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Mike Dull

Rare case in P.E.I. sees people with disabilities caused by mental illness get green light for class action

Thursday, June 20, 2019 @ 9:54 AM | By Terry Davidson


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A court in Prince Edward Island has taken a bite out of the province’s access to justice troubles by clearing the way for a landmark class action by a group claiming to have been unlawfully denied disability benefits because they are mentally ill.  

The May 21 decision in King v. Prince Edward Island 2019 PESC 27 involves P.E.I.’s Supreme Court certifying a lawsuit against the provincial government for allegedly violating residents’ equality rights by “excluding people with disabilities caused by mental illness” from benefits provided by P.E.I.’s Disability Supports Program (DSP).

According to the written decision, class actions are a “rarity” in P.E.I., which is the only Canadian province lacking provincial class action legislation.

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Mike Dull, Valent Legal

As a result, it was up to the court to determine procedure in this case — the first class proceeding certified in P.E.I., said Halifax lawyer Mike Dull, who is acting for the plaintiffs on contingency.

“The government had for [a number of years] a policy that provided benefits for residents with disabilities, but explicit in their policy said these benefits are available for everyone with a disability except people with disabilities caused by mental illness,” said Dull, principal of Valent Legal. “On the surface of that, that’s a breach of s. 15 of the Charter, but no one in [P.E.I.] … did anything about it because there is a big access to justice issue.”

Dull said various barriers to justice exist in P.E.I., particularly for those with mental illness, who may not have the financial means to pursue a case or the capacity to know when they have been wronged.  

The plaintiffs commenced their claim in 2016 after being denied support from the DSP, which is “designed to assist Islanders who have a qualifying disability to overcome barriers, to attain a satisfactory quality of life, and to strive to achieve financial independence.”

They later sought an order to define the class as: “All living persons currently or formerly resident of [P.E.I.] between October 1, 2001 to the present who claim to suffer, of to have suffered, from a mental disability.”

In July 2018, P.E.I.’s government reportedly expanded the DSP to include mental illness. Earlier that year, resident Laura King, who is one of the plaintiffs in the class action, was victorious in the province’s Appeal Court when it upheld the decision of a human rights panel that it was discriminatory to exclude the mentally ill from the DSP.

According to past court documents, King suffered a chemical “disturbance” in 2011 that left her with schizophrenia, a “lifelong illness that is for her profoundly disabling.”

The “disadvantaged” need a “user friendly” way of accessing justice, found P.E.I. Supreme Court Justice Gregory Cann.    

“Providing disadvantaged members of society with a more user friendly mechanism for recovery, in cases where recovery is warranted, is a hallmark of class proceedings,” he wrote. “This is, I believe, the very type of situation where class actions serve an important access to justice function.”

Justice Cann noted the Supreme Court of Canada’s findings on the need for available class action legislation.

The SCC addressed this in Western Canadian Shopping Centres Inc. v. Dutton 2001 SCC 46, which had reached the country’s highest court via Alberta — a province that, at the time, also lacked legislation.

“Clearly, it would be advantageous if there existed a legislative framework addressing these issues,” the SCC found.

“The absence of comprehensive legislation means that courts are forced to rely heavily on individual case management to structure class proceedings. This taxes judicial resources and denies the parties ex ante certainty as to their procedural rights.”

Justice Cann noted that the SCC found class actions to be “a matter of common law and equity” and “are to be made available in all Canadian jurisdictions whether or not legislation has been passed and regardless of whether they are intended to be allowed by the provincial legislature.”

In other words, courts would have to act as a stopgap in cases where there was a lack of legislation.

Dull said the P.E.I. decision shows class actions can be “an excellent vehicle” for those seeking justice.  

“It’s of great significance to residents of P.E.I., who now know that they … have class proceedings as an avenue … to access the courts,” he said. “I think Charter claims are becoming more and more prevalent. I think the economic nature of them] is such that they aren’t often pursued on individual levels in Supreme Courts across Canada. I think this case stands for the proposition that where there is a policy that is allegedly discriminatory, that class proceedings can be an excellent vehicle by which folks can access the court to have that question determined.”

He also said Justice Cann suggested a need for class action legislation in P.E.I.

“The judge was very strong in his views that the legislature ought to enact class proceeding legislation like every other province in Canada,” said Dull. “If he didn’t explicitly say that, he implicitly did. If you read the decision, he says in absence of legislature doing that work and creating rules around the procedure of class actions, the courts have to do so, and I will do so.”

But Dull reckons that if P.E.I. ever does establish legislation, it likely will not be as a result of this case.

“I think that the government, which has been on the receiving end of this class action, may be reluctant to create class action legislation to facilitate access to justice for other individuals in other cases. They haven’t in all these years. … They know that there are things called class proceeding legislation in other provinces and have explicitly decided not to enact it … for whatever reason. The hope is that this case … would prompt change, but I’m suspicious.”  

Dull said he has received no indication there will be an appeal.  

Government lawyer Ruth DeMone did not return requests for comment.