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).