Policy on scholarships, bursaries, and other awards

Approved by the OHRC: (August 7, 2026)
This document replaces the Policy on scholarships and awards (1997)

ISBN: 978-1-0491-0026-5

Ontario’s Human Rights Code (the Code)¹ protects everyone’s right to equal treatment without discrimination based on 17 characteristics known as Code grounds.² The Code applies to five social areas, namely employment, housing, goods, services and facilities, contracts, and membership in unions, trade or occupational associations.

1. Summary

Scholarships, bursaries, and other awards (defined in section 3.1 of this policy) are services under the Code. Organizations are prohibited from treating any individual differently based on one or more Code grounds when creating or granting scholarships, bursaries, and other awards – regardless of whether the organization is private or public.

At the same time, the Code, the Canadian Charter of Rights and Freedoms (the Charter),³ and the Supreme Court of Canada⁴ all recognize the importance of addressing historical disadvantage by protecting special programs designed to help marginalized groups. Such programs can include scholarships, bursaries, and other awards available only to individuals who identify by one or more Code grounds (referred to as “targeted scholarships, bursaries, and other awards” in this policy).

In this policy, the Ontario Human Rights Commission (OHRC):

Outlines that scholarships, bursaries, and other awards must be based on non-discriminatory factors (such as merit, personal financial need, course specialization, or recognition for special contributions to academic or extracurricular life) and may not restrict eligibility based on Code grounds, except in the case of Code-permitted targeted scholarships, bursaries, and other awards.
Explains that targeted scholarships, bursaries, and other awards are permitted under the Code if offered for the purposes of achieving substantive equality, or if they serve another valid purpose recognized under the Code.
Explains how targeted scholarships, bursaries, and other awards can significantly improve access to services for disadvantaged individuals, including access to post-secondary education and related benefits (e.g., enhanced employment opportunities and income levels).
Describes the applicable Code exceptions that permit targeted scholarships, bursaries, and other awards.
Discusses the duty to accommodate under the Code and how it interacts with scholarships, bursaries, and other awards, including targeted ones.
Explains that “merit” should consider an individual’s entire experience and consider the systemic discrimination that affects who meets seemingly neutral requirements (such as “good grades” or early-career opportunities like internships).
Addresses unique considerations which apply to targeted scholarships, bursaries, and other awards restricted to Indigenous people, Francophones, or by age.

2. Purpose of OHRC policies

The OHRC was established in 1961 as an arm’s-length agency of the provincial government. The OHRC’s mandate includes promoting and advancing human rights under the Code through research, policy development, public education, public inquiries, and legal interventions before tribunals and courts. The OHRC is one of three pillars of Ontario’s human rights system. The other two are the Human Rights Tribunal of Ontario (HRTO)⁵ and the Human Rights Legal Support Centre (HRLSC).⁶

Section 30 of the Code authorizes the OHRC to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policymakers should act to ensure compliance with the Code. Policies represent the OHRC’s interpretation of the Code at the time of publication and advance a progressive understanding of the rights set out in the Code.⁷

3. About this policy

3.1 Notes on terminology

For the purposes of this policy, “scholarships, bursaries, and other awards” refers to any form of support, monetary or in kind, offered to individuals for the purpose of educational, cultural, athletic, research, or career advancement. This includes, but is not limited to:

scholarships,
bursaries,
awards,
grants,
student loan-forgiveness programs (also known as debt reduction or relief programs), and
academic stipends.

A broad range of organizations may create and grant scholarships, bursaries, and other awards. This includes, among others:

educational institutions,
artistic institutions,
community organizations,
religious organizations,
employers,
municipalities, and
the Ontario government.

3.2 Scope of this policy

Targeted scholarships, bursaries, and other awards are only permissible where they advance substantive equality, or serve another valid purpose recognized under the Code.

This OHRC policy provides information on the Code exceptions that permit targeted scholarships, bursaries, and other awards. The information contained in this policy also applies where criteria for unrestricted scholarships, bursaries, and other awards indicate that preference will be given to individuals who identify with one or more Code grounds.

The information contained in this policy applies to public or private organizations. It also applies to trusts that make funds available to the public and to other entities that may be required to act on the instructions or directions of a third party (such as a trust settlor or other benefactor).

All stages of developing and implementing scholarships, bursaries, and other awards are covered by this policy, notably:

creating,
developing,
identifying criteria,
funding,
promoting,
facilitating access to,
reviewing applications,
granting, and
evaluating.

Lastly, although this policy discusses scholarships, bursaries, and other awards as services, they are sometimes also offered as employment-related benefits. In such cases, the principles outlined in this policy may still apply, but employment-related Code protections and exceptions would as well. This policy does not explore the area of employment in detail, but more information is available in the OHRC’s Human Rights at Work.⁸

The OHRC encourages targeted scholarships, bursaries, and other awards where they can help address discrimination and improve equal access to services for disadvantaged groups identified by one or more Code grounds.

4. Legal framework

4.1 The Code and scholarships, bursaries, and other awards

Section 1 of the Code guarantees the right to equal treatment in services without discrimination.

In some cases, discrimination⁹ can result from rules, standards or requirements that directly treat people differently based on a prohibited ground, constituting discrimination under the Code. It can also occur when a rule, standard or requirement appears to be neutral but has a discriminatory impact.¹⁰ This is known as adverse effect or constructive discrimination (see section 4.4 of this policy for further details).¹¹

Discrimination can also take place indirectly, for example through a third party.¹² Intent is not required for discrimination to exist.¹³

Under the Code, “equality” does not mean treating everyone the same way. Rather, equality means “substantive equality”, which considers the full social context when assessing the effects of laws, policies, programs, or conduct. That social context includes a variety of factors, such as systemic, economic and historic disadvantages faced by the group(s) to which an individual belongs.

Substantive equality recognizes that different treatment may be necessary to alleviate disadvantages and ensure true equality. The Code provides exceptions that allow this, such as programs that provide exclusive support to disadvantaged groups.

Unless one of these exceptions applies, Code grounds should not be the basis for deciding who gets a scholarship, bursary, or other award.¹⁴

4.2 Special programs

Section 14 of the Code allows for special programs designed to help people who experience hardship, economic disadvantages, inequality, or discrimination for the purpose of promoting substantive equality. The Charter, the Supreme Court of Canada, and international human rights law¹⁵ also recognize that special programs designed to advance substantive equality are protected from being found to be discriminatory.

Targeted scholarships, bursaries, and other awards can be created as special programs to relieve hardship or economic disadvantages, or to overcome systemic discriminatory barriers linked to one or more Code grounds. This includes barriers to educational, cultural, athletic, research, or career advancement.

Example: A college learns that students with learning disabilities are disproportionately underrepresented among its student body. It creates a scholarship restricted to students with learning disabilities as a special program to lower one barrier to participation (i.e., cost) and address this disparity.

Such programs can play a vital role in ensuring access to scholarships, bursaries, and other awards for those impacted by narrow definitions of “merit” or by other systemic barriers to accessing scholarship, bursaries, and other awards as well as services.

Though merit is a legitimate factor when granting scholarships, bursaries, and other awards, common definitions of this term tend to rely on measures of academic or professional achievement that favour historically advantaged groups (such as grades and seniority). When assessing merit, failing to consider an individual’s entire personal experience and to contextualize it within demonstrated patterns of systemic discrimination can perpetuate existing disadvantages.¹⁶

The Court of Appeal for Ontario¹⁷ has affirmed that section 14 of the Code has two purposes:

Protecting special programs from challenges by people who do not experience disadvantage.
Promoting substantive equality to address disadvantage and discrimination in all its forms.

The Code also protects special programs from human rights claims by people who do not experience the same disadvantage the program was designed to address.¹⁸

When designed as special programs, targeted scholarships, bursaries, and other awards require a clear and specific rationale, as well as adequate eligibility criteria. This helps individuals and organizations understand their purpose, how the program is meant to be used, and how success will be evaluated.

Example: A university offers online programs to support distance learning and address geographic barriers (such as limited public transportation services and the high cost of relocation from rural and remote areas). It learns that First Nations students enrolled from remote reserves face barriers in accessing the program because of limited internet access and the university’s broadband-intensive online portal. Pending a review of its online portal, the university creates a bursary restricted to First Nations students enrolled in the online program and living on reserve. The bursary is designed as a special program to help cover the cost of purchasing new equipment or more expensive internet coverage plans.

A rationale should:

Specify who will benefit from the program (for example, students with disabilities or racialized researchers).
Provide reasons and evidence for why the targeted group is experiencing hardship, economic disadvantage, inequality, or discrimination, and how this experience ties to the Code ground(s) identified.¹⁹
Relative ²⁰ or historical underrepresentation evidenced by qualitative data²¹ may be sufficient.
Explain how and why the program should help relieve those challenges, including benefits, goals, timelines, and intended outcomes (for example, improve access or remove barriers to education, or support diverse practices for improved research).
Outline the expected duration of the program and/or how it will be reassessed to determine continued need.

It is important to ensure that the eligibility criteria for a special program are appropriately balanced. The criteria should not be so broad that individuals who are not intended to benefit from the program could qualify. They also must not be underinclusive (meaning that the criteria are so narrow that those who are meant to benefit from it are excluded from qualifying).²² A special program is not insulated from being challenged under the Code if its eligibility requirements exclude individuals whom the program was designed to assist.²³

Example: A polytechnic institution seeking to support gender diversity among its student body and attract future applicants creates a bursary for women as a special program. When a trans woman’s application is rejected as ineligible, she may have grounds to challenge the special program’s eligibility criteria as discriminating on the basis of gender identity.²⁴

Organizations may decide which Code-identified, disadvantaged group(s) will benefit from a special program it develops. This decision could be informed by their mandate as well as by their expertise and evidence.

Nonetheless, organizations which offer multiple targeted scholarships, bursaries, or other awards as special programs should consider, and attempt to achieve, an overall balance so that individuals from various disadvantaged groups can have equitable access to services. This is consistent with an intersectional approach to human rights.²⁵

Example: If a program offers scholarships for women but not for people with disabilities, the program may wish to create a scholarship for people with disabilities. It may also wish to explore what intersections exist within their pre-existing scholarships to serve women with disabilities.

Organizations do not need permission from the OHRC to develop a special program. The OHRC encourages organizations to develop special programs as an effective way to reduce discrimination, address historical and ongoing disadvantages, and achieve substantive equality. This includes creating targeted scholarships, bursaries, and other awards as special programs.

The OHRC’s Your guide to special programs and the Human Rights Code²⁶ provides further guidance on special programs.

If special programs raise concerns about conflicting rights between Code-protected groups, the OHRC’s Policy on competing human rights²⁷ can help guide organizations through complex situations.

4.3 Special interest organizations

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. Special interest organizations may be precise with their membership criteria and exclude people who are similarly but not exactly identified.²⁸

An organization that comes within section 18 may be able to create, fund, and grant targeted scholarships, bursaries, and other awards restricted to members or participants.

Example: A fraternal association that primarily serves the interests of boys and qualifies as a section 18 organization may offer a scholarship restricted to boys.

Example: A Roman Catholic institution may seek to restrict awards for its 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 and may also designate scholarships or other financial awards strictly for Jewish applicants.

Targeted scholarships, bursaries, or other awards granted by a special interest organization to its members do not need to be restricted to supporting access to the organization’s own programs.

Example: An association that primarily serves Black families may offer a targeted scholarship restricted to Black students whose families are members of the association to cover tuition for their studies at any post-secondary institution in the province.

Example: A community organization that primarily serves Muslim youth wants to celebrate artistic creation by its members. The organization may create a targeted award restricted to young Muslim artists from the community.

4.4 Canadian citizenship or permanent residence status

Subsection 16(2) of the Code permits Canadian citizenship or permanent residence status to be adopted as a requirement, qualification or consideration 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 Canadian citizenship or permanent residence may be requirements for a scholarship, bursary, or other award without constituting discrimination, when adopted for the specific purpose set out above.²⁹

Example: A sports academy offers a scholarship for low-income athletes. As the purpose of the academy, and therefore the scholarship, is to foster athletic activities to represent Canada in international competitions, the academy may restrict eligibility to Canadian citizens or permanent residents.

The OHRC encourages organizations to carefully consider any unintended consequences and identify mitigating steps when restricting scholarships, bursaries, and other awards based on Canadian citizenship or permanent residence status.

Such a restriction may perpetuate disadvantages faced by refugees, international students, or temporary residents. It may also deepen the exclusion and marginalization faced by recognized members of Indigenous nations whose territories are located in full or in part in Canada who do not hold Canadian citizenship.³⁰

4.5 The duty to accommodate

Under the Code, people identified by one or more Code grounds are entitled to the same opportunities and benefits as everybody else. In some cases, they may need special arrangements, known as accommodations, to enjoy equal access and treatment in the social areas covered by the Code, such as education or employment.

4.5.1 Understanding accommodation

Organizations have a legal obligation to accommodate Code-related needs, including in relation to scholarships, bursaries, and other awards. This obligation applies unless they can prove that providing accommodations would cause them undue hardship.

Some degree of hardship (or negative effects) is expected. It is only if the hardship is “undue” that the accommodation will not need to be provided.³¹ Undue hardship must be proven by the organization based on three factors: cost, outside sources of funding (if any), and health and safety requirements (if any).

Accommodation does not mean lowering bona fide (meaning “good faith” or “genuine”) requirements or threshold indicators related to merit (such as the skills or qualifications that one must meet to be eligible for an achievement award, a professional development opportunity, admission into an institution, passing a class or course, or graduating from a program). It means actively taking steps to eliminate barriers and address the negative effects of seemingly neutral practices³² where those negative effects are demonstrated.³³

In the context of scholarships, bursaries, and other awards (including targeted ones), this may include reviewing applications and eligibility through an accommodated procedure.

An accommodated procedure:

respects the applicant’s dignity,
is individual to the applicant’s unique needs, and
aims to maximize the applicant’s integration and full participation in processes to secure a scholarship, bursary, or other award.³⁴

When an individual requires a Code-related accommodation, informing them about outside sources of funding (such as government grants) does not relieve an organization’s duty to accommodate. Relying on scholarships, bursaries, and other awards instead of directly providing the accommodation through a distinct process will only be appropriate if it is equally effective in providing meaningful access to services.

4.5.2 Addressing external barriers

External barriers (i.e., barriers outside an organization’s direct control) may impede a prospective recipient from meeting bona fide requirements for a scholarship, bursary, or other award (including a targeted one). For example, third party vendors may fail to provide quotes in a timely manner or documentation in correct formats.

Where external barriers exist, organizations have a duty to accommodate the prospective recipient’s needs and remove these barriers up to the point of undue hardship.

Example: The HRTO found that a private career college discriminated against a prospective student who was blind when it failed to eliminate barriers to financial aid and enrollment. The college did not provide the special equipment he required as an accommodation or assist him when he was having difficulty applying for a bursary for students with disabilities so he could purchase the equipment himself. When the student was unable to enroll as a result, his request to defer his enrollment was denied.³⁵

4.5.3 Addressing internal barriers

Internal barriers may also exist within an organization’s own policies and procedures.

In many cases, access to scholarships, bursaries, and other awards (including targeted ones) is dependent on factors such as admissions procedures or full-time enrollment. For example, an organization may require that academic records be submitted only through its proprietary online portal, which may or may not meet modern accessibility standards.

Such seemingly neutral requirements can have an adverse effect on prospective recipients. They can create a barrier stopping individuals who would otherwise qualify for a scholarship, bursary, or other award (including targeted ones) from benefitting from the service.

Example: A single parent’s family status and caretaking responsibilities impede their ability to meet the credit requirements to qualify as a full-time student. This results in making them ineligible for various scholarships (including scholarships restricted to single parents). The organization that the student attends has a duty to take the student’s Code-related needs into account, eliminate the barrier, and accommodate the student up to the point of undue hardship, by choosing any number of possible measures.

Following inclusive design principles, organizations should proactively assess whether any requirement for a scholarship, bursary, or other award (including a targeted one) could have an adverse impact. Any barrier identified should be removed.

Where barriers continue to exist because they cannot be removed entirely, accommodations should be provided up to the point of undue hardship.³⁶ Not doing so may violate the Code.³⁷

5. Unique considerations

5.1 Scholarships, bursaries, and other awards restricted to Indigenous people

As Canadian society and organizations across Ontario work to advance truth and reconciliation,³⁸ Code-permitted targeted scholarships, bursaries, and other awards restricted to Indigenous people have become increasingly available. Such opportunities are invaluable in promoting substantive equality for Indigenous people.

Example: A research funding organization identifies that Indigenous-led research is underrepresented in its portfolio. It creates a targeted grant restricted to projects led by Indigenous academics as a special program.

Unfortunately, these opportunities also create a risk of Indigenous identity misappropriation by non-Indigenous individuals seeking to exploit these resources.

Misappropriating Indigenous identity – whether through deceit, exaggerating distant genetic ties to an Indigenous ancestor, or incorrectly interpreting family stories³⁹ is a deeply harmful practice which can constitute a serious breach of trust. The OHRC’s Policy Statement on Indigenous-specific hiring⁴⁰ (particularly section 4) and its companion context guide⁴¹ make clear that organizations have a responsibility to guard against any harmful, inaccurate, or fraudulent Indigenous identity claims when hiring for Indigenous-specific positions.

This position also applies to targeted scholarships, bursaries, and other awards restricted to Indigenous people.⁴²

The responsibility to prevent Indigenous identity fraud and appropriately confirm claims should not deter organizations from creating targeted scholarships, bursaries, and other awards restricted to Indigenous people. Rather, developing and implementing confirmation processes offers organizations new opportunities to strengthen relationships with Indigenous peoples and organizations, advance truth and reconciliation commitments, and effectively promote substantive equality.

5.2 Scholarships, bursaries, and other awards restricted to Francophones

Although language is not a prohibited ground of discrimination under the Code, it can be an element, factor, or proxy for discrimination based on related Code grounds (such as ancestry, ethnic origin, place of origin, race, citizenship, and creed).⁴³

Language proficiency can also be a bona fide requirement for eligibility for a scholarship, bursary, or award. In such cases, the requirement would not constitute discrimination, even if it results in differential treatment associated with one or more Code grounds.⁴⁴

Assessing whether an individual meets a bona fide language requirement should focus on proficiency in the language and not on other identity markers which could relate to a Code ground (such as place of origin and/or ethnic origin).

Example: A post-secondary education institution creates a scholarship to advance its French studies graduate program. The institution restricts eligibility to students proficient in the French language. This restriction could constitute a bona fide requirement if proficiency is evaluated without consideration for related Code grounds. For instance, an applicant of French ancestry and an applicant without French ancestry should be equally eligible if they both meet the required level of language proficiency.

There are additional elements at play when considering Francophones’ official minority rights,⁴⁵ recognized in the Canadian constitution⁴⁶ as well as in federal and provincial laws.

For example, the Charter recognizes that official language minorities, such as Francophones in Ontario, have the right to primary and secondary education instruction and facilities in their language.⁴⁷ This is reaffirmed in Ontario’s Education Act.⁴⁸ The Ontario French Language Services Act also provides that Francophones can expect government and certain public sector services in French in head or central government offices, or in designated areas of the province.⁴⁹

In addition to potentially constituting a bona fide requirement, restricting eligibility for a scholarship, bursary, or other award based on proficiency in French may therefore also align with French language legislation.

Organizations wishing to create targeted scholarships, bursaries, and other awards restricted to Francophones must ensure that one of the Code exceptions discussed in this policy applies. To do so, the intersection between French language proficiency and one or more Code grounds, as well as with a Code exception, must be clearly demonstrated as part of the rationale for the targeted scholarship, bursary, or other award. Organizations must also keep in mind the distinct rights held by Francophones as an official minority language community.

5.3 Scholarships, bursaries, and other awards restricted by age

Age is a protected Code ground and discrimination based on age with respect to services, goods and facilities is prohibited. However, it is important to note that under section 10(1) of the Code, age is defined as “an age that is 18 years or more.” This means that restricting scholarships, bursaries, and other awards to individuals aged 18 and older would not constitute discrimination under the Code.⁵⁰

Furthermore, section 15 of the Code permits preferential treatment of people aged 65 or over. Though a rare case, this means that restricting scholarships, bursaries, and other awards to individuals aged 65 and over would not constitute discrimination under the Code.

Lastly, though special programs may be created based on any Code ground, if the goal is to advance substantive equality (see section 3.2 above), it bears repeating that the disadvantage(s) a special program aims to address must be demonstrably connected to one or more Code grounds. If that link is not clear, a targeted scholarship, bursary, or other award may fail to qualify as a special program.

Targeted scholarships, bursaries, and other awards restricted solely by age as a special program must clarify how and why age alone links to a demonstrated disadvantage.

Example: In response to growing youth unemployment rates, an organization creates a targeted scholarship restricted to people under the age of 25 to help lower cost-related barriers to upskilling training and post-secondary education. In its rationale for the special program, the organization can point to the direct link between the ground of age and increased unemployment for the group targeted.

Age can also be a compounding factor in systemic discrimination and disadvantage. Where it is not sufficient on its own as a rationale, the ground of age can be relevant in special programs intended to address intersecting forms of discrimination and disadvantage (for example, for young racialized men, mature students with disabilities, or young single parents pursuing education after raising children).

6. Endnotes

1 Human Rights Code, RSO 1990, c H19 [Code], online: <ontario.ca/laws/statute/90h19>.

2 The 17 Code-protected grounds are:

Age
Ancestry
Colour
Race
Citizenship
Ethnic origin
Place of origin
Creed
Disability
Family status
Marital status (including single status and same-sex partnerships)
Gender identity
Gender expression
Receipt of public assistance (in housing only)
Record of offences (in employment only)
Sex (including pregnancy and breastfeeding)
Sexual orientation.

3 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, 1982, c 11 (UK), s 15(2) [Charter], online: <laws.justice.gc.ca/eng/const/page-12.html>. Section 15(2) of the Canadian Charter of Rights and Freedoms allows governments to pro‑actively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. It protects these programs from claims of discrimination under section 15(1) of the Charter. Sections 15(1) and (2) work together to promote substantive equality. See also R v Kapp, [2008] 2 SCR 483 at para 16, 2008 SCC 41, [Kapp], online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/5696/index.do>.

4 In Kapp, supra note 4, the Supreme Court of Canada (SCC) held that a commercial fishing license provided to three Indigenous bands to allow fishing on one extra day of the year was not discrimination under section 15(1) of the Charter because its object was to ameliorate the conditions of a disadvantaged group under section 15(2) of the Charter.

5 The Human Rights Tribunal of Ontario (HRTO) resolves claims of discrimination and harassment under the Code. Find more information online: <tribunalsontario.ca/hrto/>.

6 The Human Rights Legal Support Centre (HRLSC) provides free legal and support services to people who have experienced discrimination under the Code. Find more information online: <hrlsc.on.ca/homepage/>.

7 The OHRC’s authority to develop policies under section 30 of the Code is part of its broader responsibility under section 29 to promote, protect and advance respect for human rights in Ontario, to protect the public interest, and to eliminate discriminatory practices. Section 45.5 of the Code states that the HRTO may consider policies approved by the OHRC in a human rights proceeding before the Tribunal. Where a party or an intervenor in a proceeding requests it, the Tribunal shall consider an OHRC policy. Where an OHRC policy is relevant to the subject-matter of a human rights application, parties and intervenors are encouraged to bring the policy to the Tribunal’s attention for consideration. OHRC policies are subject to court and tribunal decisions. They have been given great deference by courts and tribunals, applied by them and quoted in their decisions.

8 Ontario Human Rights Commission [OHRC], Human Rights at Work, 3rd ed, (Toronto: Carswell Thompson & OHRC, 2008), at Chapter IV, section 7, online: <ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/7-pay-benefits-dress-codes-and-other-issues>.

9 The SCC defined discrimination as “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed”. See Andrews v Law Society of British Columbia, [1989] 1 SCR 143 [Andrews], online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/407/index.do>. The SCC also set out a three-step test to establish prima facie discrimination (discrimination on its face) under the Code. The person making a claim must show, on a balance of probabilities (more likely than not) that:

They have a characteristic protected by one or more of the Code grounds
They experienced adverse or negative treatment or impact in one of the social areas under the Code (e.g. in services or employment)
The protected characteristic was a factor in the adverse treatment or impact.

See Moore v British Columbia (Education), [2012] 3 SCR 360 at para 33, 2012 SCC 61 [Moore], online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12680/index.do>.

10 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3, 1999 SCC 652, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1724/index.do>.

11 Code, supra note 1, s 11.

12 Fisher v York University, 2011 CanLII 1229 (HRTO) [Fisher], online: <canlii.ca/t/fm44v> (“[t]he fact that funds are provided by a third party does not relieve the respondent of its duties under the Code” at para 67).

13 Ont Human Rights Comm v Simpsons-Sears, [1985] 2 SCR 536, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/101/index.do>.

14 Canada Trust Co. v. Ontario Human Rights Commission (C.A.), 74 OR (2d) 481, 1990 CanLII 6849 (ONCA), online: <canlii.ca/t/g186s>; Royal Trust Corporation of Canada v The University of Western Ontario et al, 129 OR (3d) 772, 2016 CanLII 1143 (ONSC), online: <canlii.ca/t/gnc5t>.

15 International human rights law recognizes the importance of advancing the “equal effective enjoyment of all human rights and fundamental freedoms” through special measures (see The concept of “special” measures in international human rights law: background document prepared by the Office of the United Nations High Commissioner for Human Rights, OHCHR, UN Doc A/AC.265/2005/CRP.4 (2005) at 3, online: <un.org/esa/socdev/enable/rights/documents/ahc6ohchrspmeasures.doc>), which are enshrined in instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of Persons with Disabilities. Special measures under international human rights law are protected from being deemed discriminatory if they do not lead to the maintenance of separate rights or standards and are discontinued when the objectives of the measures are reached (see General Recommendation no. 32: The meaning and scope of special measures in the International Convention on the Elimination of All Forms Racial Discrimination sic], CERD, 75^th Sess, UN Doc CERD/C/GC/32 (2009) at 6-9, online: <refworld.org/legal/general/cerd/2009/en/70344>).

16 Teodora K Tomova & L Taylor Phillips, “What counts as discrimination? How principles of merit shape fairness of demographic decisions,” (2022) 123:5 J Personality & Soc Psychology 957, online: <doi.org/10.1037/pspi0000383>. At 978: “However, even when meritocratic principles are upheld, discrimination may persist: people believe some kinds of demographic attributes to be meritocratic in the first place.” See also OHRC, What We Heard Report: Anti-Black Racism in Education Roundtables, (Toronto: OHRC, 2024), online: <ohrc.on.ca/en/what-we-heard-report-anti-black-racism-education-roundtables>; Community Living Ontario et al., If Inclusion Means Everyone, Why Not Me (Toronto: Community Living Ontario, 2018), online: <communitylivingontario.ca/if-inclusion-means-everyone-why-not-me/>.

17 Ontario (Human Rights Commission) v Ontario, 19 OR (3d) 387, 1994 CanLII 1590 (ONCA) [Roberts], online: <canlii.ca/t/6k4x>.

18 Ball v Ontario (Community and Social Services), 69 CHRR 300 at paras 121-124, 2010 CanLII 360 (HRTO) [Ball], online: <canlii.ca/t/285qv>.

19 Anecdotal examples of individuals belonging to the targeted group who are not disadvantaged are not sufficient to show that the group at-large does not experience disadvantage. See Lisikh v Ontario (Education), 2022 CanLII 1345 (HRTO), online: <canlii.ca/t/jszvd> (“[w]hile I note and acknowledge the applicant’s observation that many Black youth are highly successful in their education, the Commission’s policy on racism and racial discrimination supports the allegation that many more Black students are disadvantaged and experience hardship in accessing equal educational opportunities, as compared to their non-racialized fellow students” at para 29).

20 The HRTO found that relative under-representation is enough to justify a special program for a disadvantaged group. See Carter v Elementary Teachers Federation of Ontario, 2011 CanLII 1604 (HRTO), online: <canlii.ca/t/fmrqb>.

21 Re The Esther G Castanera Scholarship Fund, 2015 CanLII 28 (MBQB); available online: <canlii.ca/t/ggmdz> (“[c]urrent enrollment numbers do not always tell the whole story. They certainly do not give consideration to what has happened in the past, or recognize…enrollment numbers in undergraduate programs may give a false impression of equality within the discipline if there is a large exodus of women from the discipline after graduation or an underrepresentation in leadership positions within the discipline” at para 39).

22 Québec (Attorney General) v Kanyinda, 2026 SCC 7 [Kanyinda] at paras 66 and 91, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21399/index.do>.

23 Roberts, supra note 18; Ball, supra note 19. In Ball, the HRTO found that when a challenge to a program comes from a person whom the program is designed to assist, the general prohibitions against discrimination apply. The role of s 14 is to address challenges from those who are not the intended beneficiaries of a particular program.

24 OHRC, Policy on preventing discrimination because of gender identity and gender expression (Toronto: OHRC, 2014), online: <ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression>.

25 Intersectional approaches to human rights acknowledge the complex, unique, and compounding barriers that people face when experiencing discrimination based on multiple grounds, such as sexual orientation and race. See OHRC, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims (Toronto: OHRC, 2001), online: <ohrc.on.ca/sites/default/files/attachments/An_intersectional_approach_to_discrimination%3A_Addressing_multiple_grounds_in_human_rights_claims.pdf>. See also Kanyinda, supra note 22.

26 OHRC, Your guide to special programs and the Human Rights Code (Toronto: OHRC, 2013), online: <ohrc.on.ca/en/your-guide-special-programs-and-human-rights-code>.

27 OHRC, Policy on competing human rights (Toronto: OHRC, 2012), online: <ohrc.on.ca/en/policy-competing-human-rights>.

28 The HRTO found that the Little Native Hockey League qualified under s 18 as a special interest organization whose membership is restricted to Ontario First Nation children and youth and therefore did not discriminate when they denied membership to a young Indigenous girl whose mother is a member of the Qalipu Mi’kmaq First Nation of Newfoundland and whose father is Inuit and a non-resident member of the NunatuKavut Nation of Labrador (i.e., not from an Ontario First Nation). See KP v. Little Native Hockey League, 2020 CanLII 298 (HRTO), online: <canlii.ca/t/j6v8h>.

29 Fisher, supra note 12 at para 68: “University studies are clearly educational activities and the bursaries which include citizenship in their criteria of eligibility are intended to foster participation in these activities. I hold that subsection 16(2) is a complete answer to the applicant’s claim of discrimination on the basis of citizenship. The respondent has not violated s. 1 of the Code in creating or administering bursaries and scholarships which include Canadian citizenship as a criterion of eligibility.”

30 For example, a citizen of the United States of America may be registered under the Indian Act as a recognized member of a First Nation whose lands and territories are divided by the colonial border between Canada and the United States of America. For more information, see Immigration, Refugees, and Citizenship Canada & Canada Border Services Agency, Indigenous Mobility and Canada’s International Borders: Reflecting back and looking forward (Ottawa: IRCC, 2024), online: <canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/indigenous-mobility.html>.

31 Central Okanagan School Dist No 23 v Renaud, [1992] 2 SCR 970 at para 984, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/910/index.do>.

32 Moore, supra note 9; Longueépée v University of Waterloo, 153 OR (3d) 641, 2020 CanLII 830 (ONCA) [Longueépée], online: <canlii.ca/t/jc99k>.

33 Kahkewistahaw First Nation v Taypotat, [2015] 2 S.C.R. 548, 2015 SCC 30, online: <decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15383/index.do>.

34 OHRC, Fact Sheet, Policy on accessible education for students with disabilities (Toronto: OHRC, 2018) at section 8, online: <ohrc.on.ca/en/policy-accessible-education-students-disabilities>.

35 Brown v Trebas Institute Ontario Inc, 62 CHRR 329, 2008 CanLII 10 (HRTO), online: <canlii.ca/t/1vrht>.

36 OHRC, supra note 34; OHRC, Inclusive design and the duty to accommodate (fact sheet), (Toronto: OHRC, 2014), online: <ohrc.on.ca/en/inclusive-design-and-duty-accommodate-fact-sheet>.

37 Longueépée, supra note 32 at paras 5 and 8.

38 In most cases, these efforts are guided by the Truth and Reconciliation Commission’s 94 Calls to Action: Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: The Truth and Reconciliation Commission of Canada, 2015) at 319-337, online: <ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf>.

39 Teillet examines in greater details the many ways in which Indigenous identity misappropriation can be committed in section B of her report. Jean Teillet, Indigenous Identity Fraud: A Report for the University of Saskatchewan (Saskatoon: University of Saskatchewan, 2022) at 12-36, online: <indigenous.usask.ca/documents/deybwewin--taapwaywin--tapwewin-verification/jean-teillet-report.pdf>.

40 See OHRC, Policy statement on Indigenous-specific hiring (Toronto: OHRC, 2025), online: <ohrc.on.ca/en/policy-statement-indigenous-specific-hiring>.

41 See OHRC, Context guide for the Policy statement on Indigenous-specific hiring (Toronto: OHRC, 2025), online: <ohrc.on.ca/en/context-guide-policy-statement-indigenous-specific-hiring>.

42 In determining an appropriate process for confirming Indigenous identity claims, organizations need to build, maintain, honour, and respect relationships with rightsholders, and local Indigenous peoples and organizations that serve the community, and meaningfully engage with them. The OHRC recognizes that only rights-bearing Indigenous peoples and representative organizations can determine who is Indigenous (for the purposes of this statement, by referring to Indigenous peoples and representative organizations as “rights-bearing,” the OHRC primarily means Indigenous peoples and representative organizations who hold inherent Aboriginal and/or Treaty rights in Canada). In a recent decision, the HRTO found that a scholarship that imposed the same requirements for confirming Métis identity as the SCC decision in R v Powley, 2003 SCC 43 [Powley] did not discriminate under the Code. See Sokoluk v Indspire, 2025 CanLII 2552 (HRTO), online: <canlii.ca/t/kfthw>. In Powley, the SCC held that Métis identity under s 35 of the Charter requires acceptance by a modern Métis community.

43 Smith v. Hawkesbury General Hospital, 2020 CanLII 553 (HRTO), online: <canlii.ca/t/j8h8j> (“the Tribunal has recognized that in certain circumstances, [language] may be a proxy for some protected ground such as ancestry, place of origin, race or ethnic origin” at para 46). See also Arnold v. Stream Global Services, 2010 CanLII 424 (HRTO) at para 20, online: <canlii.ca/t/288mc>; Kelly v. Kirkland & District Hospital, 2012 CanLII 2278 (HRTO) at para 9, online: <canlii.ca/t/fv6n5>. For more information on language and the Code, see OHRC, Policy on discrimination and language (Toronto: OHRC, 1996), online: <ohrc.on.ca/en/policy-discrimination-and-language>.

44 For more on bona fide requirements, see OHRC, supra note 8, at Chapter IV, section 2(a).

45 OHRC, Policy statement on Francophones, language and discrimination (Toronto: OHRC, 2017), online: <ohrc.on.ca/en/policy-statement-francophones-language-and-discrimination>.

46 Charter, supra note 3 at ss 16-23.

47 Ibid at s 23.

48 Education Act, RSO 1990, c. E.2, at ss 290(2) and 291(1), online: <ontario.ca/laws/statute/90e02>.

49 French Language Services Act, RSO 1990, c. F.32, online: <ontario.ca/laws/statute/90f32>.

50 In one case, the HRTO found that the Code's restricted definition of age violated s 15 of the Charter for the purposes of that proceeding. See Arzem v Ontario (Community and Social Services), 56 CHRR 426, 2006 CanLII 17 (HRTO), online: <canlii.ca/t/1r78j>. However, absent a successful constitutional challenge, the Code's definition limits the protection against age discrimination to persons over 18. See for example DF v University of Ottawa, 2011 CanLII 1318 (HRTO), online: <canlii.ca/t/fm724>.