The court recognized the constitutional requirement that the school board reasonably accommodate the child in the regular classroom where possible.
Eaton is a classic illustration of direct disability discrimination. The state ordinarily provides children free public education with their peers in their neighbourhood school. Certain children with disabilities can be denied this opportunity and be required instead to attend special educational programs in segregated classes, possibly far from their home, due to their disability.
There will be cases where a child with a disability cannot be served in the regular classroom setting even with reasonable accommodation, due to their disability. However, the court properly agreed that consistent with the Charter’s disability equality guarantee, the correct starting point in assessing a child with a disability’s placement is their inclusion in the mainstream classroom, supported by reasonable accommodation if needed. Only where it is shown that this cannot work, nor would any less restrictive environment, should segregation be considered.
Because our public education system was designed largely if not exclusively to serve children without disabilities, resort to the expediency of segregated special education programs for children with disabilities is insufficient as a comprehensive post-hoc method of redressing this discriminatory situation. Equality demands more. It requires serious and substantial efforts to rectify the long legacy of educational exclusion by endeavouring where possible to accommodate children with disabilities in the mainstream.
Eaton constituted the most effective judicial implementation of s. 15 disability equality for several reasons. First, the Court of Appeal’s s. 15 analysis most closely accords with disability equality’s purposes. It effectively holds that equality for persons with disabilities includes the chance to participate fully in the mainstream alongside those without disabilities, while accepting that compelling exceptions to this principle may be demonstrated. The court found that even if separate classes or schools for children with disabilities were assumed to meet their educational needs, “separate but equal” segregated school facilities presumptively are inherently discriminatory. Any other finding would sanction the relegation of persons with disabilities and other Charter-protected groups to ghetto environments, with victims of segregation improperly forced to prove that they deserve to be welcomed into the mainstream before having any s. 15 entitlement to full participation in society.
Eaton’s emphasis on individualized assessments of children with disabilities is closely tied to s. 15’s aim of ensuring a fair and accurate assessment of individual ability. It implements Canada’s international obligations to children. It achieves a result which is similarly required by the Ontario Human Rights Code.
Second, Eaton correctly held that segregated or “separate but equal” education is as violative of equality rights when imposed on children with disabilities as it is if it were forced upon children based on their race or sex. It properly rejected the school board’s anachronistic contention that there is no analogy between race and disability when it comes to equal access to educational facilities, holding that exclusions based on physical or mental disability are no less discriminatory than those based on race or sex. This is laudable since s. 15 does not guarantee a hierarchy of different levels of protection from discrimination depending on the ground involved. To do otherwise would be to infect s. 15 with an inherently discriminatory interpretation.
The school board’s argument in this regard runs afoul of the s. 15 disability amendment’s legislative history. During the patriation debate, Parliament received a proposal from one group that s. 15 be amended to include disability but in a fashion which gave persons with disabilities less protection than certain other groups. This proposal was rejected. To accept the school board’s argument would be to reverse Parliament’s rejection of this proposal and to inject into s. 15 one of the most hotly-criticized elements of U.S. equal protection doctrine, a doctrine which Canada has largely avoided replicating.
Third, the Eaton court rightly rejected the school board’s claim that the young child suffered no disadvantage from being excluded from the mainstream classroom and from being placed in a segregated disability class. The school board’s position denigrated s. 15’s core goal for persons with disabilities of full participation in the mainstream. The Court of Appeal’s landmark holding was that the Charter seeks to redress and prevent the legacy of exclusion from which persons with disabilities have suffered. Segregation poses the harm that the child with a disability may be forced to separate from their home and family, i.e., in areas where no special education program is available nearby. Quoting from Justice Abella’s Royal Commission Report on Equality in Employment the court stated:
“From the earliest age, disabled children should see themselves as part of the mainstream of society, and children who are not disabled should see them the same way. These enabling perceptions, carried into adulthood, have the power to affect, on both sides, expectations about the extent to which the community is and should be accessible and about standards of behaviour in the workplace, both for employers and employees.”
The Court of Appeal correctly acknowledged that for years, a core aim of the disability rights movement has been increased integration and inclusion of persons with disabilities into the mainstream and that, “[i]n the social context, inclusion is so obviously an important factor in the acquisition of skills necessary for each of us to operate effectively as members of the group that we treat it as a given.” Absent such integration, the Eaton child and the non-disabled students in the mainstream class would each lack a full opportunity to learn how each other lives. Segregation is often socially perceived as a form of punishment.
Fourth, the Court of Appeal significantly found that for the school board to show that segregation is not a disadvantage, and is instead a benefit, it is not sufficient that the school board was motivated to segregate the child in order to help or benefit her. The placement must be seen in its larger social and historical context which, in this case, is but one manifestation of a larger practice of exclusionary and harmful treatment. If the school board could do what it wished with the child with a disability simply by claiming that it was seeking to help her, the disability equality guarantee would be stripped of much of its potential punch. After all, much of the discrimination historically confronting persons with disabilities has been the product of paternalistic efforts purportedly to help them.
Fifth, Eaton correctly rejected the lower court ruling which would have insulated school boards in this important area from meaningful Charter scrutiny due to undeserved, sweeping judicial deference to educational academics and bureaucrats. The court below had erroneously held that this case raised no Charter issue as it involved a debate over competing pedagogical theories. It is true that there is a debate in the educational world over different approaches to education for children with disabilities, much as there are debates over educational issues for all children. However, this does not excuse a school board from its constitutional duty to extend equality in education to children with disabilities.
Sixth, Eaton draws the appropriate line between Charter s. 15 analysis and the analytically-distinct Charter s. 1 inquiry. The Court of Appeal held that under s. 15, one must ascertain whether a party has been excluded from an opportunity or benefit on grounds of disability. Thereafter, if the government wishes to justify the exclusion, e.g., by contending that the child’s disability cannot be accommodated in the mainstream setting, its arguments must be addressed under s. 1, with the burden of proof on government to justify exclusion from the mainstream. It correctly held:
“Whether the placement that is offered to Emily is of equal or even superior value is not relevant to a finding of discrimination. It is only relevant to the s. 1 analysis which needs to be embarked upon if the discriminatory treatment is to be justified. Under s. 15(1) it is sufficient to find a classification, on a prohibited ground, which deprives the person of a benefit or imposes a burden or disadvantage.”
Any other approach would place an unfair evidentiary burden on applicants with disabilities. It would also have grafted onto Charter s. 15 an inappropriate, pejorative and stereotypical presumption that disability necessarily means inability. The court effectively eradicates from the s. 15(1) analysis any distracting inquiry into whether the school board’s segregation option is better for the child – an inquiry which would have erroneously misdirected s. 15(1) into a simple “best interest of the child” provision, detached from the core values of equality.
Seventh, Eaton ultimately reflects a much-needed judicial willingness to take s. 15’s disability equality guarantee seriously, and to undertake meaningful though carefully-tailored action to put it into effect. For some judges, it might have seemed easier to accede to the claim of the mainstream educational bureaucracy that these issues are simply best left to them and their experts, as had the lower court. Judicial intervention might appear to involve significant changes to the educational status quo, which judges might be fearful about initiating.
Yet, superficially enticing as such reluctance might seem, it would involve a major abdication of judicial responsibility under the Charter. Disability equality will of necessity require some significant changes to the status quo, especially in an area like education where the history of disability exclusion is so deep-rooted, and where the importance of education to the child with a disability is so fundamental. The Eaton decision is so seminal because it heralds such a change, through a judicial pronouncement which clearly enunciates the core constitutional principles which should guide the change, while properly affording the education system scope for putting these into action.
Eaton provides an effective guide to courts considering s. 15 direct disability-based discrimination claims. Applying the Eaton approach, a court first ascertains if the government extends a program or benefit to all or part of the public. It then decides whether some or all persons with disabilities are excluded from full participation in that program as part of the mainstream due to their disability. If so, this exclusion, even if benignly motivated, must be justified under Charter s. 1 on a case-by-case individualized basis. This could include a showing that even with reasonable accommodation, the person with a disability cannot benefit at all from participation in the mainstream, or in environments less restrictive than total segregation.
The Ontario Court of Appeal’s pivotal Eaton decision most effectively implemented these principles in the disability setting. It held that children with disabilities have a s. 15 right to be educated in their local school along with children without disabilities if they wish, with reasonable accommodation to their disabilities being provided where needed in the classroom. Denial of this right must be justified under Charter s. 1 on an individualized basis.
Eaton is especially significant for it properly infused the duty to accommodate into the Charter’s disability equality guarantee in a direct discrimination case. This extricates from Charter s. 15 the confounding and counterproductive controversy which has plagued the Supreme Court of Canada for a decade over the question whether the duty to accommodate only applies in adverse effects discrimination cases or whether it also arises in cases of direct discrimination. As indicated earlier, it is vital for the duty to accommodate to apply with equal vigour in both instances if disability equality is to be achieved.
Eaton also correctly rejected the school board’s problematic claim that the placement of a child with a disability in a segregated classroom over her objection is compatible with s. 15(1) because it allegedly amounts to a form of accommodation for that child. The court properly ruled:
“[I]t cannot be said that her placement in a special class is a form of accommodation necessary to grant her a true equality of access to education. That reasoning would offer a justification to any “separate but equal” treatment under s. 15(1) without the need to examine the separate treatment under s. 1 of the Charter.”
The school board’s misuse of the duty to accommodate would strip that doctrine of its rightful place as a key element of the guarantee of disability equality, and contorts it instead into a weapon to insulate discriminatory treatment of children with disabilities.
Building on Roberts, the most principled and appropriate s. 15(2) ruling in the Charter disability context is the Ontario Court of Appeal’s decision in Eaton v. Brant (County) School Board. A family with a child with a disability argued that the school board violated her s. 15 disability equality rights by requiring her to attend segregated classes for children with disabilities, when she wanted to attend her regular neighbourhood school alongside children without disabilities. The school board argued among other things that if this compelled segregation violated Charter s. 15(1), it was saved by s. 15(2). This is because the school board said it provides segregated special education programs to children with disabilities to redress disadvantages confronting them, allegedly as a form of affirmative action.
The Ontario Court of Appeal properly rejected the school board’s s. 15(2) argument. Elsewhere in the decision, the Eaton court had correctly concluded that the mere fact that the school board offers some students with disabilities segregated special education as a perceived or intended help or benefit to them does not immunize it from scrutiny under s. 15(1). The board’s attempt to resurrect this argument under s. 15(2) could have no greater hope of success.
Eaton correctly held that even if segregated education for children with disabilities was assumed to be an affirmative action program within s. 15(2), this did not automatically immunize it from Charter challenge by proposed recipients of its intended benefit, i.e., children who are forced into educational segregation. It properly infused into the Charter the Ontario Court of Appeal’s reasoning in Roberts. By this approach, the enactment of an affirmative action program does not exempt the state from any and all Charter compliance within the program. Otherwise, government could easily escape any Charter obligations by claiming that they are trying to help persons with disabilities by treating them worse than others. When government subjects persons with disabilities to worse treatment than others, s. 15(2) simply does not allow this to escape full Charter scrutiny.
Put another way, Charter s. 15(2), like its counterparts in human rights statutes, was enacted to prevent students without disabilities from complaining of “reverse discrimination” in the unlikely event that they too wanted to participate in special education programs designed for children with disabilities. The Eaton court was not being asked to decide whether the coerced segregated disability class could be saved under s. 15(2) if mainstream students attacked it under Charter s. 15(1).
(a) The Supreme Court’s Eaton Decision
Before this article went to print, the Supreme Court of Canada inaugurated the second decade of Canada’s constitutional guarantee of equality to persons with disabilities by overturning the Ontario Court of Appeal’s seminal ruling in Eaton v. Brant (County) Board of Education. This epilogue examines this decision’s implications for s. 15’s second decade.
The Ontario Court of Appeal’s ruling in Eaton constituted the single greatest breakthrough for people with disabilities during s. 15’s first decade. Understandably then, the Supreme Court’s reversal of this decision appeared to be a dramatic setback for disability equality. This perception is strongly buttressed by the fact that the Supreme Court decided Eaton less than 24 hours after oral argument, with reasons to follow.
On closer scrutiny, the Supreme Court’s decision in Eaton is better seen as a mixed result for disability equality. It contains important principles which will serve disability equality well. However, these principles are followed by some judicial comments which are confused, contradictory and counterproductive.
The Ontario Court of Appeal in Eaton held that s. 15 guarantees to children with disabilities the constitutional right to go to school in an integrated classroom in their local communities with their non-disabled peers. A child with a disability could only be placed in a segregated class or school for children with disabilities if the child or his or her parent’s consented to the placement or if the school board could establish under Charter s. 1 that the child’s disability could not be accommodated in the mainstream school setting. The Court of Appeal held that provincial education legislation contravened s. 15 because it embodied no constitutionally required presumption in favour of integration into the mainstream for pupils with disabilities.
The Supreme Court held on procedural grounds that the Court of Appeal should not have embarked on any assessment of the constitutionality of the education legislation. The Supreme Court then held that the special education tribunal did not violate Emily Eaton’s s. 15 rights when it ordered her removed from an integrated class and placed in a segregated program for children with disabilities.
(b) The Eaton Decision’s Important Gains
The Supreme Court reached important conclusions about disability equality which, if turned into constitutional practice, will go a long way towards making s. 15 work well. The Court acknowledged for the first time that s. 15’s disability equality guarantee has two aims. It seeks first to eliminate discrimination which takes the form of attributing untrue characteristics to a person based on stereotypical attitudes about a person’s immutable characteristics.
More importantly, in the disability context, s. 15’s “central purpose” is to ensure the “recognition of the actual characteristics” of a person’s disability and to ensure the “reasonable accommodation of these characteristics”. The Court recognized that full participation by persons with disabilities in society’s mainstream is what s. 15 seeks to achieve, holding that equality requires recognition of “the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits” and their accommodation. It ruled that “[e]xclusion from the mainstream of society results from the construction of a society based solely on `mainstream’ attributes to which disabled persons will never be able to gain access.” Thus equality requires that changes be made to society so that “its structures and assumptions do not result in the relegation and banishment of disabled persons from participation”.
In so ruling, the Court squarely rejected the school board’s claim that there was no inequality or discrimination because Emily’s placement was not based on any stereotyping. The Court held that disability equality can be violated even absent proof of stereotyping. It stated:
“The discrimination inquiry which uses “the attribution of stereotypical characteristics” reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment.”
This is a seminal repudiation of any attempt by a government facing a Charter claim, or business facing a human rights complaint, to rebuff efforts by persons with disabilities to participate fully in society’s mainstream by contending that people with disabilities must take that mainstream setting just as they find it. Rather, governments have a constitutional duty under the Charter to change the world, which was and is frequently designed on the false and unfair premise that persons with disabilities have no place in it, to accommodate the needs of persons with disabilities, just as private businesses have a duty to do so under human rights statutes.
Accordingly, the Supreme Court reached the important conclusion that it is discrimination to require a blind person to take a written test, presumably in ink print format, or to require a person using a wheelchair to enter a library by ascending stairs, instead of providing him or her with a ramp. Equality for people with disabilities is thus in significant part about achieving a barrier-free society in which people with disabilities can fully participate. This bodes very well for the future of disability equality.
The Court’s initial approach to the specific issue of access to education for children with disabilities is also well-suited to s. 15’s purposes. Employing a “subjective, child-centred perspective … 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”, the Court held that the school board or education tribunal must ensure that the child with a disability receives the education placement that is in the “child’s best interests.” To do this for children with disabilities, “integration should be recognized as the norm of general application because of the benefits it generally provides.” The Court held that the 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.”
The Court further held that the child’s wishes must be incorporated into this deliberation:
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 those … 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.
This approach harmonizes with the Court’s compelling recognition that for persons with disabilities, equality is all about full barrier-free participation in society’s mainstream. It also accords with Eaton’s ruling that pivotal to this goal is respect for the individuality of each person with a disability, and the elimination of barriers which impede his or her access to the mainstream. It follows an appropriate analytical sequence by starting off with the expectation that the child will be educated in the mainstream “integrated” setting. If alterations to that setting are needed to accommodate the needs of a child with a disability, there is a duty to make those changes or accommodations. This is especially crucial since, for so long, Canada’s school system has been solely or primarily designed to cater to the needs of children without disabilities. Only where accommodation is not feasible should the school system contemplate placing the child in a segregated setting, having regard to the fact that placement in the integrated setting has enormous benefits which should not be foregone wherever possible.
Moreover, the Court deployed this salutary analytical approach when it scrutinized Emily’s special education tribunal decision. It upheld the constitutionality of the tribunal’s decision because the tribunal sought to achieve a placement which was in Emily’s best interests from the standpoint of receiving the benefits of an education, via an examination of her specific circumstances. The Court found that the tribunal took into account “the great psychological benefit that integration offers”. It concluded that it was impossible to meet Emily’s needs in an integrated classroom, and that such a placement had proven counterproductive. It held that the integrated classroom could not be adapted to meet Emily’s safety needs without “radically altering the classroom or establishing a very isolating level of adult supervision”. It found that the tribunal “considered Emily’s special needs and strove to fashion a placement that would accommodate those special needs and enable her to benefit from the services that an educational program offers”.
This approach is even more significant in light of three of the school board’s arguments against the Eatons which the Supreme Court effectively rejected, and which would have severely impaired disability equality had they been accepted. First, the Brant County Board of Education argued that under Ontario’s legislative regime for “exceptional” pupils, segregation of Emily in a special class or program for children with disabilities did not constitute different treatment or unequal treatment in accordance with the first prong of Andrews’ s. 15 test. Necessarily dismissing this claim, the Court held:
“It is quite clear that a distinction is being made under the Act between “exceptional” children and others. Other children are placed in the integrated classes. Exceptional children, in some cases, face an inquiry into their placement in the integrated or special classes. It is clear that the distinction between “exceptional” and other children is based on the disability of the individual child.”
Second, the school board argued that the term “segregation” was improper when used to describe the removal of a child with a disability from a mainstream classroom and his or her placement in a special class or school for children with disabilities. The Supreme Court itself chose to use the term “segregation” in its judgment, thereby accepting the label’s appropriateness.
Third, the school board sought to further minimize the significance of Emily’s proposed removal from the integrated classroom where she had been studying for years by contending that this was just about the “physical setting” for education. However, the Supreme Court clearly recognized that the segregation of a child with a disability means much more than a simple choice of physical venue. It did so by referring to “the great psychological benefit that integration offers” in its description of the tribunal decision and by ultimately finding that Emily’s case involved an instance of “distinction” or exclusion due to disability under s. 15(1) of the Charter.
These significant holdings have the effect of engaging s. 15 and constitutionalizing any school board decision to remove a child with a disability from the mainstream setting. Moreover, the Court’s approach rests squarely on the firm foundation that the school board’s decision to remove a child with a disability from an integrated classroom must be governed solely by a individualized, case-specific consideration of what is in the best interests of that child. The Court also effectively held that regard must be had to all of the child’s personal circumstances and needs, and not merely the simple existence of his or her disability.
The Court’s delineation of the constitutionally required approach described above imposes a demanding standard on schools and school boards. It is remarkably similar in content if not in terminology to the framework which the Ontario Court of Appeal had enunciated in Eaton. The case’s only anomaly at this point is in the outcome for Emily Eaton herself. The Supreme Court unanimously concluded, based on its factual assessment of Emily’s best interests, that Emily did not belong in an integrated classroom. Yet throughout the years that the Brant County Board of Education fought vigorously to keep Emily out of its integrated classrooms, the Eatons had in fact succeeded in obtaining an integrated classroom placement for Emily in the local Catholic school system.
(c) The Eaton Decision’s Flaws
The preceding would have been sufficient to dispose of the Eaton appeal. However, the Court went on to express views which were unnecessary to the case’s disposition. In so doing, it made three serious errors. If infused into Charter jurisprudence these errors would significantly impair s. 15’s ability to meet the goals which the Court identified for disability equality.
(i) Rejection of a Presumption In Favour of Integration
The decision first became problematic when the Court considered the specific procedural question of whether, in deciding on the appropriate placement of a child with a disability, a school board or tribunal should consider integration as the preferred option and look only to segregation when it is evident that even with reasonable accommodation, an integrated placement cannot benefit the child.
The preceding section’s analysis strongly suggests that the starting point is integration. The Court clearly stated that integration is to be the “norm”. It also enunciated as a matter of first principle that the central aim of equality for person with disabilities is full participation in society’s mainstream and, in the education context, the “mainstream” is self-evidently the same classroom in which one’s peers receive their education. As well, Emily’s segregation from this mainstream was justified in the Court’s view only because integration had been tried but had failed and because further accommodation of Emily’s needs in the integrated classroom was not possible. Put simply, the force of the Court’s rulings on general disability equality principles and its analysis of Emily’s specific case inescapably leads to the conclusion that integration is the starting point and segregation is only to occur if it is shown to be necessary.
Yet in flat contradiction to its own reasoning, the Supreme Court rejected as erroneous the Court of Appeal’s holding that Charter s. 15 requires a presumption in favour of integration unless displaced by evidence under Charter s. 1. The Supreme Court held:
“The Court of Appeal was of the view that the Tribunal’s reasoning infringed s. 15(1) because the Charter mandates a presumption in favour of integration. This presumption is displaced if the parents consent to a segregated placement…. In my view, 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 presumption. 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. I would also question the view that a presumption as to the best interests of a child is a constitutional imperative when the presumption can be automatically displaced by the decision of the child’s parents. Such a result runs counter to decisions of this Court that the parents’ view of their child’s best interests is not dispositive of the question.”
This passage is multiply flawed. However, before examining this passage in detail, it is critical to clarify that it was entirely unnecessary for the Court to express this view to dispose of the case. Even had there been a presumption in favour of integration, as the Ontario Court of Appeal had held, the Supreme Court clearly felt that the tribunal’s findings of fact on Emily’s case would displace it. Indeed, this is what the school board argued to the Court. The Eatons thus personally lose in the result in their effort to keep Emily in an integrated public school classroom on any test, given the Supreme Court’s view of the facts and the Court’s reading of the tribunal’s decision. This passage is thus obiter dicta and should be read in light of the Court’s longstanding principle that it is preferable not to address constitutional issues unless it is necessary to do so to decide the case.
Turning to the substantive deficiencies with the Court’s comments, the Supreme Court offered three rationales for rejecting a presumption in favour of integration. Each is seriously flawwed.
First, the Court erroneously condemned a presumption in favour of integration because it “tends to render proceedings more technical and adversarial.” This disregards both the reality of the special education appeal process and the essence of Charter equality rights.
The special education appeal process is, by definition, invoked only when three conditions are present:
(1) a pupil has a disability which results in his or her classification as an “exceptional pupil”;
(2) the school or school board wants to take the child out of the integrated classroom and place him or her in a segregated program because of this disability; and
(3) the child and/or his or her parents object to this placement and must resort to a statutory appeal process to be able to keep the child in an integrated class.
It is thus only the parents, and not the school board, who have administrative appeal rights, both as a matter of statute law and obvious administrative fact. After all, the school or school board has no need to appeal from its own placement decision.
The Special Education Tribunal, the last level in the administrative appeal process, only hears disputes after informal negotiations and two prior levels of administrative appeals have failed to resolve the conflict over the appropriate placement. At this point, the tribunal must decide on the child’s placement, having been confronted with the opposing viewpoints of the parents on the one hand and the school board on the other.
Given this context, it is both inaccurate and unfair to criticize a presumption in favour of integration as converting a non-adversarial, non-legalistic tribunal into an adversarial and legalistic one.
Proceedings before the Special Education Tribunal are clearly adversarial and legalistic, whether or not there is a presumption in favour of integration. The procedural strictures of Ontario’s Statutory Powers Procedure Act govern the proceedings, as do the common law rules of natural justice. These create a formal, adversarial adjudicative process where both the parents and the school board may retain counsel, examine and cross-examine witnesses and make detailed factual and legal arguments and objections.
It is therefore erroneous for the Court to single out the addition of a presumption in favour of integration as the culprit, creating adversity and technicality, as if none already existed. This implies that for a child or parent to challenge the wisdom of a school board is to be inappropriately “adversarial”. Yet the very essence of the appeal process is to provide parents with an avenue to challenge their child’s placement. It is difficult enough for an isolated parent, child or family to take on the large, well-funded school board which has so much day-to-day power over their child’s future. To have the procedural deck further stacked against them, by not even starting from the premise that the child deserves a place in a regular classroom along with their non-disabled peers, is to make things considerably worse.
To try to redress the imbalance in resources with a presumption in favour of integration, which parallels the Court-approved expectation that the “norm” should be in favour of integration, is not to suddenly turn a harmonious, collegial gathering into a legalistic, adversarial process. The kind of presumption with which the Court has such difficulty is akin to that which has been in effect under U.S. law since the 1970s. The Supreme Court recited no evidence, studies, or learned commentaries to support either the position that the addition of a presumption would convert the nature of these appeals or that the conversion would be counterproductive. To the contrary, our legal system has accepted since time immemorial that it is through the testing of the adversarial process that the strengths and weaknesses of competing viewpoints are most effectively revealed. Children with disabilities are no less deserving of the benefits of this process.
By its second rationale, the Supreme Court rejected the concept of a presumption in favour of integration on the erroneous ground that it could undermine the achievement of the best interests of a child with a disability. It feared that there was a “risk” that this presumption could lead to a child being subjected to an integrated placement in circumstances where segregation is better simply because the school board lacked sufficient proof to displace the presumption in favour of integration. The Court held that “a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality” and that “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.”
This presupposes that there will be cases in the real world where integration will be bad for the child and segregation good for him or her, but that the school board will be incapable of proving that this is the case. The Supreme Court cited no studies, evidence or principled analysis to support this fear. It is at best pure speculation and, at worst, entirely unfounded.
The Court’s reasoning on this point flies in the face of the fact that school board’s have at their disposal a wide range of resources, including teachers, psychologists, social workers, physiotherapists and the like, on whom to draw for evidence and expertise. The intervener Ontario Public School Boards Association contended in oral argument that the school board has greater expertise than do parents in this context. Surely the school board, if it feels so strongly that segregation is the only option, should be able to martial some credible proof to back its view. It is not to much to expect, consistent with the prevention of disability-based segregation where unwarranted, to make the minimal legal demand that the school board back its view that segregation is warranted by some credible view.
The Court also disregarded the prospect that the absence of a presumption of integration creates a stronger risk that a child with a disability who could benefit from integration may be improperly forced into a segregated setting because his or her family cannot produce sufficient contrary evidence in a contest against the school board, armed with its superior resources.
The Court ultimately operates on the implicit presumption that it, the public, parents and children with disabilities should simply trust the school boards and accept segregated placement decisions in those cases where the child’s best interests cannot be objectively ascertained. In so doing, the Court paid no heed to the fact that school boards have not entirely relegated to the past their longstanding history of excessive and unwarranted segregation of children with disabilities.
The Court accepted that, in the past, children with disabilities had been systematically frozen out of mainstream school system in large part due to “a stereotypical attitude to disabled persons that they could not function in a system
designed for the general population,” at which time “[n]o account was taken of the true characteristics of individual members of the disabled population, nor was any attempt made to accommodate these characteristics.” Yet the Court appears to believe that this legacy came to an end after developments such as a government report in 1971 and legislative amendments in Ontario in 1982, supplemented by a provincial government policy which favours integration where possible. While undoubtedly things have changed, the Court is wrong in assuming that they have changed enough so that the trust which it reposes in school boards and tribunals to do the right thing is sufficient.
The Court’s misunderstanding of the current situation in the education system for children with disabilities is revealed in its comment that “[s]chools focussed on the needs of the blind or deaf, and special education for students with learning disabilities indicate the positive aspects of segregated education placement.” Undoubtedly, as the Court of Appeal acknowledged, there will be situations where segregation is warranted. However, the very fact that there still are segregated schools for blind or deaf children does not prove that a presumption in favour of integration is harmful to children with disabilities, as the Court surmises. The continued existence of these schools does not displace the risk that school boards can resort to segregating blind or deaf children too readily. To the contrary, the history of experience with those schools tends to prove the reverse.
The Court’s reasoning on these points is not only impossible to square with its delineation of general s. 15 disability equality principles, it is also contrary to settled statutory human rights doctrines which inform the interpretation of s. 15. The Court has held under human rights legislation that the party who has the duty to accommodate has the burden to prove that they cannot accommodate the needs of a person with a disability. The strong legal presumption is that accommodation is feasible unless the contrary is proven. Why should the right to equality guaranteed in the supreme law of Canada be any less vigourous than that guaranteed under quasi-constitutional human rights statutes? If school boards have a duty to accommodate children with disabilities in the integrated classroom, as Eaton clearly holds, the school board must surely have the commensurate duty to demonstrate that accommodation is not reasonably possible.
The Court also erroneously approached the concept of the “best interests of the child” in a detached, disembodied, almost ethereal way. It seems to have contemplated that this “best interests” can exist independent of burdens of proof. From a review of the concerns which the justices raised with counsel during oral argument, it appears that the Court thought the problem through backwards. In effect, it appears to have started from the premise that the tribunal was legally required to do what is in the child’s best interests and once it has done this, equality could demand no more of it. This is best captured in an exchange between Justice Sopinka and counsel for the appellant, the the Brant County Board of Education during appellant’s counsel’s opening argument:
“Justice Sopinka: Do you agree that the tribunal was attempting to make the decision that was in the best interests of the child?
Counsel: Yes, my Lord, Yes my Lord, I do.
Justice Sopinka: Now given that, is it then possible to argue that that’s discrimination?
Counsel: No. I’m just going to deal with that. In fact I’m going to deal with that as part of my argument on section 15.”
Yet, the flaw with this highly abstract reasoning is that it wrongly assumes as a starting point that the placement chosen is in the child’s best interests. This entirely begs the central question which was how the tribunal or a reviewing court should get at deciding what are the child’s best interests. A child’s best interests is a fact-specific and context-specific matter. When a school and the child’s parents have different views on this, an independent arbiter needs some guidance in how to resolve this conflict. Indeed, perhaps the most unfortunate and constitutionally problematic result of the Court’s reasoning is that, by rejecting a presumption in favour of integration, it implicitly sanctioned a presumption in favour of segregation.
A tribunal must necessarily employ some kind of presumption or analytical starting point in reaching its determination of what placement is in the best interests of a child. There must be some sort of presumption because, at the very least, there must be a tie breaker if the tribunal finds both positions equally compelling. If it is not a presumption in favour of integration for children with disabilities, then of necessity, there will be a presumption in favour of segregation. It is no answer to this to say that the tribunal must ultimately do what is in the child’s best interests. That goes without saying. The “best interests” yardstick is the substantive legal standard. In contrast, presumptions and burdens of proof are different in nature. They are procedural
This abstraction was rendered even more problematic during oral argument when members of the bench looked to the Eatons to produce proof that segregation of children with disabilities was categorically and necessarily harmful as a precondition to the Court finding a presumption in favour of integration. This is nothing less than a repudiation of the core principles concerning disability equality which the Court embraced so categorically in its decision.
The Eatons should never have to prove that their child belongs in the mainstream of society. Section 15 presumes that a person with a disability is entitled to fully participate in the mainstream wherever possible. The integrated classroom is the education’s system mainstream. From this, it inescapably follows that children with disabilities have a presumptive place in the educational mainstream unless government can justify removing the child from that setting. The analysis is as simple as it is inescapable. In any event, the Court’s request of the Eatons to provide categorical proof overshoots the mark since the Eatons did not argue that segregation could never be permitted. It was common ground between the parties that there are some children whose disabilities cannot be accommodated in the integrated classroom and that placement decisions must be made on a case-by-case, fact-specific basis. What was in issue was how the school board should approach this fact-specific determination.
By its third problematic rationale, the Court repudiated the notion of a presumption of integration because it erroneously assumed that this presumption could automatically be displaced if the child’s parents consented to the school board’s request to segregate the child. This makes no sense. The Eaton’s case involved no claim that the parents had the right to demand, much less consent to, segregation. It dealt only with the right of the child, through her parents, to demand that she remain in an integrated setting. Moreover, there is no reason to assume, as did the Court, that a presumption in favour of integration necessarily has to be displaceable at the parents’ behest. It would be constitutionally permissible to find that the presumption could only be displaced, and segregation therefore permitted, if objectively justified.
The Court has therefore left parents, children, schools, school boards and tribunals in a nebulous, unclear predicament. What is the tribunal to do in a case where it is not clear that the child can profit from the integrated setting, but it is also unclear that the child will fare any better in a segregated setting? Is it compatible with equality to sweep the child out of the mainstream as an administrative convenience to the school, just because the child’s parents cannot prove that the mainstream is more beneficial? Were this the case, the Supreme Court would relegate persons with disabilities to the position of having to prove that they deserve to be in the mainstream before they can secure a place there. Women need not so prove. Ethnic minorities need not so prove. Why should equality treat people with disabilities any worse than these others, especially when the court claimed in Eaton that the aims of equality for persons with disabilities are even broader than those for women and racial minorities?
(ii) Segregated Education as a Benefit or a Burden
The second major flaw with the Supreme Court’s reasoning in Eaton was that it unnecessarily entangled itself in the self-defeating morass of considering whether the segregated placement of Emily constituted a benefit or a burden to her. After concluding that it was a benefit and not a burden, it held that there was no breach of s. 15. The Court need not have treated this as a s. 15 issue. Based on its factual findings regarding Emily, the Court would have upheld the tribunal decision even if this case were analyzed under s. 1. The s. 15 benefit/burden discussion was therefore unnecessary to the case’s disposition.
The Ontario Court of Appeal’s approach in Eaton is truest to Charter analysis and Charter values. It places the burden of justificatory proof on government, on whom it belongs, under Charter s. 1, where it belongs according to settled Supreme Court doctrine. In contrast, in Eaton, the Supreme Court placed the burden of proof under s. 15 on Emily’s family requiring them to prove that segregation is a disadvantage to or burden on Emily before they could establish a breach of Emily’s s. 15 rights.
As well, in the context of constitutional litigation over the placement of a child with a disability, the Supreme Court’s approach effectively imposes a highly-problematic constitutional presumption in favour of segregation, once the school board or tribunal has decided on a segregated placement for that child. According to the Supreme Court’s approach, once the school board has decided on a segregated placement, and the family opts to advance a constitutional argument to contest this decision, the family must affirmatively show that their child is better off in an integrated setting in order to show that segregation is a “burden” within the meaning of s. 15. This places an erroneous and unfair burden on the party least able to shoulder it, just to battle their way back into the mainstream where everyone else has a presumptive right to be. It involves a presumption of law which the Supreme Court itself denounces as ill-suited to these cases. Yet the presumption it imposes favours segregation if the school board orders it. This is educationally counterproductive and constitutionally defective.
The practical financial consequences of the Court’s approach are highly relevant. The school board which wishes to fight the case all the way has the taxpayer to underwrite its viewpoint. The family does not. This financial risk was brought home most vividly in this case since the Supreme Court ultimately ordered the Eaton family to pay the costs of the school board.
(iii) Disability Equality compared to Other Equality-Seeking Groups
The third flaw in the Supreme Court’s Eaton decision was that the Court unnecessarily and erroneously waded into the risky and problematic bog of trying to make broad-brush categorical generalizations on whether disability equality is the same as, or different than, equality for other disadvantaged groups such as racial minorities or women. The Court previously avoided this trap when interpreting the disability equality provisions of Saskatchewan’s Human Rights Code in Gibbs. It would have been wiser to do the same in Eaton.
This issue arose three times in Eaton during oral argument before the Supreme Court. One justice proposed to Emily’s counsel that disability equality differs from racial equality because a person is born with their race, but not with their disability. Counsel quite properly corrected this serious misconception by pointing out that people are often born with a disability.
Had the justice’s proposition been accurate, it would nevertheless be irrelevant to equality principles. Even those who acquire a disability later in life due to illness or accident do not choose to have a disability the way they might choose their religion or career. Exclusion from the mainstream is just as discriminatory whether it is due to blindness occurring at birth or at age 50. It is hoped that the reference in Sopinka J.’s reasons to immutable characteristics vis-à-vis race and its contrast with the varying nature of disability does not constitute an adoption of this critical misunderstanding about the nature of disability.
Second, there were some judicial musings during oral argument to the effect that race may be different from disability in the equality context because race is rarely relevant, whereas disability can more frequently be relevant. As is demonstrated in this article’s earlier discussion of the Ontario Court of Appeal’s Eaton decision, it is critically important that this abstract, decontextualized stereotyping of disability find no home in Canada’s equality rights jurisprudence. It would set up an inherently-discriminatory two-class regime under s. 15, giving more protection to such groups as racial minorities and less to those such as persons with disabilities. The question of whether, when and how often governments may use disability as a reason for denying a person a right, opportunity or benefit is one which the Charter assigns to s. 1 and should not be used to dilute s. 15.
Third, the intervener Ontario Public School Boards Association sought to make an invidious distinction in oral argument between what she called _normal_ children and children with disabilities. Counsel argued in effect that to segregate children in special classes because of their disability is constitutionally no different than, and certainly no worse than, placing children in different school grades based on their age.
The Court does not squarely address and certainly does not adopt these submissions in its decision. It also does not employ the intervener’s offensive distinction between normal children on the one hand and children with disabilities on the other. However, it does make two observations in obiter dicta about the differences between disability equality and racial or sex equality. Both are problematic.
First, as described above, the Court held that racial and sex equality seeks to eradicate false stereotypes based on personal attributes, while disability equality goes further, by also seeking the accommodation of actual attributes. It is true that disability equality seeks these twin goals. To this extent, Eaton is a positive ruling. It liberates persons with disabilities from the counter-productive direction arising in recent Supreme Court equality rights cases, and criticised earlier in this article, where the Supreme Court was tending towards requiring a showing of stereotype-based exclusion before it would find a violation of equality. However, Eaton is problematic to the extent that it still relegates women and racial minorities to the realm where false stereotyping must be shown for a denial of equality to be proven.
Second, the Court stated that:
“… 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. However, with respect to disability, this ground means vastly different things depending upon the individual and the context.”
Factually this generalization is inaccurate or at least highly overstated. A blind person’s blindness is immutable and does not vary depending on the context. In contrast, the physiological differences between males and females vary from pre-adolescence, to the child-bearing years to the post-menopausal period. More importantly, whether there is this factual difference does not make a difference in approach to the meaning of equality rights. Equality is about inclusion and full participation, pure and simple.
(d) Eaton’s Implications
To assess Eaton’s long term implications, this section first considers its ramifications for the specific subject of equality access to education for children with disabilities. Thereafter, Eaton’s potential impact on disability equality is more generally examined.
In the context of access to education for children with disabilities, the Eaton decision will offer important protections for other children with disabilities even though it ultimately did nothing for Emily Eaton. Whether it is called a norm or a presumption, Eaton holds that the starting point for deciding on the placement of children with disabilities is integration. A school board therefore runs up against the Charter if it seeks to exclude a child with a disability from an integrated educational setting and must be prepared to justify this action. Moreover, in the long run, principle and practicality will combine with the internal contradictions within the Eaton decision to collapse the Court’s nebulous distinction between a “norm” of integration and a “presumption” in favour of integration. In reality, if not in name, it will serve as a presumption favouring integration.
The Eaton ruling, including its obiter dicta regarding the presumption of integration, rests on two important preconditions which school boards must meet before they can attempt to invoke Eaton in their defence. First, a school board must achieve a placement for the child with a disability which is in the child’s best interests having strong regard to the great advantages to integration. If the board does not use a “best interests of the child” criterion for placement and, in so doing, does not pay strong regard to the great advantage of integration, the Eaton decision will afford the school board no defence. Rather, it will found a strong basis for a constitutional attack on the child’s segregation.
Second, implicit in Eaton is the prerequisite that the child and his or her parents must have a meaningful role in decisions over the child’s placement. This necessarily must include access to a meaningful process of independent appellate review. The Supreme Court’s confidence in Emily’s placement rested in significant part on the fact that the tribunal’s findings against her family were seen as being backed by detailed reasons supported by ample evidence.
Outside the specific education context, Eaton’s implications for the future of Charter disability equality are more uncertain. Eaton offers great potential in its enunciation of general principles, including the central importance of removing barriers facing persons with disabilities to achieve full participation in society’s mainstream. Even if Eaton’s reluctance to impose an explicit presumption of integration in the public school context remains for a time, this should have no meaningful significance for the application of disability equality rights outside the education area.
What appears to be at the core of the Supreme Court’s reticence in Eaton in the educational context is the role of the parent of the child with a disability. When Eaton is read in light of the decisions below and the focus of the oral argument before the Supreme Court, it is evident that the Court saw Eaton first and foremost as a “parents’ rights” case. The Court was deeply troubled by the idea that the parents of a child with a disability could unilaterally trump the school board and demand their child’s integration in a situation where the Court felt that integration would harm the child, but segregation would not. Because Emily could not communicate, she could not make her views known. Her views might accord with her parents, or with the school board that fought against them.
The Court’s concern over this issue was quite evident during oral argument in Eaton. It even led one justice to raise the question, not raised by Emily’s appeal, of whether a parent of a child with a disability could unilaterally force the school board to impose a segregated placement on his or her child in a circumstance where the school board felt integration was more appropriate. This was a red herring. If a person with a disability can fully participate in the mainstream, after receiving reasonable accommodation to his or her disability where needed, equality has been achieved. In these circumstances, there is no constitutional right to be removed from the mainstream.
Viewed in this light, Eaton should not in the long run impede claims by people with disabilities to access to a wide range of mainstream opportunities, and to have government remove pre-existing barriers and prevent the erection of new ones in order to accommodate their needs. Yet some litigants will no doubt attempt to use Eaton’s internally-contradictory obiter dicta regarding the presumption of integration to persuade lower courts that the Supreme Court has now signalled new judicial caution and reluctance when faced with disability equality.
Lower courts should not derive this message from Eaton for several reasons. First, Eaton does not say such. To the contrary, it urged an unprecedented broadening of s. 15’s goals in the disability context. Second, Eaton’s approach to the presumption of integration in the case of a young child who cannot communicate for herself, and whose circumstances were described as unusual by the special education tribunal, provides no precedent for claims which are not analogous to this narrow situation.
Third, Eaton’s problematic elements (which as indicated above were not necessary to the Court’s decision) are best seen as the Supreme Court’s earliest effort at addressing an area of Canadian law which is new and uncharted, and thus prone to initial difficulties. It should therefore be open to the Supreme Court, as well as lower courts, to revisit the case’s problematic elements.
Fourth, the difference in results between the Ontario Court of Appeal and the Supreme Court of Canada arose predominantly from each court s dramatically different view of Emily’s specific situation and the content of the tribunal decision under review. The Court of Appeal clearly felt that Emily was able to benefit from an integrated setting and certainly doubted the correctness of the tribunal’s contrary view. In contrast, the Supreme Court unanimously thought that Emily simply could not benefit from an integrated placement and could well be harmed by it.
The Court of Appeal also felt that the tribunal did not properly analyze Emily’s case by first considering whether Emily could be integrated in the mainstream classroom. In contrast, as the exchanges during oral argument and the ensuing reasons reveal, the Supreme Court clearly felt that the tribunal had undertaken the very deliberative process that the Eatons had asked of it. This being the case, the Supreme Court’s Eaton decision should be seen less as a repudiation of the Court of Appeal’s purposive approach to disability equality, and more as a repudiation of the Court of Appeal’s interpretation of the case’s unique facts and the tribunal decision — a matter which should have little if any consequence for future disability equality rights cases.
Fifth, courts have for decades traditionally shown great, almost instinctive deference, whether in the constitutional or other legal contexts, to three particular institutions, namely schools, prisons and psychiatric hospitals. Judicial deference to government is generally ill-suited to the arena of disability equality, as is addressed earlier in this article. Yet such deference clearly permeated the lower court’s reasons in the Eaton case. The Divisional Court dismissed the Charter claim in two sentences, stating merely:
“Finally, we have great difficulty in appreciating how the Charter of Rights and Freedoms and the Ontario Human Rights Code create a presumption in favour of one pedagogical theory over another, particularly when the implementation of either theory needs the protection of the saving provisions found in s. 15 of the Charter and s. 14 of the Code. But in this case, that issue is entirely academic because the Tribunal found the evidence clearly established that Emily’s best interests will be better served with the recommended placement.”
There is also a tenor of such judicial deference in the Supreme Court’s Eaton decision. As the Court eventually weans itself off of this deference in the education area as it must, and as it addresses disability equality claims in other contexts, it will undoubtedly free itself of such constraints.
Finally, Eaton must be seen in the broader context of the Supreme Court’s evolving vision of disability equality. The Court is gradually moving towards an approach to s. 15 which will eventually give disability equality the full measure of protection which it deserves. When the Supreme Court was first presented with cases raising disability equality issues in Swain and Chaulk it ruled on those cases on other grounds without being aware that at their core, they were all about disability equality. When it next appraised a disability equality case in the controversial area of assisted suicide in Rodriguez both its equality analysis and its outcome were erroneous.
Now, in Eaton, the Court has come for the first time to properly and explicitly acknowledge the core aim of disability equality. It has also recognized integration as a “norm”, if not yet as a legal presumption in the educational context. As Charter s. 15’s second decade unfolds, it can be anticipated that the Court’s treatment of this new, hitherto under-explored area of our law has great potential to improve even more as the Court develops more experience in this important field of constitutional endeavour.