A good plan for a special program should be developed through consultation. It should identify a rationale, supporting data, eligibility criteria and an evaluation method. With these elements in place, a program may be less likely to face legal challenges by people who think it is discriminatory under Part 1 of the Code, and the program can be better defended as a “special program” if necessary.
Landlords, service providers and other organizations may establish their own special programs. No special or advance approval by the OHRC is needed.
Always consult the people who might be affected by the proposed special program. Include individuals and groups targeted by the program, labour unions or employee associations, tenant associations, service users or community organizations. Here are some things to keep in mind when making a plan.
Developing a rationale for the program
The rationale for a special program is simply the reason it is being created. The rationale serves as a principle on which to design the rest of the program. This
makes it easier to develop the eligibility criteria and make a meaningful evaluation
of the program once it has been started. A clear rationale also makes the program easier to understand for the people using it.
A good rationale will:
- Identify who will benefit from the program.
- Provide reasons why the target audience is considered to be experiencing hardship, economic disadvantage, inequality or discrimination. Evidence should be objective not subjective, and should not be based on personal impressions. Remember, there must be a real problem and evidence to show that the problem exists. Often, there is readily available research such as Census data that can help define the problem. Sometimes, data collection might be needed
- Explain how and why the program should help relieve the hardship, economic disadvantage, inequality or discrimination, including benefits, goals, timelines and expected results
- Outline the expected time period for the program.
Example: After studies showed that people of South Asian origin with low income have trouble getting access to the justice system, the government creates and funds a legal clinic to give free legal advice and representation to this group. A possible rationale behind the program is to help make it easier for this group to get legal representation in response to their disadvantage in the justice system.
A clear rationale can help an organization set goals for the program and criteria to evaluate its progress. This will help organizations track success and know when the goals have been met (see the section “Evaluating a special program”).
As a rule, using questions relating to prohibited grounds as criteria for offering employment, services, housing, contracts or membership in vocational associations is discrimination under Part 1 of the Code. However, the Code allows collecting data to monitor, evaluate and address systemic or other forms of discrimination. Data collection can itself be justified as a special program where it is designed to address systemic discrimination.
Collecting qualitative or quantitative data is a good way to see if a special program is needed. Data can be collected to see if certain groups are under-represented or if other forms of hardship, inequality or disadvantage exist.
Example: Before expanding and hiring new staff, an employer conducts a work survey to see if its workers reflect the community it serves. Employees are asked to identify themselves by sex, race, disability, creed, etc. and to submit the information anonymously. Based on the results, the company makes efforts to recruit more women into management positions.
An organization may want to periodically collect data to measure the results of special programs. This data can also help an organization decide whether to expand the program, disqualify people who no longer need it or discontinue the program when the equity goals have been met.
Example: An organization sets up a four-year special program to offer housing to homeless people with mental health disabilities and addictions. Data was collected during the program and at the end to see if the residents experienced greater quality of life, employment or volunteer prospects and improved physical and mental health. Based on the results, the organization changes its goals by continuing the program and offering additional supports to its older male clients.
An organization might also collect data to examine if its employment and service practices are equitable, or to deal with a problem known in the organization or the sector. Collecting data for these purposes can help organizations identify and eliminate possible Code infringements.
Example: A school board is aware of research in other jurisdictions showing the negative impact of “safe school” discipline policies on racialized students and students with disabilities. Parents of some students from these groups have raised concerns with the school board about their children being disciplined inappropriately. The school board wants to find out if this is a systemic problem.
It designs a data collection program to record information about how students are disciplined. This includes the race and disability of students who are disciplined, along with information on why they are disciplined, the types of disciplinary measures they face, the nature of the infraction and the form of discipline, to see if any discriminatory treatment exists.
The Code does not say how to collect data. However, there are some good methods to identify groups within, or served by, an organization:
- Self-identification surveys
- Use of a trained employee or external expert to record data through observation
- Use of an external consultant or expert to collect the data.
Anonymous and voluntary self-identification surveys are usually a good way to collect information, but organizations should choose the method that works best for them.
Privacy and dignity should always be a concern when collecting data. Organizations subject to freedom of information and privacy legislation should make sure that the method they choose complies with the relevant laws. Organizations should collect data in a way that respects dignity and privacy and should develop internal policies on privacy. Assuring anonymity may be needed to address privacy and confidentiality concerns. Service providers, employers, landlords and other responsible bodies should consult with affected communities about the need to collect data and the appropriate methodology.
Participants must always be told why data is being collected, how it will be used, the benefits of taking part and the privacy and confidentiality steps that will be taken to protect their information. Data collected for special programs must be used only for the purposes of that program.
The rationale for the program will guide who will be eligible to take part. As noted earlier, special programs must have criteria that only relate to the purpose of the program, and they cannot discriminate based on other grounds in the Code.
Very narrow criteria severely limit who can take advantage of the program. This might defeat the rationale behind the program by excluding people it was meant to help. On the other hand, criteria that are too broad might result in providing benefits to people who don’t need them.
Example: Studies show that people of South Asian origin with low incomes have trouble gaining access to the justice system. The government funds a legal clinic to provide free legal advice and representation to this group.
Criteria too broad: In deciding who could use their services, the legal clinic could help anyone of South Asian origin. However, this would be over-inclusive, because it would allow people with medium and high incomes to benefit. This would partially defeat the rationale behind the program, which is to help people of South Asian origin with low income.
Criteria too narrow or not related to the purpose: The legal clinic could offer services only to people whose income is below a certain level, who identify as South Asian, and who belong to a certain creed. These criteria would be too narrow, since the program is designed to help all South Asian people with low income, and allowing people of only one religion to qualify would leave out other South Asian people with low income. The program could also be challenged under the Code as discriminatory against people based on creed.
People are protected from discrimination when they take part in a special program, just as they are when receiving a service that is not a special program. Rules or restrictions placed on people taking part in the special program must not disadvantage people based on Code grounds.
Special programs often have limited resources. The temptation may be to restrict eligibility to put less strain on these resources. But financial limitations alone will not remove the obligation to justify the connection between eligibility and the reason for the program. Resources must be allocated in a way that furthers the purpose of the program and is in line with the intent of the Code.
Above all, the eligibility criteria should flow naturally from the rationale based on its supporting evidence. Criteria that are not clearly related to the purpose of the program will likely infringe Part 1 of the Code.
Also, even though the goal of a special program is to help people from Code-protected groups, it is important to note that taking part in a special program is not compulsory.
Finally, people should be told that a special program exists, the restrictions or limits on who is eligible, and whether the program is for services, a job or for housing.
Example: Ads for a government job program for youth under age 25 clearly explain to potential applicants and the public that the employment is part of a special program designed to help disadvantaged youth.
Evaluating a special program
Monitoring a special program is important because it can help to:
- Evaluate its effectiveness
- Identify opportunities for improvement and growth
- Facilitate accountability within the organization
- Justify requests for more funding
- Communicate program results to the organization and its clients
- Get the support of key decision-makers and stakeholders.
Assessing how well a program is working may also require data collection, described earlier.
Example: A community mental health organization and a bank set up a special program for people with severe mental health disabilities who receive social assistance. The program helps them to open a no-fee bank account. The program rationale shows that some people with mental health disabilities face financial and other barriers to opening and using bank accounts, which contributes to financial hardships and social isolation.
The goal of the special program is to help people with mental health disabilities by improving banking access. The organizations set criteria to meet this goal by targeting to reach a minimum number of participants. They also plan to ask participants if they feel more financially secure and have more personal control over their financial affairs
The organizations use qualitative and quantitative data to evaluate the program. They find that participants increased their income, were able to buy more groceries, could better manage paying their bills and felt they “belonged” in their community. Based on this information, the organizations decide that the program has met its goal and consider expanding it to different regions.
 See Carter v. Elementary Teachers Federation of Ontario (2011) HRTO 1604 (CanLII). In this case, the Elementary Teachers Federation of Ontario provided statistics that the HRTO ultimately relied on to support the argument that there is under-representation of women in leadership positions within the federation, and that women-only programming and executive positions are designed to address systemic sex discrimination experienced by teachers and promote equal opportunity.
 Applicable privacy laws include Ontario’s Provincial Freedom of Information and Protection of Privacy Act and Municipal Freedom of Information and Protection of Privacy Act or the federal Personal Information Protection and Electronic Documents Act. More information is available from the Office of the Information and Privacy Commissioner.(www.ipc.on.ca/english/Home-Page/)
 See XY v. Ontario (Government and Consumer Services) (2012), HRTO 726 at 264-68 (CanLII).