Nova Scotia court rules there is systemic discrimination against people with disabilities

Nova Scotia's highest court has concluded there is systemic discrimination in the province against people with disabilities who are seeking services and housing in the community.

In a landmark decision issued Wednesday, the Nova Scotia Court of Appeal sided with an advocacy group called the Disability Rights Coalition, agreeing that the province's failure to offer people with disabilities "meaningful" access to housing and care in the community amounts to a violation of their basic rights.

However, the government could still bring the case before another human rights board of inquiry, where it could attempt to prove the discrimination is "a reasonable limit prescribed by law" that can be justified in a free and democratic society.

Wednesday's court ruling came as the result of an appeal of a human rights decision that found three people with intellectual disabilities had been discriminated against by being kept in a Halifax psychiatric hospital despite medical opinions stating they could live in the community.

But the decision by board chairman Walter Thompson concluded that only the three plaintiffs had suffered discrimination and the ruling could not be applied to other Nova Scotians with disabilities who didn't have access to community housing and other care.

In a unanimous ruling, the three-judge court panel disagreed with Thompson's argument that a finding of systemic discrimination required there be evidence of each individual person being mistreated. The court said such a legal test would "result in the vast majority of legitimate claims of systemic discrimination being dismissed."

During the appeal hearing last November, Claire McNeil, the lawyer for the coalition, argued the mistreatment of people with disabilities included unnecessary institutionalization, lengthy wait times, and forced removal to remote areas of the province far from family and friends.

The judges said in their decision Wednesday that at the time of the hearing, there were 400 people receiving no support and assistance, and acknowledged evidence there were about 1,500 people on the wait-list for services.

"There is ample evidence in the record and the findings of the (human rights) board to support the conclusion that the manner in which the province provides social assistance to persons with disabilities … creates a disadvantage that is unique to them and not applicable to assistance given to non-disabled persons," said the decision signed by Chief Justice Michael Wood and justices David Farrar and Cindy Bourgeois.

The Appeal Court upheld the board's ruling that Beth MacLean, Joseph Delaney and Sheila Livingstone had suffered discrimination because they were held at the Emerald Hall psychiatric unit in Halifax despite opinions from doctors and staff that they could live in the community. MacLean died recently, while Livingstone died before the hearing ended.

The judges ruled the government's payment to Delaney should be increased from $100,000 to $200,000 and the payment to MacLean should be increased from $100,000 to $300,000, though the court noted it reserved the right to determine what effect MacLean's recent death will have on that amount.

The coalition said in a news release issued Wednesday that the new Progressive Conservative provincial government should not appeal the decision and must "stop the fight against people with disabilities in court and set a new direction that recognizes the inherent dignity and equality of people with disabilities."

This report by The Canadian Press was first published Oct. 6, 2021.