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A class action lawsuit over a provincial disability support program that excluded people with mental illness is going ahead after a recent P.E.I. Court of Appeal decision.
In a unanimous decision, the court dismissed on all but one matter an appeal by the P.E.I. government of a lower court decision that allowed the class-action lawsuit to be certified.
That lawsuit, launched by Laura King and Nathan Dawson, seeks compensation for people with mental disabilities who were denied coverage under the government’s former disability support program.
A class-action lawsuit involves one or more people initiating it on behalf of a larger group.
Writing for the court of appeal, Justice Michele Murphy said it would be unjust for mentally disabled residents of P.E.I. to be denied access to the courts to pursue their common complaint of discrimination in breach of the charter rights.
King was at the centre of a complaint that saw the P.E.I. Human Rights Commission panel rule in 2016 that the disability support program was discriminatory.
That panel ordered the government to pay King $15,000 in damages and $16,000 in costs.
She and Dawson later proceeded with a class-action lawsuit against the province.
In the recent decision, the court of appeal did refer a procedural matter back to the P.E.I. Supreme Court while dismissing the rest of the appeal.
Another issue Murphy addressed in the decision was the lack of class-action legislation in P.E.I. and she wrote that it is the only province which does not have it.
Murphy said the large number of class-action proceedings across Canada is validation of provincial legislation across the country.
“Without treading on the legislative branch, it needs to be expressed that the time has come for government to enact legislation which would provide better access to justice for individuals who might benefit from such class proceedings,” she wrote.
Chief Justice David Jenkins also addressed the lack of class-action legislation, saying that for two decades the courts and judiciary in P.E.I. have unsuccessfully sought its creation.
“I take this opportunity to lament the inaction by the legislative and executive branches of government,” he said.
Jenkins wrote the lack of class-action legislation is a significant gap in the Island’s civil justice system.
“This would be an easy fix that would provide residents of this province a needed tool for meaningful access to justice.”
The Guardian requested an interview with Justice Minister Bloyce Thompson about the judges’ comments regarding class-action legislation.
A spokeswoman for the Justice Department said it was aware of the comments and will be reviewing them as it considers the next appropriate steps.
Ryan Ross is The Guardian's justice reporter.