MacLean Case, a Nova Scotia Court of Appeal Case

On 20 June 2019, the Council of Canadians with Disabilities (“CCD”) along with the Canadian Association for Community Living (“CACL”), and People First Canada (“PFC”) were granted leave to intervene at the Nova Scotia Court of Appeal in a case involving the right of persons with disabilities to live in their community with supports.  The coalition of national organizations will be presenting their oral legal arguments at the Nova Scotia Court of Appeal in November 2020 (subject to any restrictions relating to the pandemic).

The appeal was launched by the Disability Rights Coalition (the “DRC”) of Nova Scotia. At the root of the appeal is a human rights Board of Inquiry decision from 4 March 2019 which dismissed the DRC complaint based on a systemic discrimination claim while allowing three individuals’ complaints. The Decision also found that three individuals had been discriminated against because they had been “needlessly retained” in Nova Scotia institutions such as the unit of the Nova Scotia Psychiatric Hospital known as Emerald Hall.

The DRC filed a human rights complaint seeking a systemic human rights remedy that would require the Province of Nova Scotia to provide meaningful access to all persons with disabilities in Nova Scotia to supports and services to live in the community.

The Board of Inquiry decision found that “successive governments of all political stripes simply ignored everyone over decades and condemned our most vulnerable citizens to a punishing confinement.” Despite this finding, the Board of Inquiry found that there was no systemic discrimination against all persons with disabilities who reside in institutions or who are waiting on waitlists for community living services.

The national organizations will support the appeal by the DRC by arguing that the Board of Inquiry's analysis of systemic discrimination was flawed. The national organizations also wish to highlight the potential negative impacts of the decision on access to justice for persons with disabilities. The Board determined that it would have to separately consider the negative impacts of institutionalization on each impacted individual in order to determine whether there was discrimination in each individual case. If accepted, this type of analysis could prevent national organizations such as CACL, CCD and PFC from bringing forward systemic discrimination complaints and would force individuals into time consuming, costly, and frequently inaccessible legal proceedings.

The national organizations are represented by the Public Interest Law Centre (Winnipeg, Manitoba) in collaboration with a pro bono team of lawyers from Thompson Dorfman Sweatman LLP (Winnipeg, Manitoba).