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

Nova Scotia Court of Appeal Citation: Disability Rights Coalition v. Nova Scotia (Attorney General) , 2021 NSCA 70 Date: 20211006 Docket: CA 486952 Registry: Halifax Between: Disability Rights Coalition and Beth MacLean, Olga Cain on behalf of Sheila Livingstone, Tammy Delaney, on behalf of Joseph Delaney Appellants v. The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia (including the Minister of Community Services and the Minister of Health and Wellness), Nova Scotia Human Rights Commission, J.

Walter Thompson, Q.C., sitting as a Board of Inquiry Respondents and Inclusion Canada, the Council of Canadians with Disabilities, and People First of Canada Intervenors Judge: The Court (Wood C.J.N.S., Farrar and Bourgeois JJ.A.) Appeal Heard: November 18 and 19, 2020, in Halifax, Nova Scotia Subject: Human Rights Act , R.S.N.S. 1989, c. 214 ; Social Assistance Act , R.S.N.S. 1989, c. 432 ; Employment Support and Income Assistance Act , S.N.S. 2000, c. 27 ; prima facie discrimination; assessment of damages; and costs

Summary: In 2014, Beth MacLean, Sheila Livingstone and Joseph Delaney filed complaints with the Nova Scotia Human Rights Commission. They alleged the Province of Nova Scotia had discriminated against them in the provision of a service, contrary to the Human Rights Act (the “ Act ”). They alleged the discrimination arose due to their mental disabilities and financial status.

At the same time, the Disability Rights Coalition (the “DRC”), an alliance of disability advocacy groups and individuals, filed a complaint alleging the discrimination experienced by the individual complainants and others was a product of systemic discrimination. The Province denied it had treated the complainants in a discriminatory fashion and further denied the existence of systemic discrimination in its provision of services to disabled persons. After a lengthy hearing, a Board of Inquiry found the three individual complainants had each established prima facie discrimination under the Act .

That finding was limited to the time periods when they had been housed in a locked psychiatric unit of the Nova Scotia Hospital. The Board dismissed the DRC’s complaint of systemic discrimination. The Board later undertook a second hearing to address what remedies should flow from its findings of discrimination. It awarded damages of $100,000 to each of Ms. MacLean and Mr. Delaney. Sadly, Ms. Livingstone passed away during the course of the proceeding. However, the Board awarded the sum of $10,000 to each of her sister and niece.

The Board further ordered the Province pay costs to the individual complainants’ legal counsel. The DRC appeals the dismissal of its allegation of systemic discrimination. The intervenors were granted permission to participate in the appeal, specifically in regard to the Board’s analysis of the systemic discrimination complaint. The individual complainants (also referred to as the “individual appellants”) say the Board’s analysis giving rise to the finding of prima facie discrimination was flawed, resulting in the time frame during which the discriminatory treatment occurred being unduly shortened.

They also say the damage awards were insufficient. The Province also challenges the Board’s discrimination analysis. It submits the Board erred in finding the individual appellants had established prima facie discrimination. In the alternative, it takes issue with the quantum of damages awarded. Issues: 1. Did the Board err in its identification of the test for prima facie discrimination? 2. Did the Board err in identifying the “service” in question, and if so, what is the appropriate “service”? 3.

Did the Board err by failing to consider, or properly distinguish, the case authorities relied upon by the Province? 4. Did the Board err in not considering, applying and accepting the evidence offered by the Province, which it asserts was relevant to the comparative analysis? 5. Did the Board err by failing to undertake a proper comparative analysis? 6. Based on the law, the Board’s factual findings and the record, does a proper prima facie analysis support its ultimate conclusion in relation to the individual appellants? 7.

Should the finding of prima facie discrimination in relation to the individual appellants be returned to the Board for a justification hearing? 8. Did the Board 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? 9. Did the Board’s remedy decision disclose an error in principle in the assessment of damages? If so, what is the appropriate quantum of damages to be awarded? 10. Did the Board err in awarding costs to the individual complainants?

Result: The Board did not err in its identification of the test for prima facie discrimination as being contained within s. 4 of the Act . Contrary to the Province’s assertion, the Board did not create a “novel” test in its assessment of the complainants’ allegations of discrimination. The Board did, however, err in law in its identification of the “service” at the heart of the complaints. The Board, in finding that the “service” was services provided by the Province to persons with disabilities, committed the error warned against by the Supreme Court of Canada in Moore v.

British Columbia , 2012 SCC 61 — comparing the treatment of disabled persons to other disabled persons. The Board did not stray into error by virtue of its failure to consider or properly distinguish the case authorities the Province presented in support of its contention that the proper “service” was the provision of supportive housing. None of the authorities was binding on the Board, and the Court is satisfied all were inapplicable. A proper analysis, considering the record and relevant legislation, gives rise to a finding that the “service” at the heart of the complaints is social assistance generally.

The Board did not err in failing to make a proper comparative analysis. The Province’s assertion in this regard was based upon its proposition, rejected by the Court, that the “service” in question was supportive housing. Further, the Court rejected the Province’s assertion that a proper comparative analysis was a necessary precondition to a finding of prima facie discrimination under the Act . The Board did not err in its conclusion that the individual complainants had been discriminated against by the Province by virtue of their unnecessary retention in a locked psychiatric hospital.

After an initial period of treatment, all of the individual complaints were medically ready to be discharged. Despite being found eligible for social assistance under the Province’s legislative regime, the individual complainants did not receive the benefits to which they were entitled. Able-bodied persons who were eligible for social assistance did not risk being institutionalized in order to receive the benefits to which they were entitled.

The Board’s legal analysis was, however, deficient in limiting the finding of prima facie discrimination in relation to Beth MacLean and Sheila Livingstone to the period they were unnecessarily housed at the Nova Scotia Hospital. Ms. MacLean’s finding of prima facie discrimination ought to have included two years when she was a resident of Kings Regional Rehabilitation Centre. Further, Ms. Livingstone’s finding of prima facie discrimination ought to have included the period of time when she was placed, after her discharge from the Nova Scotia Hospital, in Yarmouth.

In the course of the appeal hearing, the Province requested, for the first time, that should the Court uphold that Board’s finding of discrimination relating to the individual complainants’ placement at the Nova Scotia Hospital, it be permitted a justification hearing. Before the Board, the Province had waived its right to a justification hearing following the Board’s finding of prima facie discrimination. None was held, with the Board moving on to a remedy determination.

Given this waiver, and that the Province had not earlier raised the potential for a justification hearing, the Court declined to grant this request. The Province would, however, be entitled (if it wished) to a justification hearing in relation to the expanded findings of prima facie discrimination made in relation to Ms. MacLean and Ms. Livingstone. The Court is satisfied the Board erred in law in its analysis of the DRC’s complaint of systemic discrimination. The test it applied would result in the vast majority of legitimate claims of systemic discrimination being dismissed.

A proper application of the law and the evidence before the Board leads to the conclusion that the DRC’s claim of systemic discrimination was warranted. Having found a prima facie case of systemic discrimination, the DRC’s complaint is remitted to a differently constituted board of inquiry for the purposes of a justification hearing. The Court is satisfied the Board’s remedy decision was flawed in several respects.

Specifically, the Board erred in principle in its assessment of damages in relation to both Beth MacLean and Joseph Delaney by failing to differentially account for the length of time each had been retained at the Nova Scotia Hospital, by not considering the effect of deterrence in the quantification of damages, and by considering the complainants’ inability to enjoy their awards as a reason to reduce the quantum.

Having undertaken an assessment based on the appropriate legal principles and the evidentiary record, the Court determined the proper quantum of damages for Joseph Delaney in relation to his discriminatory retention at the Nova Scotia Hospital to be $200,000. The damages assessed in relation to Beth MacLean’s discriminatory retention are $300,000. After the Court had made its decision on the appeal, but before its reasons could be released, Beth MacLean passed away. The Court will invite additional submissions from the parties as to what impact, if any, Ms. MacLean’s death should have on the damage award.

The Court was of the view that the Board did not err in failing to award damages to the estate of Sheila Livingstone in relation to her retention at the Nova Scotia Hospital. It did, however, err in awarding her sister and niece damages reflective of the care they had provided to Ms. Livingstone during her life. Finally, the Board committed legal error in awarding costs to the individual complainants. The Board has no jurisdiction to award costs.

Disposition: DRC’s appeal of the prima facie decision is allowed. The Board erred in its analysis of the systemic discrimination claim. Applying the law to the Board’s findings and the record, we are satisfied that the DRC has established a prima facie case of systemic discrimination. The Province is entitled to attempt to justify the above finding, and the matter shall be remitted to a differently constituted board of inquiry to undertake a hearing pursuant to s. 6 of the Act .

The Province’s appeal of the prima facie decision, specifically the Board’s determination that the individual appellants had been discriminated against by virtue of their unnecessary retention at the Nova Scotia Hospital, is dismissed. The individual appellants’ appeal of the prima facie decision is allowed in part. Applying a proper analysis, the finding of prima facie discrimination should have included the period of 1998 to 2000 for Ms. MacLean, and further covered the period of time Ms. Livingstone was placed in Yarmouth following her transfer from Emerald Hall.

With respect to the expanded prima facie findings in relation to the individual appellants set out above, the Province shall, if it wishes, be entitled to a justification hearing before a differently constituted board of inquiry. The Province is not entitled to justify the period of time when the individual complainants were found to be discriminated against by virtue of their unnecessary retention at the Nova Scotia Hospital. The individual appellants’ appeal and the Province’s cross-appeal in relation to the remedy decision is allowed.

The Board made fundamental errors in both its assessment of damages and the award of costs. With respect to the discrimination arising from her unnecessary hospitalization, Beth MacLean is awarded damages of $300,000. The Court reserves jurisdiction to determine what effect, if any, Ms. MacLean’s death has on the damage award. With respect to the discrimination arising from his unnecessary hospitalization, Joseph Delaney is awarded damages of $200,000. The Board’s award of costs is set aside. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet.

The full court judgment consists of 113 pages. Nova Scotia Court of Appeal Citation: Disability Rights Coalition v. Nova Scotia (Attorney General) , 2021 NSCA 70 Date: 20211006 Docket: CA 486952 Registry: Halifax Between: Disability Rights Coalition and Beth MacLean, Olga Cain on behalf of Sheila Livingstone, Tammy Delaney, on behalf of Joseph Delaney Appellants v. The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia (including the Minister of Community Services and the Minister of Health and Wellness), Nova Scotia Human Rights Commission, J.

Walter Thompson, Q.C., sitting as a Board of Inquiry Respondents and Inclusion Canada, the Council of Canadians with Disabilities, and People First of Canada Intervenors Judges: The Court (Wood C.J.N.S., Farrar and Bourgeois JJ.A.) Appeal Heard: November 18 and 19, 2020, in Halifax, Nova Scotia Held: Appeal of the Disability Rights Coalition allowed; appeal of the individual appellants allowed in part; and cross-appeal of the respondent Province of Nova Scotia allowed in part, per reasons for judgment of the Court Counsel: Claire McNeil and Patrick Cameron, for Disability Rights Coalition Vincent Calderhead and Katrin MacPhee, for Beth MacLean, Olga Cain, and Tammy Delaney Kevin Kindred and Dorianne Mullin, for the Attorney General of Nova Scotia Kendrick Douglas, for the Nova Scotia Human Rights Commission (watching brief) J.

Walter Thompson, Q.C., respondent (not participating) Byron Williams, Joëlle Pastora Sala, and Miranda D. Grayson, for the intervenors A Word About Language Background (

a) Who are Beth MacLean, Sheila Livingstone and Joseph Delaney? (

b) The Province’s view and knowledge of the circumstances of its citizens living with mental disabilities The Statutory Framework Procedural History and Decisions under Review The complaints Beth MacLean’s complaint Sheila Livingstone’s complaint Joseph Delaney’s complaint The DRC’s complaint The prima facie hearing The Board’s prima facie decision The remedy hearing The remedy decision Issues Standard of Review Analysis 1. Did the Board err in its identification of the test for prima facie discrimination? 2.

Did the Board err in identifying the “service” in question, and if so, what is the appropriate “service”? 3. Did the Board err by failing to consider, or properly distinguish, the case authorities relied upon by the Province? The Province’s view The appellants’ view

The service is social assistance 4. Did the Board err in not considering, applying and accepting the evidence offered by the Province, which it asserts was relevant to the comparative analysis? 5. Did the Board err by failing to undertake a proper comparative analysis? 6. Based on the law, the Board’s factual findings and the record, does a proper prima facie analysis support its ultimate conclusion in relation to the individual appellants? 7. Should the finding of prima facie discrimination in relation to the individual appellants be returned to the Board for a justification hearing? 8.

Did the Board 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? Evolution of the DRC’s systemic discrimination complaint Findings of the Board of Inquiry in relation to the systemic complaint 9. Did the Board’s remedy decision disclose an error in principle in the assessment of damages? If so, what is the appropriate quantum of damages to be awarded? (

a) Did the Board err in its determination of the general damage awards to Beth MacLean and Joseph Delaney Purpose of awards and factors to consider Arbitrary compensation awards Reduction of damages due to appellants’ disabilities was inappropriate Deterrence awards are not effective and should not seek to effect system change (

b) If the Board erred in its determination of the general damage awards for Ms. MacLean and Mr. Delaney, what is the appropriate amount of general damages to be awarded to them? Ms. MacLean Mr. Delaney (

c) Did the Board err in failing to award any damages to the estate of Sheila Livingstone? (

d) Did the Board err in awarding damages to Ms. Livingstone’s sister and niece? 10. Did the Board err in awarding costs to the individual complainants? Disposition By the Court: [ 1 ] In 2014, Beth MacLean, Sheila Livingstone and Joseph Delaney filed complaints with the Nova Scotia Human Rights Commission [1] . They alleged the Province of Nova Scotia (the “Province”) had discriminated against them in the provision of a service, contrary to the Human Rights Act , R.S.N.S. 1989, c. 214 (the “ Act ”).

They alleged the discrimination arose due to their “mental disabilities” [2] and financial status. [ 2 ] At the same time, the Disability Rights Coalition (the “DRC”) [3] , an alliance of disability advocacy groups and individuals, filed a complaint alleging the discrimination experienced by the individual complainants and others was a product of systemic discrimination. [ 3 ] The Province denied it had treated the complainants in a discriminatory fashion and further denied the existence of systemic discrimination in its provision of services to disabled persons. [ 4 ] After a lengthy hearing, a Board of Inquiry, chaired by J.

Walter Thompson Q.C. (the “Board”) found the three individual complainants had each established prima facie discrimination under the Act . That finding was limited to the time periods when they had been housed in a locked psychiatric unit of the Nova Scotia Hospital. The Board dismissed the DRC’s complaint of systemic discrimination. [ 5 ] The Board later undertook a second hearing to address what remedies should flow from its findings of discrimination. It awarded damages of $100,000 to each of Ms. MacLean and Mr. Delaney. Sadly, Ms. Livingstone passed away during the course of the proceeding.

However, the Board awarded the sum of $10,000 to each of her sister and niece. The Board further ordered the Province pay costs to the individual complainants’ legal counsel. [ 6 ] No one is content with the Board’s decisions. The DRC appeals the dismissal of its allegation of systemic discrimination.

Inclusion Canada, the Council of Canadians with Disabilities and People First Canada (the “Intervenors”) were granted permission to participate in the appeal, specifically in regard to the Board’s analysis of the systemic discrimination complaint. [ 7 ] The individual complainants say the Board’s analysis giving rise to the finding of prima facie discrimination was flawed, resulting in the time frame during which the discriminatory treatment occurred being unduly shortened. They also say the damage awards were insufficient. [ 8 ] The Province also challenges the Board’s discrimination analysis.

It submits the Board erred in finding the individual appellants had established prima facie discrimination. In the alternative, it takes issue with the quantum of damages awarded. [ 9 ] As the reasons to follow will demonstrate, some of the parties’ concerns with the Board’s discrimination and remedy analyses are well-founded. Despite errors in the Board’s reasoning, we are of the view its conclusion the individual complainants had suffered discrimination at the hands of the Province is supported by the record and proper application of the law.

We are also of the view the Board’s flawed analysis resulted in it improperly narrowing the finding of prima facie discrimination to the time frame in which Ms. MacLean and Ms. Livingstone were housed at the Nova Scotia Hospital. [ 10 ] We are satisfied the Board’s consideration of the DRC’s claim of systemic discrimination was also flawed. A proper application of the law to the Board’s findings should have resulted in a prima facie finding of systemic discrimination. [ 11 ] The Board’s remedy decision also contains fatal errors of law that must be corrected on appeal. A Word About Language [ 12 ] Words matter.

Appropriately used, they can build people up and acknowledge their worth. The careless or insensitive use of words can have the opposite effect. [ 13 ] Throughout this decision we will be talking about people, both individually and collectively. Because the Act specifies “mental disability” as a ground of discrimination, we will necessarily be using that term in our reasons. As we will explain later, that does not mean all persons who may fall within the statutory definition are the same.

Quite the opposite. [ 14 ] Despite tailoring our analysis to match the wording of the legislation, we have endeavoured to use language, where possible, that reflects a “person first” approach to discussing the individuals central to these reasons. [4] At times we have quoted passages from documents that use outdated language to describe persons living with differing abilities. We view these quotations, written at a different time, as being important for our reasons and our recitation thereof should be viewed accordingly. Background [ 15 ] As in all matters that come before the Court, we must be guided by the law.

However, we acknowledge that at the heart of this dispute are three people and, as the DRC points out, many more who are financially dependent on the Province due to their mental disabilities. (

a) Who are Beth MacLean, Sheila Livingstone and Joseph Delaney? [ 16 ] It is impossible to adequately capture the nature of the persons at the centre of this matter in a few short paragraphs. But to put the reasons to follow in context, we will provide brief biographical information in relation to the individual appellants.

They have a number of things in common, including: • They are, or were, life-long residents of Nova Scotia and, as such, are subject to the laws of the Province and entitled to the protection thereof; • They are loved members of families, being sisters, daughters, a son and brother; • They live, or lived, with a mental disability, and have been financially dependent on the Province for their basic needs for most of their lives; • They were deemed eligible under the Social Assistance Act , R.S.N.S. 1989, c. 432 , as amended (the “ SAA ”), to receive social assistance benefits by and from the Province through the Department of Community Services; and • They resided in institutionalized settings, including lengthy periods at Emerald Hall, a locked acute-care psychiatric unit of the Nova Scotia Hospital. [ 17 ] Each of them, like everyone else, has their own unique life story.

The Board’s reasons and the record before it provide a great deal of information about Ms. MacLean, Ms. Livingstone and Mr. Delaney. Only Ms. MacLean was able to testify before the Board about her life. [ 18 ] Beth MacLean died at the age of 50 on September 24, 2021, mere days before the anticipated release of this decision. She lived with a mild to moderate intellectual disability. Drawing from the Board’s reasons and the record, we note: • Because of an inability to address her behavioural challenges, Ms.

MacLean left the care of her parents at the age of 10; • As a young child, she was placed in a number of institutions for children; • In 1986, at the age of 14, she was placed in an adult facility, Kings Regional Rehabilitation Centre (“Kings”). She received no educational or vocational training while a resident of that institution; • Ms. MacLean lived at Kings for 14 years. During that period the appropriateness of her continued placement there was not assessed. Ms.

MacLean testified she did not like living at Kings and had told staff she did not want to continue residing there; • In 2000, due to her acting out and a resulting incident of property damage, Ms. MacLean was discharged from Kings and transferred to the Nova Scotia Hospital, a psychiatric facility; • Ms. MacLean’s admission to the Nova Scotia Hospital was intended to be a means of regulating her behaviour. She was told she would be there for a year; • Ms. MacLean remained at the Nova Scotia Hospital for much longer than a year. She was there for 16 years.

At first she resided in Maritime Hall, a psychiatric rehabilitation unit. In 2007, she was transferred to Emerald Hall. During much of that time, Ms. MacLean was on a Department of Community Services wait-list for shelter in the community; • During her placement at the Nova Scotia Hospital, staff members repeatedly told the Province Ms. MacLean did not require psychiatric treatment, should be discharged and was capable of living in the community. Ms. MacLean wanted to leave the hospital and expressed her wish to do so; and

• In June 2016, Ms. MacLean was transferred to the Community Transition Program [5] where she remained until December 2019. Since early 2020, Ms. MacLean resided in a small options home [6] in the community. [ 19 ] Sheila Livingstone was born in 1947, one of 15 children in her family. Her complaint was brought on her behalf by her sister, Olga Cain. As noted earlier, Ms. Livingstone passed away in October 2016, prior to the release of the Board’s first decision. In terms of her life experiences, we note: • Ms. Livingstone lived with a moderate intellectual disability.

She had also been diagnosed with schizoaffective disorder, a seizure disorder and other medical issues; • She had difficulties verbalizing clearly but could be understood by those who were familiar with her speech; • From the age of 12, Ms. Livingstone lived in a number of institutional settings; • Notwithstanding her mental and physical challenges, from 1986 to 2004, Ms. Livingstone lived in a non-institutional setting. Residing in a provincially funded small-options home, she lived in the community, including working at a job and travelling there by bus; • In 2003 and 2004, Ms.

Livingstone had a number of short-term admissions to Emerald Hall for medical treatment. After being stabilized, she was discharged and returned to her home in the community; • In July 2004, Ms. Livingstone was again admitted to hospital. This stay was longer, but she was ready for discharge by early 2005. Because of the length of her stay in hospital, the Province (Department of Community Services) discontinued the funding for her community placement, and she was unable to return to her small options home; • The Province (Department of Community Services) placed Ms.

Livingstone on a wait-list for another community placement in April 2005. Despite no longer requiring hospitalization, Ms. Livingstone remained at Emerald Hall while on the wait-list. She remained on the wait-list for nine years; • Based on the evidence before it, the Board found that while placed at Emerald Hall, Ms. Livingstone had been physically assaulted by psychiatric patients in the unit, leaving her often bruised and fearful; • In January 2014, Ms.

Cain accepted the Province’s offer of a placement at Harbourside Adult Residential Centre (“Harbourside”) in Yarmouth, Nova Scotia, due to concerns for her sister’s safety at Emerald Hall. This placement was a significant distance from Ms. Livingstone’s family and made the continuation of visits and interaction with her loved ones difficult. It was the only offer of alternative shelter made by the Province for Ms. Livingstone in the nine years she was eligible for assistance; and • Ms. Livingstone remained at Harbourside until her death. [ 20 ] Joseph Delaney is 49 years old. Mr.

Delaney lives with a severe intellectual disability and a cyclical mood disorder. His complaint was originally brought on his behalf by his mother Susan Lattie. Upon her death, Mr. Delaney’s sister, Tammy Delaney, continued in her mother’s place. Mr. Delaney lives with challenges associated with epilepsy and chronic constipation. In terms of his life history, we note: • Mr. Delaney spent his early childhood residing with his parents and siblings in Halifax.

He started experiencing seizures and behavioural challenges at an early age and entered a residential facility for children around the age of five; • When that facility closed in 1996, Mr. Delaney was offered a placement in a small options home. He resided in the community for 14 years. During this time, Mr. Delaney worked at a job in the Burnside Industrial Park, travelling to and from by bus; • In January 2010, Mr.

Delaney was hospitalized at Emerald Hall to regulate his medications (a change had caused a drop in his electrolytes); • Having been hospitalized for over 30 days, the Province (Department of Community Services) stopped funding Mr. Delaney’s small options home placement. He lost his spot as a result; • Mr. Delaney was medically stable and ready for discharge by July 2010. Hospital staff was of the view he did not require hospitalization and could return to a placement in the community; • Mr.

Delaney remained at Emerald Hall until February 2015, when he was transferred to Quest Regional Rehabilitation Centre (“Quest”) [7] ; • Mr. Delaney was returned to Emerald Hall in January 2017 because staff at Quest had difficulty managing his behaviour. He was verbalizing loudly and banging his head. Mr. Delaney’s physical discomfort and resulting behavioural challenges settled quickly following his re-admission to hospital, particularly after it was discovered he was suffering from a kinked bowel and received appropriate medical treatment; and • At the time of the Board hearing, Mr.

Delaney was still at Emerald Hall, ready for and awaiting a community placement. [ 21 ] In addition to the life experiences of the individual complainants, there is additional history relevant to the matter before us. (

b) The Province’s view and knowledge of the circumstances of its citizens living with mental disabilities [ 22 ] It is unrefuted that society’s view of persons living with mental disabilities has undergone significant change. The Board had before it substantial evidence tracing the evolution of how persons living with mental disabilities have been viewed and assisted in this Province. Much of this historic evidence was submitted at the hearing by way of a Joint Exhibit Book, the contents of which were admitted by agreement for the truth of its contents.

This material provided important context to the complaints before the Board. [ 23 ] Given the volume of materials, we will set out a sampling of the documents informing the Province’s approach to its citizens living with mental disabilities. Although the record contains historic information reaching back to the “poor house” model of assistance, for the purposes of these reasons, we will start our review in the 1980s and continue up to the filing of the complaints with the Human Rights Commission in August 2014.

We note the following: • In 1983, the Minister of Social Services [8] struck a Task Group to consider the future of the care being provided (then through municipalities with provincial funding) to seniors, the disabled and the “mentally handicapped”. One of the issues to be considered was “the nature and type of programs and activities required or desirable in such homes to maximize the self-fulfilment and dignity of residents and to encourage their participation in their care to the fullest extent possible”.

The Group’s mandate was later expanded to consider the nature of services being provided more generally to the “mentally handicapped”. The Task Group released its report in June 1984. The Group, comprised of “a core committee of senior staff of the Department of Social Services” described the theme of its conclusions as follows: The central theme of this report is that the needs of each individual , regardless of age, infirmity, disability or handicap, must be the paramount concern of all levels of government and the private sector in maintaining, enhancing and expanding programs and services.

Furthermore, regardless of whether the services are provided in institution, home, or community, a quality and standard of care must be maintained which enriches the lives of the people served . (Emphasis added) The Task Group noted the Province had recognized and accepted the principle of “normalization”: For the past decade, in Nova Scotia and across North America, the development of residential and support services for the mentally handicapped has been guided by the principle of normalization.

Normalization has the following emphasis: the integration of the mentally handicapped into a variety of community living settings; the provision of a broad array of community-based support services; a gradual policy of deinstitutionalization of mentally handicapped persons from large, often remote, institutional facilities; and a rehabilitative rather than custodial orientation within institutions to ensure that persons are moved as quickly as possible to community alternatives. (Emphasis added) • In 1986, the Province amended the Act to include “mental disability” as a prohibited ground of discrimination.

It recognized, legislatively, that persons were entitled to protection against being differentially treated because they lived with mental disabilities. This amendment made the complaints to the Human Rights Commission and subsequent referral to the Board in this matter possible. [ 24 ] The 1990s saw a continuation of the Province articulating and endorsing increasingly modern concepts regarding the rightful place of persons with mental disabilities in society.

In that regard we note: • In November 1990, the Minister of Community Services submitted a memorandum to the Cabinet Committee on Policy and Planning consisting of recommendations for the care of children with mental disabilities in the Province. Although directed at children, several of the Minister’s comments and observations equally applied to adults living with mental disabilities. For instance: The 1960’s and 1970’s produced social change within the field of mentally handicap [ sic ] as they did with most of society.

The concept of normalization was born and developed in this period evolving a philosophical stance which stated that the mentally handicapped should be treated and served in the same fashion as the normal or average citizens in our society. They should go to school, live in the community, work and recreate in the community. They should not be placed outside of the community, i.e. in institutions. […] Most other jurisdictions in Canada have clearly stated that mentally handicapped persons should be encouraged and enabled to live and participate as fully as possible in community life.

While there are and will continue to be differences amongst families, advocates and professionals as to what types of service models best constitute full participation in community life, the placement of mentally handicapped children and adults in large, segregated and often isolated institutional environments is clearly beyond the parameters of this philosophy. (Emphasis added) The Minister recommended: That government adopt a firm statement, recognizing the progress we have already made in community service development, and formalizing a commitment that we shall gradually move resources currently deployed for institutional services to community based programs. • In February 1995, the Department of Community Services released a Discussion Paper entitled “ Moving Towards Deinstitutionalization ”, seeking input of stakeholders, the aim of which was described as: This brief discussion paper attempts to outline the policy directions the Department of Community Services feels should be pursued in order to effectively and responsibly replace adult institutional services with community living alternatives for persons with mental handicaps and mental disabilities. [9] (Emphasis added) The Department of Community Services had this to say about the “de-institutionalization” of persons living with mental disabilities:

While some believe the movement from an institutional-based service system to a community-based service system has been too rapid, others believe the opposite. Appendix I, however, illustrates that Nova Scotia has been moving in the direction of deinstitutionalization and towards the development and expansion of community-based services for the past two decades. There is a growing level of commitment at all levels of government, within the generic service community and amongst advocacy groups for “de-institutionalization”.

The questions appear to be how quickly and by what means should this process be accomplished. The Discussion Paper set out the following “Statement of Principles” forming the basis of the Department of Community Services’ policy direction in relation to services for the mentally disabled: RIGHTS AND RESPONSIBILITES: People with disabilities have the very same rights, and the same responsibilities, as other Canadians. They are entitled, as others are, to the equal protection and the equal benefit of the law and require measures for achieving equality.

EMPOWERMENT: People with disabilities require the means to assume responsibility for their own lives and their own well being. Efforts are required to encourage them to take control, and to support and promote their own efforts in this regard.

PARTICIPATION: People with disabilities require full access to the social, economic and physical infrastructure which supports our society so that they can participate fully and equally in their communities. • In April 1998, the Department of Community Services released a “ Report of the Review of Small Options in Nova Scotia ”, which contained the results of a two-year review of existing community based residential options.

The report set out the history of the development of these small, three-resident or less, homes that were not subject to the licensing provisions contained in the Homes for Special Care Act , R.S.N.S. 1989, c. 203 . These facilities, run by a variety of third-party service providers, offered housing and care to individuals, the vast majority of whom received funding assistance from municipal governments.

The report explained that after April 1, 1995, the Province had provided 100% cost-sharing to municipalities for the expenses incurred by the placement of residents in their Community Based Options Program, but that placement and monitoring of residents would still be the responsibility of the municipalities. This changed on April 1, 1998, when the Department of Community Services assumed responsibility for the delivery of all social services in the Province. One purpose of the review was to assess “consumer satisfaction” with the existing community based small options offerings.

Given that the Province was taking over responsibility for the placement and funding of residents in these facilities, it was important to understand how they were functioning. The assessors noted: Consumers expressed to assessors satisfaction with many aspects of their lives in small options facilities.

The locations of the accommodations, the level of personal choice afforded residents and the home-like atmosphere of these settings were common themes in the information gathered. […] A noted theme in all information gathered was the residents’ pleasure and contentment at being able to remain in their own communities and to maintain their traditions and cultures. Many residents related satisfaction in being able to continue involvement in community activities such as dances, bowling, service club membership and libraries.

Much of this activity occurred with the accompaniment of friends or family from the community. […] Individual resident choice was also a theme recognized in the information compiled. Many residents reported that the decision to live in a small options home environment was made personally or with the suggestion of family and/or friends. Residents spoke openly regarding independent decision making on daily activities and freedom to decide on financial affairs. Decision making and choice also extended to areas such as menus and meal planning for residents.

Residents often noted that they participated in menu planning, and in several cases residents assisted in preparing favourite meals. In addition, many residents related that service providers often prepared separate meals should a resident not enjoy a planned meal. […] Residents also reported satisfaction in participating in decision making regarding their care/program needs. Through information gathered, it was determined that generally routines within small options homes were client- centred and that the daily operating of the small options home responded to the needs and wishes of the residents.

In many instances, residents related satisfaction gained by “helping around the house” with such tasks as washing dishes, setting tables and dusting their own bedrooms. […] Results of information gathered from residents during the assessments/reviews of small option operations in the province disclosed ongoing general satisfaction by the residents served.

In the vast majority of cases, residents recognized that the accommodations and services in these small option operations enhance their potential to live, work and socialize in the least restrictive setting and in the most integrated circumstances available in their communities. (Emphasis added) [ 25 ] The early 2000s saw the circumstances of persons living with mental disabilities continue to engage the Province’s consciousness: • In the spring of 2000, the Department of Community Services engaged Dr. Michael J. Kendrick to evaluate the existing system of “community based options”.

The people using the “CBO” system were described as “typically persons with persistent and significant physical and mental impairments requiring some manner of ongoing assistance”. The independent review was tasked with assessing “if the current delivery of services to clients funded by the Department of Community Services in Community Based Options meets the needs of those clients” and to make recommendations for change. The final report dated January 2001 exceeded 180 pages. It is impossible in these reasons to summarize the numerous and detailed findings and recommendations set out therein.

Two recommendations are particularly relevant to the matter before this Court. Dr. Kendrick found the existing model of community based options required modernization and expansion. He recommended that “ The Department of Community Services Should Accelerate Its Efforts To Support The Inclusion Of Persons With Disabilities Within Community Life Who Are Presently in Nova Scotia Residential Institutions” (Emphasis in original).

He explained: It is also the view of this evaluator, and the vast consensus of the field, that the best chance for people to find the life they need and seek, rests within community rather than outside of, or at the margins of community life. Yet, at the moment, there are still far too many people who are spending the vast bulk of their lives largely segregated from community, and placed in a position of involuntary compulsion to live solely with other equally marginalized persons. The most extreme example of this is the continued reliance in Nova Scotia on segregated and congregated residential institutions.

The principal funder of these is the Nova Scotia Department of Community Services. Though to a far lesser degree, the Department of Health still relies quite heavily on short-term institutional care for this population, at least in comparison to some mental health systems elsewhere. The Department of Community Services is in the unenviable position of being the overseer of the much-discredited practice of enforcing involuntary segregation in institutions upon people. Clearly, as the Department itself believes, the residents of these institutions can live lives much closer to the heart of the community.

The maintenance of these places constitutes [ a ] direct and persistent violation of the people’s rights to be part of the community. These institutionalized persons ought to have the same chance to live in community that is now routinely available to other clients of the CBO system of the Department of Community Services. The Department has recognized and struggled with this contradiction, and has rather slowly moved to expand options for these most completely segregated persons. They will, nevertheless, need some political help from government to complete this job properly.

There is some urgency for those institutionalized as the current pace of offering them community alternatives is so slow that many will surely not live to see the day when they can live equally and proudly amongst their fellow Nova Scotian citizens, neighbours and friends. This tragedy is entirely avoidable within the now routine state of the art “on the ground” in Nova Scotia. Thus is all the more disappointing. (Italicized emphasis in original) (Bolded emphasis added) Dr. Kendrick also noted the interplay between services offered by the Department of Community Services and the Department of Health.

He recommended: “ The Department of Community Services And The Department of Health Need To Restructure The Fiscal Incentives Regarding Community Placement ” (Emphasis in original). He wrote: The present arrangement between the two Departments has resulted in two major shortcomings that affect the recipient of services. The first is that, when a person who is currently living in a CBO goes into a psychiatric in-patient unit with the Health Department, the Department of Community Services still has to fund the now vacant space of the person while they are in hospital.

If they are unable to do this for a lengthy period while the individual is in hospital, then the person will lose their home . The reason for this is that the Department of Community Services cannot afford to fund empty spaces indefinitely, and therefore has to set some point where the person is no longer a resident. While it is true that many larger providers use their own funds to cushion this effect to a degree, the problem nevertheless remains. This effect thereby renders people unnecessarily homeless, and denies them the continuity of abode that most reasonable people would see as sensible .

The second problem relates to the difficulty that occurs when persons who have not historically been part of the CBO system, try to access the system while in placement in the psychiatric unit. Such persons are “unfunded” persons for the Department of Community Services, and therefore may not have priority relative to other persons seeking services. The Department of Health, understandably insisting on their prompt placement from hospital, may not realize that the Department of Community Services may not see the person as a funding priority, given the budget it has to work with.

After all, there does not exist a line item for Health related community placements in the Community Service budget. Consequently, the Health Department may spend upwards of over a thousand dollars a day waiting for a community placement that may actually cost a small percentage of that cost to the taxpayer, were it available. The individual may wait unnecessarily, inappropriately and indefinitely for a community placement to materialize. They may also, out of desperation, be forced to take whatever is available, even if this is unsuitable for them. (Emphasis added) In his report, Dr.

Kendrick provided multiple recommendations on how the Departments of Health and Community Services could move towards rectifying the above problems. • In 2006, the Department of Health commissioned an independent review of programs offered to persons with a “dual diagnosis”, being “persons who are diagnosed with intellectual disability and who present with severe emotional and behavioural challenges”. The reviewers, Dr. Dorothy Griffiths and Dr. Chrissoula Stavrakaki, were asked to assess two programs, COAST and the Emerald Hall unit of the Nova Scotia Hospital.

For the purposes of these reasons, their findings in relation to Emerald Hall are relevant. The report dated April 2006 highlighted three critical challenges with respect to the functioning of that unit: First, because the unit is gridlocked acutely ill clients from the community cannot gain needed treatment services. […] Second and perhaps even more severe[ly] challenging is that many of the residents of Emerald Hall are being held without justification and against their will in a locked psychiatric unit. More than 10 of the

individuals currently living in the acute short term program have been ready for discharge for a very long period of time (i.e., 10 years) but have been forced to be confined in a locked psychiatric unit because of the failure of the community to develop appropriate community supports that can support these individuals. In our discussions with the individuals who live on the unit, they spoke of their desire to someday be returned to the community, to farm in the country, to a place that would be home.

These individuals are currently being confined in a highly restrictive environment without any foreseeable options for community living. STANDARD 7a.7 states that individuals will be discharged from inpatient care to the appropriate community setting. Transition is facilitated through collaboration, coordination and communication between all care providers to address discharge and follow up needs for the individual. This standard is not being met. Moreover, this current situation clearly undermines the fundamental rights of these individuals.

It represents discriminatory treatment because they carry a dual diagnosis. The situation is clearly confinement without justification and cruel and unusual punishment for behaviours which have long since [resolved]. A nondisabled person in the province of Nova Scotia who experienced an acute mental illness and recovered would not likely be held in a locked psychiatric ward for up to ten or more years post recovery.

This failure to return these individuals to a less restrictive environment is inhumane and a class action law suit waiting to happen. […] Third, several other clients on the unit have also been there for a very long time, and while these other individuals have ongoing or recurrent issues, they are not of a severity that would require institutionalization . One man has been living on this acute unit for 40 years.

These individuals could appropriately be provided support in a community group home that had specialized training in providing services for persons with intellectual disabilities who have ongoing or long term mental health challenges.

These individuals do not require hospitalization but specialized supports with knowledgeable and trained staff and specialized routines. (Emphasis added) Included amongst the report’s recommendations were: There is an urgent need for the Department of Health to meet with the Department of Community Services to develop a short term strategy to deal with the confinement of individuals unjustifiably in the Emerald Unit; There is a need for a long term plan to ensure that future gridlocks do not occur in the system.

The two departments need to develop a coordinated plan that will ensure that a policy is created that will not result in a loss of “home” for persons who experience a mental health crisis, . . . and that the requirement for the least restrictive and intrusive environment is not blocked for persons ready for community reintegration to their own home, when the crisis had been appropriately managed. • In November 2006, the Department of Community Services, Services for Persons with Disabilities Program (“SPD”) [10] , commenced a review of all residential services for persons with disabilities in the Province.

The review was conducted by a private consultant, Ms. Helen Patriquin, with the assistance of Department of Community Services staff. Its scope included residential settings licensed under the Homes for Special Care Act and unlicensed community based options (small options homes). The resulting “ Report of Residential Services ” was released in June 2008. The Executive

Summary of the report explained: This report provides a comprehensive examination of current services and supports for individuals with disabilities. It is with great gratification that we can state that because of the tremendous commitment of staff of the Department of Community Services and the many service providers throughout the sector, the system has been able to serve the needs of individuals with disabilities despite the current limitations.

These limitations, however, are at a critical point and must be addressed to ensure that persons with disabilities have access to a range of services and supports that will enable them to live to their fullest potential within their communities. The plan outlined further in this document details a long-term strategy to address the gaps in residential services and supports for persons with disabilities.

These recommendations have been developed following extensive consultation and review of best practices in other jurisdictions, along with current research, such as the Kirby Report (2006). […] (Emphasis added) The report recognized a lack of capacity was a serious limitation resulting in some individuals not being provided residential settings that corresponded with their needs, or waiting for an extended period of time, if not indefinitely, for an available placement.

This concern was noted in relation to Residential Care Facilities (RCFs) in particular: Examples of stellar commitment and pleasant, home-like surroundings exist. However, there also exists a high prevalence of communal bedrooms (in some instances three to a room), aging infrastructures, sparse furnishings, limited programming (life skills, social or recreational) and vocational opportunities. Most other provinces have either enhanced or discontinued the use of RCFs.

The lack of capacity in the system has made it very difficult to transfer residents to either higher or lower support settings when the support needs of residents change over time. Thus higher needs individuals remain in these settings and are supported by staff who hold [too] fewer core competencies than those working in all other residential settings. Also, more independent residents have few opportunities to move on to greater independence in the community.

RCFs are potentially home to many persons with disabilities who would be most appropriately supported in the Independent Living Support Program or in Group Homes. [ 26 ] Finally, we will set out a number of documents that demonstrate the Province’s approach to persons with disabilities in the years immediately prior to the complainants bringing their concerns to the Commission: • In February 2010, Premier Darrell Dexter wrote to the Minister of Foreign Affairs, expressing the Province’s support for the Government of Canada’s recent ratification of the United Nations Convention on the Rights of Persons with Disabilities .

Two articles of that Convention are worthy of note:

Article 1 – Purpose The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. […]

Article 19 – Living independently and being included in the community States parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. • In a memorandum dated January 12, 2012, the Deputy Minister of Community Services wrote to the Province’s Treasury Board requesting a departmental budget increase. The Deputy Minister advised the current budget was “inadequate to address the minimum needs of people with disabilities in need of supports and services”.

He further noted the SPD program was “under significant pressure to enhance and improve the continuum of services so that people with disabilities have more timely access to the programs they need”. The Deputy Minister set out the current situation as follows: Approximately 5200 individuals with disabilities are provided services and support under the mandate of the Services for Persons with Disabilities (SPD) program. There is a province wide waitlist of approximately 802 individuals, of which 273 clients have no support, and 529 clients are requesting/requiring different SPD services.

There are issues related to flow and capacity of the SPD program. The SPD residential program is “grid locked”. There is little if any ability to provide a responsive residential service, due to the lack of vacancies. At present, there are 36 individuals with disabilities in hospitals in CDHA. All have been medically ready for discharge for an average of two years. The average age is 40 years.

Failure to provide additional funding will mean that people stay in the hospital, when they are medically able to leave, but have no place to go. […] The Deputy Minster further provided an explanation of how the SPD program found itself in its present circumstances: In the 1990’s and early 2000, consistent with all jurisdictions across Canada, [Nova Scotia] committed to closure of large facility based settings. This included the Children’s Training Centres, Nova Scotia Youth Training Centre, for approximately 100 young people with disabilities.

In addition, a number of adult residential centres were closed, including 144 beds at Scotia Adult Residential Centre (ARC) and 159 beds at Halifax County Regional Rehabilitation Centre (RRC). While all of the current residents were provided with community living residential programs, there has been no significant increase in residential capacity in our province. For the past decade, the SPD program has been faced with significant pressures and challenges. The most pressing and long-standing issue is the access to timely and appropriate placement options.

Over this period of time, there have been numerous reviews, (Community Supports for Adults, now the SPD program, Review and Re-Design of services), SPD reports on Residential Services and Adult Day Programs in 2008. With these reports there are recommendations. The SPD problems have been compounded by a number of very public issues, including […] founded cases of abuse and neglect, resulting in reports and recommendations, such as the Report on Riverview Home Corporation and Braemore Homes Corporation.

The financial investment necessary to fully implement all of the changes necessary has been limited. […] In an effort to mitigate the SPD placement pressures, DCS has invested in the “front end” programs. These are the Direct Family Support (DFS) program for families caring for a family member at home, Alternative Family Support (AFS), and the Independent Living Support (ILS) program. Despite the enhancement of these programs, there remain 273 clients on a waitlist with no service, and the 36 individuals who are in hospitals ready for discharge.

This highlights the urgency of the work that is required to improve and expand the continuum of services. [11] (Emphasis added) • In March 2013, the Minister of Community Services established the “Joint Community-Government Advisory Committee on Transforming the Services to Persons with Disabilities (SPD) Program” (“Joint Committee”). The mandate of the Joint Committee was to: Develop a roadmap for transformation of the Nova Scotia Services to Persons with Disabilities Program (SPD), guided by the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

In June 2013, the Joint Committee presented a report to the Minister of Community Services entitled “ Choice, Equality and Good Lives in Inclusive Communities—A Roadmap for Transforming the Nova Scotia Services to Persons with Disabilities Program ”. [12] The observations and recommendations made in the report are detailed. We will mention only a few.

The Joint Committee was critical of the Province’s continued reliance on institutional residential placements for persons with disabilities: With some 1,100 people living in large congregate care facilities, Nova Scotia has a disproportionate reliance on institutional facilities in comparison to other Canadian jurisdictions. Compared to other provinces and territories, it is more likely to support people with disabilities in large residential settings such as Regional Rehabilitation Centres and Adult Rehabilitation Centres.

While at one point seen as a national leader with respect to deinstitutionalization (e.g. closures of provincial Children’s Training Centres) in recent years such efforts have stalled. Significant public funds continue to be spent on an institutional model – a model that universally has been proved to produce less than quality outcomes for persons with disabilities (in comparison to supported community living) and a model that has been unequivocally rejected by persons with disabilities.

Nova Scotia remains as the only jurisdiction in Canada that is not taking active measures to reduce/close its institutional facilities for persons with disabilities.

The Joint Committee recommended the Province “[a]nnounce a clear commitment and take steps to phase out, over a multi-year period, use of ARCs, RRCs and RCFs as a response to the residential needs of persons with disabilities, in concurrence with development of necessary community-based alternatives”. The Committee further proposed that in achieving this goal, the Province establish a moratorium on new admissions to such facilities as of April 1, 2015.

In making that recommendation, the Joint Committee set out a number of rationales and assumptions, including: • People with disabilities have a right to live and to be included in the community. • Everyone should have the opportunity to live and participate in the community they choose.

They should be involved in decisions about the support they receive and have maximum control over their lives. […] • A comprehensive strategy for the eventual phase out of Nova Scotia’s large residential facilities designated for people with disabilities needs to focus simultaneously on two areas: 1) measures which seek to prevent institutionalization and the need for alternative care; and 2) measures aimed at bringing back to the community those people who are currently in institutional care. [ 27 ] We now turn to consider the Act , and the provisions applicable to the complaints before the Board.

The Statutory Framework [ 28 ] We do not intend to set out the Act in its entirety, but to reference only those provisions most relevant to the issues before us. The purpose of the Act is set out as follows: 2 The purpose of this Act is to (

a) recognize the inherent dignity and the equal and inalienable rights of all members of the human family ; (

b) proclaim a common standard for achievement of basic human rights by all Nova Scotians; (

c) recognize that human rights must be protected by the rule of law; (

d) affirm the principle that every person is free and equal in dignity and rights; (

e) recognize that the government, all public agencies and all persons in the Province have the responsibility to ensure that every individual in the Province is afforded an equal opportunity to enjoy a full and productive life and that failure to provide equality of opportunity threatens the status of all persons ; and (

f) extend the statute law relating to human rights and provide for its effective administration. (Emphasis added) [ 29 ]

Section 4 is central to the matters before us, as it provides the definition of discrimination: 4 For the purposes of this Act , a person discriminates where the person makes a distinction , whether intentional or not, based on a characteristic , or perceived characteristic, referred to in clauses (

h) to (

v) of subsection (1) of

Section 5 that has the effect of imposing burdens, obligations or disadvantages on an individual or a class of individuals not imposed upon others or which withholds or limits access to opportunities, benefits and advantages available to other individuals or classes of individuals in society. (Emphasis added) [ 30 ] Complaints of discrimination are brought pursuant to s. 5. The complaints launched by the individual appellants and the DRC were brought in relation to “services” provided by the Province, and pursuant to s. 5(1)(a), (

o) and (t), which provide: 5(1) No person shall in respect of (

a) the provision of or access to services or facilities; […] discriminate against an individual or class of individuals on account of […] (

o) physical disability or mental disability; […] (

t) source of income; [ 31 ] “Physical disability or mental disability” is defined broadly in s. 3(

l) and includes the “loss or abnormality of psychological function”, a learning disability, a “condition of being mentally impaired” and a mental disorder. There is no dispute the individual appellants live or lived with conditions that are included within the statutory definition. [ 32 ] There are a number of recognized exceptions that preclude a finding of discrimination under s. 5(1). In the present matter, and for reasons that will be addressed later, the Board did not undertake a consideration of whether its prima facie findings of discrimination in relation to the individual complainants fell within an exception. [ 33 ]

Section 6 sets out various exceptions, with that found in clause (

f) being the exception that would have been applicable to the complaints at hand: 6 Subsection (1) of

Section 5 does not apply […] (

f) where a denial, refusal or other form of alleged discrimination is […] (ii) a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society; [ 34 ] There is no dispute the Province is bound by the Act and may be found to have discriminated against a complainant thereunder (s. 21).

Procedural History and Decisions under Review The complaints [ 35 ] On August 1, 2014, the individual appellants and the DRC filed complaints with the Nova Scotia Human Rights Commission. [13] The Province, representing the Minister of Community Services and the Minister of Health and Wellness, was named as respondent. Each of the complainants set out individualized and detailed claims of discrimination. Beth MacLean’s complaint [ 36 ] Ms.

MacLean asserted: I, Beth MacLean, complain against the Respondent that from 1986 through to the present and continuing, the Respondent (“the Province”) has and continues to discriminate against me with respect to the social services provided to me because of the combined effect of my mental disabilities and my source of income (social assistance). (Emphasis in original) [ 37 ] She described her protected characteristics as: 1. My protected characteristics are the combined effect of my mental disabilities and my source of income (social assistance).

They have jointly combined to result in my being discriminated against in the provision of a service provided by the Province. As a person with mental disabilities who needs assistance in basic living arrangements, but without independent financial resources, I am completely dependent on the Province for whatever residential settings the Province makes available to me. [ 38 ] After describing the circumstances giving rise to her complaint, Ms. MacLean framed the alleged violation under the Act as follows: 39.

I feel that I am entitled to and should have been given the help and supports that I need to live in the community. The Province does provide assistance for people without disabilities who have no money; they are given the help they need by the Province to live in the community. The Province’s failure, since 1986, to take into account and accommodate my different needs in offering supports for me to live in the community is discriminatory and a violation of s. 5(1)(a), (

o) and/or (

t) of the Human Rights Act . [ 39 ] She described the effect of the alleged violation of her rights as follows: 42. This affected me in many ways. I have, effectively, been forced to remain in a locked unit in a psychiatric hospital even though I neither wanted nor needed to stay in the hospital. I have been unable to properly develop or to receive an education. I have been deprived of the chance to work and do other things in the community. I have been exposed to the problems of living in a psychiatric ward including noise and the risks of violence. [ 40 ] With respect to her current living arrangement, Ms.

MacLean asserted: 43. The fact that I remain at Emerald Hall presents two problems for me: a. I cannot develop as a person to the fullest extent possible – including learning to live and thrive as a member of a community.

b. In addition, my continued detention in Emerald Hall causes my mental and physical health and wellbeing to suffer. Sheila Livingstone’s complaint [ 41 ] In the complaint advanced on behalf of Ms. Livingstone, Ms. Cain asserted: 50. I complain against the Respondent that from 2004 through to the present and continuing, the Respondent (“the Province”) has and continues to discriminate against my sister, Sheila, with respect to the social services provided to her because of the combined effect of her mental disabilities and her source of income (social assistance). (Emphasis in original) [ 42 ] She described Ms.

Livingstone’s protected characteristics as follows: 51. Sheila Livingstone’s protected characteristics are the combined effect of her mental disabilities and her source of income (social assistance). They have jointly combined to result in her being discriminated against in the provision of a service provided by the Province. As a person with mental disabilities who needs assistance in basic living arrangements, but without independent financial resources, Sheila is completely dependent on the Province for whatever residential settings the Province makes available to her. [ 43 ] Ms.

Cain articulated the nature of the alleged human rights violation as follows: 77. The Province does provide assistance for people without disabilities who have no money; they are given the help they need by the Province to live in the community. The Province’s failure to take into account and accommodate Sheila’s needs in offering supports to live in the community during the period 2004 to 2014 is discriminatory and a violation of s. 5(1) (a), (

o) and or (

t) of the Human Rights Act . Further, the Province’s failure to offer Sheila the help and supports that she needs to live in the Metro Halifax community in the same way that people from Metro Halifax without disabilities who have no money are given the help they need by the Province to live in the community is discriminatory and a violation of s. 5(1) (a), (

o) and/or (

t) of the Human Rights Act . [ 44 ] The impact of the alleged violation on Ms. Livingstone was described by her sister as follows: 80. This treatment affected Sheila in many ways; she was unable to resume her life in the community and was excluded from opportunities for social interaction. Also, she was effectively forced to remain in a locked unit in a psychiatric hospital even though she neither wanted nor needed to stay there; she was exposed to the problems of living in a psychiatric ward including noise, risks of and actual, repeated violence at the hands of other people living there. 81.

Throughout her entire stay at Emerald Hall (i.e., from 2004 to 2014), there was no legal reason or requirement for Sheila to be actually living in Emerald Hall. […] 83. As a result of being made to live in this locked setting, Sheila was exposed to the risk of and actual repeated assaults, including having been assaulted recently on many occasions by fellow patients resulting in bruises and black eyes. (Emphasis in original) Joseph Delaney’s complaint [ 45 ] On behalf of her son, Susan Lattie asserted: 91.

I complain against the Respondent that from 2010 through to the present and continuing, the Respondent (“the Province”) has and continues to discriminate against my son, Joseph Delaney, with respect to the social services provided to him because of the combined effect of his mental disabilities and his source of income (social assistance). (Emphasis in original) [ 46 ] Mr. Delaney’s protected characteristics were described as follows: 92. Joey’s protected characteristics are the combined effect of his mental disabilities and his source of income (social assistance).

They have jointly combined to result in his being discriminated against in the provision of a service provided by the Province. As a person with mental disabilities who needs assistance in basic living arrangements, but without independent financial resources, Joey is completely dependent on the Province for whatever residential settings the Province makes available to him. [ 47 ] In the complaint, the alleged violation of Mr. Delaney’s human rights was framed as follows: 112.

I feel that Joey is entitled to and should have been given the help and supports that he needs to live in the Metro Halifax community in the same way that people from Metro Halifax community without disabilities who have no money are given the help they need by the Province to live in the community. The Province’s failure to take into account and accommodate Joey’s needs in offering supports to live in the community since July 2010 is discriminatory and a violation of s. 5(1) (a), (

o) and/or (

t) of the Human Rights Act . [ 48 ] Ms. Lattie described the effects of the alleged violations on her son: 115. This affected Joey in many ways, including that: he was effectively forced to remain in a locked unit in a psychiatric hospital even though he neither wanted nor needed to stay there; he has been unable to develop as fully as possible, to live and work and do things in the community that almost everyone else does; he has been exposed to the problems of living in a psychiatric ward including excessive noise and risk of violence. 116.

When he lived in a small options home, Joey was able to work at Dartmouth Adult Services Centre 5 days a week and he enjoyed interacting with the people there on a day-to-day basis and at staff celebrations. 117. Joey connected well with the staff at his community home, and enjoyed going on car rides and shopping trips, working on puzzles, singing, and dancing around the home. Joey is denied these opportunities while he resides at Emerald Hall, and also suffers from adverse impacts by continuing to live there. 118. Emerald Hall is a locked unit designed for people with dual diagnosis in acute crisis situations.

In this disruptive, institutional, and isolated setting, the skills that Joey gained while living in community placements that allowed him to interact socially and function more independently are deteriorating. 119. Joey is currently developing skills and behaving in ways that help him cope in the institutional setting of Emerald Hall. This institutionalized behaviour may be functional in an institutional setting, but it is detrimental and counterproductive to Joey learning to live in a community setting. The DRC’s complaint [ 49 ] The DRC’s complaint will be reviewed in more detail in the reasons to follow.

By way of background, the discriminatory conduct alleged by the DRC was described as follows: 135. Although DRC has had no direct involvement with any of the individual complainants, this complaint relates to the types of experiences with which DRC is all too familiar. Our organization is acutely aware of the barriers and challenges to community living experienced by many persons with disabilities, and in particular the harmful effects of long-term residence in institutions such as Emerald Hall.

In our advocacy role in pursuit of deinstitutionalization, the DRC has endorsed the following definition of “institution,” which the Emerald Hall unit of the Nova Scotia Hospital fits: An Institution is any place in which people who have been labeled as having an intellectual disability are isolated, segregated and/or congregated. An institution is any place in which people do not have, or are not allowed to exercise, control over their day to day decisions. An institution is not defined merely by its size. [14] 136.

The Province’s treatment of the individual complainants, and the adverse impact of the Province’s failure to provide meaningful access to public assistance that will enable them to live in the community, is part of a systemic failure that will adversely affect many persons with disabilities who are in need of public assistance in Nova Scotia at some point in their lifetime.

In the case of the individual complainants, these adverse impacts include both the harmful effects on their physical and mental health of being effectively forced to live in a locked psychiatric ward and the adverse consequences of being deprived of the opportunity to live and participate to the extent possible in the community. These are typical of the types of impacts of the Province’s failure to provide supports and services to persons with disabilities. 137.

At a systemic level, some individuals with disabilities need supports that non-disabled individuals do not need in order to live in the community and exercise some control over their lives. Thus, for persons in need and in receipt of social assistance, equality/non-discrimination require recognition of differential need; it is discriminatory not to provide for the

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