Disability Rights Coalition v Nova Scotia: Unnecessary Institutionalization is Discrimination, NSCA Finds

In Disability Rights Coalition v Nova Scotia (Attorney General), 2021 NSCA 70 [DRC], the Nova Scotia Court of Appeal (“NSCA”) made a “ground-breaking” decision upholding the right of disabled Canadians not to be unnecessarily institutionalized. In this decision, the NSCA upheld a finding of discrimination against three individuals who were unnecessarily institutionalized due to a lack of funding and delay in placing them in community living. The NSCA also went further than the initial decision of the Nova Scotia Human Rights Board of Inquiry (“the Board”), finding systemic discrimination against Nova Scotians with disabilities in the provision of social services, and overturning discriminatory reasoning that limited the quantum of damages awarded to the complainants.

Factual Background: Beth, Sheila, and Joseph’s Stories

This case was brought by Beth MacLean, Sheila Livingstone, and Joseph Delaney—three adults with mental disabilities who were institutionalized in Nova Scotia (“the Province”) for longer periods than deemed medically necessary because Nova Scotia did not fund community living placements for them.

Beth MacLean was placed in an institution at age 14, and lived there for 14 years without any assessment of the appropriateness of her ongoing institutionalization. After 14 years, she was transferred to the Nova Scotia Hospital (“NSH”), a psychiatric facility, because she acted out and damaged property. She was told she would be there for a year to regulate her behaviour, but was ultimately institutionalized there for 16 years. During Beth’s time at the NSH, she expressed her desire to leave the hospital, and staff members repeatedly told the Province that she did not need ongoing treatment and should be discharged. She was eventually transferred to community living, and sadly died just before the NSCA released its decision (DRC, para 18)

Sheila Livingstone had been in and out of institutions since age 12. She had several short-term admissions to Emerald Hall at the NSH, but once stabilized, she would return to her home in the community. After one longer stay, the province discontinued funding for her community living placement and instead put her on a waitlist for another placement. While on the waitlist, she had to remain at Emerald Hall—and ultimately remained there for nine years. She was repeatedly physically assaulted by other patients. After nine years, she was offered a community placement in Yarmouth, which was far from her family and left her isolated from her loved ones. She remained there until her death, which occurred before the Board released its first decision (DRC, para 19).

Joseph Delaney lived in an institution as a child but resided in a community home as an adult for 14 years. He was hospitalized at Emerald Hall to regulate an electrolyte disruption from his medications. Despite being ready for discharge several months after his admission, and despite medical staff agreeing he did not require ongoing hospitalization, he remained at Emerald Hall for five years because the province ceased funding his community living placement. After five years, he was transferred to another rehabilitation centre, Quest, but returned to Emerald Hall two years later because staff were having difficulty managing his behaviour. He remained at Emerald Hall at the time of the hearing (DRC, para 20).

Human Rights Complaint

In 2014, Beth, Sheila, and Joseph filed human rights complaints with the Nova Scotia Human Rights Commission (“NSHRC”) alleging that Nova Scotia discriminated against them on the basis of mental disability and financial status while they had been institutionalized at the NSH. In addition to their individual complaints, the Disability Rights Coalition, a group of disability advocacy organizations and individuals, also filed a claim alleging that the discrimination they experienced was a product of systemic discrimination against people with mental disabilities (DRC, para 2). The alleged systemic discrimination included inadequate access to social supports and services, the failure to provide timely access to community living supports and services, the resulting unnecessary institutionalization, and placements outside of communities of origin that resulted in separation from friends and family (DRC, para 197). The Disability Rights Coalition argued that through these failings, the Province “separates disabled persons from their communities and excludes them from an equal opportunity to enjoy a full and productive life” (DRC, para 197).

At the NSHRC, the Board found that each complainant established a case of prima facie discrimination because they were institutionalized for longer than was medically necessary, which disadvantaged them on the basis of mental disability. As a remedy, the Board ordered that Beth and Joseph be placed in community living facilities, and that the Province pay a net award of $100,000 to each, and $10,000 each to two of Sheila’s surviving relatives. (DRC, para 93).

However, the Board dismissed the Disability Rights Coalition’s complaint of systemic discrimination, concluding that no general statement could be made about the adverse effects that all disabled people face by being placed on long waitlists or by being institutionalized. They decided that all complaints would need to be assessed on an individual basis, based on whether the individual “had been given ‘meaningful access’” to the social service in question (DRC, para 202).  

NSCA Decision

Both sides appealed the Board’s decision. Ten issues were brought before the NSCA on appeal. This article will focus on three: whether the Board’s factual findings supported its conclusion; whether the Board erred in rejecting the Disability Rights Coalition’s systemic discrimination claim; and whether the Board erred in assessing the quantum of damages.

Did the Board’s Factual Findings Support its Conclusion?

The NSCA upheld the Board’s findings that the Province prima facie discriminated against the complainants because of their unnecessary institutionalization, but also found that broader findings should have been made regarding Sheila and Beth. The NSCA concluded that the finding of discrimination against Beth should have been extended to the period in time during which Beth was unnecessarily institutionalized before her transfer to the NSH (DRC, para 179). Regarding Sheila, the Board found that her placement in Yarmouth was discriminatory because she was required to relocate in order to receive social assistance, which resulted in fewer family visits (DRC, para 180).

Did the Board Err in Concluding a Systemic Discrimination Claim was Unavailable?

The NSCA found that the Board erred in rejecting the Disability Rights Coalition’s claim of systemic discrimination. They found that the current model of social assistance delivery to people with disabilities, as compared to other income and employment supports available to non-disabled people, meant that “persons do not always receive assistance once they are determined to be eligible” (DRC, para 221). This, they explained, “can lead to unreasonable and unnecessary institutionalization,” as well as long waits to access services (DRC, para 221). Accordingly, the NSCA found that “[t]here is ample evidence in the record and the findings of the Board 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” (DRC, para 222). This disadvantage includes “years-long waits to receive services that persons with disabilities are statutorily entitled to receive, or having to relocate in order to receive those services,” as well as the potential for unnecessary institutionalization (DRC, para 222). Accordingly, the NSCA found that the Disability Rights Coalition established a prima facie case of discrimination, and remitted the systemic discrimination case to a hearing before a new Board for the Province to adduce evidence (DRC, para 223).

Did the Board Err in Assessing Damages?

The NSCA found that the Board erred in assessing damages. In part, it noted that the Board’s award of $100,000 to Beth and Joseph was made on the basis that their disabilities would limit the impact that a larger sum of money would have on their lives (DRC, para 239). The NSCA found that this was inappropriate, relying on the principle set out by the Supreme Court of Canada in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 SCR 211, that “damage awards to a person (or persons) with a mental disability should not be reduced on the basis that the recipient cannot appreciate or enjoy the award in the way that a person without a disability might” (DRC, para 250). Such an approach would imply that “discrimination against people with mental disabilities would be compensated on a lower scale, effectively, because their quality of life is lower” (DRC, para 251).

In re-assessing the appropriate award of damages, the NSCA took an individualized approach to each claim. It found that the appropriate amount to compensate Beth for her unnecessary institutionalization at the NSH was $300,000 (DRC, para 275). It made this finding based on the evidence that

“the Province’s conduct towards Ms. MacLean had a significant and lasting impact on her….She was capable of living a productive life in the community but was denied that opportunity. Her mental and physical well-being deteriorated while she was institutionalized. Ms. MacLean was denied any opportunity for something resembling a normal life.” (DRC, para 273)

Given Beth’s unfortunate death weeks before the decision was released, the NSCA invited further submissions on the impact of her death on the damages award (DRC, para 276). 

The NSCA found that Joseph’s seven-year institutionalization “resulted in a loss of his dignity and confidence,” and concluded that the Province owed him $200,000 in damages (DRC, paras 283-285). However, the NSCA found that the Survival of Actions Act, RSNS 1989, c 453, meant that Sheila could not be compensated for pain and suffering after her death, so held that her estate was not entitled to damages from the Province for Sheila’s pain and suffering (DRC, para 295). Further, the NSCA found that the Board had erred in awarding Sheila’s relatives for their many years of care for Sheila and efforts to have her transferred out of the NSH. The NSCA found that they did not have any compensable injury, and had not requested compensation, so they should not have been awarded any damages (DRC, paras 300-302). 

Analysis: A Clear, Though Somewhat Hollow, Victory

The NSCA’s decision in DRC was a clear victory for the rights of disabled people in Nova Scotia. In upholding the findings of individual discrimination and in making a finding of systemic discrimination against people with mental disabilities in Nova Scotia, the NSCA decision sent a clear message that governments must fund and facilitate community living for people with disabilities to ensure that they are not unnecessarily institutionalized. Pink Larkin, the law firm representing Beth, Sheila, and Joseph, noted that this decision was remarkable as it is the “first Court ruling in Canada regarding whether it is discriminatory to require persons with disabilities to live in institutional settings in order to receive necessary supports.” The NSCA’s emphasis on the necessity of allowing people with disabilities to live in the community—and, importantly, to live in their community—clarifies that funding shortages do not justify unnecessary institutionalization. There is ample evidence that institutionalization harms people with disabilities, even institutionalization in hospital facilities like the NSH, and that community-based living provides a better quality of life. Confirming that people with disabilities have a right to access these services, and a right not to be unnecessarily institutionalized, will have a significant impact on the quality of life of Nova Scotians with disabilities. 

The NSCA’s decision is also noteworthy in how it addressed damages. Pink Larkin confirmed that the $300,000 awarded to Beth in general damages is the largest award of general damages in a human rights case in Canada to date. Further, the NSCA importantly called out and rectified the ableist assumption that the Board had relied upon in limiting Beth and Joseph’s damages to $100,000. As they explained, if courts were to take an approach that reduced or capped the damage awards that people with severe disabilities were entitled to, then discrimination against people with disabilities would be compensated less than other forms of discrimination—which would, in turn, be furthering the discrimination that people with disabilities experience. Additionally, the whole premise is based on ableist assumptions about the quality of life of people with disabilities, and about what they can understand, appreciate, and enjoy. The Board stated that Joseph was “so disabled that payment to him of a very large sum will not have a greater impact on his life than a moderate sum,” and found that for Beth, “the potential benefit to her of a very large damage award is limited” (DRC, para 239). The Board does not specify why Joseph and Beth’s disabilities would prevent them from benefitting from a larger award of damages, and does not appear to contemplate the ways that a larger sum of damages could increase their quality of life, including through funding care and social supports. Further, this type of analysis is not used for non-disabled people—they do not need to prove they are capable of managing and appreciating money in order to be awarded large sums of damages. Why, then, should people with intellectual disabilities who have been wronged by the government have to prove they will benefit from a higher sum in order to receive the damages they are entitled to? Thankfully, the NSCA’s decision made it clear that this type of reasoning is not acceptable.

Despite the strong positive messages that the NSCA communicated, their decision in DRC is bittersweet, as two of the three initial complainants are no longer alive to witness and benefit from the NSCA’s decision. The NSCA decision came out seven years after Beth, Sheila, and Joseph filed their initial human rights complaint, and in the intervening years, both Sheila and Beth have died. Beth and Sheila were not able to see the impact of their courageous decision to bring this case forward, and at least Sheila will not receive any compensation for the harm she suffered from the government’s discriminatory actions. While DRC is undoubtedly a positive decision that will have significant implications for people with disabilities in Nova Scotia, when the process of seeking remedies in the court system has taken so long that two-thirds of the original complainants are no longer alive to see the remedy, the victory rings somewhat hollow.  

Image found here.