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Human Rights (Fed) - Special Programs [s.16]. Canada (Attorney General) v. Dominique
In Canada (Attorney General) v. Dominique (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here from a Federal Court ruling that "dismissed the Attorney General’s application for judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal)", that regarding "the funding of the operating costs for the self‑administered police service that the First Nation chose to establish in 1996 in connection with the First Nations Policing Policy (the Policy) implemented by the federal government ...".
Here the court considers the 'special programs' provision of the CHRA [s.16(1)]:[79] In my opinion, it was reasonable for the Tribunal to address the argument of the ameliorative effect of the Policy and Program within the context of subsection 16(1) of the Act, i.e. as a defence against a finding of prima facie discrimination rather than as an argument aimed at countering the allegation of prima facie discrimination underlying the Complaint. It was open to the Tribunal to do so in light of the submissions made to it in writing (Appeal Book, Respondent’s Statement of Particulars at 11425) and at the hearing (Appeal Book, Oral Argument Transcript at 12307 and 12308). It was also open to it to do so because of the rather shaky legal basis for the proposition that the ameliorative effect of a program should be an element of the first step of the two-step test for establishing the merits of a discrimination complaint under the Act or any other human rights legislation.
[80] This is so for two reasons. The first relates to the fact that nothing in either the Act or any of the case law under human rights legislation states that the analytical framework specific to this first step of the test — the Moore framework — allows for the ameliorative effect of a social protection program to be taken into account, even if the alleged perpetrator of the discriminatory conduct is permitted to present evidence at that step of the analysis, as acknowledged by the Tribunal. In my opinion, the right to adduce evidence to counter an allegation of prima facie discrimination should not be confused with the legal test that must be met to establish the existence of a prima facie discriminatory practice.
[81] The second reason is that agreeing with the Attorney General’s view would, for all intents and purposes, render subsection 16(1) of the Act redundant, since the ameliorative effect of the program at issue would allow for the complaint to be disposed of in the first step of the test and, therefore, without even having to resort to the defence based on the same effect. As noted above, there are certain limitations to this defence that, in theory, could not be used against the alleged perpetrator of the discriminatory practice at this stage of the analysis. It seems to me that Parliament could not have intended such a blurring of lines.
[82] In any event, it is questionable whether the ameliorative effect argument, even when considered for the purposes of determining whether there is prima facie discrimination, could have moved the Tribunal’s thinking in the direction sought by the Attorney General. In my view, it could not have done so.
[83] It may seem counterintuitive that a government policy intended to correct historical disadvantages associated with a disadvantaged group could be discriminatory. However, the ameliorative effect argument has its limitations, in the sense that it does not adequately suit cases where, as here, it is the implementation of the policy (e.g. through funding practices that hinder the achievement of its objectives) and not the policy itself that is alleged to be problematic.
[84] Pushed to its limit, this argument would allow for tolerance of discriminatory conduct on the basis that the disadvantaged group is now better off than it was before the policy was adopted, even if the policy’s implementation gives rise to equality rights concerns. It seems to me that this would result in indirect condonation of the approach whereby there can be no discrimination if the harm or adverse treatment at issue is now, all in all, minimal, an approach rejected by the Supreme Court as being at odds with the very purpose of human rights legislation, which aims to ensure that there is no discrimination—of any level—without any consequences (Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525 at 543).
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