Systemic Human Rights Remedy Ordered
Having filed its human rights claim in 2014, the Disability Rights Coalition is very happy to report that we have achieved what we feel is a tremendous remedy to the systemic discrimination found by the Nova Scotia Court of Appeal in October 2021.
On June 28, 2023, the human rights Board of Inquiry approved an Interim Consent Order, which will start a step by step 5 year plan for the government to end the systemic discrimination of persons with disabilities in their access to social assistance including supports and services to live in community.
The Interim Consent Order between the Province, the DRC and the NSHRC, follows a report by Eddie Bartnik and Tim Stainton, jointly appointed, independent experts. The report has been made public and can be found here, with a plain language summary to be found here.
The Order is called “interim” because it is an initial Order requiring the Province to take action to end the systemic discrimination. A final order for the full resolution of the DRC’s human rights complaint will only happen when the government fully implements its entire legal obligations under the Interim Consent Order, thereby bringing to an end the discriminatory practices and policies identified by the Court of Appeal.
The final ‘outcomes’ include closing all institutions, ending the waitlist for access to social assistance including supports and services to live in the community of their choice, and fulfilling the government’s legal obligation to provide social assistance as an entitlement to all persons in need, in a manner that is consistent with the Human Rights Act.
The remedy is a legally binding Interim Consent Order which imposes legal obligations on the Province to fix the systemic discrimination by March 31, 2028.
The Remedy has two basic parts:
- The Interim Consent Order, containing Schedule 1, titled “Interim Settlement Agreement”
- This is the Order recently signed and approved by the Board of Inquiry on June 28, 2023. It includes the formal finding of systemic discrimination. It is the legal document that makes all of the schedules and appendices legally binding;
- It includes a legally binding independent human rights monitoring and enforcement process designed to keep the Province accountable. It provides for ongoing disclosure by government and a robust independent monitoring of the implementation of the Order
- It provides a review process to identify if there are any significant lapses along the way through regular reporting requirements on government that are reviewed by an independent Expert Monitor on an annual basis.
- It provides an enforcement mechanism through the Board of Inquiry.
- This document sets out the very detailed monitoring and enforcement process including:
- the appointment of an expert monitor with the power to receive and request disclosure from the Province, submissions from the parties and provide a written report concerning the government’s progress in meeting its obligations under the Order
- disclosure obligations on government every 6 months
- annual reporting and disclosure by the government
- review by an expert monitor including submissions from the parties
- review by the Board of Inquiry upon application by a party
- public access to all documents in relation to the monitoring process including a dedicated website hosted by the Nova Scotia Human Rights Commission containing an extensive amount of data and documentation relating to implementation of the Order, the Province’s annual reports, as well as copies of the independent monitor’s reports and the submissions made by the DRC.
CLICK HERE to see the Interim Consent Order, containing Schedule 1, titled Interim Settlement Agreement
- The 5 year implementation plan July 1 2023- March 31 2028
A step-by-step process that the Province has agreed to carry out over a five-year period. Essentially, this is a list of actions which the Province is legally bound to do and the timing as to when it will do them – it is strongly linked to the recommendations contained in the Independent Experts Report in Appendix E ;
The Appendices:
- Appendix A: The detailed year by year list of concrete steps and progress that the Province is legally obliged to take to remedy the systemic discrimination.
- Appendix B: Data Disclosure Requirements: This appendix contains a detailed list of the kinds of data that the Province will be releasing annually, and which will be used to measure and assess its progress in the implementation of the Remedy
- CLICK HERE TO SEE APPENDIX B
- Appendix C: Document Disclosure Requirements: With each annual Progress Report, the Province will disclose an extensive list of documents.
- CLICK HERE TO SEE APPENDIX C
- Appendix D: Outcomes: This key document sets out what the Province must achieve (“outcomes”) in order for it to be eligible apply to the Human Rights Board of Inquiry to have the legal finding of systemic discrimination against persons with disabilities lifted.
- CLICK HERE TO SEE APPENDIX D
- Appendix E: Report of Eddie Bartnik and Tim Stainton dated February 6, 2023
- CLICK HERE TO SEE APPENDIX E
DRC Human Rights Complaint: Province applied for and was denied permission to appeal to the Supreme Court of Canada
On December 3rd, 2021, the Province announced that it had changed its mind. Despite informing the public on the day after the decision from the NS Court of Appeal that it would NOT appeal, the Province announced that it would, in fact, ask the Supreme Court of Canada (‘SCC’) for permission to appeal the case to that Court.
The Parties’ submissions to the Supreme Court of Canada (as well as the earlier stages of the case) can be found here.
On April 14th, 2022, the Supreme Court of Canada released its decision on the Province’s application for permission to appeal the Court of Appeal’s decision. The top Court dismissed the Province’s request to appeal. In doing so, the Supreme Court awarded costs against the Province, payable to the DRC.
The DRC Human Rights Complaint before the Nova Scotia Court of Appeal
In a landmark decision on October 6th, 2021, the Nova Scotia Court of Appeal decided that the Province of Nova Scotia had been and was continuing to systemically discriminate against persons with disabilities in its provision of social assistance.
By way of background, the Disability Rights Coalition, the Province and the three Individual human rights complainants had all filed appeals of the March 4, 2019 Board of Inquiry Decision and the Board of Inquiry’s December 2019 Compensation award.
The DRC complaint addressed the discriminatory systemic impacts of the Province’s policies and practices that have resulted in the unnecessary institutionalization of hundreds of people with disabilities, and a growing delay in obtaining supports and services to live in the community for other people with disabilities – currently numbering over 1,900 people.
In its appeal, the Province’s approach was to try to have all the complaints dismissed in their entirety.
In October 2021, the Nova Scotia Court of Appeal upheld both the individual and systemic human rights complaints. The Court of Appeal ordered that the Complaint process must continue to the next stage before a (new) Board of Inquiry where the Province has an opportunity to try to ‘justify’ the discrimination. If the Province chooses this route, the Board of Inquiry will hold hearings to determine whether ‘justification’ has been shown.
If the Province chooses not to try to ‘justify’ the systemic discrimination that was found by the Court of Appeal, the case will then move to the final stage—what is the proper ‘remedy’ or solution required to fix the systemic discrimination against persons with disabilities.
What is the Case About?
The legal case is a human rights complaint of systemic discrimination by and on behalf of persons with disabilities and is about the Province of Nova Scotia’s failure to treat people with disabilities in a way that ensures that all persons with disabilities are supported to live in community. The Nova Scotia Court of Appeal found that the Province is discriminating against people with disabilities in failing to live up to their legislative obligations under the Social Assistance Act and denying people with disabilities the same access to social assistance including supports and services to live in the community that non disabled recipients are given.
The Human Rights Complaint
Summary: The complaint was filed by three individuals and the Disability Rights Coalition against the Province of Nova Scotia on August 1, 2014. The complaint states that the Province has systemically discriminated against, 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. The complaint states that the Province has basically ignored the needs—and rights—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 Human Rights Board of Inquiry
Here’s what has happened so far
The Board of Inquiry’s decision (March 4, 2019) upheld the Complaint by the three individual complainants while dismissing the Disability Rights Coalition’s complaint of systemic discrimination on behalf of other persons with disabilities. In doing so, the Board’s decision stated that other persons in similar circumstances would have to file their own human rights complaints.
The Human Rights Board of Inquiry Discrimination Decision (March 4, 2019)
In the case of the Individual Complainants, once the Board found there to be discrimination against them, the Province did not try to justify its discriminatory treatment. Therefore, the matter moved directly to the solution or ‘remedy’ stage—what would be the best remedy for the individual complainants in this case? In December 2019, the Board of Inquiry made an award to the Individual Complainants.
To see the submissions filed before the Board of Inquiry regarding the appropriate remedy, click here.
The Human Rights Board of Inquiry Remedy Decision (December 4, 2019)
The Board’s Remedy Decision was appealed—by both the Province and the Individual Complainants. Those appeals were consolidated into the appeal by the Disability Rights Commission and were all heard and decided together by the Nova Scotia Court of Appeal.
The Board’s Remedy Decision was appealed—by both the Province and the Individual Complainants. Those appeals were consolidated into the appeal by the Disability Rights Commission and were all heard and decided together by the Nova Scotia Court of Appeal.
Details on those appeals (including the legal submissions filed by the parties) can be found here.
As a result of the October 2021 Decision of the Nova Scotia Court of Appeal, the case is now back before the Board of Inquiry for a ‘justification’ stage where the Province is seeking to justify the discrimination that the Court of Appeal found in its October 2021 decision.
This is taking place before the resumed Board of Inquiry at the same time as the Supreme Court of Canada application is happening.
What You Can Do
Important Selected Documents from the Human Rights Case
Here you will see a selection from the thousands of pages of documents that were filed with the Human Rights Board of Inquiry. These include government reports going back to the 1980s that recommended that the practice of institutionalizing people with disabilities be stopped. There are also many government documents which became public only through the human rights proceeding.
Legal submissions and Briefs
Here you will find the legal submissions that have been filed with the Supreme Court of Canada, the Nova Scotia Court of Appeal and the Human Rights Board of Inquiry.
Links to Media Coverage
