Let disabled decision stand: NDP

The leader of the New Democratic Party has again called on Premier Tim Houston to drop his government’s application to seek an appeal of a landmark court ruling on supportive housing for people with disabilities.

“In my view this decision is a major error in judgment,” Gary Burrill said in a release. “I am asking the premier to reconsider his decision and drop the request to appeal.”

The history of this case dates back to 2014 when Joseph Delaney, Sheila Livingstone and Beth Maclean filed complaints with the Nova Scotia Human Rights Commission that they were forced to live in locked wards at the Emerald Hall psychiatric hospital in Dartmouth for years despite medical opinions that they could be housed in the community.

A human rights board of inquiry found in March 2019 that Delaney, Livingstone and Maclean were discriminated against but it ruled against a second claim by the Disability Rights Coalition of systemic discrimination against all people with disabilities.

Having argued that the decades-long treatment of people with disabilities, including unnecessary institutionalization and forced removal to remote areas far from family and friends, discriminated against all disabled people, the coalition appealed the board’s finding against systemic discrimination.

The Nova Scotia Appeal Court in its October decision upheld the coalition argument and ruled that the province had exercised systemic discrimination against the disabled.

'RECONSIDER'

Both Houston and Karla Macfarlane, the minister of community services, immediately told reporters that the government would not be appealing that court decision. Still, government had 60 days in which to make application to the Supreme Court of Canada for an appeal to be heard. On the last day, the government sought leave to appeal.

When the court decision was released, the premier said, “I just don’t think anybody should have to take their government to court to get their government to do the right thing,” Burrill said Monday.

“People with disabilities, and their advocates, have been fighting for decades for equal access to services,” Burrill said. “The court decision makes clear that the province has been discriminating against people with disabilities for far too long. The premier has brought the integrity of his word, and of his government's word, into question with this appeal. I hope he will reconsider.”

In his letter to the premier, Burrill said the case was a “vital review of the situation of the many people in Nova Scotia who need supportive housing, who are living in institutional settings because the government has not provided adequate and appropriate housing options in the community.”

Claire Mcneil, lawyer for the Disability Rights Coalition, said Monday that the provincial government or any other applicant does not have a right of appeal with the Supreme Court of Canada. They seek leave or permission to appeal and the court then decides, in a timeframe that she suggests will take six months or more, whether or not to hear the appeal.

“They file it, you respond to it and then you wait,” Mcneil said of seeking leave to appeal. The court does not commit to any timeline.

When the 60 days that the government waited before seeking its permission to appeal is added in, should the Supreme Court see fit to hear the appeal, it would likely be eight months removed from the Nova Scotia court’s decision.

In the meantime, the Nova Scotia human rights board of inquiry hearing is stuck in limbo. The Nova Scotia Appeals Court decision meant that the human rights board of inquiry would have to conclude its hearing on systemic discrimination.

The board that completes the hearing won’t be the same board of inquiry that originally heard the case, Mcneil said. Instead, a newly constituted board of inquiry will address the systemic discrimination issue but Mcneil said the the board has been waiting for the province since mid-december to say what its position is in relation to finalizing the matter, which will include a remedy for systemic discriminiation.

The province’s lawyers recently requested a delay because they had filed a Supreme Court of Canada application, Mcneil said. The board will hear the province’s argument for a delay on Feb. 16.

WAITING EIGHT YEARS

“We’ve been waiting eight years and we have a very strong decision from the Court of Appeal,” Mcneil said. “Ironically, the provincial government is saying they don’t question that decision, so let’s get on with it, let’s get a solution to this problem. They are not disputing the facts here and the fact is that there’s discrimination against hundreds and hundreds of people every day here in Nova Scotia.”

Mcneil said there’s been “no assessment of the strengths or weaknesses,” of the provincial government’s application to the Supreme Court, so “for them to automatically be able to stop the clock because of an application nobody has evaluated for its strengths and weaknesses is grossly unfair to us.”

The province did not request that the high court stay the Nova Scotia Appeal Court decision pending a decision on whether it would hear the appeal.

Mcneil said the Disability Rights Coalition has filed a response to the government’s argument in its application. She said the government argument is in part that the Nova Scotia Appeal Court applied the wrong principle of law.

“These are very settled areas of law and, in fact, there was a very clear decision from the Supreme Court of Canada on exactly this point in the last year that goes against the (government argument) and that settled the law,” she said.

“The Supreme Court of Canada doesn’t hear cases lightly, they hear cases that are of national or public importance and we say that this does not fall into that category. This is basically a party who is mad that they lost and wants another kick at the can.”