June 30, 2025
The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on the proposed legislative amendments to the Ministry of Training, Colleges and Universities Act regarding admissions policies.
During the second reading of Bill 33, the Minister discussed the work of post-secondary institutions in “building the workforce of tomorrow” and stated: “By creating the right conditions for students to succeed, both during their academic journey and in their future careers, Ontario will continue to build a strong, resilient economy.” One important element of building such a workforce and economy is to ensure, as set out in the preamble to Ontario’s Human Rights Code (“Code”), that each person is “able to contribute fully to the development and well-being of the community and the Province.” Ontario benefits socially and economically when all members of society are able to contribute.
With this perspective, the OHRC recommends that, if a legal obligation is imposed on colleges and universities to “assess applicants based on merit and to publish the criteria and process to be used for assessment into programs of study,” the legislative meaning of merit must be clearly defined to align with the right to substantive equality.
In addition, the Bill should clearly state that special programs protected under section 14 of the Code and subsection 15(2) of the Charter of Rights and Freedoms (“Charter”) are consistent with the meaning of merit contemplated by the legislation.
Background of the OHRC
The OHRC is a statutory human rights body established under the Code and is responsible for promoting and advancing human rights and addressing systemic discrimination in Ontario.
The OHRC has prioritized education in its strategic plan, reaffirming the OHRC’s commitment to collaborating with government, school boards and educational institutions to implement changes which address systemic discrimination in educational settings.
The focus of the OHRC’s work in this area is to ensure that education services in Ontario are provided in a way that protects and respects human rights according to the Code.
Through its efforts, the OHRC aims to ensure that education duty-holders implement changes which address systemic discrimination and enhance opportunities and outcomes for students disproportionately affected by discrimination.
The OHRC has a long history of working to advance human rights in the education system. In 2012, the OHRC intervened in a case called Moore v British Columbia (Education),[i] in which the Supreme Court of Canada affirmed that students with special needs have the right to meaningful access to the same level of education as their peers, and that this meaningful access includes actively taking steps to eliminate barriers and address the negative effects of neutral practices.
In 2017, the OHRC released With Learning in Mind,[ii] an inquiry report on systemic barriers to academic accommodation for post-secondary students with mental health disabilities. In 2018, the OHRC launched its Policy on Accessible Education for Students with Disabilities.[iii]
In 2019, the OHRC launched the Right to Read Inquiry, which built on its earlier work. The final report of that inquiry was released in February 2022, and includes 157 recommendations for education sector partners on how to uphold the right to read.
In 2020, the OHRC wrote to colleges and universities to address concerns which Indigenous, Black, and racialized students were experiencing discrimination, xenophobia and targeting on campuses and in academic settings across Ontario.[iv] The OHRC wrote again to colleges and university to inquire about steps they had taken to address the concerns about racial discrimination and harassment. This inquiry was prompted by the continued reports of such issues on campuses, despite the initial letter it had sent to those universities.[v]
In 2023, the OHRC released a statement on rising levels of hate in schools. The OHRC noted that across Canada, police-reported hate crime rose seven percent (7%) overall from 2021 to 2022, with Black, Jewish, and 2SLGBTQIA+ communities being the most frequently targeted. Black and 2SLGBTQIA+ communities each experienced a 12% increase in hate crimes since 2021, and nearly half of reports of discrimination, race or ethnicity were cited as the reason.[vi]
From 2022 to the fall of 2024, the OHRC engaged with stakeholders, including community organizations, students, education workers, the Ministry of Education, and other duty-holders, on anti-Black racism and discrimination in Ontario’s education system. The outcome of that engagement was the release of the action plan, Dreams Delayed: Addressing Systemic Anti-Black Racism and Discrimination in Ontario’s Public Education System, in 2025. The action plan outlines specific actions to address anti-Black racism and discrimination in education.
Bill 33, Supporting Children and Students Act, 2025
On May 29, 2025, the government introduced Bill 33, Supporting Children and Students Act, 2025. This legislation includes various initiatives, one of which amends the Ministry of Training, Colleges and Universities Act. The amendment mandates that colleges and publicly-assisted universities “assess applicants based on merit and to publish the criteria and process to be used for assessment into programs of study.” The criteria and process to be used by colleges and universities in assessing applicants for admission into a program, including any criteria that must be or that may not be considered in assessing the merit of an applicant – and any exceptions to the requirement that admissions be merit-based will be determined by the regulatory authority of the Lieutenant Governor-in-Council.
During legislative debate, the Minister stated that the government is committed to ensuring that students from all backgrounds and abilities have pathways to access post-secondary education in Ontario. The Minister provided several examples of plans to invest in accessibility measures for underrepresented students accessing higher education, including:
- scholarships for First Nations students in resource development;
- supports for students with disabilities;
- mental health services;
- enhancing post-secondary accessibility and employment outcomes;
- Pathways to Education;[vii] and
- access and inclusion programs at colleges and universities that provide outreach, transition and retention support to students facing barriers to accessing and succeeding at post-secondary education.
All those examples are consistent with efforts to ensure that education services in Ontario are provided in a manner that is consistent with substantive equality. Moreover, they are consistent with section 14 of the Code and subsection 15(2) of the Charter of Rights and Freedoms.
However, the OHRC is concerned that there is a risk of misinterpretation of this new legislation, particularly when it leaves the term “merit” undefined. Without a clear definition, education service providers may hesitate to continue special programs designed to advance substantive equality in Ontario, as protected under section 14 of the Code and subsection 15(2) of the Charter.
To align with the Minister’s vision, the OHRC recommends that the term “merit” be defined clearly within the legislation.
Substantive equality and post-secondary admissions
According to section 1 of the Code, every individual has the right to equal treatment with respect to services without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. Post-secondary education is a service for the purposes of section 1 of the Code and must be provided without discrimination.
The Court of Appeal has confirmed that discrimination can occur in admissions to post-secondary education if the standards or rules adversely affect applicants from historically disadvantaged groups.[viii]
If the provincial government sets standards for post-secondary admissions, it must ensure that those standards align with the principles of substantive equality as established in the Code and section 15 of the Charter. Obtaining post-secondary degrees significantly enhances employment opportunities and income levels in the short and long term for people in Ontario.[ix] Thus, any reduction in access to post-secondary education for historically disadvantaged persons will reinforce, perpetuate, and worsen existing disadvantage, ultimately leading to lower socioeconomic success in Ontario.
Substantive equality entails an understanding that identical treatment may often result in significant inequality. In assessing whether conduct is discriminatory, the focus should be the impact of a law or action on the individual or group concerned.[x] Under the Code, all organizations are prohibited from treating people unfairly because of Code grounds, must remove barriers that cause discrimination, and must stop discrimination when it occurs. The promotion of substantive equality sometimes requires positive action, such as the requirement to provide accommodations.
The Code and the Charter recognize that prohibitions against differential treatment are just one way to achieve substantive equality. Organizations can also choose to develop “special programs” to help disadvantaged groups improve their circumstances.[xi] Section 14 of the Code and subsection 15(2) of the Charter protect special programs designed to address historical disadvantage against claims of discrimination by people who do not experience the same disadvantage.[xii]
Special programs can play a vital role in addressing systemic discrimination, especially when it is challenging to identify the underlying causes of a systemic or policy’s disproportionate outcomes. Discrimination can be established based on statistical disparities, even without a clear understanding of the root-cause of those disparities.[xiii] Thus, special programs can be valuable tools for organizations to help prevent discrimination and protect against discrimination claims.
Defining merit for all students
To fulfil the Minister’s commitment to ensuring access to post-secondary education, it is essential to define “merit” in a way that encompasses the entire student experience. There is considerable debate surrounding the meaning of “merit” in post-secondary admissions. Narrow definitions which focus solely on grades and extracurricular activities fail to consider the systemic discrimination that affects who receives “good grades” and who has access to “desirable” opportunities, such as internships.
Over the years, the OHRC has gathered extensive evidence regarding this kind of systemic discrimination. For example, as outlined by the OHRC in Dreams Delayed, numerous published reports have shown that far too many Black students are not receiving the support they need to succeed and are experiencing discrimination and harassment within the education system.[xiv] Roundtable discussions on anti-Black racism and discrimination in education led the OHRC to conclude that stereotypes can contribute to unequal treatment, hindering the success and progress of Black students. The OHRC reviewed over 80 victim impact statements. Several key themes emerged, including, that Black students felt unable to succeed because of being in toxic environments which negatively affect their achievement. They experienced lower expectations, which were reflected in behaviour and actions toward them, such as receiving less support.[xv]
Similarly, the OHRC has outlined that, despite Ontario’s complex education framework to address “special needs” of students, students with disabilities continue to encounter significant barriers in their attempts to access educational services in Ontario. As a result, they often experience lower academic achievement levels.[xvi]
In a survey of parents/guardians of students with intellectual disabilities in Ontario, 53.2% of those surveyed reported that their child was not receiving proper academic accommodations. Additionally, 68.2% reported that their child’s school was “meeting half or less than half of their child’s academic needs.” During interviews, parents/guardians expressed concerns about “the devastating effects of low expectations and lack of opportunity for engagement.”[xvii]
These are just two examples of systemic discriminatory barriers in education that show how narrow definitions of “merit” favour historically privileged students. As a result, this limited understanding or narrow definition of “merit” would perpetuate the existing privileges and disadvantages within the education system.
As the Minister highlighted in his statement to the legislature, a thorough assessment of merit must consider the complete experiences of students and recognize the effects of systemic discrimination can have on their academic performance. In Ontario and Canada, this understanding of merit aligns with the principles of “substantive equality”, which is protected under the Code and the Charter. Given the constitutional and quasi-constitutional nature of these protections, and the Minister’s stated vision, the OHRC recommends that the government avoid leaving the definition of “merit” to regulations. Instead, the Bill itself should reflect its compliance with those requirements.
Bill 33 and special programs
Special programs are also legal and non-discriminatory ways for disadvantaged students to access post-secondary education and improve their well-being. Those programs help post-secondary institutions tackle systemic discrimination, which a purely academic approach to admissions standards may not resolve.
Although the Minister has clarified that Bill 33 is not intended to affect special programs, this legislation could unintentionally create ambiguity and confusion regarding the legality of these programs in post-secondary admissions. Thus, the OHRC encourages the government to state clearly its support for special programs within the legislation.
Concerns about the continued legality of special programs may cause organizations to limit the special programs they offer. If effective special programs are reduced, it would, by definition, increase the disparity in admissions for students from disadvantaged groups. If this unintended effect occurs, the resulting increase in disparity could itself create a risk of a Code or Charter challenge based on the right to substantive equality.
Post-secondary institutions require clear government support for initiatives which promote substantive equality in Ontario. Given the essential role of special programs in achieving substantive equality, and their protection under the Code and the Charter, the OHRC urges the government to reflect special programs in the Bill, rather than in regulations. Failure to do so may give rise to legal challenges to regulations which permits exceptions or may lead to undue discretion because of vague regulations.
OHRC recommendations
The OHRC recommends that the definition of the term “merit” as contained in Bill 33 be clearly defined within the legislation to align with the principles of substantive equality.
Additionally, Bill 33 should state that special programs protected under section 14 of the Code and subsection 15(2) of the Charter are consistent with the definition of “merit” intended by the legislation.
These matters should not be left to regulations. The Charter binds the government, and the Code takes precedence over provincial legislation. Any statutory amendments should adhere to these requirements and acknowledge the values they represent.
Endnotes
[i] Moore v British Columbia (Education), 2012 SCC 61.
[ii] Ontario Human Rights Commission, With learning in mind: Inquiry report on systemic barriers to academic accommodation for post-secondary students with mental health disabilities (2017); available online at: www.ohrc.on.ca/sites/default/files/With%20learning%20in%20mind_inquiry%20report%20on%20systemic%20barriers%20to%20accademic%20accommodation_accessible_2017.pdf.
[iii] Ontario Human Rights Commission, Policy on accessible education for students with disabilities (2018); available online at: https://www.ohrc.on.ca/en/policy-accessible-education-students-disabilities.
[iv] See https://www.ohrc.on.ca/en/news-center/letter-universities-and-colleges-racism-and-other-human-rights-concerns.
[v] See OHRC Letter to Universities and Colleges on actions to address systemic discrimination dated April 14, 2021: https://www3.ohrc.on.ca/en/news-center/letter-universities-and-colleges-actions-address-systemic-discrimination.
[vi] See OHRC Statement: No Room for Hate in Schools dated September 12, 2023: https://www3.ohrc.on.ca/en/news-center/ohrc-statement-no-room-hate-schools.
[vii] Described by the Minister as “a not-for-profit that provides academic, financial, social and one-on-one supports to youth in low-income communities in Ontario to help them graduate from high school and transition into post-secondary education.”
[viii] Longueepee v. University of Waterloo, 2020 ONCA 830.
[ix] Statistics Canada, From high school, into postsecondary education and on to the labour market (2023) available online: https://www150.statcan.gc.ca/n1/pub/81-595-m/81-595-m2023004-eng.htm.
[x] Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143.
[xi] See Ontario Human Rights Commission, Your guide to special programs and the Human Rights Code (2013); available online at: https://www3.ohrc.on.ca/en/your-guide-special-programs-and-human-rights-code.
[xii] See Ontario Human Rights Commission v. Ontario (Roberts), 1994 CanLII 1590 (ON CA); Carter v. Elementary Teachers Federation of Ontario, (2011) HRTO 1604 at 24; and R. v. Kapp, 2008 SCC 41.
[xiii] Fraser v. Canada (Attorney General), 2020 SCC 28, paras 62-67.
[xiv] OHRC, Dreams Delayed: Addressing Systemic Anti-Black Racism and Discrimination in Ontario’s Public Education System (2025) available online at: https://www3.ohrc.on.ca/en/dreams-delayed-addressing-systemic-anti-black-racism-and-discrimination-ontarios-public-education.
[xv] OHRC, What We Heard Report: Anti-Black Racism in Education Roundtables (2023) available online at: https://www3.ohrc.on.ca/en/what-we-heard-report-anti-black-racism-education-roundtables.
[xvi] OHRC Policy on Accessible Education for Students With Disabilities, supra note 2.
[xvii] Community Living Ontario, Western University, Brock University, ARCH Disability Law Centre, Brockville and District Association for Community Involvement, and Inclusive Education Canada, If Inclusion Means Everyone, Why Not Me (2018), available online (rtf): archdisabilitylaw.ca/wp-content/uploads/2018/05/If-Inclusion-Means-Everyone-Why-Not-Me-Text-For-Screen-Readers.txt; (pdf): https://archdisabilitylaw.ca/wp-content/uploads/2018/05/If-Inclusion-Means-Everyone-Why-Not-Me.pdf accessed June 23, 2025.