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The Disability Rights Coalition of Nova Scotia and the province have agreed that an independent expert should be brought in to advise both sides on reaching a common remedy for ongoing provincial discrimination against the disabled.

The two sides jointly asked Tuesday for adjournment of the human rights board of inquiry hearing dates set for October and November while they nail down the participation of an already contacted but unidentified expert and get that person up to speed on the case.

Board chairman Donald Murray told the parties when they met Tuesday morning at the Holiday Inn Express in Halifax that he required specific timelines from them in order to adjourn the dates and move the case forward.

“I don’t feel closer to a result,” Murray said. “I would feel more comfortable with the name (of the expert adviser), what the roadmap is so that the people who are going to be affected by any remedy decision and are still waiting have some comfort that we have in fact considered their interests and we have those in mind as we are creating a process that should produce a result for institutional change.”

Murray said he realizes that institutional change happens slowly but he wants proceedings with the board of inquiry to follow a particular schedule with expected outcomes at different points of time in the future and to have a discussion about why if  outcomes are not met.

“I would appreciate from the parties a little more detail on what this roadmap and what this review process is going to be,” Murray said.

The chairman told the parties to provide the board of inquiry by Sept. 21 the name of the retained expert, a mandate and a roadmap for going forward, pointing to a date in February to get together again for a case management-type hearing.

The expert already engaged jointly by the province and the DRC is an Australian with a background and understanding of disability support programs and systems change within government. Final government approval of costs and other arrangements are all that is required to retain the expert and that approval is expected within a week.

“Since it has been clear that there will be a remedy issued, it’s been important to the province that that remedy be issued with as little delay as possible,” said government lawyer Kevin Kindred.

Expediency did not always seem a priority for the provincial government in the human rights complaint filed eight years ago, kicking off this case.

Joseph Delaney, Sheila Livingstone and Beth MacLean filed a complaint in 2014 with the Nova Scotia Human Rights Commission that they were forced to live in locked wards at a Dartmouth psychiatric hospital for years despite medical opinions that they could be housed in the community.

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

Arguing that the decades-long and ongoing treatment of people with disabilities, including unnecessary institutionalization, indefinite wait times and forced removal to remote areas far from family and friends, was discriminatory against all disabled people, the coalition appealed the board’s finding against systemic discrimination to the province’s highest court.

The Nova Scotia Court of Appeal upheld the coalition argument in an Oct. 6, 2021, decision.

The coalition subsequently urged the province not to appeal the top court’s decision and Premier Tim Houston and Community Services Minister Karla MacFarlane originally said they would not launch an appeal.

Two months later, the government did an about-face and applied to the Supreme Court of Canada to seek leave to appeal the provincial Court of Appeal decision. In April, the Supreme Court issued a decision that it would not hear the province’s appeal.

The claim of systemic discrimination upheld by the Court of Appeal was then sent back to the Nova Scotia Human Rights board of inquiry, where the province disputed the meaning that should be given to Appeal Court’s decision.

Kindred made it known that the province would accept the Appeal Court’s decision finding systemic discrimination but that it would argue justifications for the discrimination. In July, Kindred told the board of inquiry that the province would drop that defence and move on to the remedy phase.

Kindred said Tuesday he’s hopeful the province and the DRC can jointly agree on a remedy proposal to send forth to the board of inquiry, but even if some issues are still to be resolved the process with an expert will narrow the scope of the disagreements.

He said litigating a remedy is an inefficient use of time and a remedy can be arrived at quicker through collaboration.

“The systemic human rights remedy in this case represents arguably the most important and the most difficult part of this human rights process that has been going on for a long time,” said DRC lawyer Claire McNeil.

“Now, we’re at the point where we are really going to tackle the question of how this fairly complex interlocking system of discrimination identified by the Court of Appeal can be dismantled.”

The DRC argues that thousands of Nova Scotians, including the disabled and their family members, are awaiting an equality rights system that can be introduced in a way that’s going to meet the interests of all people with disabilities who need access to support services to live in the community.

“The collaborative process will be focused on the question of ultimately advising the parties of the most effective, the most meaningful and practical remedy in this situation,” McNeil said.  “There is no blueprint out there that we can go to, no chart that will identify how this is going to be successfully resolved.”

The goal is to bring the expert in to review all the documents that have been produced so far to talk with the stakeholders and to provide a report sometime in late January. 

“The role of the expert is not to dictate the remedy per se, but the role of the expert is to advise the parties, the parties will use the expert's guidance to jointly propose a remedy to the board of inquiry," Kindred said.

McNeil said the remedy will be “a made in Nova Scotia solution,” focusing on the future and not on past discrimination.

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