Case: Disability Rights Coalition v. Nova Scotia (Attorney General), 2021 NSCA 70 (CanLII)
Keywords: systemic discrimination; social assistance; Human Rights Act, RSNS 1989, c 214
The Appellants file complaints with the Nova Scotia Human Rights Commission alleging the Province discriminates against them in the provision of a “service”, contrary to the Human Rights Act, R.S.N.S. 1989, c. 214. The alleged discrimination arises from the Appellants’ “mental disabilities” and financial status. (See para. 1). The “Disability Rights Coalition”, an alliance of disability advocacy groups and individuals, files a complaint alleging the discrimination is “systemic”. (See para. 2). The Province denies it treats the Appellants in a discriminatory fashion and denies systemic discrimination its provision of services to disabled persons. (See para. 3).
A Board of Inquiry, chaired by J. Walter Thompson, Q.C. finds three individual complainants establish prima facie discrimination under the Human Rights Act. This finding is restricted, however, to the individuals and to the time periods during which they were “housed in a locked psychiatric unit of the Nova Scotia Hospital”. The Board dismisses the systemic discrimination claim. (See para. 4).
Following a second hearing to address remedies, for the individual complainants, the Board awards damages of $100,000 to the complainants, plus costs to their legal counsel. (See para. 5). According to the Court of Appeal, “[n]o one is content with the Board’s decisions”. (See para. 6).
The Court of Appeal finds that, despite some errors in the Board’s reasoning, its conclusion regarding discrimination at the hands of the Province is “supported by the record and a proper application of the law”. At the same time, the Court of Appeal finds the Board:
- improperly narrowed the scope of the discrimination in its analysis,
- should have found a prima facie case of systemic discrimination; and
- that the remedy decision contained “fatal errors of law that must be corrected”. (See paras. 9-10).
At the outset, it is important to acknowledge that the decision of the Court of Appeal is detailed and thorough. There is a table of contents included in the reasons, and a nine-point summary of the Court’s conclusions can be found at para. 311. For the purpose of this article, we have deliberately focused on the Court’s analysis of the applicable test for discrimination and its description of “systemic discrimination”, as these may be of assistance to counsel in analogous juridical circumstances.
Regarding the test, the Court of Appeal clarified that, although it is “not uncommon” to see reference in the case authorities to the ‘Moore test’ for prima facie discrimination, the Supreme Court did not “create a test”. Rather, according to the Court of Appeal, all Abella J. did in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) was to set out what was required to establish discrimination under the British Columbia Human Rights Code:
Although Justice Abella’s description is also applicable to the Nova Scotia legislative definition, it is a misnomer to say the “test” is as established in Moore. The test is established by the Act, interpreted with Charter values in mind and with guidance in its application from Moore and other authorities. (See para. 100).
At para. 105 of its decision, the Court of Appeal set out the “test” for establishing prima facie discrimination with reference to s. 4 of Nova Scotia’s Human Rights Act:
For the purpose of this Act, a person discriminates where the person makes a distinction, whether intentional or not, based on a characteristic, or perceived characteristic, referred to in clauses (h) to (v) of subsection (1) of Section 5 that has the effect of imposing burdens, obligations or disadvantages on an individual or a class of individuals not imposed upon others or which withholds or limits access to opportunities, benefits and advantages available to other individuals or classes of individuals in society. (Emphasis added by Court of Appeal).
Contrary to the Province’s submission, the Court of Appeal found that the provision of a social benefit, including social assistance, does not fall outside the scope of protection against discrimination in the Human Rights Act. For the Court, human rights legislation has a “quasi-constitutional” status and any such exemption would need to be clearly stated. (See para. 121; citing Canada (House of Commons) v. Vaid, 2005 SCC 30 at para. 81).
Although the Court of Appeal declined to specifically determine whether Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 (CanLII) (a decision to which the Province’s argument was “anchored”) remained good law, it concluded that Auton does not lend support to the Province’s position with respect to prima facie discrimination. (See paras. 121-123).
The Court of Appeal agreed with the Appellants’ view that social assistance was a “service” and that the Board erred by confining the meaning of “service” to “those provided to persons with disabilities”. (See para. 129). For the Court, following a detailed review of the Moore decision, taking an “overly narrow” view of “service” would be “inconsistent with the liberal approach afforded to human rights legislation” and “could lead to prematurely concluding an inquiry into discriminatory treatment before a review on the merits can be conducted”. (See para. 134).
With respect to systemic discrimination, the Court of Appeal noted that, while the concept is not explicitly defined in the Human Rights Act, it is “well-established in human rights jurisprudence”, including the Supreme Court of Canada’s 1987 decision in CN v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC) at pp. 1138-1139. In CN, the Court cited “the Abella Report on equality in employment”, which defined systemic discrimination in employment as follows:
“discrimination that results from the simple operation of established procedures…none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of ‘natural’ forces…To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged. (See as quoted at para. 189).
Applying this concept in the context of the present case, the Court of Appeal was satisfied there is a prima facie case of systemic discrimination and that the matter should be remitted to a differently constituted Board for a hearing. At that time, the Province will have the opportunity address the applicability of any available exception found in s. 6 of the Human Rights Act. (See para. 226).
The Court of Appeal in Nova Scotia has recently addressed a range of ‘progressive’ topics, including the impact of anti-black racism and discrimination in sentencing. (See R. v. Anderson, 2021 NSCA 62 (CanLII)). In this case, the Court provides a detailed analysis of “systemic discrimination”, a concept which has a long history in Canadian legal parlance – as stated by the Court of Appeal, tracing its lineage at the Supreme Court of Canada to 1987. (See at para. 187). While the final adjudication of this issue on the merits in this particular case remains for a later date, this decision may provide a guide for litigants considering or developing similar arguments across Canada.
Counsel for the Disability Rights Coalition: Claire McNeil and Patrick Cameron (Dalhousie Legal Aid Service, Halifax)
Counsel for Beth MacLean, Olga Cain, and Tammy Delaney: Vincent Calderhead and Katrin MacPhee (Pink Larkin, Halifax)
Counsel for the Attorney General of Nova Scotia: Kevin Kindred and Dorianne Mullin (Department of Justice, Halifax)
Counsel for the Nova Scotia Human Rights Commission (watching brief): Kendrick Douglas (Nova Scotia Human Rights Commission, Halifax)
Counsel for the Intervenors: Byron Williams, Joëlle Pastora Sala (Legal Aid Manitoba, Winnipeg), and Miranda Grayson (Thompson Dorfman Sweatman LLP, Winnipeg)