Beth MacLean is an intellectually disabled middle-aged woman who spent 35 years in institutions, including more than four years in a locked-down psychiatric unit of the Nova Scotia Hospital known as Emerald Hall. She is currently living at Quest in Lower Sackville waiting for placement in a group home. A decision filed with the Nova Scotia Human Rights Commission by adjudicator Walter Thompson, who conducted an Inquiry into a complaint filed in 2014, may finally help MacLean live more independently.
Thompson has ordered the province to put $100,000 in a trust account for MacLean (as well as $100K each for two other former residents of Emerald Hall) as compensation for discrimination contrary to the Nova Scotia Human Rights Act.
“To be more specific, I found that the Province discriminated by retaining the complainants of the Emerald Hall unit for years on end when, by all professional opinion and advice, Beth MacLean and Joey Delaney ought to have been accommodated in a small options home and Sheila Livingstone in some suitable home or facility,” wrote Thompson in his Dec. 4 decision.
“The province met their pleas with an indifference that really, after time, becomes contempt,” said Thompson in his first ruling on the complaint last winter.
One-hundred-thousand dollars seems a paltry sum in such circumstances but it may enable a trustee to help Beth, who suffers from Mood Disorders, to move out of an institution for the first time in her adult life since being sent by her family to Truro’s Youth Training Centre at age 12.
Sheila Livingstone died three years ago. Forty-seven-year-old Joey Delaney has severe physical disabilities and very limited ability to communicate but he does not have a mental illness.
In his decision, filed and soon to be posted by the Nova Scotia Human Rights Commission, veteran lawyer Walter Thompson included an order to place both MacLean and Delaney in community living facilities appropriate to their needs. Thompson went one step further in retaining the authority to monitor the placement of both individuals.
“I am advised by counsel at the time of this writing in November 2019 that progress continues to be made, albeit slowly, to the placement of Mr. Delaney and Ms. MacLean. I want to be sure, subject to the contingencies of life, that Mr.Delaney and Ms.MacLean are well settled in their respective new homes.”
Thompson limits discrimination award
Where Thompson refused to go — although a case was made by lawyers representing the Disability Rights Coalition — was to extend or extrapolate this finding of discrimination to the more than 1,000 disabled people who cannot find housing appropriate to their needs and have been wait-listed for years. Thompson acknowledged that this can be viewed as a failure of government to provide service to disabled people but he refused to order “a systemic remedy” partly because the group is so large and partly because Thompson concluded government officials continue to work to find placements and services for the larger group. The circumstances surrounding the three people confined to Emerald Hall Thompson described as “unique” and “at the extreme end of failure to provide services to the disabled.”
That said, Thompson made it clear his order of compensation was in no way a reflection on the staff who work and continue to work with psychiatric patients at Emerald Hall. “The physical setting and administrative arrangements were very limiting but I find no fault with the people who worked there,” wrote Thompson. “I am satisfied that Beth MacLean, Joey Delaney, and Sheila Livingstone received professional, compassionate care. Emerald Hall, in that sense, was not custodial.”
The compensation Thompson awarded is light years away from what lawyer Vince Calderhead requested: $275,000 – $500,000 a year for every year each disabled resident spent institutionalized. The complainants’ lawyer argued their suffering was akin to someone wrongfully imprisoned, such as Donald Marshall Junior. Thompson didn’t buy it. The amount of damages or compensation Thompson has ordered paid to MacLean and Delaney is twice the $50,000 the province proposed to pay. The Adjudicator said it will help defray some of the legal costs and hopefully “provide some pleasure and joy” for people who still must rely on the province for their care.
Thompson said the sum requested by the Emerald Hall residents “greatly exceeds what I understand to be the appropriate amount of a human rights violation.” Thompson cited precedents which suggest the purpose of human rights legislation is to deter or prevent the practice of discrimination but not “to punish.” Thompson said the size of the requested monetary awards would unfairly punish taxpayers. He then went on to make what is a controversial and puzzling statement for anyone who has paid for care in a residential setting outside an institution:
I have fixed upon the net sum of $100,000 each for Ms. MacLean and Mr. Delaney as a sum which makes adequate compensation for the wrenching diversion of their lives. The Supreme Court of Canada says an award is to be functional. Joey Delaney is so disabled that payment to him of a very large sum will not have a greater impact on his life than a moderate sum. Beth MacLean does have capacity but the potential benefit to her of a very large damage award is limited.
I do not suggest that a payment ought to be limited because of a disability, but I do say that a lack of capacity to benefit from the fruits of an award of the size that is advocated is a relevant factor discouraging me from ordering that they be paid millions.
In addition to the $100,000 awarded MacLean and Delaney and $20,000 to the sisters of Sheila Livingstone, the one-man Board of Inquiry (Thompson) ordered the province to pay $40,000 on behalf of each complainant toward the legal fees associated with the 32-day hearing and subsequent argument over damages.
Legal costs were not something lawyer Vince Calderhead sought. Here’s what Calderhead told The Examiner via email upon a first read-though of the final decision on compensation:
It was great that the Board “retained jurisdiction” to ensure that the complainants end up with a place to live in the community. But the compensation amounts and the reasoning that led to the Board’s conclusion is concerning. For example, in the case of Beth MacLean, the total award comes to just over $5,200 for each year that she has been institutionalized. More generally, I am reviewing the matter with my clients regarding possible next steps.
I wonder how this adjudicator’s reasoning meshes with section 15 of the Charter? To the point- how does this ruling constitute “…equal benefit…”?
Basing compensation on “[…] a lack of capacity to benefit from the fruits of an award ” is the very definition of discrimination. Compensation should be measured by the egregiousness of the offense, not the circumstances of the victim.
“[…] a lack of capacity to benefit from the fruits of an award of the size that is advocated is a relevant factor discouraging me from ordering that they be paid millions.”
This is a terrible precedent.
It appears his comment is based on a Supreme Court of Canada decision : ” The Supreme Court of Canada says an award is to be functional. Joey Delaney is so disabled that payment to him of a very large sum will not have a greater impact on his life than a moderate sum. Beth MacLean does have capacity but the potential benefit to her of a very large damage award is limited. “