CCD Part of Coalition Seeking to Intervene in Case Focused on Supports to Live in the Community

The Council of Canadians with Disabilities (CCD) will be applying to intervene in a case at the Nova Scotia Court of Appeal which raises issues of national importance affecting the fundamental human rights of persons with disabilities. CCD is collaborating in its proposed intervention with the Canadian Association for Community Living (CACL) and People First of Canada (PFC) (together, “the Coalition”). The Coalition is seeking to intervene on the issue of the interpretation and application of the test for systemic discrimination. The approach adopted by the Board of Inquiry would exacerbate the existing barriers to human rights protections and access to justice for persons with disabilities who are uniquely vulnerable to systemic discrimination.

Background

The proposed intervention is an appeal from a decision of the Board of Inquiry of Nova Scotia which determined that (1) three individuals had been discriminated against in the provision of or access to services or facilities based on their mental and physical disability (2) there had not been any systemic discrimination.

The three individuals in this case were all retained involuntarily and against medical advice in institutions (including hospitals) for a long period of time. While the Board of Inquiry found that this treatment was discriminatory, it was not satisfied that the systemic complaint brought by the Disability Rights Coalition (DRC) was substantiated. The DRC argued that “the Province [Nova Scotia] has discriminated, not just against the three named complainants, but against all people with disabilities in Nova Scotia who have been denied supports and services in order to live in the community.”

According to the Halifax-based DRC, “the Province has basically ignored the needs of hundreds/thousands of low-income persons with disabilities who need supports and services to live in community and, in doing so, has violated their fundamental human rights.” 

The DRC has appealed the decision to the Nova Scotia Court of Appeal and the Nova Scotia Government has filed a cross-appeal of the decision.

Appeal of the Board of Inquiry Decision

The central issue of the appeal is the proper interpretation of the test for discrimination as it applies to individual and systemic human rights complaints. The Board found that every claim of discrimination needs to be assessed on an individual basis, despite evidence that every person on the waitlist for services, in institutions and elsewhere, has already been assessed by government to be both eligible and capable of living in community.  Despite this evidence the Board found that no ‘general rule’ could be applied to make a finding of systemic discrimination in the government failure to provide timely access to the basic services needed to live in community.”

The Winnipeg-based Public Interest Law Centre (PILC) and Thompson Dorfman Sweatman have agreed to act as pro bono counsel for the Coalition.  The lawyers working on the case are Byron Williams and Joëlle Pastora Sala from the Public Interest Law Centre and Sacha Paul, Sharyne Hamm and Miranda Grayson from Thompson Dorfman Sweatman.  We are pleased to say that, if standing is granted, CCD’s Human Rights Committee, chaired by Anne Levesque, will be coordinating the CCD’s input into the arguments that are made by the Coalition of Intervenors.

The Coalition will be focusing on the Board of Inquiry's erroneous finding that no systemic discrimination exists, and will outline for the Court how the Board should have approached the question.  Specifically, the Coalition will argue that Board should have used a systemic lens to analyze how systems operate and whether or not they create discrimination through action or inaction. The Board of Inquiry's erroneous interpretation and application of the test of prima facie discrimination could have the impact of subverting future claims of systemic discrimination for all persons in a protected category. 

This is a very important case for the disability community as it not uncommon for systems to have unintended negative consequences for persons with disabilities.

The DRC case will provide the disability community with an opportunity to further push for implementation of Article 19, of the UN Convention on the Rights of Persons with Disabilities (CRPD), which focuses on living independently and being included in the community. Article 19 says,

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.

Canada’ first official report on CRPD implementation was released in 2015. As is usual with UN Human Rights reports, soon after the official report was released Canadian disability organizations issued a parallel report.  The Canadian Civil Society Parallel Report Group specifically addressed Article 19 with two recommendations that that are especially important here:

• “Canada must ensure that people with disabilities are not institutionalized, and that all large institutions make plans to close and accept no new admissions.
• Canada must work with the provinces and territories to ensure the people with disabilities are provided with the supports needed to live independently in the community.”

The UN Committee on the Rights of Persons with Disabilities picked up on the disability community’s concerns regarding the barriers that people with disabilities are experiencing related to being supported to live in the community.  In its 2017 “Concluding Observations on the initial report of Canada ”,  the UN CRPD Committee identified problems relating to the institutionalization of people with disabilities and the lack of disability-related supports¹.  Notably the Committee recommended that Canada, “Ensure that provincial and territorial jurisdictions set up strategies with time frame to close institutions and replace them with a comprehensive system of support for independent living, including in home support and personal assistance for persons with disabilities;”

Most recently, in April of 2019, issues related to institutionalization and the lack of disability-related supports to enable people to live in the community caught the attention of Ms. Catalina Devandas-Aguilar, the UN Special Rapporteur on Disability Rights.  The Special Rapporteur, visited Nova Scotia and actually toured the facility in question and spoke with lawyers involved in the appeal at the beginning of April.  In media comments at the end of her visit to Canada, the Special Rapporteur made the following points on the type of issues being addressed by this case:

“I am extremely concerned about the lack of comprehensive responses to guarantee the access of persons with disabilities to the support they need to live independently in their communities. Whereas legislation, services and programmes vary across provinces and territories, generally access to support is not considered as a right, but rather as a social assistance programme dependent on the availability of services.

“Moreover, many support services and programmes are run by non-profit organizations, with limited funding and guidance from the provincial and territorial governments. Consequently, persons with disabilities have limited access to different forms of support (including income support, home support, and respite centers), experiencing long waiting time up to several years. While some pilot projects have shown their potential to transform service provision (e.g., the initiatives to provide personalized direct funding), the overall identification, systematization and scaling-up of such initiatives remain a challenge.

CCD will do additional blogs about the appeal as the case moves forward.

[1]                      What follows is the CRPD Committee’s full comments in their 2017 Concluding Observations concerning Canada’s progress on community inclusion:

“Living independently and being included in the community (art. 19)

1.        The Committee commends the steps taken by different provinces in the State party towards de-institutionalization, in particular welcomes the information that Ontario closed its last residential institution for persons with ‘developmental’ disabilities in 2009. However, the Committee is concerned that persons with disabilities continue to be placed in institutions across provinces, such as Alberta, British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Quebec, as well as territorial reserves. It is also concerned about the lack of adequate services and supports available to persons with disabilities within Canada’s 619 First Nation communities.
2.        The Committee recommends that the State party:

          (a)Adopt national guidelines and provide permanent advice to provincial and territorial jurisdictions towards the recognition of the right to living independently and being included in the community as a subjective and enforceable right for persons with disabilities, reaffirming the principle of respect for individual autonomy of persons with disabilities and their freedom to make choices about where and with whom to live;

          (b)           Adopt a disability human rights approach in all housing plans and policies at all levels. To that end, the State party should increase the availability of affordable and accessible housing units for persons with psychosocial and intellectual disabilities, as well as support services;

          (c)           Ensure that provincial and territorial jurisdictions set up strategies with time frame to close institutions and replace them with a comprehensive system of support for independent living, including in home support and personal assistance for persons with disabilities;

          (d)           Ensure that accessibility legislation, plans and programmes include the accessibility of services and facilities with the aim to facilitate inclusion in the community and prevent isolation and institutionalization of persons with disabilities; and

          (e)           Ensure appropriate service provision within First Nations communities (on reserve) to individuals with intellectual and/or psychosocial disabilities.”