On October 6, 2021, the Nova Scotia Court of Appeal (the “Court”) released its decision in Disability Rights Coalition v. Nova Scotia (Attorney General). The Court made a number of important, positive findings that advance the interests of people with developmental disabilities in Nova Scotia and across Canada and endorsed a people-first, social inclusion model for supporting people with disabilities.
In 2014, Beth MacLean, Sheila Livingstone and Joseph Delaney (the “Individual Applicants”) filed complaints with the Nova Scotia Human Rights Commission. They alleged the Province of Nova Scotia (the “Province”) had discriminated against them in the provision of a service by failing to provide adequate supports and residential supports in the community to them, as people with disabilities who do not have the financial resources to pay for private services, contrary to Nova Scotia’s Human Rights Act (the “Act”). They alleged the discrimination was based on their “mental disabilities” and financial status. 
The Individual Applicants all have intellectual disabilities as well as underlying medical conditions and mental health issues. All three Individual Applicants were eligible for provincial social assistance benefits through the Department of Community Services, and at various times, lived in institutional settings. Each applicant spent unexpectedly long periods of time in hospitals and psychiatric units, were placed on long waitlists for supportive housing, and at times lost their community housing spots and/or funding for community supports due to being periodically institutionalized.
The Individual Applicants claimed that as a result of the Province’s discriminatory practices, they, along with many others in a similar position have no option but to live in institutions such as hospitals and psychiatric units without social interaction or engagement with community. The Individual Applicants claimed they experienced serious delays in receiving assistance that accommodated their disability-related needs, which prevented them from becoming contributing members in their community and adversely impacted their mental and physical health. Unfortunately, Ms. Maclean and Ms. Livingstone passed away during the course of the litigation.
The Disability Rights Coalition (the “DRC”), a group of disability rights advocates in Nova Scotia, was joined as an applicant, claiming the Province’s historic use of institutions as residential placements for people with disabilities and the inadequate supports and services available to people with disabilities to live in their own communities, amounted to systemic discrimination by “creating a barrier to their social inclusion, and perpetuates stigma and stereotypes associated with disabled persons and their ability to participate in society and in their communities.”
At the Human Rights Board of Inquiry (“HRBI”)
The hearing before the HRBI focused on the nature and conditions of the institutions where the Individual Applicants had stayed, the nature of the social assistance benefits available to them, and the types of services available to people with disabilities in Nova Scotia, including residential placements and supports.
The HRBI ultimately concluded:
- [T]he Province had prima facie discriminated against the Individual Applicants.
- All disabled people are, by virtue of the Supreme Court of Canada’s opinion in Moore, entitled to meaningful access to generally available services. Extended time on a waitlist, depending on the individual circumstance, may be a limiting or a denial of a benefit or opportunity available to others and prima facie be discrimination.
- Even if placing and retaining the Individual Applicants at the Nova Scotia Hospital was not prima facie discriminatory in and of itself, it was prima facie discriminatory over the long term to limit or deny them meaningful access to other available services.
- The definition of disability under the Act includes all forms of disability and not just those recognized by the Department of Community Services. Discrimination does not recognize silos.
- The Province’s actions did not amount to systemic discrimination. Each case must be examined to determine whether the particular individual has been denied meaningful access.
Finally, the HRBI awarded damages to each plaintiff, and ordered that the two living applicants be placed in supportive housing in the community.
All parties appealed aspects of the Court’s decision. The DRC appealed the HRBI’s finding regarding systemic discrimination, the Individual Applicants appealed the discrimination finding, alleging it was erroneously narrow, and the Province appealed HRBI’s finding of discrimination on the merits.
Court of Appeal’s Findings
The Court’s findings included:
- The Board did not err in finding prima facie The Court concluded, “simply put at the heart of the claim of the discrimination is this: to place someone in an institutional setting where they do not need to be in order to access their basic needs, which the Province is statutorily obligated to provide, is discriminatory.” The Province has effectively chosen to take a relaxed approach to providing assistance to people with disabilities despite its obligations under social assistance litigation.
- The Court’s decision to uphold the finding of discrimination did not justify remitting the decision back for a justification hearing.
- “Service” is a term meant to be interpreted broadly and the HRBI erred in its interpretation of service. The Court concluded that “services” could be interpreted to mean the provision of social assistance (i.e. provision of benefits to those deemed eligible) and confirmed that where the government is providing an existing benefit, it cannot do so in a discriminatory way.
- The ‘comparator analysis’ is outdated and is not a mandatory element of the test for discrimination. The HRBI erred in comparing the Individual Applicants to others receiving social assistance benefits for people with disabilities.
- The Court recognized the “history [of] segregation and exclusion” experienced by people with disabilities across Canada and found that the HRBI erred in conflating the tests for individual and systemic discrimination. Ultimately, proof that every individual within a group with a protected ground be directly and adversely affected is not required for a finding of systemic discrimination. 
- The Court clarified that “in order for a board of inquiry to engage in a broad-based analysis concerning the systemic impact of allegedly discriminatory policies, the complaint must be framed in that fashion. Such an inquiry cannot be undertaken in response to an individual complaint of discrimination.” Therefore, the evidentiary record is very important for a claim of systemic discrimination to be successful. For example, the Court acknowledged the evidence before it, including the waitlist for community residential supports of over 400 eligible people with disabilities, which demonstrated that just being eligible for assistance does not mean the assistance will be received by all individuals, which can have “potentially severe impacts” on people with disabilities.
- The Court noted in this case that there was “ample evidence” “to support the conclusion that the manner in which the Province provides social assistance to persons with disabilities [creates] a disadvantage that is unique to them and not applicable to assistance given to non-disabled person under [the other legislative framework].” The Court found that this differential treatment could result in institutionalization, years-long waitlists to receive services people with disabilities are statutorily entitled to receive, or having to relocate to receive services, thus amounting to systemic discrimination. 
- Finally, the Court increased the amount of damages owed to two of the three applicants, finding that the HRBI failed to provide a basis for its award and erred in limiting the amount based on a person’s disability. The HRBI also erred in not considering deterrence as part of the quantum analysis for damages. Lastly, the HRBI erred in awarding damages to the sister and aunt of the third individual applicant.
This case is important not only for Nova Scotians with disabilities, but for people with disabilities and their advocates across Canada. Some of the key takeaways from this case are:
- The Court offered important opinions on the use of inclusive, respectful language in legal reasons relating to people with disabilities. The Court stated that, “despite tailoring [its] analysis to match the wording of the legislation (which uses the term “mental disability”) [it] endeavoured to use language, where possible, that reflects a “person first” approach to discussing the individuals central to these reasons.”
- The Court’s clear finding that inadequate access to disability-related supports and services including waitlists, relocation and institutionalization, constituted systemic discrimination is precedent setting. Furthermore, it forms an important basis for creating systemic change both in Nova Scotia and in other provinces to ensure sufficient, equitable access to supports and services for people with disabilities which promotes social inclusion and living in the community.
- The decision highlights the ongoing concerns people with disabilities and their support networks have with respect to the adverse effects of being eligible for services, but not being able to meaningfully access such supports and the associated risks to people’s mental, physical and emotional wellbeing.
Finally, the Premier of Nova Scotia has indicated his government will not appeal the Court’s decision. Instead, he has indicated he wants to work with the disability community and stakeholders to ensure adequate supports are in place.
PooranLaw will continue to monitor legal developments related to human rights for people with disabilities. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
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