Disability Rights Coalition v. Nova Scotia (Attorney General), 2021 NSCA 70 (CanLII)

Nature of the Case

This is a precedent-setting case challenging the denial of timely access to social assistance and supports necessary for persons with disabilities to live with dignity in the community as a violation of human rights legislation.  After securing a decision from the Nova Scotia Court of Appeal finding prima facie systemic discrimination, the claimants negotiated a comprehensive, enforceable systemic remedy that ensures significant programmatic change, allocation of necessary resources, meaningful engagement and clearly defined outcomes within a specified timeframe so as to achieve full compliance within five years.

Along with three individual claimants, the Disability Rights Coalition brought a complaint before a Nova Scotia Human Rights Board of Inquiry alleging that the  Province’s failure to provide adequate and timely social assistance and supports for persons with disabilities to live in the community resulted in unnecessary institutionalization and delay, constituting systemic discrimination on the ground of disability, In October 2021, the Nova Scotia Court of Appeal determined that a prima facie case of systemic discrimination had been established and the Province agreed to enter negotiation of a systemic remedy.  Two independent, outside experts were retained to engage with claimant groups as well as with the government to deliver a report and recommendations with respect to the changes needed to the social assistance system for people with disabilities to bring to an end the discriminatory treatment. After extensive negotiations between the parties a negotiated settlement, in the form of an interim consent order, was presented to the Board of Inquiry for endorsement.  The interim consent order delineates a process for monitoring the Province’s progress in meeting required outcomes within specified time frames over a five year period, ensures meaningful engagement of rights-holders, provides for local implementation as well as policy change and ongoing adjustments in response to emerging circumstances.  At any time, either party may take the matter back to the human rights Board of Inquiry if they are dissatisfied with the implementation of the terms of the interim consent order.  It is agreed that at the end of five years, the Province must demonstrate that it has met the final outcomes in providing social assistance that fully accommodates the different needs of persons with disabilities to live in the community, ends wait times, and respects its legislative and human rights obligations. The case establishes an important precedent for challenging violations of article 19 of the CRPD under non-discrimination legislation and represents a significant advance in the design of structural systemic remedies through negotiation after courts have clarified the nature of governments’ obligations.

Summary

This case began in 2014 with a human rights complaint filed on behalf of three individual complainants and the Disability Rights Coalition alleging systemic discrimination on the basis of disability and source of income in the provision of social assistance contrary to the Human Rights Act. The complainants alleged that the Province of Nova Scotia (the Province) had discriminated against them in the provision of social assistance due to their physical and mental disabilities and financial status.

The Nova Scotia Board of Inquiry (Board of Inquiry) found that each individual plaintiff had established prima facie discrimination on March 4, 2019, but only with regard to the times when each plaintiff had been housed in a locked psychiatric unit of the Nova Scotia Hospital. The DRC’s systemic complaint was dismissed entirely.

With respect to the individual claims, the next step in the Canadian legal process requires the Province to either offer a legal argument to justify its discriminatory treatment or waive this right before moving to the remedy stage. The Province chose not to attempt to justify the treatment, and the next step was a hearing to discuss the possible remedies for each individual complainant. After a hearing to address the remedies, the Board of Inquiry awarded damages of $100,000 each to two of the plaintiffs, and $10,000 to each of the two beneficiaries of the third plaintiff, who had passed away since commencement of the hearing. The Board also ordered that the Province pay costs to the individual complainants’ legal counsel.

In relation to the dismissal of its portion of the complaint and allegation of systemic discrimination, the DRC appealed, seeking a prima facie finding of systemic discrimination to allow its complaint to proceed.  At the same time, the individual plaintiffs challenged the Board of Inquiry’s analysis for the prima facie finding and the damage awards. The Province also submitted their own appeal to the Board of Inquiry’s reasoning. When the case was heard before the NS Court of Appeal, the Court allowed Inclusion Canada, the Council of Canadians with Disabilities, and People First of Canada to intervene.

Chief among the issues that the NS Court of Appeal considered were:

1. With respect to the Province’s appeal, did a proper prima facie analysis support the Board of Inquiry’s ultimate conclusion in relation to the individual appellants?
2. With respect to the individual complainants’ appeal, did the Board err in its assessment of damages?
3. With respect to the DRC’s appeal, did the Board of Inquiry err in its identification of the test for prima facie discrimination in a case of systemic discrimination?
4. With respect to the DRC’s appeal, did the Board of Inquiry err in concluding a claim of systemic discrimination was unavailable on the evidence before it? If so, does the record establish a prima facie case of systemic discrimination?

Issues 1 and 2: On the individual complaints, the NS Court of Appeal found that the Board of Inquiry was correct in its identification of the test for prima facie discrimination, and that it did not create a ‘novel’ test in its assessment of the complainants’ allegations of discrimination, as alleged by the Province. The NS Court of Appeal held that the Board of Inquiry correctly applied the principles set out in Moore v. British Columbia (Education), 2012 SCC 61; “to demonstrate prima facie discrimination, complainants are required to show that:

1. They have a characteristic protected from discrimination under the Code;
2. They have experienced an adverse impact with respect to the service; and
3. The protected characteristic was a factor in the adverse impact.” Id.

The decision by the NS Court of Appeal found that the Board of Inquiry made “fundamental errors in both its assessment of damages and the award of costs” to the individual plaintiffs. The NS Court of Appeal found that the prima facie discrimination should have included a wider period of time for two of the plaintiffs, Ms. MacLean and Mrs. Livingstone. The NS Court of Appeal increased damages to Ms. McLean’s estate, and awarded additional damages to Mr. Delaney.

Issue 3 and 4: The NS Court of Appeal found that the Board of Inquiry erred in its analysis of the DRC’s complaint of systemic discrimination. The Court of Appeal found that the DRC successfully established a prima facie case of systemic discrimination, and subsequently remitted the matter of the justification hearing to a new board of inquiry.

Despite government promises that the Province would not appeal following the October 2021 decision, it sought leave to appeal the NSCA’s decision from the Supreme Court of Canada.  On April 14, 2022, the Supreme Court of Canada dismissed the Province’s request to appeal, moving the case to the remedy stage, and awarded costs against the Province payable to the DRC.  In July 2022 the Province discontinued its motion to justify the discrimination as a reasonable limit prescribed by law among other grounds and the case was able to move to the remedy stage.

In June 2023, the Disability Rights Coalition, the Government of Nova Scotia, and the Nova Scotia Human Rights Commission filed an interim consent order with the human rights Board of Inquiry that set out  an interim settlement for a binding systemic remedy to the discriminatory treatment of people with disabilities in the Province.

The Order is called “interim” because it is an initial Order requiring the Province to take action to end the systemic discrimination. A final order for the full resolution of the DRC’s human rights complaint will only be made when the government has fully implemented its entire legal obligations under the Interim Consent Order, thereby bringing to an end the discriminatory practices and policies identified by the Court of Appeal.

The final ‘outcomes’ required in the interim order include closing all institutions, ending the waitlist for access to social assistance including supports and services to live in the community of their choice, and fulfilling the government’s legal obligation to provide social assistance as an entitlement to all persons in need, in a manner that is consistent with the Human Rights Act.

The remedy is legally binding and imposes enforceable obligations on the Province to fix the systemic discrimination by March 31, 2028, and to meet established goals and timelines to ensure that necessary progress is made in order to achieve that goal.

Enforcement of the Decision and Outcomes

The interim consent order requires that the Board of Inquiry retains jurisdiction over the reparative scheme until it is clear and determinative that the systemic discrimination has been completely ended. The interim settlement itself establishes a five-year timeframe for the Province to achieve designated outcomes, with an end date of March 31, 2028, to be overseen by all parties involved in the case, as well as an independent Expert Monitor who will file annual reports on the Province’s compliance with its remedial obligations. The interim consent order includes implementation of the five-year plan with local area coordination and specific enforceable requirements designed to move persons with disabilities off of waitlists and to ensure that the changes to the system fully meet the different needs of persons with disabilities and provide meaningful access to social assistance.

Significance of the Case

One of the most significant holdings from the Court of Appeal was its determination that supporting persons with disabilities in congregate care, institutionalized settings is discriminatory per se. The Court also found that placing persons with disabilities on indefinite waitlists and being offered supports in remote settings at great distance from family and friends is also discriminatory. Finally, the Court held that it was discriminatory for the Province not to offer disability supports as of right.

Another significant outcome of this case, and the interim consent order in particular, is that it outlines that the government’s commitments to persons with disabilities should be legally enforceable and binding. All reports, data and associated materials related to the implementation and monitoring requirements contained in the interim settlement will be publicly available online on a dedicated Human Rights Commission website as soon as they become available to the parties. The case represents a victory for both the individual complainants—treated without dignity or respect by the Province—and for all persons with disabilities who simply want to live with dignity in the community. The NS Court of Appeal’s finding of systemic discrimination was unique in the Canadian context, where the government has ratified the Optional Protocol on the Convention on the Rights of Persons with Disabilities, but where government enforceability is often inadequate.

The binding interim consent order has the potential to serve as a model for both Canadian and international individuals and advocacy groups who struggle to secure effective systemic remedies for violations against persons with disabilities and other groups deprived of the equal enjoyment of ESC rights. For the Province, this is an immediate legal obligation on the government to evaluate and significantly overhaul decades-long practices and policies that resulted in treatment that was found to disadvantage a large number of persons with disabilities, based on enforceable timelines and required outcomes.

The Technical Report of the Independent Experts to the Disability Rights Coalition and the Province of Nova Scotia, produced by two independent experts, provides a robust and detailed overview of the state of discrimination in Nova Scotia, as well as recommendations on how the Province should change its support of people with disabilities. This report, in addition to the advocacy work undertaken by the DRC and its partner organizations, provides a roadmap for advocates in Canada and abroad.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.

Groups Involved in the Case

• Disability Rights Coalition (Appellants)
• Inclusion Canada, the Council of Canadians with Disabilities, People First of Canada (Interveners)