Woman with curly hair and glasses, framed by a border of stars. She holds a sign that says, "I like to have people to talk to and cook apple pie and listen to my radio.
Beth MacLean. Photo courtesy Alice Evans.

The Houston government is going to the Supreme Court of Canada to appeal a decision that said the continued institutionalization of persons with disabilities amounts to “systemic discrimination.”

“Simply put, at the heart of the claim of the discrimination is this: to place someone in an institutional setting where they do not need to be in order to access their basic needs, which the province is statutorily obligated to provide, is discriminatory,” said the Nova Scotia Court of Appeal decision dated October 6. 

The decision cited examples of people who were denied income assistance on the basis of a disability or who spent years waiting for a place in a small home in a community setting. 

“It’s a bombshell considering the premier’s earlier comments when he indicated he wouldn’t fight or appeal that decision,” said Claire McNeil, the lawyer for the Disability Rights Coalition, which filed the initial human rights complaint. “It’s the worst possible outcome.”

Here’s what Premier Tim Houston told reporters after a cabinet meeting Oct. 7, the day following the release of the court decision that essentially extended findings of discrimination on behalf of three intellectually disabled people to one of “systemic discrimination.” Beth MacLean, Joey Delaney, and Sheila Livingstone spent years locked up at the Nova Scotia Hospital and received between $200,000 and $300,000 each in damages. Two of the complainants have died.

Reporter (Question): Premier, there was a Court decision yesterday on a sort of longstanding issue involving disabled Nova Scotians who don’t have appropriate housing. Are you going to continue to pursue that case in court?

Houston (Answer): No. And off the top I want to… sincere condolences to the family of Beth MacLean and Sheila Livingstone. What I want to say is… their courage — along with Joey Delaney — the courage that they showed in pursuing this will leave a legacy. And we… I just don’t think anyone should really have to take their government to court to make their government do the right thing. So we’ve received the message — loud and clear. We will work with the community to make sure that the supports are in place.”

That was then and this is now. Given the ruling, the Disability Rights Coalition has been asking if there is a plan (with timelines and budgets) for people who are unnecessarily institutionalized or want a choice of where to live. 

On Wednesday, the Halifax Examiner asked if Community Services has a plan and this afternoon we received this emailed statement from Community Services Minister Karla MacFarlane “on behalf of Premier Houston,” who is in Boston.

Statement from Karla MacFarlane

As Minister of Community Services, I’m responding on behalf of the Premier.

In early October, I stated the province would not be appealing the decision of the Nova Scotia Court of Appeal with regards to the findings of individual discrimination in the cases of Joey Delaney, the late Beth MacLean, and the late Sheila Livingstone.

And, I want to again reiterate that government is not appealing the findings of individual discrimination. Nor are we appealing the individual damages awarded.

I feel that what happened to Joey Delaney, Beth MacLean and Shelia Livingstone was terribly wrong — and that it does not reflect the values of kindness, respect, fairness and decency that we, as Nova Scotians, hold dear.

Many significant questions arise from the Court of Appeal decision that we believe the Supreme Court of Canada may help us to resolve. These questions include the impacts and implications of the systemic finding for other social programs delivered by government.  Government programs are guided by policies with allocated budgets. This decision also places a legal requirement on the Disability Support Program and we need to better understand that requirement. For these reasons, the province has made the decision to appeal.

The statement from the Community Services minister goes on to promise action but does not contain timelines for when people can expect to see it. 

Nor does it indicate how far the money allocated to providing supports and services will go toward meeting the needs of hundreds of people on a wait list. The vague language is one families of disabled individuals are all too familiar with. They’ve heard it from every government of every stripe.

MacFarlane’s statement continues:

It is recognized globally that institutionalized settings for people living with disabilities are an outdated model of care. These facilities limit a person’s choice, their independence, community inclusion, their privacy, and their quality of life.

Our government will remain focused on closing these facilities.

To this end, there is a lot of good work underway. This includes closing Harbourside Lodge, an adult residential centre in Yarmouth. We have also started to reduce admissions to institutionalized settings. In addition, over the past several years, government has made significant investments in creating new placements in community for Disability Support Program participants including a $20.4 million investment this year.  We will continue this work by investing $16 million per year for each of the next four years.

I have directed officials within my department to speed this process up. I want the department to move faster – allowing more people to move to community in a shorter timeframe. We will continue to focus on supporting those with disabilities.

But don’t expect an end to systemic discrimination any time soon. At least not until the Supreme Court of Canada decides if it will hear the case. 

As for the premier, Nova Scotians will judge him on his actions and not his words.

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Jennifer Henderson is a freelance journalist and retired CBC News reporter.

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