The mother of a child who was the victim of discrimination based on a handicap was awarded $7,500 in moral damages by the Quebec Court of Appeal in a ruling that reaffirms and advances the rights of parents, according to educational and human rights lawyers.

In a closely-watched ruling by the province’s educational sector, the Montreal School Commission was also ordered to pay an equal amount in moral damages to the child, who is afflicted with Down syndrome, after the appeal court found that it discriminated against him when it failed to implement necessary accommodations to teach him in the first two years of high school.

However the appeal court also found that the school commission did not act in a discriminatory manner when it decided that it would be in the best interests of the child, given his special needs, if he pursued his studies in a specialized school rather than a regular school. “It appeared that, from an educational standpoint, the difference between X and his classmates was too great and prevented (him) from truly integrating or socializing,” remarked the appeal court in a 22-page decision in Commission des droits de la personne et des droits de la jeunesse c. Commission scolaire de Montréal 2017 QCCA 286.

“This is an important decision because a trend has emerged where the courts refused to grant damages to parents in similar cases,” said Lysiane Clément-Major, a Montreal lawyer with the Quebec Human Rights Commission. “There have been several decisions that refused to grant damages to parents because the courts held that it was not the parents who were the victim of discrimination. This ruling is very important for the Commission because it establishes the rights of parents.”

In a decision that partly overturned a decision by the Quebec Human Rights Tribunal, the appeal court found that the parents of children who are victims of discrimination based on a handicap can claim compensation for themselves. Heeding guidance by the Supreme Court of Canada in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, the appeal court noted that while Quebec civil law does not permit compensation for indirect damage, it does allow for damages to be awarded to indirect victims. As the SCC points out, an indirect victim is someone who suffers an autonomous injury after the commission of a fault, where the damage suffered was the logical, direct and immediate result of the fault. In this case, the harm suffered by the mother arose from the from the discriminatory treatment inflicted upon her son, found the appeal court. Her despondency, stress, worry and feeling of powerlessness surfaced when her son could not assert his rights personally, and therefore it fell upon her to represent and defend the interests of her son against the school commission, added the appeal court.

“With children suffering from an intellectual deficiency that prevents them from protecting their own rights, parents are, in some respects, a way to palliate this handicap, and can be considered as the victims of the discriminatory treatment endured by their child,” said the appeal court.

But warns Bernard Jacob, a lawyer with Morency Avocats who plead the case for the Montreal School Commission, the decision does not necessarily mean that the parents of a child who suffered discrimination will themselves always be granted damages. “It’s far from automatic,” said Jacob, an expert in education law. “The ruling states that there must be evidence that the parents themselves suffered harm – that’s what’s important.”

The unanimous ruling has even wider implications for the educational sector in Quebec. The Quebec appeal court once again rejected the notion that schools face a peremptory norm that compels them to integrate and accommodate handicapped children into the mainstream school system. And just as importantly, it reaffirmed that it falls upon the Quebec Human Rights Commission to prove that a school commission did not respect the interests of a handicapped child.

“The Quebec appeal court seized the opportunity to clarify the issue of burden of proof which is how the Quebec Human Rights Commission more or less insidiously sought to reintroduce the notion that there should be a peremptory or quasi-peremptory norm that presumes discrimination has occurred unless the (handicapped) child is in the mainstream school system,” noted Montreal lawyer Yann Bernard with Langlois Avocats who represents school boards.

The Quebec Human Rights Commission argued that the Quebec Human Rights Tribunal erred by imposing on it the burden of proving that the school commission did not act in the interests of a handicapped child. It further argued that two previous rulings issued by the appeal court contradict each other, with one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2006 QCCA 82) maintaining that integrating a child is not a peremptory norm while a more recent one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2012 QCCA 988) asserting that integration is a goal that school commissions should prioritize.

The Quebec appeal court rejected the arguments, pointing out that the Tribunal “reconciled” both Quebec previous appeal court rulings, both of which followed guidance issued by the SCC in Eaton v. Brant County Board of Education, [1997] 1 SCR 241. In Eaton, the SCC held that while integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality.

The Tribunal therefore correctly held that the interests of the child outweigh the presumption of general application, said the appeal court. It follows then that a school commission must evaluate the strengths and weaknesses of the student as well as assess the advantages the student may acquire from attending regular class. When the school commission concludes that integration into a regular school setting may prove to be beneficial to the student, it must integrate the child by implementing necessary accommodations, so long as those accommodations do not represent an undue burden to the school commission. The Tribunal also correctly found that it is up to the Quebec Human Rights Commission to prove, based on the balance of probabilities, that the school commission acted in a discriminatory fashion when it decides not to integrate a child into mainstream schooling.

“The fundamental objective behind this exercise is the interest of the child,” said Jacob. “The Quebec Human Rights Commission sought to force school commissions to prove that specialized schooling was in the best interest of the student. We argued that it was up to the Commission to demonstrate that regular classes with necessary accommodations was in the best interests of the student. So in terms of burden of proof, this is an important decision.”

The Quebec Human Rights Commission is considering filing an application for leave to appeal before the SCC. It maintains that it should be up to school commissions to prove that the decision that they made regarding the kind of schooling that a handicapped student receives is in the best interests of the child. “They made the decision, and they have all of the information when they evaluated the child,” said Clément-Major.

This story was originally published in The Lawyers Weekly.