Ontario (Human Rights Comm.) and Roberts v. Ontario (Ministry of Health) (No. 1), 1989 CanLII 9021

Ontario (Human Rights Comm.) and Roberts v. Ontario (Ministry of Health) (No. 1)

1989-04-14

Ontario Board of Inquiry Decision under the HUMAN RIGHTS CODE, 1981, S.0. 1981, c. 53

Edwin Roberts

Complainant

v.

Her Majesty the Queen in Right of Ontario and the Ministry of Health

Respondents

Date of Decision:

April 14, 1989

Before:

Constance Backhouse

Comm. Decision No.:

362

Appearances by:

David Baker, Counsel for the Complainant

Janice Baker, Counsel for the Respondents

Anne Molloy, Counsel for the Ontario Human Rights Commission

DISABILITY — assistive devices program assistance — PUBLIC SERVICES AND FACILITIES — BENEFITS — financial assistance benefits denied — AGE DISCRIMINATION — 22 (and under) — AFFIRMATIVE ACTION — incorporation of all groups within terms of reference of special program — HUMAN RIGHTS — survey of human rights legislation — EQUALITY — equal treatment

Summary: The Board of Inquiry dismisses the complaint of Edwin Roberts alleging that he was discriminated against because of his age.

Mr. Roberts is 73. He has an advanced case of chorio-retinopathy which severely restricts his sight. With the use of a closed circuit television magnifier, Mr. Roberts is able to read selectively, write, deal with correspondence and magnify small pictures. In 1986 Mr. Roberts applied to the Assistive Devices Program of the Ontario Ministry of Health to obtain financial support to assist in the purchase of a closed circuit television magnifier. Mr. Roberts was refused the assistance. He was informed that the funding of visual aids under the Assistive Devices Program was restricted to persons 22 years of age and under.

The Board of Inquiry finds that the Assistive Devices Program violates section 1 of the Human Rights Code because it denies equal treatment in the provision of a public service because of age. However, the Board finds that the Assistive Devices Program is "saved" by section 13 which provides that special programs which are designed to assist disadvantaged persons do not violate the Code.

The Board finds that the Assistive Devices Program is a special program designed to assist disabled persons. The age discrimination in the Program is allowable because the Program is intended to assist certain disadvantaged persons. Affirmative action programs which are protected by section 13 do not have to incorporate all disadvantaged groups equally within their terms of reference, the Board finds. Nor is it the function of a Board of Inquiry to determine whether a special program is actually accomplishing its goal. If there is bona fide intent on the part of a special program's sponsor to relieve the hardship or disadvantage experienced by certain groups that is sufficient to gain the protection of section 13 of the Code.

The complaint is dismissed.

1On October 5, 1988, I was appointed to serve as a Board of Inquiry by the Minister of Citizenship pursuant to the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, to hear the complaint made by Mr. Edwin Roberts against Her Majesty the Queen in Right of Ontario and the Ministry of Health, dated March 30, 1987 and amended July 25, 1988. The complainant alleges that his right to equal treatment with respect to services was infringed on the ground of age, contrary to ss. 1 and 8 of the Code.

The Facts

2Mr. Roberts suffers from a condition of macular degeneration resulting in an advanced case of chorio-retinopathy, which severely restricts his sight. The disability, which first affected Mr. Roberts at the age of 71 in 1984, is caused by a thinning of the central retina, which results in a decline in fine acuity vision. Dr. Patricia T. Harvey, an ophthalmologist, administered several laser treatments to Mr. Roberts in 1985, but the thinning on the central retina in both eyes continued. When his condition had stabilized, Dr. Harvey advised Mr. Roberts that there was no further medical treatment that would restore his sight, and referred him to a CNIB Low Vision Clinic for assessment.

3The CNIB registered Mr. Roberts as legally blind, and introduced him to various magnifier devices to assist his sight. Dr. Michael Miller, the CNIB Low Vision Supervisor, recommended in May 1986 that Mr. Roberts use a closed circuit television magnifier. With this device, he is able to read selectively, write, deal with correspondence, and magnify small pictures.

4In 1982 the Ontario Ministry of Health introduced the Assistive Devices Program to cover up to 75 percent of the cost of certain devices such as wheelchairs, artificial limbs, and hearing aids for individuals with long-term disabilities. In February 1984, specified communication and visual aids were added. From the outset, the funding had been restricted to people who were 18 years of age or younger. In January 1986, the age ceiling was raised to 22, to allow persons who had been eligible for the program at the beginning to continue to qualify for funding.

5In August 1986, at the age of 73, Mr. Roberts applied to the Ministry of Health for financial support to assist in the purchase of a closed circuit television magnifier. On December 5, 1986, the Honourable Murray Elston, Minister of Health, notified Mr. Roberts that the funding of visual aids under the Assistive Devices Program was restricted to persons 22 years of age and under. If Mr. Roberts had met the age criteria, he would have been eligible for funding under the Program.

6In May 1986, the Minister of Health had announced his commitment to expanding the program to eliminate age restrictions. The first two steps were the removal of age restrictions on prosthetic devices in July 1986 and on respiratory supplies in September 1986. The Minister informed Mr. Roberts that he was committed to "phasing-in" coverage in all equipment categories, including visual aids, to adults of all ages in the future. However he concluded that the program could not help Mr. Roberts at the present time. He advised Mr. Roberts to contact the Assistive Devices Branch for assistance in approaching a service club for financial support. Mr. Roberts made some initial contacts with the Lions Club, but was unsuccessful in securing funding and Roberts subsequently purchased his own closed circuit television magnifier for $3,025 (U.S.) without any financial assistance from the government or a charitable organization.

SECTION 1 ANALYSIS

7Section 1 of the Ontario Human Rights Code, 1981 provides as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

The funding provided by the Assistive Devices Program constitutes a "service" within the meaning of s. 1. The issue to consider is whether this program violates the section 1 declaration of a right to equal treatment. The Board of Inquiry must examine whether there has been discrimination here with respect to "handicap" or "age."

A. Discrimination on the Basis of "Handicap"

8The first matter for consideration is whether this program violates the right to equal treatment with respect to services without discrimination because of "handicap." The Assistive Devices Program clearly extends services to disabled individuals that are not available to able-bodied persons. Could the Assistive Devices Program be challenged by an able-bodied complainant as "discriminatory" and violating a right to "equal treatment"?

9The concept of "equality" is a complex one, about which there is a great deal of controversy and scholarly debate. There is some suggestion that the pursuit of a unified definition is problematic in itself. Writing in the context of gender discrimination, Diana Majury has argued that

[I]t is in women's interest to refuse to subscribe to, or commit themselves to, any single meaning of equality. Feminist advocates need to learn to use the equality discourse on behalf of women in as many and in as diverse situations as the term can bear. The needs and experiences of women will dictate the meaning of equality in each particular context. It is these needs and experiences which should be brought into the open and promoted, not some reified ideal of equality.

[Majury, "Strategizing in Equality" (1987) 3 Wisconsin Women's Law Journal 169 at 186.]

By implication, this argument can be extended to encompass debate regarding equal treatment of the disabled and other groups identified in the Ontario Human Rights Code.

10Recognizing the difficulties and dangers of seeking definitions at this point, we can still proceed to examine existing jurisprudence. An early case which is relevant was the decision of a board of inquiry under the Alberta Individual's Rights Protection Act, S.A. 1980, c. I-2 in Bloedel v. University of Calgary (1980), 1980 CanLII 3916 (AB HRC), 1 C.H.R.R. D/25 (Alta. Bd. Inq., John D. Hill, chair). This concerned a program which provided financial support for tutoring services for native students seeking admission to university. Where the native students agreed to undergo the tutoring process, they were permitted entry into university programs despite academic qualifications that did not meet the criteria set for non-native applicants. The program was challenged by a non-native applicant. The board noted that the program was a

praise worthy attempt to meet an obvious need in the Province of Alberta, that of attempting to fill the educational vacuum which exists in the case of young native people, living on reserves, who for various reasons, may not have had the same opportunities for educational advancement at the university level, as their non-native brethren [sic].

However, the board held that the program did constitute unlawful discrimination at D/27–28:

[T]he only factor which operated to distinguish the Complainant's Application for Admission from the Applications for Admission of the students who were in fact admitted by the Panel, was the quality of being "Native" or "non-Native". Everything else being equal, the availability or non-availability of the Support Services was, in this case, the determinative factor in deciding who was or was not going to be admitted to the University Credit courses, and only Native students had access to the Support Services. [Emphasis added.]

11With respect, this tribunal does not find the Bloedel decision persuasive, precisely because everything else was not equal. Indeed, the board admitted as much in its description of the motivation underlying the program. The characterization of such a program as discriminatory seems to insist upon a very rigid and restrictive standard of equality that ensures treating all individuals, regardless of their situation, in precisely the same manner.

12The reasoning in Bloedel, supra, and in the case of Pelletier and Medieu v. Ministère de l'Environnement (unreported, as noted in Russell G. Juriansz, "Systemic Discrimination and Special Programs" Human Rights (Law Society of Upper Canada, 24 June 1983) at 16), which struck down a program that funded studies for female employees to qualify them for employment opportunities, appear to have been superseded by the reasoning from several decisions of the Supreme Court of Canada. In Athabasca Tribal Council v. Amoco Canada Petroleum Co. (1981), 1981 CanLII 193 (SCC), 2 C.H.R.R. D/437 (S.C.C.), the Alberta Energy Resources Conservation Board had ordered Amoco to provide special job training and employment opportunities for aboriginal peoples. The program was challenged as falling afoul of the Individual's Rights Protection Act of Alberta by discriminating against those who were not included. The Supreme Court unanimously concluded that the Board had no jurisdiction to prescribe such a program, since it was restricted to ruling on the natural resources of the province, not social welfare matters. However four of the members of the court stated in obiter that the program was not discriminatory:

In the present case, what is involved is a proposal designed to improve the lot of the native peoples with a view to enabling them to compete as nearly as possible on equal terms with other members of the community who are seeking employment in the tar sands plant. With all respect, I can see no reason why the measures proposed by the "affirmative action" programs for the betterment of the lot of the native peoples in the area in question should be construed as "discriminating against" other inhabitants. The purpose of the plan as I understand it is not to displace non-Indians from their employment, but rather to advance the lot of the Indians so that they may be in a competitive position to obtain employment without regard to the handicaps which their race has inherited.

(Ritchie J., concurred in by Laskin C.J., Dickson J. and McIntyre J.)

The remaining five members of the bench made no comment on this matter.

13More recently, the case of Andrews v. Law Society of British Columbia (February 2, 1989, S.C.C., as yet unreported) [since reported 1989 CanLII 2 (SCC), 10 C.H.R.R. D/5719] gave the Supreme Court of Canada the opportunity to elaborate on the concepts of equality and discrimination within the framework of the Charter. Even though the wording of s. 15 of the Charter is not identical to s. 1 of the Code (see infra), the import of the court's analysis is significant for our purposes.

Mr. Justice McIntyre describes the concept of "equality" [at D/5739, para. 41746]:

It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises. It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.

McIntyre J. continued [at D/5742, para. 41752]:

[F]or the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions.

14McIntyre then dealt with the question of how to determine when distinctions were invidious [at D/5752, para. 41768]:

Once it is accepted that not all distinctions and differentiations created by law are discriminatory, then a role must be assigned by s. 15(1) which goes beyond the mere recognition of a legal distinction. A complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.

The concept of discrimination was described at length [at D/5746, para. 41759]:

[D]iscrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

15The Assistive Devices Program draws distinctions between able-bodied and physically disabled individuals, but this is not determinative of the issues of "equality" or "discrimination." In this situation, the able-bodied have no need of the devices within the program. They are already mobile without the use of wheelchairs. They have limbs that function without need of prosthetic devices. They have hearing and visual capacities that do not require assistive equipment. The disabled, by contrast, have need of these devices if they are to obtain access to opportunities, benefits, and advantages available to able-bodied members of society.

16The Assistive Devices Program has been set up to accommodate differences between the able-bodied and the disabled. The program does not violate notions of equality. Indeed the "essence of true equality" requires that these distinctions be made. As Andrews, supra, has noted, identical treatment of groups differently situated may often produce discriminatory results. The concept of equality is not intended to make rigid guarantees that privileged groups will in all situations be treated in exactly the same manner as disadvantaged people. The proper focus of equality law is to ensure that vulnerable groups are enabled to exercise their rights and participate in opportunities so as to be able to contribute fully to the development of the community.

17Ruth Colker has developed the concept of "anti-subordination" as an overriding principle in equality analysis. [See Colker, "The Anti-Subordination Principle: Applications" (1987) 3 Wisconsin Women's Law Journal 59.] She compares this concept to the "anti-differentiation" principle (at 59–60):

The anti-differentiation principle seeks a color blind and sex blind society where racial and sexual differentiations do not exist. The anti-subordination principle, in contrast, is not hostile to racial and sexual differentiation unless they perpetuate the subordination of women or blacks.

Colker concludes that from an anti-subordination perspective, discrimination can only be justified if it redresses subordination. This type of analysis is useful in the context of this case. Colker's anti-subordination discussion sets criteria for determining whether the distinctions drawn by the Assistive Devices Program are contrary to the Code.

18The concepts of "equality" and "discrimination" found within the Ontario Human Rights Code, 1981 originated from a legislative desire to rectify unfair treatment or disadvantage that certain individuals and groups (such as the disabled) experience vis à vis the privileged, dominant classes (such as the able-bodied). Denial of employment and educational opportunities, problems of access to residential accommodation and other buildings, difficulties of access to transportation — these were the problems that fostered the legislative commitment to prohibit discrimination against the disabled. The language of s. 1, providing a "right to equal treatment . . . without discrimination," does not encompass a challenge of the Assistive Devices Program for the provision of funding services to disabled individuals. A program designed to reduce the disadvantages experienced by the physically disabled is a program that promotes equality in furtherance of the goals of the Code.

19Before leaving this point, it bears noting that the theoretical analysis of equality theory has progressed somewhat beyond the sameness/difference analysis largely utilized above. Catherine MacKinnon has argued in Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987) that the "difference" approach to equality theory can be critiqued as measuring difference by the standard of the dominant group. Analyzing this concept within the framework of sex discrimination, she writes (at 42–44):

[T]he difference approach adopts the point of view of male supremacy on the status of the sexes. Simply by treating the status quo as "the standard," it invisibly and uncritically accepts the arrangements under male supremacy. [ . . .] To one-sidedly measure one group's differences against a standard set by the other incarnates partial standards. The moment when one's particular qualities become part of the standard by which humanity is measured is a millennial moment.

Translating MacKinnon's arguments to the realm of disability, one can critique the very division of groups into "able-bodied" and "disabled." Extrapolating from MacKinnon's claims, people do not naturally fit into a bipolarity here; the situation is more accurately characterized as a continuum. Recognizing this in the fullest sense would mean completely restructuring our society to reflect needs and abilities quite distinct from the monolithic insistence on a narrow definition of physical health which is so overwhelmingly present now. In that vision, the Assistive Devices Program and the arguments we are engaged in here, would be like a pebble on the beach. Recognizing the partialness of the questions before us, we must continue with the analysis.

B. Discrimination on the Basis of "Age"

20Although the Assistive Devices Program does not violate s. 1 on the ground of "handicap," it remains to be considered whether it runs afoul of the section because of the age restrictions built into the funding criteria. The Assistive Devices Program clearly extends services to individuals under the age of 23 that are not available to persons aged 23 or over. Mr. Roberts, aged 73, challenged this policy as discriminatory and violating his right to equal treatment on the basis of age.

21Obviously, the policy distinguishes between applicants on the basis of age. The relevant question is whether this distinction is invidious and contrary to law. The category of "age" is more complex than the category of "handicap" in this analysis. With respect to "handicap," the "disabled" can be clearly described as disadvantaged compared to the "able-bodied." With respect to "age," individuals may experience invidious discrimination in their youth, in middle-age, and in old age. As a result, there may be competing groups that are disadvantaged on the basis of age.

22In this situation, individuals aged 23 and over who have medical need of assistive devices would appear, at first blush, to be in precisely the same position as disabled individuals who are younger. Just like their younger counterparts, older people who need wheelchairs are immobile without them. Older people who require prosthetic devices to function are just as dependent upon them as children and young adults. Older people with visual and hearing impairments are as incapacitated from daily functioning as young persons. In contrast to able-bodied persons, disabled people aged 23 and over need these assistive devices to enable them to participate as fully as possible in daily living.

23Individuals above the age of 23 are denied access to funds for some assistive devices, which amounts to the withholding or limiting of access to opportunities and benefits available to younger persons. The program is helping one disadvantaged group while excluding another disadvantaged group from coverage. It is differentiating between persons on the basis of age. As a result, it constitutes a discriminatory denial of the right to equal treatment with respect to services, contrary to s. 1.

The remaining question is whether the age restrictions in the Assistive Devices Program are saved by s. 13 of the Code.

SECTION 13 ANALYSIS

24Section 13 provides as follows:

13.(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to 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.

(2) The Commission may,

(a) upon its own initiative;

(b) upon application by a person seeking to implement a special program under the protection of subsection (1); or

(c) upon a complaint in respect of which the protection of subsection (1) is claimed,

inquire into the special program and, in the discretion of the Commission, may by order declare,

(d) that the special program, as defined in the order, does not satisfy the requirements of subsection (1); or

(e) that the special program as defined in the order, with such modifications, if any, as the Commission considers advisable, satisfies the requirements of subsection (1).

(3) A person aggrieved by the making of an order under subsection (2) may request the Commission to reconsider its order and section 36, with necessary modifications, applies.

(4) Subsection (1) does not apply to a special program where an order is made under clause (2)(d) or where an order is made under clause (2)(e) with modifications of the special program that are not implemented.

(5) Subsection (2) does not apply to a special program implemented by the Crown or any agency of the Crown.

25Counsel for the Commission noted that this case constituted the first occasion requiring significant scrutiny of the meaning and application of s. 13. As such it justifies some rather detailed consideration. Although s. 13 does not use the phrase "affirmative action," it embodies aspects of that concept as it has been understood in the Canadian context. Terms such as "special program," and "employment equity" have also been used in Canada, but for the purpose of historical authenticity, I will resort to the phrase "affirmative action" in this discussion.

26A brief examination of the legislative history behind s. 13 is useful at the outset. The first affirmative action provision, found in the 1972 version of the Code, was somewhat more restrictive in its scope. Section 7 of the Ontario Human Rights Code, S.O. 1972, c. 119, provided:

Notwithstanding the provisions of this Part, the Commission may, upon conditions or limitations and subject to revocation or suspension, approve in writing any special plan or program by the Crown or any agency thereof or any person to increase the employment of members of a group or class of persons because of the race, creed, colour, age, sex, marital status, nationality or place of origin of the members of the group or class of persons.

27In introducing the bill containing the present wording of s. 13, the Honourable Robert Elgie, Minister of Labour, stated:

Provision is made to exempt affirmative action plans or programs legitimately designed to benefit particular classes of persons. This is in response to the view expressed by many special interest groups that special programs to help their members achieve equal opportunity should be allowed to operate with the minimum of difficulty. Exception is also made for government programs of similar intent, including tax legislation.

[Ontario, Legislative Assembly, Debates at 5098 (9 December 1980)]

28In an effort to assist such groups, and to allow affirmative action programs to operate "with the minimum of difficulty," the Legislature expanded the scope of the provisions well beyond the initial restriction to the field of employment. The Crown was exempted from the supervision of the Commission, where it had not been before. The field was greatly broadened to include programs designed to deal with "hardship," "economic disadvantage," "disadvantage" generally, or any attempt to contribute to the elimination of the infringement of human rights. The Legislature significantly widened the goals of the programs and the class of persons entitled to benefit. The Commission was also given a more extensive and proactive mandate to initiate inquiry or recommend a special program for consideration.

29Section 13 now comprises the statutory embodiment of affirmative action programs within the human rights context in Ontario. Any discussion of our legislative protection of affirmative action programs in Ontario must take place against a larger back-drop of international and national frameworks. The very concept of affirmative action has been a contentious one, with opponents arguing that it constitutes unfair "reverse discrimination" and proponents arguing that it is necessarily included in any realistic appraisal of equality. To evaluate the present legislation fairly, one must have resort to the historical context from which it comes, and its place within the web of differing legislative responses from various jurisdictions.

A. The Concept of Affirmative Action

30Affirmative action has traditionally been discussed within the setting of employment, and most of the existing definitions are thus somewhat limited in focus. One of the broadest formulations comes from Kent Greenawalt, who describes affirmative action as:

a phrase that refers to attempts to bring members of underrepresented groups, usually groups that have suffered discrimination, into a higher degree of participation in some beneficial program.

[Greenawalt, Discrimination and Reverse Discrimination (New York: Knopf, 1983) at 17.]

31Tarnopolsky and Beaudoin define affirmative action programs as follows in Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982) at 423:

the various positive or affirmative steps which have been taken to prevent or overcome discriminatory practices or to ameliorate the disadvantage of certain groups, which have either been ordered following a finding of past discrimination or required by governments as a condition of doing business, or which have even been voluntarily adopted.

Rhys D. Phillips describes affirmative action as "a comprehensive planning process designed to bring about not only equality of opportunity but also equality of results." [Phillips, in Rosalie Abella, Report of the Royal Commission on Equality in Employment (Ottawa, 1984) at 49.]

32Carol Agocs provides another wide-ranging definition of affirmative action as

positive measures designed to replace organizational barriers to the full use of the skills and experience of women and minorities with practices that improve their access to organizational roles in which they have been unrepresented.

The goal of such programs in an employment context, she notes [in "Affirmative Action Canadian Style: A Reconnaissance" (1986) 12 Can. Pub. Pol. 148 at 149], is:

to counter the cumulative effects of institutionalized or systemic discrimination, which is the pattern of inequality built into the occupational structure because of organizational practices that effectively exclude minorities from entry or promotion, whether those exclusionary effects are intended or not.

33Defining affirmative action strictly in the employment setting, Judith Keene has cited a definition developed by Employment and Immigration Canada for a 1980 conference of federal and provincial ministers responsible for human rights:

Affirmative action includes changing systems to ensure equality of opportunity, but it means considerably more. It means implementing a comprehensive plan to achieve definite, measurable results according to goals and timetables established and reviewed in the same manner as any other business objective. The main aim of Affirmative Action is to change the existing distribution of employment. Changes can be tracked statistically, in the same way the original work force was analyzed. Goals and timetables are developed in short, intermediate and long term focus. Actual results are compared with the stated goals at appropriate times and, if necessary, adjustments to the plan are made to improve "production."

Keene continues:

Affirmative action programmes aimed at increasing the representation of a target group in a particular sector of the economy generally involve the implementation of one or more of the following strategies:

1. Where two candidates are otherwise equal, the minority group candidate is chosen.

2. Criteria for the position are reviewed and, where the maintenance of a relatively unimportant criterion would bar most members of a specific groups, that criterion is dropped or relaxed.

3. The employer or institution actively recruits within the minority group population through advertisements in ethnic newspapers, appropriately worded general advertisements, etc.

4. The employer or institution initiates or supports special training programmes designed to "upgrade" the qualifications of the specified group.

5. A "quota system" is imposed so that, through the use of the above four strategies, the employer or institution, by a specific date, might achieve the employment or enrollment of a number of minority group people equal to their representation in the population.

[Judith Keene, Human Rights in Ontario (Toronto: Carswell, 1983) at 152.]

Keene notes that affirmative action programs are not limited to the employment context. Indeed, she suggests that government programs such as family benefits, which differentiates among its recipients on the grounds of sex and marital status, might well be characterized as such [at 150–1].

34A more comprehensive definition of affirmative action might be cast as follows: "any program or policy that attempts to assist disadvantaged groups improve their position." We should probably be hesitant to define "disadvantaged groups" in any exhaustive sense at this point. One of the most salient features of disadvantage is how invisible and unarticulated the problems often seem to be. One of the hallmarks of a compassionate and inclusive society is the space which it opens for disadvantaged groups to speak about their experience. The concept of "disadvantage" should be left open so that it can accommodate the needs of groups which may emerge in the future as we peel more and more layers off the surface of discrimination. Much the same can be said about the mechanisms adopted to reduce disadvantage. This will be a process of trial and error, and we would do well to permit a wide diversity of programs and policies as we experiment in determining how best to alleviate the disparities.

B. The Arguments For and Against Affirmative Action

35The debate surrounding affirmative action is a heated one. It is rendered more complex than it might otherwise be because unstated beliefs and principles frequently underlie the arguments on each side. A good deal of the analysis is premised on the argument that affirmative action is a remedy for past discrimination. This leads to many questions about how to tailor the remedy to the harm. Questions are raised about generational responsibility, and how to ensure that candidates for assistance actually suffered discrimination in the past.

36In my opinion, a more useful examination is premised on the existence of discrimination in the present. Much of the debate here comes down to whether one accepts that an insidious and pervasive degree of discrimination continues to operate against the specified groups. Jennifer Bankier outlines the question very clearly:

[A]n opponent of affirmative action may assume that such measures are not necessary because we already live in a society in which all individuals are able to compete for opportunities on an equal basis, without any on-going disabilities related to race, sex, et cetera. If this were indeed the situation, any legislation that conferred benefits on the basis of such characteristics would of course be inappropriate, since it would provide members of the favoured race, sex, ethnic group, or religion with an unfair advantage over people who would otherwise be their equals, and thus would produce a net reduction in equality. This argument is not persuasive at the present time, since it is quite clear that we do not live in such a society, and constitutions must be interpreted within the context of the real world. In reality, blacks, women, and aboriginal peoples, for example, operate under real and serious disadvantages compared with white men. Legislation that is designed to help the members of such disadvantaged groups, in all likelihood, will do no more than place them in a position to compete on an equal basis, instead of giving them an advantage.

[Bankier, "Equality, Affirmative Action and the Charter; Reconciling Inconsistent Sections" (1985) 1 Canadian Journal of Women and the Law 134 at 142–3.]

37Shelagh Day has outlined some of the reasons why these disadvantages continue to plague various groups, despite the existence of various human rights statutes designed to combat discrimination:

Canadian human rights legislation has not had a significant impact on the patterns of disadvantage experienced by native people, women, the disabled, and other groups in terms of their access to education and work opportunities.

Until recently, human rights legislation has dealt only with individual complaints, and interpreters of the legislation have defined discrimination as those overt acts which are motivated by bigotry and prejudice. This statutory structure and this interpretation have failed to touch the most pervasive forms of discrimination which are embedded in the normal functionings of our employment and education systems . . .

For . . . disadvantaged groups there are two problems. The first is for those who meet the realistic requirements for better and different opportunities but who are often barred from them by systemic practices which, while they may look neutral, have discriminatory effects. . . .

The second problem for disadvantaged groups is that, because of the effects of historical patterns of discrimination and disadvantage, some members of these groups have not had the opportunity to qualify for better and different opportunities. Even if systemic barriers are removed, this group will remain significantly behind other groups in the population unless special assistance is provided to them.

[Shelagh Day, "Affirmative Action: The Distribution of Well-Being" (1980), 1 C.H.R.R. C/13, as quoted in Keene, Human Rights in Ontario at 151.]

38Opponents of affirmative action frequently refer to affirmative action as "reverse discrimination," arguing that it violates the commitment to eliminate discrimination and create a society in which individuals are not judged on categories such as race, sex, or handicap. Bankier elaborates on this argument:

Another assumption that frequently underlies opposition to affirmative action is that the goal of affirmative action (a neutral society in which characteristics like race or sex are irrelevant) also dictates the means that ought to be used to achieve such a society (neutral techniques in which characteristics like race and sex are irrelevant). In other words, members of all racial groups, both sexes, all religions, and so on, must be treated in the same manner, starting now; any policy that favours people on the basis of their group status is inherently improper, even if neutral policies will be ineffective to achieve equality in the foreseeable future.

[Ibid. at 143]

Bankier concludes that this position is unpersuasive, "since it allows an empty equality of form to prevail over the goal of equality in substance." [at 143]

39Bruce Feldthusen elaborates on this point:

Affirmative action programs are frequently referred to as a form of reverse discrimination. . . . Admittedly, affirmative action requires one to draw overt distinctions amongst groups of people, which in turn would seem to retard the ultimate goal of treating people equally. It is for this reason that in an ideal world one might prefer to eliminate discrimination than to cure its effects. In the real world, at least for the foreseeable future, the choice is between ignoring the reality of discrimination by hiding behind a veil of formal justice, or dealing openly with the problems which persist.

[Feldthusen, "Affirmative Action: Taking Equality Seriously", 8 Windsor Y.B. Access Just. (forthcoming)]

40The question of "merit" is often raised, particularly in the context of employment and education. Opponents of affirmative action argue that such programs thwart time-honoured notions of selecting candidates on the basis of qualifications and ability. Proponents of affirmative action respond that merit criteria are elusive, subjective, and highly suspicious, especially since present standards appear to distribute rewards so unevenly amongst different social groups.

41Those who disagree with affirmative action programs often characterize them as ones which hold back individuals with talent and ability. Perhaps the most celebrated depiction of this is Kurt Vonnegut, Jr.'s "Harrison Bergeron," a short story reprinted in the Fraser Institute's Discrimination, Affirmative Action and Equal Opportunity (Vancouver: 1982). Vonnegut describes a futuristic society in the year 2081 where "everybody was finally equal." Society was policed by the Handicapper-General, whose job was to ensure nobody was smarter than anybody else, better-looking, stronger or quicker. Persons with above-normal intelligence had to wear "mental handicap radios" in their ears. Persons with extra physical strength and ability were burdened with sashweights and bags of birdshot padlocked around their limbs. Those with above normal eyesight wore spectacles with thick, wavy lenses. [at 221–9.]

42What is remarkable about this narration is the degree of paranoia present in this depiction of equality. There is a deep-rooted fear that instead of enabling the disadvantaged, affirmative action programs will disadvantage the privileged. The misconceptions in this portrayal become clear when one considers the Assistive Devices Program under consideration in this decision. Affirmative action programs provide assistive devices to the disabled, rather than bags of birdshot to the able-bodied. From the vantage point of the advantaged and privileged classes, however, even relatively limited forms of affirmative assistance will sometimes be characterized as a direct attack on the stature and abilities of the able-bodied.

43The question of who should bear the cost of rectifying the problems of persistent discrimination raises a number of concerns. Paul Brest captures the issues nicely:

[It is] quite right to ask who pays the cost for remedying discrimination. This is a problem when the wrongdoers are dead or unidentifiable or when one cannot get relief against them; it is a problem when one cannot match the amount of past wrong-doing to the relief that seems necessary. . . . The problem is particularly acute in cases in which the institution apparently providing a remedy to one set of individuals is actually imposing the burden of that remedy on another set of individuals who are nearly as badly off as those who are benefitted.

[Brest, "Affirmative Action and the Constitution: Three Theories" (1987) 72 Iowa L. Rev. 281 at 281]

An effective affirmative action program will benefit certain identified groups. This will obviously constitute differential treatment for individuals not within the targeted groups. Whether this is unfair remains to be considered. Bankier has developed an analysis that divides individuals who are "beneficiaries of discrimination" into three types:

[Not] all members of the beneficiary group are consciously setting out to exploit members of the disadvantaged one. In fact, it is more appropriate to place the "beneficiaries" of discrimination into categories that resemble the tripartite scheme of tort liability. "Intentional" discrimination takes place when the person doing the discriminatory act does so out of hostility toward the disadvantaged group, or with a conscious desire to take the economic or other benefits that the act of discrimination confers. "Negligent" discrimination takes place when the actor would pay lip service to the concept of equality, but acts unreasonably as a result of uncritical acceptance of social stereotypes, past practice, or failure to understand the historical disadvantages under which women, minorities, or other "powerless" groups operate. Finally, an individual who is a member of a privileged group may be a beneficiary of discrimination that favours that group even when (s)he is affirmatively opposed to this phenomenon and has done no affirmative acts to perpetrate it. For example, a white male who desires to work in a "high class" job would benefit from the social discrimination that excludes women and minorities from such positions, because of the reduced competition for such positions. Because of the absence of individual fault, this sort of situation may be analogized to "strict liability" in tort.

[Bankier, at 143–4.]

Placing the argument within the employment context, Bankier concedes that some individual members of the privileged group would be worse off in the sense that fewer of them would be hired than if the affirmative action program did not exist. This, she argues, is not unfair:

If the affirmative action program is properly designed, this reduction in jobs for white men should only correspond to the number of extra jobs that white men occupy because they are "strict liability" beneficiaries of past discrimination. An adherent to the "social" view of discrimination would consider such a result to be appropriate and desirable, since it would tend to ensure true equality of opportunity for all members of the population in the longer run.

[Bankier, at 145.]

Feldthusen deals with this as well:

Opponents of affirmative action are quick to realize that discrimination in favour of disadvantaged groups entails discrimination against advantaged groups. They are slower to admit that discrimination against disadvantaged groups has entailed a lifetime of unjust discrimination in their favour. Affirmative action does disadvantage them, but not unjustly.

Affirmative action does require treating people differently, but as a means of treating them equally. I prefer to reject the label of reverse discrimination, and to emphasize that affirmative action is a means with which to reverse discrimination. Is it not more accurate to say that affirmative action corrects the consequences of unjustified discrimination than to say it discriminates in favour of disadvantaged groups?

[Feldthusen, Ibid.]

44Joe Feagin has also taken issue with the label "reverse discrimination." Writing in the American context concerning race, he states:

Traditional discrimination has meant, and still means, widespread, blatant and subtle discrimination by whites against blacks in most organizations in all institutional areas of this society — in housing, employment, education, health services, the legal system and so on. For three centuries now, millions of whites have participated directly in discrimination against millions of blacks, including routinized discrimination in the large-scale bureaucracies that now dominate this society. What would the reverse of this traditional race discrimination look like? For several hundred years massive institutionalized discrimination would be directed by dominant blacks against most whites. Most organizations in areas such as housing, education and employment would be run at the top by a disproportionate number of blacks; and middle- and lower-level decision-makers would be disproportionately blacks. These decision-making blacks would have aimed much discrimination at whites. That societal condition would be something one could reasonably call a condition of "reverse discrimination." It does not exist, nor is it likely ever to exist.

[Joe R. Feagin, "Affirmative Action in an Era of Reaction", Consultations on the Affirmative Action Statement of the U.S. Commission on Civil Rights, vol. 1, (Washington D.C., 1981) at 52.]

C. International Covenants

45The various covenants on human rights promulgated within the international community have tended to focus on concepts of equality. The International Covenant on Civil and Political Rights, [G.A. Res. 220 (xxi), 21 UN GAOR, Supp. No. 16, p. 52, UN Doc. A/6316 (1966)] ratified as a result of a unanimous agreement by all the provinces and the Canadian federal government in 1976, provides a useful illustration of this. Article 2 provides:

Para. 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 14(1) provides that:

All persons shall be equal before the courts and tribunals.

Article 26 provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

[Basic United Nations Human Rights Documents (New Brunswick Human Rights Commission, Fredericton, N.B., 1973); see W. S. Tarnopolsky, "The Equality Rights in the Canadian Charter of Rights and Freedoms" (1983) 61 Can. Bar Rev. 242 at 247.]

46The concept of affirmative action is perhaps less embedded as a fundamental rubric of international law, but is clearly an emerging norm. The undertaking of affirmative action is countenanced in the International Convention on the Elimination of All Forms of Racial Discrimination, [660 UNTS 195] which has also been ratified with the agreement of the federal and all provincial governments. Article 1 of that Convention provides:

Para. 4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

[Tarnopolsky, "Equality Rights" at 259.]

47Similarly, the Convention on the Elimination of All Forms of Discrimination Against Women, adopted by the United Nations General Assembly on December 18, 1979, [UN Doc. A/RES/34/180 (1979)] defines "discrimination against women" on a very general basis (at 3), but specifically contemplates the legitimacy of affirmative action. Temporary measures of positive or affirmative action "aimed at accelerating de facto equality between men and women" or measures aimed at protecting maternity, are not to be considered as discrimination within the meaning of this Convention. [Convention on the Elimination of All Forms of Discrimination Against Women 4. See Paul Sieghart, The International Law of Human Rights (Oxford: Clarendon Press, 1983) at 82.]

48The Convention also affirmatively imposes on the state parties an obligation to "take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. [Convention, 3; Sieghart, 82–3.]

D. The United States: The Legal Status of Affirmative Action

49Affirmative action was introduced into the United States under the guise of federal contractors' legislation. From 1941 on, American presidents began to require that various private companies doing construction work financed by the federal government should stipulate their intention not to discriminate in employment. In Executive Order No. 10925, President Kennedy went beyond the mere declaratory term, and established a requirement for affirmative action. In 1965, President Johnson passed Executive Order No. 11246 which set goals of a certain percentage of minority group employees in the contractors' workforce. Two years later, President Johnson issued Executive Order No. 11375, which extended the provisions to embrace sexual discrimination. [Howard Sherain, "The Questionable Legality of Affirmative Action" (1973) 51 Journal of Urban Law 25 at 28–31.]

50These types of initiatives were soon matched by private employers and educational institutions which began voluntarily to adopt and implement affirmative action programs of their own. As the range and scope of the programs grew, it became inevitable that they would be challenged legally. Various cases began to filter through the courts in which opponents of the programs asserted that they violated the equal protection clause of the fourteenth amendment and the Civil Rights Act of 1964.

51In University of California Regents v. Bakke, 438 U.S. 265 (1978), the Supreme Court held that a state medical school could include race as a factor in competitive admissions. Four of the justices said that preferences were appropriate even if a fixed number of places was set aside for minority group members. One justice said that only more flexible preferences were appropriate. Four justices said that preferences were not legally permissible.

52In Morton v. Mancari, 417 U.S. 535 (1979), the Supreme Court upheld employment preferences for aboriginal peoples in the Bureau of Indian Affairs, relying on the unique status of aboriginal tribes and the need to make the bureau more responsive to its constituents.

53In United Steelworkers v. Weber, 443 U.S. 193 (1979), the Supreme Court considered an agreement by a union and a company to give black employees half of the places in an internal craft-training program until the percentage of black craftworkers in the plant reached that of blacks in the local labour force. The Court held that private companies might prefer black employees to correct racial imbalances whether or not those companies had previously engaged in illegal discrimination.

54In Fullilove v. Klutznick, 448 U.S. 448 (1980), the Court upheld a federal statute passed in 1977, which set aside 10 percent of federal public works funds for services or supplies from businesses owned and controlled by minority groups.

55In Fire Fighter's Local Union No. 1784 v. Stotts, 104 S. Ct. 2576 (1984), the issue was whether the aims of a remedial affirmative action plan could take precedence over the dictates of an established seniority system in the face of mandatory layoffs. The Court held that it was inappropriate to deny an innocent employee the benefits of seniority in order to provide a remedy of affirmative action. The seniority rights of innocent employees were to supercede the implementation of an affirmative action plan, even in the face of past discrimination.

56In Johnson v. Transportation Agency, 107 S. Ct. 1442 (1987), the Court addressed the issue of whether the Civil Rights Act of 1964 allowed a public employer to establish a voluntary affirmative action program that authorized the consideration of sex in employment decisions. The Court resolved that such employers were entitled to do so.

57In City of Richmond v. Croson, 109 S. Ct. 706 (1989), the Court ruled 6 to 3 that a city ordinance channelling almost a third of public works funds to minority-owned construction companies violated the constitutional rights of white contractors.

58This quick perusal of the judicial record of the U.S. Supreme Court suggests that there is no consistent jurisprudential policy regarding affirmative action. The cases seem contradictory, and may reflect the vagaries of evidence and argument as well as the historical evolution of the composition of the bench. Without a clear and consistent juridical consensus on the issues, it is difficult for Canadian tribunals to borrow from this example. Indeed W. S. Tarnopolsky has suggested caution in drawing much from the American experience. He has noted that most of the American jurisprudence is based upon the explicit wording of the Civil Rights Act of 1964. "There is no exact Canadian equivalent of the relevant statutory provisions," he points out:

In fact, the anti-discrimination statutes of all provinces, except Newfoundland and Quebec, make explicit provision for the adoption of "special" programmes or measures, that is affirmative action programmes, and each of these makes explicit provision that these are not to be considered in contravention of the anti-discrimination statutes concerned.

[W. S. Tarnopolsky, "The Equality Rights in the Canadian Charter of Rights and Freedoms" (1983) 61 Canadian Bar Review 242 at 258.]

While the legislative situation has changed somewhat, as we shall discuss below, Tarnopolsky's point about the separateness of American and Canadian jurisprudence on affirmative action is clearly an important one.

E. The Historical Experience in Canada

59Canadian history is replete with examples of "affirmative action" programs designed to accommodate the interests of special groups. In many cases, the label was not affixed to the policies and programs, but it is clear that the intent was to enable certain groups and individuals who had experienced disadvantage in various respects, to participate more fully in the larger community.

60From the earliest origins of the Dominion, care was taken to inscribe minority religious and language rights into the founding documents. Special status for Roman Catholic schools and for the French language was expressly provided for in the British North America Act, 1867. The scheme of equality in regional representation for appointment to the Senate (and also followed on a modified scale with respect to appointments to the Supreme Court of Canada) can also be characterized as an accommodation of the interests of the less populous geographic areas in Canada.

61Following World War II, the government developed a veteran's preference program that allowed veterans special access to educational and employment opportunities. Special "fast-track" avenues to educational and professional qualifications were developed to accommodate the perceived needs of returning veterans. Within the public service, candidates with active-duty service overseas were given first priority, and other veterans second priority, even ahead of those whose credentials and qualifications were superior. [Alison Prentice et al., Canadian Women: A History (Toronto: Harcourt, Brace Jovanovich, 1988) at 307, 327; Russell G. Juriansz, "Systemic Discrimination" supra, at 13.]

62More recently, the federal government has begun to develop policies to integrate francophones into the public service. Bill 101 in the Province of Quebec might be characterized as an excellent example of a comprehensive affirmative action program, with scope and goals extending far beyond employment issues. [Carol Agocs, supra, at 151.]

63Commencing in the 1970s, concerns were raised about the "Americanization" of Canadian universities. As a result, various academic associations began to call for a "Canadian-first" program that would give Canadians an advantage over foreigners in competitions for academic positions. Regulations were promulgated and by 1981, universities were compelled to advertise for Canadian candidates and evaluate their suitability before seeking foreign academics. This "Canadians-first hiring policy for universities" has been in effect for eight years now. [Peta Tancred-Sheriff, A Century for Women in Higher Education: Canadian Data and Australian Comments (North Ryde, N.S.W.: Macquarie Univ. Press, 1987) at 12.]

64Various levels of government have initiated voluntary affirmative action programs amongst their own personnel. Ontario initiated an affirmative action approach in 1974 and introduced numerical targets for women in 1980. In June 1983, the federal government announced its decision to implement an affirmative action program for women, natives, and the disabled throughout the federal public service. Visible minorities were included in 1985. [Agocs, at 152–3.]

65In 1984, in the Report of the Royal Commission on Equality in Employment (Ottawa: Supply & Services), Rosalie S. Abella recommended that the federal government introduce new legislation making "employment equity" mandatory throughout the federal jurisdiction. Aspects of the term "employment equity" as coined by Abella, contained concepts of affirmative action. In April of 1986, the federal Parliament passed the Employment Equity Act, S.C. 1986, c. 31, which affected federally regulated companies, Crown corporations, federal government employees, and private sector organizations bidding for federal contracts worth $200,000 or more. Where such entities employed over one hundred employees, they were required to file affirmative action plans outlining their strategies and goals regarding the employment prospects of women, natives, the disabled and visible minorities.

66These and other programs, such as government subsidies to farmers and agricultural producers, can be characterized as affirmative action measures taken to improve the political, employment, or educational prospects of groups which are perceived to be vulnerable or disadvantaged. There is clearly an extensive history of endorsing such programs — across centuries and extending to a large cross-section of the population — within the Canadian social and cultural context.

F. The Legislative Response to Affirmative Action

67Protection for affirmative action programs is found within s. 13 of the Ontario Human Rights Code, 1981, as set out above. Legislation of this nature is to be found in most provincial jurisdictions, in the federal jurisdiction, and within the Canadian Charter of Rights and Freedoms.

(1) The Charter

68The Canadian Charter of Rights and Freedoms, Part I of Constitution Act, 1982 being Schedule B of Canada Act 1982 (U.K.), 1982, c. 11 provides:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Canada

69The Canadian Human Rights Act, S.C. 1976–77, c. 33 as amended by S.C. 1980–81–82–83, c. 143 [since reenacted with different section numbers as R.S.C. 1985, c. H-6] provides:

15.(1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, national or ethnic origin, colour, religion, age, sex, marital status, family status or disability of members of that group, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.

(2) The Canadian Human Rights Commission established by section 21 may at any time

(a) make general recommendations concerning desirable objectives for special programs, plans or arrangements referred to in subsection (1); and

(b) on application, give such advice and assistance with respect to the adoption or carrying out of a special program, plan or arrangement referred to in subsection (1) as will serve to aid in the achievement of the objectives the program, plan or arrangement was designed to achieve.

15.1(1) A person who proposes to implement a plan for adapting any services, facilities, premises, equipment or operations to meet the needs of persons arising from a disability may apply to the Commission for approval of the plan.

(2) The Commission may, by written notice to a person making an application pursuant to subsection (1), approve the plan if the Commission is satisfied that the plan is appropriate for meeting the needs of persons arising from a disability.

(3) Where any services, facilities, premises, equipment or operations are adapted in accordance with a plan approved under subsection (2), matters for which the plan provides for do not constitute any basis for a complaint under Part III regarding discrimination based on any disability in respect of which the plan was approved.

(4) [Notice when application not granted]

(5) [Rescinding approval of plan]

(6) [Effect where approval rescinded]

(7) [Statement of reasons for rescinding approval]

(8) [Opportunity to make representations]

(9) [Restrictions on deeming plan inappropriate].

41.(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, subject to subsection (4) and section 42, it may make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in such order any of the following terms that it considers appropriate:

(a) that such person cease such discriminatory practice and, in order to prevent the same or a similar practice from occurring in the future, take measures, including

(i) adoption of special program, plan or arrangement referred to in subsection 15(1), or

(ii) the making of an application for approval and the implementing of a plan pursuant to section 15.1,

in consultation with the Commission on the general purposes of those measures;

41.(4) If, at the conclusion of its inquiry into a complaint regarding discrimination based on a disability, the Tribunal finds that the complaint is substantiated but that the premises or facilities of the person found to be engaging or to have engaged in the discriminatory practice require adaptation to meet the needs of a person arising from such a disability,

(a) the Tribunal shall make such order pursuant to this section for that adaptation as it considers appropriate and as it is satisfied will not occasion costs or business inconvenience constituting undue hardship, or

(b) if the Tribunal considers that no such order can be made, it shall make such recommendation as it considers appropriate,

and, in the event of such finding, the Tribunal shall not make an order unless required by this subsection.

70The Canadian Human Right Commission has issued an interpretation document entitled "Special Programs in Employment: Criteria for Compliance," which relates to the design and implementation of affirmative action in the labour force. It would have no direct bearing on the type of program at issue in this case.

(3) Alberta

71The Alberta Individual's Rights Protection Act, R.S.A. 1980, c. I-2, as amended S.A. 1985, No. 33 contains no specific provisions relating to affirmative action.

(4) British Columbia

72The British Columbia Human Rights Act, S.B.C. 1984, c. 22; as amended 1985, c. 51 contains no specific provisions relating to affirmative action.

(5) Manitoba

73The Manitoba Human Rights Code, C.C.S.M., c. H-175 provides:

11. Notwithstanding any other provision of this Code, it is not discrimination, a contravention of this Code, or an offence under this Code

(a) to make reasonable accommodation for the special needs of an individual or group, if those special needs are based upon any characteristic referred to in subsection 9(2); or

(b) to plan, advertise, adopt or implement an affirmative action program or other special program that

(i) has as its object the amelioration of conditions of disadvantaged individuals or groups, including those who are disadvantaged because of any characteristic referred to in subsection 9(2), and

(ii) achieves or is reasonably likely to achieve that object.

43.(2) Where, under subsection (1), the adjudicator decides that a party to the adjudication has contravened this Code, the adjudicator may order the party to do one or more of the following:

(e) adopt and implement an affirmative action program or other special program of the type referred to in clause 11(b), if the evidence at the hearing has disclosed that the party engaged in a pattern or practice of contravening this Code.

(6) Newfoundland

74The Newfoundland Human Rights Code, R.S.N. 1970, c. 262^* provides:

15.(1) (1) On the application of any person the Commission may approve the programs designed to prevent, reduce or eliminate disadvantages respecting services, facilities, accommodation or employment that may be or are suffered by any group of individuals where those disadvantages would be, or are based on or related to the race, religion, religious creed, sex, marital status, physical disability, mental disability, political opinion, colour, ethnic, national or social origin of members of that group or subject to subsection (5) of section 9, the age of members of that group.

(2) At any time before or after approval to a program is given by the Commission the Commission may

(a) make inquiries concerning the program;

(b) vary the program;

(c) impose conditions on the program; or

(d) withdraw approval of the program as it thinks fit.

(3) Nothing done in accordance with a program approved pursuant to this section is a violation of the provisions of this Act.

(7) New Brunswick

75The New Brunswick Human Rights Code, R.S.N.B. 1973, c. H-11 makes reference to affirmative action within the context of educational programs:

12. Objects of the Human Rights Commission

The Commission has the power to administer this Act and without limiting the generality of the foregoing, it is the function of the Commission

(a) to forward the principle that every person is free and equal in dignity and rights without regard to race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status or sex;

(b) to promote an understanding of, acceptance of, and compliance with this Act, and

(c) to develop and conduct educational programmes designed to eliminate discriminatory practices related to race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status or sex.

13. Education Programmes of Human Rights Commission

13.(1) On the application of any person, or on its own initiative, the Commission may approve a programme to be undertaken by any person designed to promote the welfare of any class of persons.

13.(2) At any time before or after approving a programme, the Commission may

(a) make inquiries concerning the programme,

(b) vary the programme,

(c) impose conditions on the programme, or

(d) withdraw approval of the programme,

as the Commission thinks fit.

13.(3) Anything done in accordance with a programme approved pursuant to this section is not a violation of the provision of this Act.

(8) Northwest Territories

76The Northwest Territories Fair Practices Act, R.S.N.W.T. 1986, c. 62, provides:

14. The Commissioner may approve programs designed to promote the welfare of any class of individuals, and any such program shall be deemed not to be a violation of the provisions of this Act.

(9) Nova Scotia

77The Nova Scotia Human Rights Act, S.N.S. 1969, c. 11; as amended S.N.S. 1974, c. 46 provides:

19. The Commission may approve programs of government, private organizations or persons designed to promote the welfare of any class of individuals, and any approved program shall be deemed not to be a violation of the prohibitions of this Act.

(10) Prince Edward Island

78The Prince Edward Island Human Rights Act, S.P.E.I. 1975, c. 72, provides:

19. The commission may approve programs of government, private organizations or persons designed to promote the welfare of any class of individuals, and any approved program shall be deemed not to be a violation of the prohibitions of this Act.

(11) Quebec

79The Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, as amended S.Q. 1982, c. 61 provides:

Part III: Affirmative Action Programs

86.(1) The object of an affirmative action program is to remedy the situation of persons belonging to groups discriminated against in employment, or in the sector of education or of health services and other services generally available to the public.

An affirmative action program is deemed non-discriminatory if it is established in conformity with the Charter.

86.(2) Every affirmative action program must be approved by the Commission, unless it is imposed by order of the court.

The Commission must, whenever required, lend assistance for the devising of an affirmative action program.

86.(3) If, after investigation, the Commission confirms the existence of a situation involving discrimination referred to in section 86(1), it may recommend the implementation of an affirmative action program within such time as it may fix.

Where its recommendation has not been followed, the Commission may apply to the court and, on proof of the existence of a situation contemplated in section 86(1), obtain, within the time fixed by the court, an order to devise and implement a program. The program thus devised is filed with the court which may, in accordance with the Charter, make the modifications it considers appropriate.

86.(4) The Commission shall supervise the administration of the affirmative action programs. It may make investigations and require reports.

86.(5) Where the Commission becomes aware that an affirmative action program has not been implemented or is not being followed, it may, in the case of a program it has approved, withdraw its approval or, if it recommended implementation of the program, it may apply to the Court as in the second paragraph of section 86(3).

86.(6) A program contemplated in section 86(3) may be modified, postponed or cancelled if new facts warrant it.

If the Commission and the person required to implement the affirmative action program agree on its modification, postponement or cancellation, the agreement must be evidenced in writing.

Failing agreement, either party may request the court to decide whether the new facts warrant the modification, postponement or cancellation of the program.

All modifications must conform to the Charter.

86.(7) The Government must require its departments and agencies to implement affirmative action programs within such time as it may fix.

Sections 86(2) to 86(6) do not apply to the programs contemplated in this section. The programs must, however, be the object of a consultation with the Commission before being implemented.

(12) Saskatchewan

80The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 provides:

31.(7) Where, at the conclusion of an inquiry, the board of inquiry finds that the complaint to which the inquiry relates is substantiated in a balance of probabilities, the board may, subject to subsections (9) and (10), order any person who has contravened any provision of this Act, or any other Act administered by the commission, to do any act or thing that in the opinion of the board constitutes full compliance with that provision and to rectify any injury caused to any person and to make compensation therefor, including, without restricting the generality of the foregoing, an order:

(a) requiring that person to cease contravening that provision and, in consultation with the commission on the general purposes thereof, to take measures, including adoption of a program mentioned in s. 47, to prevent the same or similar contravention occurring in the future. . . .

47.(1) On the application of any person or on its own initiative, the commission may approve or order any program to be undertaken by any person if the program is designed to prevent disadvantages that are suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, creed, religion, colour, sex, marital status, physical disability, age, nationality, ancestry or place of origin of members of that group, by improving opportunities respecting services, facilities, accommodation, employment or education in relation to that group.

47.(2) At any time before or after approval to a program is given by the commission, or a program is ordered by the commission or a board of inquiry, the commission may:

(a) make inquiries concerning the program;

(b) vary the program;

(c) impose conditions on the program; or

(d) withdraw approval of the program as the commission thinks fit.

47.(3) Nothing done in accordance with a program approved pursuant to this section is a violation of the provisions of this Act.

Exemptions

48. (1) Where any person or class of persons is entitled to an exemption under any provision of this Act or any other Act administered by the commission or where the commission or the Director of Human Rights considers it necessary and advisable, the commission or the Director of Human Rights may, upon application from the person who is entitled to the exemption or who seeks the exemption, by order made in accordance with any terms, conditions or criteria prescribed in the regulations, exempt that person or class of persons from any or all of the provisions of this Act, other than Part I [right of freedom to conscience, expression, association, freedom from arbitrary imprisonment, right to elections], or from any or all of the provisions of any other Act administered by the commission.

81The Saskatchewan Human Rights Commission has adopted criteria for the approval of voluntary affirmative action programs. As of January 9, 1987, the criteria read as follows:

50. In these approved Criteria:

(a) "Act" means The Saskatchewan Human Rights Code;

(b) "Applicant" includes any person, as defined by section 2(m) of the Act, who provides any service, opportunity, benefit or employment contemplated in sections 9 to 19 of the Act, and who applies for a program and agrees to administer that program as directed by the Commission;

(c) "Commission" means the Saskatchewan Human Rights Commission;

(d) "Program" means a plan of action, approved pursuant to section 47 of the Act, designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to a protected characteristic;

(e) "Protected Characteristic" means any characteristic referred to in Sections 9 to 19 of the Code with respect to which discrimination is prohibited;

(f) "Protected Group" means any group of persons that are identified as experiencing a disadvantage when such disadvantage is based on or related to a protected characteristic;

(g) "Target Group" means person of Indian ancestry, persons with physical disabilities, or women;

(h) "Underrepresentation" means having fewer members of the target or protected groups in a particular sector, unit, grouping, classification or level within the applicant's organization than would reasonably be expected by their representation in the population, or in those subclasses of the population defined by qualification, eligibility, or geography, from which the applicant organization may reasonably be expected to draw its employees, students, tenants, clients, customers or members.

51. An applicant may apply for a program by filing with the Director a written application which shall include the following information:

(a) the name of the applicant or applicants;

(b) the name of a person within the applicant's organization who shall be responsible for the administration of the program;

(c) such target and protected groups which are intended to benefit from the program;

(d) the goals to be achieved and a timeframe for achieving such goals shall be specified in accordance with section 56;

(e) the special measures to ameliorate or eliminate disadvantages experienced by target and other protected groups and the timeframe for implementing such special measures shall be specified in accordance with section 57;

(f) the names of the members of the joint committee in accordance with the requirements of section 60;

(g) such other information as is required by these regulations and in particular, section 53, or by the Commission.

52. In addition to any of the protected groups which may be designated by the applicant for inclusion in a program, the three target groups shall be included in all programs, unless the applicant establishes that one or more of the following conditions exist:

(a) an analysis pursuant to section 53 of these regulations establishes that there is no disadvantage or need experienced by an excluded target group;

(b) the composition of the population in the geographical area from which the applicant draws its employees, students, tenants, clients, customers or members justifies the program being so designed;

(c) the nature of the business engaged in or the services being provided by the applicant justifies the program being so designed;

(d) the composition of the protected or target groups justifies the program being so designed;

(e) the program designates one or more target groups which experience disadvantages of such proportions as to require special and immediate attention;

(f) there is a need for a program with respect to a particular protected or target group, or groups but sufficient information with respect to other target groups is unavailable and the applicant undertakes to acquire the necessary information concerning any target group not included, within a period of time acceptable to the Commission;

(g) the applicant organization is not operated for profit and has as its main object the promotion of the well being of a particular target or protected group, and the applicant seeks a program addressing only that group;

(h) the Commission, in its discretion, should approve a program which does not include all target groups.

53. An applicant for a program shall establish the need for a plan of action in relation to all protected or target groups included in the program by providing analysis, as follows:

(a) Where the purpose of the program is to increase the representation or participation rate within the applicant's organization, or members of target groups or other protected groups designated in the program, the applicant shall establish:

(i) the present representation or participation rate of members of such target groups and other included groups, in all sectors, units, groupings, classifications and levels in the applicant's organization relevant to the application;

(ii) the extent to which the general population, defined by eligibility, qualification or geography, from which the applicant may reasonably be expected to draw participants in its organization is comprised of members of the target groups or other protected groups designated in the program;

(iii) the underrepresentation that is experienced by members of the target groups and other designated protected groups, in light of the analysis contained in subsections (i) and (ii) above.

(b) Where the purpose of the program is to increase the benefit derived from the operations of the organization, by members of the target groups and other included protected groups, the applicant shall establish:

(i) the present level of benefit derived by members of the target groups and other designated protected groups;

(ii) the level of benefit derived by other members of the public;

(iii) the disadvantage that is experienced by members of the target groups and other designated protected groups.

(c) Programs which in whole or in part address employment within the applicant must conform with the requirements of subsections (a) and (b) above.

(d) Where the purpose of the program is to ameliorate disadvantages experienced that are not based within the applicant's organization, the applicant shall establish the particular disadvantage or need of the target groups or other included protected groups in a manner acceptable to the Commission.

54. The Commission may decline to approve a program in relation to any particular target or protected group where it has not been established to its satisfaction that a disadvantage or need exists, but may also require an applicant to produce further and better information or analysis for further consideration of the needs of disadvantages of the group so excluded.

55. Where the Commission approves a program, it may require the applicant to provide such assurances, as it deems appropriate that members of the included target and protected groups will not be discriminated against on the basis of any other protected characteristic.

56.(a) Where the purpose of a program is to numerically increase the representation or participation of members of the designated groups, goals and timetables as required by section 51 shall include the following:

(i) goals shall be expressed in numbers and percentages, for increasing the representation of the target or protected groups that are included in the program, in those sectors, units, groupings, classification and levels where underrepresentation has been identified, and timetables, both short and long term, shall be established to meet those goals;

(ii) goals and timetables for the achievement of goals, shall be set separately for each target or protected group that is included in the program, and for each sector, unit, grouping, classification and level where underrepresentation has been identified pertaining to each group;

(iii) goals shall be based on the extent of underrepresentation identified and on the availability of members of the target or protected groups who are qualified, or who can become qualified through reasonable efforts on the part of the applicant, or who are eligible or who can become eligible through reasonable efforts on the part of the applicant, for positions or places within the applicant's organization;

(iv) timetables, for the achievement of each goal, shall be based on the anticipated increase and decrease in the number of people within the applicant's organization, and the anticipated turnover of people within the applicant;

(v) goals and timetables shall be reasonable and flexible.

(b) With respect to programs, not included under clause (a) where the nature of the program warrants, the Commission may require that goals and timetables be included, in which case subsection (a) shall be applied mutatis mutandis.

(c) With respect to programs not included under clause (a), where the nature of the program does not warrant the inclusion of goals and timetables, the applicant shall specify the projected duration of the program, the overall result that the applicant hopes to achieve and the projected result, on a yearly basis.

(d) Goals and timetables, in accordance with (i), (ii), and (iii), (iv) and (v) shall be included in any programs designed to increase employment opportunities in an applicant's organization.

(e) Where the applicant is required to specify goals and timetables and can establish that goals and timetables cannot be made immediately available, and where the Commission is of the opinion that the program should proceed without delay, it may grant approval to a program without specification of goals and timetables, but shall require goals and timetables to be developed within such time as the Commission may direct.

57. Special measures shall be:

(a) designed to identify and remove or correct practices, procedures, systems, structures and other operations which create disadvantages that are or are likely to be, experienced by members of the target or other included protected groups;

(b) designed specifically to address and remedy the underrepresentation of target or protected groups that are included in the program as identified pursuant to section 53 of the regulations.

58. Special measures shall include, but are not limited to,

(a) in employment, measures with respect to job evaluation, recruitment, selection, training and development, upward mobility, wages and benefits, conditions of employment, accessibility to the work site, termination, lay-offs, recalls and disciplinary action;

(b) in addition, measures with respect to entrance requirements, admission/admittance policies, application procedures, testing and assessment, access to and delivery of information, accessibility to facilities, progression/advancement, certification, graduation.

59. No provision of these regulations shall be construed as limiting the discretion given to the Commission under section 47 of the Act.

60. Where a program implements special measures in employment or where a program may affect the terms and conditions of employment, an applicant shall establish a joint committee comprised of both management and union representatives, where a collective bargaining relationship exists, or comprised of both management and employee representatives, where no collective bargaining relationship exists, to oversee the design and implementation of the special program unless the sponsor organization demonstrates just cause for not designating a joint committee in the design of the program.

(13) Yukon

82The Human Rights Act, S.Y. 1987, c. 3 provides:

12.(1) Special programs and affirmative action programs are not discrimination.

(2) Special programs are programs designed to prevent disadvantages that are likely to be suffered by any group identified by reference to a prohibited ground of discrimination.

(3) Affirmative action programs are designed to reduce disadvantages resulting from discrimination suffered by a group identified by reference to a prohibited ground of discrimination.

83The foregoing indicates that the Charter and eleven of the thirteen Canadian jurisdictions (including the two territories) contain express provision for programs we might loosely define as "affirmative action." Only Alberta and British Columbia are currently without such provisions. These various statutes share some characteristics and differ from each other with respect to certain features. They can be compared with respect to several issues:

1. the target groups (types of individuals or groups which can be assisted);

2. the types of programs which can be devised;

3. the powers of the Commission with respect to such programs.

1. Target Groups

84Most of the statutes are formulated to assist "disadvantaged" individuals or groups. The word "disadvantage" appears in the provisions of all the following jurisdictions: the Charter, the federal jurisdiction, the statutes of Ontario, Manitoba, Newfoundland, Saskatchewan. In some instances, the prior disadvantage appears to be a factual prerequisite; in others it is sufficient if there are disadvantages that are "likely to be suffered." Ontario does not specify what is meant by "disadvantaged persons or groups." Most of the other legislation goes on to enumerate the types of disadvantage envisioned. Some do so exhaustively, others identify some categories and leave open a more general reference. Manitoba also describes the target groups as those having "special needs" where those special needs are based on characteristics which are prohibited grounds of discrimination in the statute.

85Quebec rather explicitly describes the target groups as those "discriminated against in employment, or in the sector of education or of health services and other services generally available to the public." The Yukon uses a more general formula of "any group identified by reference to a prohibited ground of discrimination." The last group of statutes identifies the types of groups to be assisted as "any class of persons" or "any class of individuals." The jurisdictions which use this wider classification are: New Brunswick, Northwest Territories, Nova Scotia, and Prince Edward Island.

2. Types of Programs

86New Brunswick has the most restrictive scope of all the jurisdictions, since it only permits special programs in education. Newfoundland expressly confines the scope of its affirmative action programs to services, facilities, accommodation and employment. The federal jurisdiction adds "goods" to this list, and Saskatchewan adds "education." The other jurisdictions provide no explicit limitation in the scope.

87Most of the jurisdictions build in a prerequisite regarding the object or design of the affirmative action program. The Quebec provisions are the least restrictive, in that very broad language provides only that the "object" must be to "remedy the situation." New Brunswick, the Northwest Territories, Nova Scotia and Prince Edward Island require that the programs be designed "to promote the welfare of any class." The Charter states that the object must be "the amelioration of conditions of disadvantaged individuals or groups." Manitoba uses a similar formula and also provides a second standard in which there appears to be no object or design component at all. Affirmative action programs which make "reasonable accommodation for the special needs of an individual or group" seem to set no explicit purpose standard at all. A large number of jurisdictions use concepts such as "designed to prevent," "to eliminate or reduce" disadvantage; the federal jurisdiction, Newfoundland, Saskatchewan and the Yukon.

88The question of an explicit "effectiveness" standard for affirmative action programs is generally not pursued within the statutes. Several statutes refer to programs as having to "improv[e] opportunities": the federal jurisdiction and Saskatchewan. Manitoba is the most direct. Programs designed to ameliorate the conditions of disadvantage must achieve or be reasonably likely to achieve that object.

89Ontario has adopted a provision which is substantially different from the patterns noted above. Although some of the same phrases are used, the statutes adopts a four part, disjunctive standard. Special programs are those that are: 1) designed to relieve hardship; 2) designed to relieve economic disadvantage; 3) designed to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity; 4) likely to contribute to the elimination of the infringement of rights under Part I of the Code.

90There is no restriction on the scope of affirmative action programs (to the field of education, services, or employment, for instance), as is found in several other jurisdictions. The objectives permitted within such programs are very wide, indeed as broad as any found elsewhere in Canada. Apart from the fourth standard, there is no apparent check on the "effectiveness" of the programs at all.

3. Powers of the Commission

91Some of the jurisdictions provide for a screening or review mechanism for affirmative action programs; others do not. There is nothing in the Charter or the Yukon or Manitoba legislation anticipating prior approval of affirmative action programs by any body. In contrast, Quebec mandates that all affirmative action programs must be approved by the Commission or implemented under court order. Other jurisdictions permit approval by the Commission in advance (Northwest Territories, Nova Scotia, P.E.I.), while some provide the Commission with fairly extensive powers beyond mere approval: the making of inquiries and conducting investigation, orders to vary, the imposition of conditions and modifications, the withdrawal of approval for failure to conform to advice. (See, for example, Ontario, Newfoundland, Quebec, Saskatchewan.) The federal jurisdiction is restricted to making recommendations and giving advice and assistance, except in connection with special programs directed towards disability, where approval may be granted.

92In some cases the Commission is restricted to intervening only after it receives an application for assistance; in others it may initiate the process on its own. The Saskatchewan Commission may initiate an investigation and impose a program if it wishes to do so. With the exception of Quebec, this gives it the most powerful role of all of the Commissions. It is perhaps for this reason that it has developed such extensive regulatory provisions to flesh out the legislative intent in the field of affirmative action.

93Some statutes provide that approval by the Commission will insulate the program from attack under the legislation. (See, for example, Northwest Territories, Nova Scotia, P.E.I., Saskatchewan, Newfoundland and New Brunswick — New Brunswick only with respect to educational programs). Quebec similarly provides that an affirmative action program approved by the Commission or imposed by the court is deemed non-discriminatory if it is established in accordance with the legislation. Ontario and the federal jurisdiction are less clear about the ramifications of prior Commission approval or involvement with the program. The Ontario statute stipulates that the Commission can declare that a special program "satisfies" the requirements of s. 13(1). Section 13(1) provides that a right under Part I is not infringed by certain special programs. Whether this is a complete defence to further attack under the Code may require some further consideration. The federal legislation indicates that the Commission's approval of a program designed to meet the needs of persons arising from disability will operate to bar a future complaint. With respect to other sorts of affirmative action programs, the Commission's mandate is solely to make recommendations and to give advice and assistance. Nothing in the statute indicates that following such advice will insulate the program from complaint.

94Both the Ontario and Quebec jurisdictions provide express exemptions for government programs. In Ontario, the Commission's role of investigation and approval is completely ousted with respect to "the Crown or an agency of the Crown." In Quebec the Commission is relieved from any formal power over government programs, although the government is required under the legislation to implement affirmative action programs in consultation with the Commission.

95Several of the jurisdictions expressly place some authority over affirmative action in the hands of the adjudicatory agency which enforces the statute. Manitoba, Saskatchewan and the federal jurisdiction indicate that a board of inquiry which determines that there has been a violation of the Act may impose an affirmative action program on the offending party. A somewhat different but related procedure is involved in Quebec, where the agency of adjudication is the court. Whether boards of inquiry in other jurisdictions have such powers by implication will be a matter of interpretation.

G. The Charter: Section 15(2)

96As we have seen, the wording of s. 15 of the Charter bears some similarity as well as some difference in relation to the other human rights provisions on affirmative action. A number of courts have begun to articulate what is meant by s. 15(2), and it is useful to examine their conclusions.

97In Re Rebic and Collver (1986), 1986 CanLII 1052 (BC CA), 22 C.R.R. 66, the British Columbia Court of Appeal considered the intent of s. 15(2) of the Charter. MacFarlane J.A. stated at 80:

Section 15(2) was designed to ensure that governments and governmental institutions in Canada would be free to institute affirmative action programmes without there being a constitutional debate, such as has raged in the United States, over their authority to do so.

98In Reference under the Constitutional Questions Act: Re the Family Benefits Act (N.S.) (1986), 26 C.R.R. 336, the Nova Scotia Supreme Court quoted extensively from Laskin's Canadian Constitutional Law, vol. 2, 5th ed. (Toronto: Carswell, 1986), regarding s. 15(2) at 357:

It would appear that this provision was added to the Charter out of excessive caution. In line with the argument suggested earlier, that equal laws can result in inequality if applied to persons in unequal circumstances, it is suggested that "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups" cannot be a contravention of subsection (1) of section 15, even without subsection (2) saying so. It would appear that subsection (2) was included partly because of the fear that courts which gave such a limited definition to "equality before the law" clause, under section 1(b) of the Canadian Bill of Rights, might also be inclined to find affirmative action to be discriminatory.

99The courts have been clear in determining that s. 15(2) gives broad constitutional recognition to affirmative action. In a number of recent opinions, however, Canadian judges have begun to suggest that they will scrutinize affirmative action programs to ensure that they comply with the stipulations in s. 15(2). Writing for the minority in Shewchuk v. Richard (1986), C.R.R. 45, Chief Justice Nemetz of the British Columbia Court of Appeal commented at 52:

Affirmative action programmes contemplated under s. 15(2) inevitably provide preferential treatment for certain disadvantaged groups. I am not unaware of the concern expressed by some groups . . . that such programmes might under certain circumstances create conditions of inequality once existing in the United States and Canada under the euphemism of numerus clausus, i.e., the creation of quotas for the purpose of discriminating against minorities. For that reason it is my opinion that affirmative action laws or programmes must be carefully scrutinized to ascertain (a) whether the law or programme is in fact an ameliorative one for disadvantaged individuals or groups including those set out in s. 15(2) and (b) if ameliorative, whether the effect of the law or programme is so unreasonable that it is grossly unfair to other individuals or groups.

100In Apsit v. Manitoba Human Rights Commission (1988), 1987 CanLII 6911 (MB QB), 9 C.H.R.R. D/4457, the Manitoba Queen's Bench quashed the Human Rights Commission's approval of a special program which gave first option on licences for new wild rice growing areas to aboriginal peoples. Upon the challenge of non-native wild rice farmers, the Court found that the program was not saved by s. 15(2) of the Charter. In interpreting s. 15(2), the Court had this to say at D/4463:

In order to justify a program under section 15(2), I believe there must be a real nexus between the object of the program as declared by the government and its form and implementation. It is not sufficient to declare that the object of a program is to help a disadvantaged group if in fact the ameliorative remedy is not directed toward the cause of the disadvantage. There must be a unity or interrelationship amongst the elements in the program which will prompt the court to conclude that the remedy in its form and implementation is rationally related to the cause of the disadvantage. . . .

The dominant purpose of section 15 of the Charter is to preserve equality. In my view it follows as a matter of principle that a special law or program which is put forward under section 15(2) cannot be justified if it unnecessarily denies the existing rights of the non-target group.

The Apsit case was reversed by the Manitoba Court of Appeal on other grounds, [(sub nom. Manitoba Rice Farmers Assn. v. Manitoba (Human Rights Comm.)), 1988 CanLII 7193 (MB CA), 10 C.H.R.R. D/5633] and the decision did not review the Queen's Bench ruling on the merits.

101Similarly, in Harrison v. University of British Columbia (1988), 1988 CanLII 183 (BC CA), 49 D.L.R. (4th) 687, [(sub nom. Connell v. University of British Columbia), 9 C.H.R.R. D/4557] the British Columbia Court of Appeal concluded [at 703 D.L.R., D/4563 C.H.R.R.]:

Section 15(2) specifies that a program must have as its object the amelioration of a disadvantaged group. In other words, the group given a special advantage must be shown to be disadvantaged in comparison with persons denied the advantage. This suggests that a program falls within the terms of s. 15(2) only if the legislative purpose was to assist a disadvantaged group and the need to exclude others from the benefits conferred by the legislation was properly considered.

102Although the Supreme Court of Canada has not yet spoken on this matter, it appears that various members of the other courts believe that affirmative action programs may be judicially supervised to determine that the target groups are truly disadvantaged, and that the exclusion of other individuals and groups [is] necessary.

H. Interpreting Section 13

103It remains for this Board of Inquiry to consider how to apply s. 13 of the Ontario Human Rights Code in this particular case. Such interpretation must take place within the Canadian context, which as we can see has historically been supportive of affirmative action programs. Compared against the backdrop of international covenants and the jurisprudence of our neighbour to the south, Canada has traditionally maintained a clear commitment to various forms of affirmative action. Considered within the framework of legislation passed across the country, Ontario stands out in many respects as one of the strongest proponents of these initiatives.

104Prior to this decision, the only Ontario Board of Inquiry decision regarding s. 13 was Blainey v. Ontario Hockey Assn. (1987), 1987 CanLII 8494 (ON HRT), 9 C.H.R.R. D/4549 (Springate). In this case the adjudicator considered whether s. 13 should protect the competitive hockey program administered by the Ontario Women's Hockey Association, which was restricted exclusively to females. Ian Springate concluded that the program did qualify under s. 13(1) of the Code [at D/4554 at para. 35401]:

I am satisfied that the hockey program offered by the OWHA does, in fact, qualify as a special program under section 13(1) of the Code. The evidence clearly establishes that as a group females in this province do not have the same opportunity as males to play organized competitive hockey. Female hockey must continually struggle against the view that hockey is a male only sport. It must also struggle for access to ice time. Because of these handicaps, the program offered by the OWHA does not have the same level of participation as does male hockey. Further, while post-puberty females can compete against similar age males in terms of skill and intelligence, the majority cannot compete in terms of size and strength. Although pre-pubescent girls can compete equally with pre-pubescent males, to allow young boys to play on girls' teams would lead to serious difficulties for female hockey. Many parents are opposed to their daughters playing hockey, even on all-female teams. This opposition would likely intensify if males were permitted to play on female teams. Most females desire to play on all-female teams. To allow males to play female hockey would likely result in a large number of female players deciding to leave the sport. It follows that if males were permitted to play OWHA hockey, even a small number of them would likely have a major adverse effect on the already limited opportunities for females to play competitive hockey. My finding that the OWHA's program of female hockey meets the requirements for a special program under section 13(1) of the Code means that OWHA teams can continue to refuse to admit males without infringing section 1 of the Code.

105The Blainey analysis focuses on the matter of "handicap" or diminished "opportunities," upon which the tribunal rested its s. 13(1) designation. The all-female teams were given special status because of the disadvantages they faced relative to the male teams. Apart from this consideration, the tribunal did not reflect in detail upon the interpretation of s. 13, and thus the decision offers little assistance here.

106Counsel in this case made a number of interesting arguments concerning the application of s. 13. Ms. Baker, for the respondents, dealt first with s. 13(2) to 13(5). Noting the extensive role of the Commission in approving affirmative action programs, Ms. Baker emphasized that the Crown was entirely insulated from this type of review by s. 13(5). She argued that this provision was designed to protect the special role of government, which had more demands to meet, more responsibilities, and more interests to balance than any other corporation or institution in the province. Consequently the Legislature had recognized that the government needed greater autonomy to sort out these conflicting demands and establish special programs for a wide variety of persons and groups.

107Granting that an affirmative action program of the government was bound by s. 13(1), Ms. Baker argued that this subsection was comprised of four parts. To shelter under s. 13(1), the special program would have to be:

1. designed to relieve hardship; or

2. designed to relieve economic disadvantage; or

3. designed to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity; or

4. one that is likely to contribute to the elimination of the infringement of rights under Part I.

Although the fourth criterion is potentially the most encompassing, Ms. Baker conceded that she was not attempting to argue that the Assistive Devices Program fit within the fourth part of s. 13(1). Instead she asserted that the program could be sheltered under each of the first three parts.

108Counsel did not specifically address what was meant by the word "designed" in s. 13(1). However, several legal commentators have considered this question. Russell Juriansz, writing about affirmative action legislation generally, has suggested that the word "designed" sets up an objective test. "Not only must the program be intended to correct disadvantage, it must be designed to do so. . . . This would allow the Court to pass judgment on the design of a plan." [Juriansz, Human Rights at 21.] Judith Keene has argued, by contrast, that the proper test is something mid-way between objective and subjective standards:

Clearly programmes that actually achieve these goals are exempted from the operation of section 8. However, programmes that are designed to achieve those goals are also exempted. Thus, the standard for judging whether a programme fits the requirements of section 13 is not entirely objective.

What degree of objectivity should be applied to the assessment of a programme for the purposes of section 13? First of all, it is clear that the standard is not completely subjective. Had the legislature intended to effect a purely subjective standard, the section would arguably have read "special program intended to [or created in an effort to] relieve hardship etc." A degree of objectivity is obviously congruent with the purpose of the legislation, as a purely subjective standard would mean that the Commission might be required to approve, or a board to accept, special programmes that, while appearing bona fide, never effect their alleged objectives because they were never truly intended to do so.

Presumably "designed to relieve, etc." will be construed as importing something mid-way between an examination of motive only, and an examination of efficacy only. The Commission or board will arguably require evidence as to whether the structure, and where the programme has been in operation, the function of the programme is such that it is a reasonable means of effecting the result contemplated by the section. This approach accords with the Oxford English Dictionary's definition of design which includes "purpose; end in view" and "adaptation of means to ends".

[Keene, Human Rights at 155.]

109In my opinion, neither commentator has interpreted this term correctly. The term "designed" simply signifies that the Legislature wished to ensure that organizations which sought to shelter themselves under s. 13(1) had a bona fide belief that the program they were designating as an affirmative action program was intended to relieve disadvantage. Keene has drawn her Oxford Dictionary definition from the entry under the noun "design" rather than from the verb "design." The verb "design" is defined by the Concise Oxford English Dictionary (6th ed. 1976) as "contrive, plan; purpose, intend." The focus here is on intention, rather than the actual achieving of a result. The test required is a subjective one, and the focus is to separate bona fide motivations from colourable intentions.

Next, we must consider how best to interpret the phrases found in each of the first three strands of s. 13(1). Ms. Baker, citing a wealth of dictionary definitions of "hardship," suggested that this term covered a range of problems stretching from something "more than mere inconvenience" through "adversity, suffering, or humiliation" to "extreme privation or difficulty." This is a useful working definition.

110Ms. Baker suggested that the term "economic disadvantage" was both broader and narrower than "hardship." It was broader in that "disadvantage" suggested a slightly lesser degree of difficulty than hardship. It was narrower in that it was confined to matters of finance, income, expenses, assets, and other economic issues. This, again, provides a functional definition.

111The third strand requires interpreting the phrase "to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity." The term "disadvantaged" here is unmodified, indicating various types of disadvantage may be included, without restriction on categories or types. Juriansz has suggested that in jurisdictions where legislation speaks of disadvantages "likely to be suffered," proof of actual damages "would not seem necessary." [Juriansz, Human Rights at 21.] The focus on "persons or groups" also suggests that the legislature meant to permit flexibility in the categorization developed within affirmative action programs.

112Ms. Molloy, counsel for the Commission, argued that the concepts of "hardship" and "disadvantage" were comparative terms. Molloy argued that the board of inquiry should scrutinize the Assistive Devices Program, examining who was included and who was excluded and why. Unless there was some nexus or real connection between an exclusion and the purpose the program was designed to accomplish, the program could be struck down as not falling within s. 13(1). In this case, Ms. Molloy contended, the disadvantage was disability, and perhaps economic need. Drawing distinctions regarding eligibility on the basis of age bore no relationship to the aims of the program. It was not necessary to exclude adults in order to assist children.

113Mr. Baker, counsel for the complainant, departed from Ms. Molloy's analysis somewhat, but urged that the board of inquiry review this affirmative action program on the following basis. He suggested that the respondent should be put to a two-fold test. First, the criteria used to define the beneficiaries of the program should identify persons or groups of persons who could objectively be said to be disadvantaged. Baker noted that the beneficiaries did not necessarily have to represent the most disadvantaged group. Someone complaining about an affirmative action program could not succeed simply by proving that there was another group more disadvantaged than the target group. However, Mr. Baker asserted that it was essential to prove that the target group was substantially, not just marginally disadvantaged. Second, there should be objective evidence that the program was reasonably likely to achieve the amelioration of the disadvantaged. This causal connection test should not, he emphasized, engage the board in trying to decide how to cure disadvantage, or in fine-tuning affirmative action programs. Nevertheless, he raised concerns that respondents might throw up partial affirmative action plans which were neither intended to be effective nor operated effectively. These should not be permitted to pose as bona fide programs under s. 13(1), he argued.

114There was evidence on the record in this case from which I could have ruled that the respondents had met the standards argued for by Ms. Molloy and Mr. Baker. Taking the view that I have concerning the interpretation of the section, however, it is unnecessary to go into this evidence at this point.

115In my opinion, s. 13(1) must be interpreted liberally, to give the maximum effect to its broad remedial purposes. This is in keeping with the spirit of interpretation of human rights legislation advanced by the Supreme Court of Canada in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, [7 C.H.R.R. D/3102] where McIntyre J. stated, writing for a unanimous court at 546–7 [S.C.R., D/3105 C.H.R.R.]:

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment . . . and give it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional, but certainly more than the ordinary and it is for the courts to seek out its purpose and give it effect. The Code aims at the removal of discrimination.

116Ms. Molloy for the Commission agreed that the Code should be interpreted broadly, but she argued that where s. 13 programs involved an infringement of other individual freedoms, the legislation should be narrowly construed. This, I think, must clearly be in error. We ought not to set up two conflicting modes of interpretation — a broad construction for the legislation generally and a narrow construction for s. 13 in particular. This misconstrues the real nature of s. 13 programs. They seek to remove discrimination, just as the rest of the provisions of the Code do. Section 13 deserves the same broad, purposive interpretation as human rights provisions generally.

117Against this interpretative framework, I reject Ms. Molloy's argument that boards of inquiry should oversee affirmative action programs to pinpoint excluded groups and then compare relative disadvantages. The Legislature did not mandate that affirmative action programs incorporate all disadvantaged groups equally within their terms of reference. Indeed, it is unlikely that any affirmative action yet designed could operate on a completely inclusive basis. Nor do I think it is a board of inquiry's function to supervise and evaluate the efficacy of affirmative action measures. In all practicality, this type of review would stultify the development of affirmative action. Organizations would become fearful of designing affirmative action programs out of apprehension that if they were not perfectly drawn to eliminate all forms of discrimination at once, they would be struck down.

118Mr. Baker's arguments are somewhat more forceful, but his recommendations overstep the bounds of a board of inquiry's role as well. Clearly, beneficiaries of the affirmative action program must be suffering hardship or disadvantage. A board of inquiry can properly examine the evidence to ensure that such is the case. However the legislation does not insist that the disadvantage experienced by such groups be "substantial," and I decline to read this restriction into the provision. Nor does the section stipulate that the program be reasonably likely to achieve its objectives. If anything, the inclusion of the words "or attempt to achieve" suggests that the goals may indeed exceed the reach of the program. An efficacy review is simply not intended under s. 13(1).

119This is not to suggest that there is no room for challenge to respondents who seek to shelter a program under s. 13. The beneficiaries must be individuals who suffer hardship, economic disadvantage, or disadvantage generally. The respondents must show that their bona fide intent in designing the program is to relieve such hardship or disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity.

120The evidence in this case indicates that the Assistive Devices Program provides financial assistance to Ontario residents of specified ages with long-term physical disabilities for the purchase of certain medically-prescribed devices useful in daily living and not exclusively used for sports, work or school. That the disabled experience hardship due to their long-term physical disability is not open to question. Statistical evidence was introduced that indicated that the disabled, as a class, suffered economic deprivation in Ontario. The beneficiaries of the Assistive Devices Program are individuals who have incurred special costs in the purchase of medically-prescribed devices. The evidence shows that this group suffers "hardship," experiences "economic disadvantage," and can be classified as "disadvantaged" generally under s. 13 of the Code.

121Ministry of Health representatives testified that the Assistive Devices Program was developed and implemented in order to assist its beneficiaries to achieve greater equality of opportunity. I accept this evidence and have concluded that the respondent has proven that the design is a bona fide one, in the interests of assisting certain disadvantaged persons.

122A few concluding words are necessary concerning the restrictions within the affirmative action program here. The complainants have focussed their objections on the age restrictions. But the evidence indicates that there were many more restrictions than this. In addition to the limitations on age, mentally disabled persons are not covered, despite the fact that they may have extra health-related expenses associated with their condition. Those with short-term disabilities are excluded. The program does not cover persons in acute or convalescent care. Only stipulated devices, which have been thoroughly evaluated and approved, are listed for funding.

123And these only comprise the exclusions which appear on the face of the program. No doubt, if one were to examine the program more carefully, one might uncover various indications of disparate impact affecting other identifiable groups. Some of these groups may be ones that are specifically protected under the Code (such as the mentally handicapped), while others may not. I do not think this distinction is legally relevant in terms of s. 13, given its wording and given the broad contextual framework within which I believe the section should be interpreted. Indeed, nothing within s. 13 specifically addresses the obvious prospect that virtually all affirmative action programs will fail to be fully inclusive of all disadvantaged groups. The mere listing of the obvious and potential groups which have been excluded in this case reveals the breadth of the problem.

124I recognize that my decision in this case means that anyone who voluntarily undertakes a bona fide affirmative action program is not obligated to benefit all disadvantaged groups equally. Although I have concluded that this is not unlawful, it is clearly undesirable from a moral perspective. Programs such as this will fail to achieve the ideal, which is the complete eradication of discrimination. This conclusion can, however, be justified on the following grounds. First, excluded groups are not foreclosed from lobbying for the expansion of an individual affirmative action program at the source, with the organization that developed it. Second, those disadvantaged groups which do not benefit from the program will often have alternative grounds under which to pursue claims of discrimination against the organization under ss. 1–6, 8 and 10, quite apart from the affirmative action program. Third, if complaints of this nature against affirmative action programs are upheld, especially since these are voluntary programs, affirmative action as a concept will fail. In the end, all disadvantaged groups will lose as compared to the advantaged.

125In this context, one might speculate that the Ministry of Health would have refused to introduce the Assistive Devices Program at all if it had been forced to expand the beneficiary groups to include the disabled of all ages, the mentally disabled, the short-term disabled, etc. from the outset. At the very least, the program would likely have been introduced much later than it was.

126In conclusion, the age restrictions that were built into the program, which on their face appear to violate s. 1 of the Code, are protected by s. 13(1). The complaint will be dismissed. One final note is in order, however. The Board wishes to thank Mr. Edwin Roberts, who sat so patiently through days of evidence and legal argument at the hearing. The issues he has raised for consideration here are important matters, and although I have not agreed with his view of this case, I wish to thank him for having questioned the exclusions built into the funding program, and pursuing the process of inquiry into the scope and substance of human rights legislation.