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Human Rights (Ontario) Law
(01 March 2019)

Chapter 6 - General Exceptions

  1. Overview
  2. Affirmative Action Programs
    (a) Overview
    (b) Designation as a Special Program
  3. Separate Schools


1. Overview

This brief chapter addresses general Code exceptions that apply broadly across most or all 'activity' areas, and most or all 'grounds' of discrimination. Exceptions which are conditioned more specifically by particular 'activities' [Ch.2: "Protected Activities"] or 'grounds' [Ch.3: "Prohibited Grounds"] are discussed in those chapters in relation to each activity or ground.

Note that the functional effect of an 'exception' is simply to allow the excepted discrimination to be legal, it does not diminish the fact that it may otherwise satisfy the legal definition of "discrimination" as discussed in Ch.4: "Discrimination".

2. Affirmative Action Programs

(a) Overview

Like s.15(2) of the Charter, the Code excepts affirmative action programs, or programs designed to [Code s.14(1)]:
  • "relieve hardship or economic disadvantage";

  • "assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity"; or

  • "that is likely to contribute to the elimination of the infringement of rights under Part I."
Note most significantly that only the last of these affirmative action program types is directly tied to the Code's specific prohibited grounds of discrimination [as set out in Ch.3]. Of the others, the first could easily be satisfied by a broad-based poverty reduction initiative, and the second by a temporary financial bail-out programs for a market sector in down-turn.

That said, as a practical matter affirmative action programs are generally targetted at groups manifesting one or more of the Code enumerated grounds of discrimination.

Much concern over the exempting potential to the Code of s.14(1) has been alleviated by widespread following of the doctrine established in Ontario (Human Rights Commission) v. Ontario (Ont CA, 1994) [the 'Roberts' case], which stated the following:
Section 14(1) has a dual purpose: the exemption of affirmative action programs from review and the promotion of substantive equality. The Divisional Court erred in law in construing s. 14(1) as having as its only purpose the exemption of special programs from the application of the Code. Where a person whom a special program is designed to assist is discriminated against on an enumerated ground prohibited by the Code, s. 14(1) is to be construed as an interpretive aid aimed at promoting substantive equality. Programs aimed at promoting substantive equality are reviewable depending on the context in which the challenge is brought. The exemptive purpose of s. 14(1) is not invoked in this appeal.
(b) Designation as a Special Program

In order to clarify the status of a program under the Code, a person may apply for a designation of a program as a 'special program' [Code s.14(2)]. Such a designation may be granted, with or without conditions requiring specified modifications [Code s.14(3)]. As well, the Commission may initiate its own inquiry as to whether a program is a 'special program', and so designate it if the s.14(1) criteria are met [Code s.14(4,5)].

Note however that programs initiated by the Crown (Ontario) or agents of the Crown are not subject to these designation procedures [Code s.14(9)]. This does not mean that no government program can be a "special program", just that government programs can not avail themselves of the 'pre-'designation provisions.

Regardless of which process is used to achieve a designation, it expires at a date specified by the Commission or at five years, whichever is earlier [Code s.14(6)], and a renewal may be sought before it expires [Code s.14(7)].

Absent evidence to the contrary, the granting or refusal of a designation of a program as a 'special program' is conclusive evidence of it's status, one way or the other [Code s.14(8)].

Of course, in the absence of any designation proceedings the Tribunal may still make a finding that a program is or is not a 'special program' if this defence is advanced by a respondent [Code s.14(10)].

3. Separate Schools

The right to separate (Catholic) schools in Ontario is entrenched in the Canadian Constitution, so it cannot be limited or hindered by provincial enactment (such as the Code).

This is made plain by a general Code exception for separate schools [Code s.19]:
This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act.
Essentially this means that the existence of the separate school system, and aspects of it close to its historical mandate, will not be found to be discriminatory on the basis of creed, or otherwise.

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