Judge tells rights board to reconsider social assistance ‘special diet’ case

HALIFAX — A Nova Scotia judge has quashed a decision by the province’s human rights commission, effectively forcing it to re-visit a discrimination claim by five social assistance recipients who complain the province hasn’t increased the special diet allowance for those with chronic medical problems since 1996.

The case, if ultimately heard by a Nova Scotia Human Rights Commission board of inquiry, could have significance for the 9,000 Nova Scotians who get special diet assistance each month. The province spent $8.8 million on special needs diets in 2015-16.

In a written decision released Wednesday, Judge James Chipman found the Nova Scotia Human Rights Commission was “unreasonable” in rejecting the claim and he sent the case back to the commission for reconsideration in “accordance with the principles of fairness and transparency” and without a new investigation.

The women argued in December before the Nova Scotia Supreme Court that the Community Services Department discriminated against them based on their disabilities.

They went to court after the commission opted not to refer the complaint to a board of inquiry because it felt there was not a “reasonable likelihood” that an investigation would reveal evidence of discrimination under the Human Rights Act (HRA). The decision followed a six-month long investigation by commission officer Melanie MacNaughton, who recommended a board of inquiry in the case.

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“I make this finding given the commission’s decision relied on a section of the HRA which, in context, does not make sense,” Chipman wrote.

“Given that an investigation had already taken place, I am of the view this rationale does not make sense and therefore the decision is unreasonable.”

Chipman’s ruling was welcomed by the legal aid lawyer for Halifax’s North End Community Health Centre and the five complainants in the case; Deborah Wright, Bonnie Barrett, Roxanne Barton, Pamela Chandler, and Michele Cox.

“We’re very pleased about that in the sense that it keeps the complaint alive,” said Vincent Calderhead.

“Really what we are seeking out of this is a hearing … for people who are among the most vulnerable people in Nova Scotia income-wise.”

While dietary allowances can vary under the province’s funding for special needs, applicants can get up to a maximum of $150 per month per person for various health-related needs. The complainants in the case have a range of ailments including high cholesterol, diabetes and fibromyalgia.

Calderhead said his clients’ complaint alleges the government had failed to increase the special dietary rates for disabilities since 1996, while increasing the basic food allowance recipients receive 11 times over that 20-year period.

“These special diet rates are, as the court noted in its decision, about accommodation,” Calderhead said. “Accommodation like everything else needs to be updated as things change, as costs increase.”

Chipman said he would leave it to the commission to decide whether to refer the matter to a board of inquiry or to entertain an argument by the province that the claim, also made by Halifax’s North End Community Health Centre, be dismissed.

He also directed the matter be dealt with during the next commission board meeting.

“I feel compelled to address commission counsel’s contention that in the event of a referral back to the commission that an entirely new investigation should occur,” said Chipman. “I would strongly urge the commission not to proceed with a new investigation.”

Adria May, a spokeswoman for the Nova Scotia Human Rights Commission, declined comment on the court ruling.

“The commissioners will make a determination with regard to whether or not this case should be referred to a board of inquiry at the next commission meeting, which is Feb. 22 and 23,” said May.

Keith Doucette, The Canadian Press