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Beth MacLean, the woman at the centre of a human rights case dealing with persons with disabilities and their attempts to move out of institutions, testifies at the inquiry in Halifax, on March 6, 2018.The Canadian Press

The Nova Scotia Court of Appeal is hearing arguments Wednesday over whether people with intellectual disabilities have a human right to timely access of housing in the community and to necessary care.

Lawyers for three people with intellectual disabilities who were confined to a hospital ward for years are appealing a 2019 human rights board of inquiry decision.

The board of inquiry determined the three had suffered discrimination individually, but it rejected arguments that placement in so-called small options homes is broadly applicable to people with disabilities through human rights legislation.

Small options homes are defined by the province as homes in residential neighbourhoods for up to four people with disabilities, where they receive care and other necessary support.

The board of inquiry ruling determined the province discriminated against Beth MacLean, Joseph Delaney and the late Sheila Livingstone – who died before the hearing ended – because they were held at the Emerald Hall psychiatric unit in Halifax despite opinions from doctors and staff that they could live in the community.

Board chairman Walter Thompson, however, didn’t accept that the province generally discriminated against people with disabilities who reside in hospitals, in large institutions, or who are on a waiting list for placement in small options homes.

In her opening statement Wednesday, Claire McNeil, the lawyer for the Disability Rights Coalition, told the three justices that Thompson erred because he failed to recognize that the Nova Scotia system provides people with disabilities with a lower level of service compared to people who aren’t disabled.

“It’s a form of discrimination that’s rooted in a society designed around the needs of able-bodied people,” she told the appeals panel. “The needs of persons with disabilities and their access to social assistance have been ignored, devalued and relegated to a second-class status.”

McNeil cited August 2019 figures from the province indicating about 900 Nova Scotians with disabilities were living in various forms of institutional facilities such as adult residential centres and regional rehabilitation centres. Those facilities, she said, are large buildings housing groups of people who are segregated from the community and who receive intensive, medical-related support.

McNeil told the three justices that the cases of MacLean, Delaney and Livingstone were not unique; rather, she said, they represented about 255 people in institutional facilities who as of last summer, were still on waiting lists or seeking a transfer to small options homes in the community.

“The circumstances of the individual complainants aren’t isolated and extraordinary, they are typical of the system,” she said. She argued that a provincial moratorium on the creation of the small homes since 1995 – which the province later lifted – was a conscious decision by governments to restrict access to services.

McNeil said the resulting segregation and delays are not faced by able-bodied people trying to access social assistance under the province’s Social Assistance Act.

The province has argued that people without disabilities also face hurdles in obtaining public housing, much as people with disabilities face wait lists and financial obstacles. Therefore, the province said, there is no special discrimination when people with disabilities languish in large facilities.

The government is also appealing the board’s decision, saying it infringes on its jurisdiction. Delivering services to ill or disabled people is a matter for politicians to decide, not the courts, the province said. Upholding or expanding the board’s ruling, the government argues, could lead to unmanageable demands for state-run services.

The case may hang on how the court interprets Section 5 of the provincial Human Rights Act, which prohibits discrimination against people with disabilities in the “provision of or access to service or facilities.”

In its written brief, the provincial lawyers say while providing social assistance may be an obligation under the provincial legislation, “that does not translate into a mandatory requirement to provide all possible forms of assistance immediately and as of right.”

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