Nova Scotia Hospital. Photo: Halifax Examiner

The Province of Nova Scotia has for many years systemically discriminated against people with disabilities, ruled the Nova Scotia Court of Appeal yesterday.

The court extended a previous Nova Scotia Human Rights Commission Board of Inquiry decision that gave $100,000 compensation to each of three people, awarding one applicant, Beth MacLean, $300,000 in damages, which is the largest human rights general damages award in Canadian history. Unfortunately, MacLean died two weeks before the ruling.

Additionally, the Appeal Court awarded Joey Delaney $200,000 in general damages.

The third person, Sheila Livingstone, died in 2016, before the Board of Inquiry hearing; the Court of Appeal did not enlarge the Board’s award to her estate.

But besides the awards to the three people, the Court of Appeal sent the issue of systemic discrimination back to the Board of Inquiry, which could potentially affect up to a thousand other people in provincial care. The Court of Appeal found that the province had systemically discriminated against people with mental disabilities, but the exact contours of that discrimination are up to the Board of Inquiry to decide.

The original case

The Board of Inquiry hearing was held in 2019; as Jennifer Henderson reported:

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, … 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.” [MacLean lived the last two years of her life in a small option home in Dartmouth, and we are told she was happy.]

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.”

Yesterday’s decision is ground-shifting. As the law firm Pink Larkin comments:

The Court of Appeal found that the Province of Nova Scotia did discriminate against three individual complainants, Beth MacLean, Sheila Livingstone, and Joey Delaney, by keeping them in segregated institutional settings for many years without any medical or legal justification.

The case also involved a human rights complaint of systemic discrimination brought by the Disability Rights Coalition. The Court found that the Disability Rights Coalition succeeded on a prima facie basis in establishing that the Province systemically discriminated against persons with disabilities by keeping persons on years-long wait lists for necessary supports, by institutionalizing some persons with disabilities unnecessarily, or by requiring people with disabilities to move communities in order to receive support.

The lengthy Court of Appeal decision was written by Chief Justice Michael Wood, with Justices David Farrar and Cindy Bourgeois concurring.

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Tim Bousquet is the editor and publisher of the Halifax Examiner. Twitter @Tim_Bousquet Mastodon

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