Manitoba's failure to provide health-care services for Anishinaabe teen discriminatory: human rights decision

A provincial human rights adjudicator has ordered the province to pay an Anishinaabe family from northern Manitoba $42,500 in damages, saying the government's failure to provide adequate health-care services for a child with disabilities amounts to discrimination based on ancestry and disability.

The Manitoba Human Rights Commission panel's decision, which was published on Monday, found the complainants — Harriet Sumner-Pruden and her son, Alfred "Dewey" Pruden — were discriminated against in the health care they received from the province.

The family is from Pinaymootang First Nation, about 220 kilometres northwest of Winnipeg.

Dewey, who was 16 at the time of the hearing in early 2019, was born with a progressive neurological disorder called Sturge-Weber syndrome. He underwent brain surgery when he was four to address his persistent seizures.

However, following his surgery, he developed a host of new problems, including losing the ability to speak, glaucoma leading to vision loss, and impaired motor skills. He is also on the autism spectrum and has attention deficit hyperactivity disorder.

In the complaint, originally filed in 2010, the family said Dewey's health-care needs were denied, delayed or intermittent, with the province maintaining the federal government is responsible for providing health care and related services in First Nations communities.

The lead adjudicator, Robert Dawson, acknowledged Dewey and his family had been discriminated against.

"The Canadian constitutional framework does not amount to a reasonable justification for the discriminatory treatment of the complainants," he wrote.

Dawson added that it isn't the intention of governments to harm people like Dewey.

The respondent discriminated against the complainants on the basis of their ancestry as Anishinaabe people and the disability of Dewey.- Adjudicator Robert Dawson

"No government or other official intended to treat the complainants differently by reason of their ancestry as Anishinaabe people," he wrote.

"However, that was the very effect of the whole of the assorted policies, practices, and even laws that try to carve out the concurrent jurisdiction of the federal and provincial governments" regarding health care in First Nations communities, he wrote.

Dawson stopped short, though, of saying systemic discrimination was at play.

The province offered health care and related services to other Manitobans with conditions similar to Dewey's, but "did not make those health care and related services available to Dewey and his mother in the same way that many other Manitobans received them," Dawson said. 

"Sometimes, the respondent simply denied some services. In other instances, services were provided but delayed. In yet more circumstances, services were provided but then intermittently withdrawn," he wrote.

"The same problems did not afflict neighbouring non-First Nations communities, and those residents enjoyed health care and related services without denial, delay, or interruption," Dawson's decision says.

"I therefore find that the respondent discriminated against the complainants on the basis of their ancestry as Anishinaabe people and the disability of Dewey."

The Manitoba Human Rights Commission, which handled the initial complaint, wrote in an Aug. 20 news release it's not enough to simply say Dewey had been discriminated against, arguing that systemic discrimination was an issue in the case.

"The commission is deeply concerned that the adjudicator ignored the compelling evidence from multiple witnesses, as well as legal precedent, which we believe set out a clear basis for a finding of systemic discrimination," said Karen Sharma, the executive director of the Human Rights Commission in the release.

"For over 16 years, Dewey's essential needs were deemed secondary to jurisdictional disputes. A commitment to human rights means that we must put the needs of children before boundaries and budgets."

Damages paid to family

Although Dawson praised the "the relentless and formidable efforts of [Dewey's] mother, Ms. Sumner-Pruden, to seek the health care and other services that he needs," he didn't award all of the damages the family was seeking.

Initially, Sumner-Pruden, who has had to leave her job in a managerial role in order to care for her son, requested $200,000 for her future wage loss.

Dawson denied her that.

"There is insufficient evidence before me that would support an award in any amount" for future lost wages, he wrote in the report.

The family asked for a "just and reasonable" contribution toward the future of care of Dewey, but Dawson also denied  that over insufficient evidence.

Sumner-Pruden and Dewey were also seeking $100,000 each for injury to their dignity, feelings and self-respect, plus exemplary damages, but Dawson awarded $30,000 for Dewey and $12,500 for Sumner-Pruden.

The government of Manitoba has 45 days to pay the family.

"The province will be closely reviewing this decision to determine our next steps, including discussions within our departments, the federal government and Indigenous leadership," a spokesperson from the province said in an email to CBC News.

CBC News hasn't been able to reach the family for comment.

10 years since initial complaint

The initial complaint to the Human Rights Commission was made in 2010, according to the adjudication panel report.

However, more evidence was required, and the last of it was filed in 2017. The complaint was heard from January to March of 2019.

The Human Rights Code states an adjudicator must file an final decision about a complaint within 60 days after the end of the hearing. Even where the chief adjudicator grants an extension, the new deadline normally pushes back the release of the report only by a couple of months.

However, it's been 17 months since the last submissions were made.

Dawson says that's in part because the government revoked the appointments of a number of adjudicators more than a year ago, which is routine.

After Dawson's appointment was revoked, there was some confusion about what kinds of decisions he was allowed to render even after his appointment has expired, which resulted in the delay in the decision, he wrote.