Exceptions

”Discrimination“ in human rights law does not simply mean treating someone differently. In human rights law, it means treating someone differently because of personal characteristics that are based on the grounds set out in the Code. The Code will apply, therefore, where the treatment is based on these characteristics and has the effect of imposing burdens or disadvantages on one group that are not imposed on others, or that limits or withholds opportunities and benefits.^[3] Seen from this standpoint, equality of opportunity operates to permit certain forms of differential treatment if the impact and intent is to remove those burdens or disadvantages. Temporary measures therefore may be necessary or desirable to assist persons that have been subjected to disadvantage or hardship. These measures are called “special programs.”

Special programs

The Code allows for a special program that creates a preference or advantage, even though it is based on grounds that are set out in the Code. Section 14 allows programs designed to:

• relieve hardship or economic disadvantage
• assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity
• help eliminate the infringement of rights that are protected under the Code.

The OHRC is of the view that for section 14 to apply, the underlying basis for the program should be related to a ground set out in the Code.^[4] For example, section 14 will not apply to members of a group who share a political affiliation, even if they have been subject to hardship, because political views are not covered by the Code.

Scholarships or awards should only be exclusionary if hardship or economic disadvantage is linked to the ground selected as a criterion for eligibility. It should also be clear that the special program is designed to relieve that hardship or disadvantage. Some scholarships are restricted to members of particular groups on the erroneous assumption that the group's members are disadvantaged. For example, scholarships awarded to "mature students" are sometimes awarded to persons more than 25 years of age, a group that does not share a pattern of economic hardship or historical disadvantage. Different levels of financial need may exist across a group that may not be demonstrably linked to age, marital status or other grounds that are assumed to apply.

The OHRC has Guidelines on Special Programs that should be referred to in the event that a person wishes to set up or administer a scholarship or award on an exclusionary basis. In brief, the special program should state clearly:

• why the identified persons or groups are considered to be experiencing hardship, economic disadvantage or discrimination
• how the proposed measures will relieve the hardship, economic disadvantage, or discrimination, that is, how the target groups will be assisted
• that the program is for a specific period of time and is of a temporary nature.

If a scholarship or award is a valid special program, that is, if it meets the criteria set out in the Code and in the OHRC’s Guidelines on Special Programs, it will not be found to be contrary to the Code. Scholarships and awards are assessed on a case by case basis.

In the light of the direction from the Court of Appeal in the Canada Trust case, educational institutions may prefer to consider the impact of scholarship restrictions on overall equality. Universities that offer a number of scholarships are encouraged to attempt to achieve an overall balance so that disadvantaged groups have reasonable access to educational services.

Example: If a particular program has a number of scholarships for women, and none for persons with a disability, the university may wish to try to attract a benefactor for the latter group, or may establish an award from its own resources.

Canadian citizenship or permanent residence status (subsection 16(2))

Subsection 16(2) provides an exception to the Code by permitting a requirement, qualification or consideration to be adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence. This means that citizenship or permanent residence may be a requirement for a scholarship or award. However, it must be adopted for the purpose of "fostering and developing participation" in educational and other activities that are set out in the Code.(see the Code sections listed at the end of this document).

Special interest organizations (section 18)

This section is in response to inquiries from universities as to whether section 18 of the Code applies and whether it allows exclusionary scholarships or awards.

Section 18 of the Code allows a religious, philanthropic, educational, fraternal or social institution or organization, which primarily serves the interests of a particular group, to restrict membership or participation to members of that group. Provided that an organization comes within section 18, it will be able to restrict eligibility for scholarships and awards only if the recipient is a member or a participant. Simply being awarded a scholarship does not mean that the recipient is necessarily a member of the special interest organization.

Example: A fraternal association that offers an open scholarship for boys would only be protected from a challenge under the Code, if the fraternity primarily serves the interests of boys and if membership and participation in the fraternity is linked to receipt of the scholarship.

Example: A Roman Catholic institution may seek to restrict awards for divinity studies to Roman Catholics who intend to study for the priesthood. Similarly, a Jewish Hebrew school may declare that only Jewish students are eligible for enrolment in that school which may also designate scholarships or other financial awards strictly for Jewish applicants.

Scholarships as an employment benefit (subsection 24(1)(d))

Financial assistance in the form of scholarships or awards offered by employers to employees and their families are a form of assistance that provides advancement or benefits to eligible individuals. The Code allows this form of assistance, although it is limited to persons who are identified by their family or marital status. It is the OHRC's view that educational subsidies offered to employees and their families are acceptable as a legitimate form of exclusionary benefit related to employment.

^[3] See generally Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
^[4] Race, ancestry, colour, place of origin, ethnic origin, citizenship, nationality, creed, sex, family status, marital status, age, disability, receipt of public assistance (in accommodation only), record of offences (in employment only).