Why are special programs protected?

In the case of the Ontario Human Rights Commission v. Ontario (Roberts), the Ontario Court of Appeal said that section 14 of the Code has two purposes:

1. Protecting affirmative action programs from challenge by people who do not experience disadvantage
2. Promoting substantive equality to address disadvantage and discrimination in all its forms.

Protecting affirmative action

At one time, "equality" meant that everyone should receive the same or similar treatment. This is often referred to as “formal equality.” The problem is that “formal equality” ignores historical and ongoing barriers that some groups face, doesn’t recognize special needs, and can even perpetuate inequality for certain groups.

The first purpose of section 14 is to make sure that special programs, designed to help a disadvantaged group, cannot be challenged by people who do not face the same disadvantage.[4] In legal terms, section 14 protects special programs from challenges based upon “formal equality” principles.

Example: A corporation sets up a scholarship fund to provide financial help to people with disabilities entering post-secondary education. The corporation’s rationale is that people with disabilities are under-represented in higher education and face greater financial barriers than other groups because of costs related to their disabilities. This program makes a distinction based on disability that at first, may seem to be prohibited under section 1 of the Code. But this program would be considered a special program under section 14. The purpose of section 14 to protect “affirmative action”-type programs works to prevent people who do not have disabilities from successfully claiming that their human rights have been violated because they are outside the disadvantaged group that the scholarship is designed to help.

Example: A community rape crisis centre only provides services to women and transgender women (people who have changed their gender identity from male to female) based on studies and statistics that show that women are more likely to experience sexual assault than men.

In both of these examples, the organizations could use section 14 as a legal defence if their program was challenged.[5]

Promoting substantive equality

The second purpose of section 14 is to promote substantive equality.

“Substantive equality” means understanding and meeting the needs of disadvantaged persons or groups using historical, legal and social contexts. It takes into account discriminatory barriers in their many forms, not all of which are obvious or intended. For example, discrimination may be built into an organization’s behaviour, practices and policies. This can lead to a genuine disadvantage for some people based on a Code ground. This is called systemic or institutional discrimination. Organizations and institutions have an obligation to be aware of these forms of discrimination. When systemic discrimination is found to exist, an organization must change its practices.

Developing and putting in place special programs is an additional way that organizations can address systemic discrimination and promote substantive equality.

In the Roberts case,[6] the Ontario Court of Appeal said: “…Substantive equality requires a positive action to ameliorate the condition of soundly disadvantaged groups.”

Example: A police service recognizes that it does not look like the racially diverse community it serves. Most of its higher ranking officers are from non-racialized groups. If people from racialized groups (communities facing racism) join the service, they are less likely to be promoted and more likely to quit early on. The service relies on recruits to find more experienced officers to mentor them, which helps them move up in the ranks. However, people from racialized groups have trouble finding mentors. The service creates a special program to help officers from racialized groups take part in formal mentorship opportunities.

In this example, the mentoring program was explicitly designed to address systemic discrimination within the police service and aims to promote substantive equality. Under the Code, a program like this would not be discriminatory as the underlying purpose is to relieve disadvantage faced by racialized groups. Section 14 would be a legal defence if the program was challenged.

However, in the Roberts case the Court also cautioned that:

“Special programs aimed at assisting a disadvantaged individual or group should be designed so that restrictions within the program are rationally connected to the program. Otherwise, the provider of the program will be promoting the very inequality and unfairness it seeks to alleviate.”

The Roberts case involved a government program that gave financial help to people with visual disabilities so they could buy equipment to help them. However, only people under age 30 could apply. This exclusion was challenged. The government had to justify why an age limit was relevant for this program.

In Ball v. Ontario (Community and Social Services) the HRTO expanded on the special program defence set out in Roberts. It held that special programs cannot internally discriminate against the people they are meant to serve. Special programs must meet the same non-discrimination standard as other services that are not special programs.

If someone has a disadvantage that a program was designed to benefit, but is excluded from the program, the program could be found to be discriminatory.[7]