Special programs and the Ontario Human Rights Code - A self-help guide

What are special programs?

The purpose of the Ontario Human Rights Code is to create a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community. It gives everyone the right to equal treatment in employment, housing, goods, services and facilities, contracts, and membership in unions, trade or occupational associations or self-governing professions based on Code grounds. Everyone is entitled to equal treatment in these areas based on their:

• Race, colour or ethnic background
• Religious beliefs or practices
• Ancestry
• Place of origin
• Citizenship
• Sex (including pregnancy and gender identity)
• Family status
• Marital status, including those with a same-sex partner
• Disability
• Sexual orientation
• Age
• Receipt of public assistance (in housing) and record of offences (in employment)
  

All organizations are required to prohibit unfair treatment based on Code grounds and must remove barriers that cause discrimination and stop it when it occurs. Organizations can also choose to develop “special programs” to help disadvantaged groups improve their situation. The Code and the Canadian Charter of Rights and Freedoms^[1] both recognize the importance of dealing with historical disadvantage by protecting special programs to assist marginalized groups. The Supreme Court of Canada has also said special programs should be protected.^[2] The Code allows for programs designed to help people who experience hardship, economic disadvantage, inequality or discrimination, and protects these from attack by people who do not experience the same disadvantage. This guide describes the use of special programs, clarifies when they are allowed, and identifies how they could be designed. The OHRC encourages the development and use of special programs as effective ways to meet particular needs, help reduce discrimination, and correct historical disadvantage.

Organizations do not need permission from the OHRC to develop or designate a special program. This means that special programs can be put in place without delay.

What the Code says

Under Section 14 of the Code, it is not discrimination to put in place a program if it is designed to:

• Relieve hardship or economic disadvantage
• Help disadvantaged people achieve, or try to achieve, equal opportunity or
• Help eliminate discrimination
  

A program must satisfy at least one of these points to be a special program under the Code. There are many types of programs that might qualify. For example:

• A housing co-op keeps a set number of spaces for women who are leaving abusive relationships
• The government funds a job program for persons under 25 to combat youth unemployment, because a Statistics Canada study shows that youth under 25 face higher rates of unemployment than other groups
• A government-funded community legal clinic offers its services only to people with disabilities, to help them fight some of the systemic barriers they face.

The OHRC, Human Rights Tribunal of Ontario (HRTO) and the courts can determine which programs are allowed as special programs under the Code.

^[1]Section 15(2) of the Canadian Charter of Rights and Freedoms outlines the protection of affirmative action programs, to prevent them from being attacked by people who are excluded from the programs’ purpose.
^[2] Most recently, in R. v. Kapp, (2008) 2 S.C.R. 483, the Court ruled that a commercial fishing license provided to three Aboriginal bands to allow fishing on one extra day of the year was not discrimination under the Charter and Rights of Freedoms because its object was to ameliorate the conditions of a disadvantaged group under section 15(2) of the Charter.