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