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Section 1 of the Code provides that every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. Education and access to educational facilities are "services" under Code. Obviously, the means to access those services are directly or indirectly related to education.[1] As well, scholarships and awards are significant for reasons other than monetary value alone. Recipients of scholarships or awards have benefits in employment and access to post-graduate training. If a person is unable even to compete for the assistance that leads to these benefits, he or she is placed at a significant disadvantage.

Criteria such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability, etc. should not be the basis for deciding who gets a scholarship, unless particular exceptions apply. As late as 1990, the Ontario Court of Appeal examined a scholarship based on explicitly racist criteria.

The Canada Trust case involved a scholarship that was restricted to Protestant "Christians of the White race." According to the trust document, the person who had set up the trust believed that "the White race is, as a whole, best qualified by nature to be entrusted with the development of civilization and the general progress of the world ...” The Court of Appeal's response to this trust is worth reproducing:

To say that a trust premised on these notions of racism and religious superiority contravenes contemporary public policy is to [state] the obvious. The concept that any one race or any one religion is intrinsically better than any other is patently at variance with the democratic principles governing our pluralistic society, in which equality rights are constitutionally guaranteed, and in which the multicultural heritage of Canadians is preserved and enhanced.[2]

Public awareness of human rights issues and sensitivity to their social impact has developed considerably in recent years: legitimate concerns are raised when one group is promoted at the expense of another, or when advantages for some simply reinforce disadvantages for others. Many universities and colleges refuse to administer awards that are restricted to persons of a particular ethnic origin. Benefactors have, in some cases, changed their eligibility criteria so that awards are now granted according to merit, ability or potential. For example, it is preferable for a scholarship or other award to be restricted to persons wishing to pursue Italian studies rather than to a person of Italian origin.

For these reasons, the OHRC takes the position that scholarships and awards should be based on factors such as merit, personal financial need, course specialization, or recognition for special contributions to academic or extracurricular life. Exclusionary scholarships or awards, on the other hand, use discriminatory criteria to assess eligibility. These criteria affect access to educational opportunities, directly or indirectly. Scholarships or awards that designate a specific minority or ethnic group infringe the Code, unless they qualify as a “special program” that is designed to relieve economic hardship or disadvantage, or designed to achieve equality of opportunity. Section 14 of the Code is discussed below.

[1] Section 9 provides that no person shall infringe or do, directly or indirectly, anything that infringes a right to equal treatment.
[2] Canada Trust Co. v. Ontario (Human Rights Commission), (1987) 12 C.H.R.R.D/184 at D/191.

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