This guide was approved by the Ontario Human Rights Commission: March 2010
Updated: December 2013
Also available on the internet: www.ohrc.on.ca
Available in other accessible formats on request
What are special programs?
The purpose of the Ontario Human Rights Code (the Code) is to create a climate of understanding and mutual respect for the dignity and worth of each person, so that everyone feels part of and 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 based on Code grounds. Everyone is entitled to be free from discrimination in these areas based on their:
- Race, colour or ethnic background
- Religious beliefs or practices
- Place of origin
- Sex (including pregnancy)
- Gender identity
- Gender expression
- Family status
- Marital status, including those with a same-sex partner
- Sexual orientation
- Receipt of public assistance (in housing)
- Record of offences (in employment).
Under the Code, all organizations are prohibited from treating people unfairly because of Code grounds, must remove barriers that cause discrimination, and must 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 both recognize the importance of addressing historical disadvantage by protecting special programs to help marginalized groups. The Supreme Court of Canada has also recognized the need to protect “programs” established by legislation that are designed to address the conditions of a disadvantaged group.
The Code allows for programs designed to help people who experience hardship, economic disadvantage, inequality or discrimination. The Code also protects these programs 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 provides practical information on how they could be designed. The Ontario Human Rights Commission (OHRC) encourages the development and use of special programs as effective ways to achieve substantive equality by helping reduce discrimination, or addressing historical prejudice.
Organizations do not need permission from the OHRC to develop a special program. This means that special programs can be put in place without delay. This guide is designed to help you develop effective special programs.
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 or groups to achieve, or try to achieve,
equal opportunity or
- Help eliminate discrimination
A program must satisfy at least one of these points to be considered 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 age 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 deal with some of the systemic barriers they face.
In exceptional circumstances, the OHRC may designate that a particular program meets the requirements of a special program under the Code.
 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.
 In R. v. Kapp, (2008) 2 S.C.R. 483 (CanLII), 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 of Rights of Freedoms because its object was to ameliorate the conditions of a disadvantaged group under section 15(2) of the Charter.
 This may be done by an application to the OHRC for the designation of a program or by the OHRC initiating an inquiry into the program. In 2006, the OHRC looked at the issue of para-transit services and decided these were not voluntary special programs, but instead were part of the legal duty to accommodate riders with disabilities who could not use conventional transit services (for more information on this issue see “Special programs and the duty to accommodate”).