IV. THE EVOLUTION OF THE BROADENED APPLICATION OF THE “AMELIORATIVE PROGRAM” DEFENCE

This Section reviews the evolution of the “ameliorative program” defence, from the inception of the Charter’s equality provisions (in force in 1985) to the Supreme Court’s most recent pronouncements. This Section does not focus on Ontario, but offers attention to its evolution across Canada.

There have been three distinct periods of the use of the ameliorative program defence.

• The first wave is characterized by a mixed or inconsistent application of ameliorative program defences.
• In the second wave, the Court appeared to attempt to develop a principled approach to the defence and even rebuked the government where it sought to expand the defences’ application (Roberts, Eaton, Schafer and Lovelace).
• The emergent third wave of jurisprudence offers increasing deference to the government to target particular disadvantaged groups (Kapp).
   

This Section of the Paper does not distinguish between its pedigree in Charter and statutory human rights contexts. These areas share a history, although their boundaries are contested. It is beyond the scope of this paper to elaborate on the link between the Charter and the Code.[76]  The Court of Appeal will have the opportunity to comment on the relationship between the Charter and the Code in Tranchemontage, heard in March 2010.

There are considerable differences between the operation of the defence in the Charter and the Code context. Indeed, Russel Jurianz found that statutory human rights defences are narrower than Section 15(2) of the Charter – that is, it is more difficult to make out a Code special program defence, than it is to make out a Charter defence.[77] Examples of the differences include:

• Human rights statutes do not have the equivalent of Section 1 of the Charter.
• Human rights instruments offer protection from discrimination by non-governmental and governmental actors.
• Section 15(2) only applies to ameliorative programs established by government actors. [78]    

This Paper is primarily concerned with the application of the Code’s “special program” defence by government respondents.
Section 15(2) requires that groups are disadvantaged “because of” an enumerated or analogous ground. Legislative exceptions require that the disadvantage be “based on” the enumerated ground. [79]
 

Despite the difference in the two contexts, the Ontario Human Rights Commission held that cases decided under the Charter can advance understanding of how Section 14 of the Code is properly interpreted.[80]  Human rights tribunals have appeared to be more willing to consider the special program defense in a way that supports a substantive vision of equality, as in the case of Roberts and Ball (below).

A. First Wave: Mixed Application of the Ameliorative Program defence (1985- 1994)
 

This Section reviews early judicial commentary to the ameliorative program defense from the introduction of Section 15(2) until the Ontario Court of Appeal’s seminal human rights decision in Roberts in 1994. This first wave is characterized by an inconsistent application of the ameliorative program defence.

In Action Travail des Femmes v. Canadian National Railway, the Court considered the constitutionality of a human rights tribunal’s order that CN hire one woman for every four new hires. The evidence demonstrated that women had been improperly excluded for many years by systemic discriminatory employment practices.[81] The Supreme Court upheld the employment equity program in that it was “rationally connected” to the purpose of increasing the number of women in CN’s workforce. [82]

In Apsit Manitoba Rice Farmers Association v. Human Rights Commission (1987), the Manitoba Court of Queen’s Bench considered the decision of the Manitoba Human Rights Commission to approve a plan that gave preference in the granting of licences to harvest wild rice to Aboriginal persons.[83]  Justice Simonsen found that the affirmative action plan did not serve to actually redress the disadvantage, since the cause of the disadvantage was not the difficulty in getting licences. Aboriginal farmers did not have the resources or equipment that they needed.

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 that court to conclude that the remedy in its form and implementation is rationally related to the cause of the disadvantage.[84]

Silano v. British Columbia (1987) involved a Section 15(1) challenge to the provisions of a provincial assistance program, wherein recipients under 26 years of age received $25 less per month than recipients over 26 years of age. Justice Spenser of the British Columbia Supreme Court rejected the argument that the discriminatory provisions could be saved by Section 15(2), since young people are not disadvantaged because of age. The age distinction did not have a rational connection to the program’s purpose, and therefore, the program was not saved by Section 15(2).[85]

In Andrews, Justice McIntyre used Section 15(2) as an interpretive aid to understand Section 15(1). In particular, he found that:

It must be recognized, however, as well that the promotion of equality under s. 15 has a much more specific goal than the mere elimination of distinctions. If the Charter was intended to eliminate all distinctions, then there would be no place for sections such as 27 (multicultural heritage); 2(a) (freedom of conscience and religion); 25 (aboriginal rights and freedoms); and other such provisions designed to safeguard certain distinctions. Moreover, the fact that identical treatment may frequently produce serious inequality is recognized in s. 15(2), which states that the equality rights in s. 15(1) do “not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups….”[86]

Justice Wilson, in her dissenting reasons in Harrison v. University of British Columbia (1990), concluded that mandatory retirement policies could not be construed as affirmative action measures, since older workers under the age of 65 have not experienced discrimination. She argued that Section 15(2) strengthens the notion adopted by the Court in Andrews.

It seems to me clear […] that at the very least the purpose of this section is to enshrine the notion of the viability, indeed the necessity, of measures designed to redress the drastic effects of discrimination. …  It follows, in my respectful view, that for any measure to be characterized as an “affirmative action” measure within the meaning of s. 15(2), it must first be established that the measure is directed towards assuaging the effects of discrimination against a disadvantaged group.[87]

This first wave is characterized by an inconsistent application of the ameliorative program defence. The legal landscape changed with the Ontario Court of Appeal’s decision in Roberts.

B. Second Wave: Towards a Principled Approach (1994 – 2000)
 

This second wave is characterized by an attempt by the Courts to develop a principled approach to the ameliorative program defence. Courts appeared, at times, to rebuke a government respondent where it sought to unreasonably expand the defence’s application.

In Ontario (Human Rights Commission) v. Ontario (“Roberts”), the complainant applied for funding from Ontario’s Assistive Devices Program (ADP) to purchase a closed circuit television magnifier. He was 71 years old at the time of the application. He was determined to be ineligible for ADP funding, since at that time there was a cut-off age of 18 years for assistance to purchase that type of assistive device.

The Court of Appeal found that Section 14 of the Ontario Human Rights Code only insulates a program from review where the challenge is from a member from a historically privileged group or a disadvantaged person whose disability the program was not designed to benefit.

Section 14(1) has a dual purpose:  the exemption of affirmative action programs from review and the promotion of substantive equality. The Divisional Court erred in law in construing s. 14(1) as having as its only purpose the exemption of special programs from the application of the Code. Where a person whom a special program is designed to assist is discriminated against on an enumerated ground prohibited by the Code, s.14(1) is to be construed as an interpretive aid aimed at promoting substantive equality. Programs aimed at promoting substantive equality are reviewable depending on the context in which the challenge is brought. The exemptive purpose of s.14(1) is not invoked in this appeal.

… In this case, the Board of Inquiry and the Divisional Court erred in law in finding that the inquiry ends when “special program” status is proven. The inquiry should have considered:  (1) whether a particular provision or limitation of a special program results in discrimination against a person or group with the disadvantage the program was designed to benefit, and (2) whether the provision or limitation is reasonably related to the scheme of the special program.

In the context of this case, to say that s.14(1) exempts the age discrimination in the vision aids category of the ADP program from review, is to interpret the section so as to permit substantive equality to be undermined, when substantive equality is one of the section’s very purposes. It is to permit unfairness which is antithetical to the overall purposes of the Code. This interpretation does not second-guess the Legislature. Rather, it fulfils one of the purposes of the Legislature and is consistent with the overall purpose of the Code. [88]

The Ontario Court of Appeal in Eaton v. Brant (County) Board of Education judicially reviewed a decision of the Special Education Appeal Board, upholding the decision of the Identification, Placement and Review Committee which identified Emily Eaton as “exceptional” and placed her in a segregated classroom. Emily Eaton’s parents asserted that Emily’s exclusion from an integrated classroom violated her right to equal treatment, as guaranteed by s. 15 of the Charter and her right to be free from discrimination, as guaranteed by the Code. The respondent School Board asserted that the special education programs were protected by the “saving provisions” of the 15(2) of the Charter and Section 14(2) of the Code. The Board advanced the argument that special education programs were exempted from Charter compliance.

The Court of Appeal characterized special education program as necessary accommodations rather than protected “special programs”. With regard to the relationship between Sections 15(1) and (2), Justice Arbour held:

It is unnecessary to determine whether the special education programs offered pursuant to the provisions of the Education Act and regulations would need the protection of s.15(2) of the Charter in the event of an allegation that they discriminate against mainstream students. Even though these programs were enacted in part to ameliorate the conditions of disabled students, they arguably do nothing more than to provide these students with the real equality that they are entitled to under s.15(1). In such a case, they may not be viewed as “affirmative action” programs as understood under s.15(2).[89]

The appeal to the Supreme Court of Canada did not specifically involve consideration of Section 15(2).[90]  The Supreme Court made its finding on entirely Section 15(1). Emily Eaton’s placement in a segregated classroom did not constitute a burden or disadvantage in breach of Section 15(1).

In Schafer v. Canada, two Ontario couples challenged the parental benefit provisions of Unemployment Insurance Act that offered fewer benefits to adoptive parents. The government respondent claimed that the provision of maternity benefits was an ameliorative program. Justice Cameron of the Ontario Court (General Division) held that status as an adoptive parent was an analogous ground, that the provisions denied equal benefit of the law to adoptive parents, and that the provisions were not saved either by Section 15(2) or by Section 1 of the Charter.[91] He found that the “history, net result and effects of the present statutory provisions” established that purpose was “to facilitate the process of family formation, whether by pregnancy or adoption”.[92] Given that purpose, the government failed to justify the differentiation.[93] At the Court of Appeal, the provision of shorter leaves to adoptive parents was found to not infringe Section 15. There was no determination with respect to the application of Section 15(2).

In the early 1990s, the province of Ontario and the leadership on Ontario’s First Nations entered in negotiations with a goal of setting up Ontario’s first reserve-based commercial casino. The appellants were not eligible to receive proceeds from that casino, since they were not registered as a “band” for the purposes of the Indian Act. The Court of Appeal found that the casino project was authorized by Section 15(2) and could not constitute discrimination. In making that decision, the Court warned against the Charter’s use as an instrument of advantaged persons to roll back legislation designed to assist less advantaged persons.[94]

…If government affirmative action programs can be too readily challenged because, for example, they do not go far enough in remedying disadvantage, governments will be discouraged from initiating such programs. Governments should be able to establish special programs under s.15(2) that distinguish between or even within groups protected under s.15(1).[95]

The Court found that Section 15(2) should be seen as an interpretive aid to Section 15(1), not an exception or an exemption from it. Justice Iaccobucci wrote for the Court:

We would therefore formulate the test under s. 15(2) as follows. A program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.[96]

For there to be an ameliorative purpose, there should be a correlation between the program and the disadvantage suffered by the target group.[97]

After reaching that conclusion, Justice Iacobucci performed a contextual analysis of the discrimination under Section 15(1) by examining the four factors the trial judge referred to in his analysis, namely,

(i) pre‑existing disadvantage, stereotyping, prejudice, or vulnerability,

(ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others,

(iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and

(iv) the nature and scope of the interest affected by the impugned government activity. [98]

Justice Iacobucci did not foreclose the possibility that Section 15(2) may have independent application in some future case.[99]

C. Third Wave: The Danger of Deference (2008 and forward)
 

After Lovelace was decided by the Supreme Court of Canada in 2000, there were few challenges that raised ameliorative program defences. Lovelace stood as the authority on the application of the ameliorative program defence for almost a decade.

In R v. Kapp, a group of commercial fishers, mainly non-Aboriginal persons, challenged the issuance of a communal fishing license to members of three Aboriginal bands. They argued the violation of their rights to equality protected by Section 15(1). The Supreme Court broadened the application of the “ameliorative program” defence. The Chief Justice and Justice Abella authored the joint decision of the majority of the Court. Only if the government fails to demonstrate that the program fails under Section 15(2), will the program receive full scrutiny under Section 15(1). There is no determination of whether the program is “discriminatory”, if a special program defence is made out. This evolution makes the special program defence especially attractive to government respondents.

The judgment of the majority of the Court was delivered by the Chief Justice and Justice Abella. Justice Bastarache wrote separate reasons, concurring in the result but on a different ground. The Chief Justice and Justice Abella offered a third approach to Section 15(2), which avoided the “symbolic problem” of finding a program discriminatory before saving it as ameliorative. At paragraphs 35ff, the Chief Justice and Justice Abella held:

Iacobucci J. in Lovelace perceived two possible approaches to the interpretation of s. 15(2). He believed that the Supreme Court could either read s. 15(2) as an interpretive aid to s. 15(1) (the approach adopted in Lovelace) or read it as an exception or exemption from the operation of s. 15(1)…

In our view, there is a third option:  if the government can demonstrate that an impugned program meets the criteria of s. 15(2), it may be unnecessary to conduct a s. 15(1) analysis at all. As discussed at the outset of this analysis, s. 15(1) and s. 15(2) should be read as working together to promote substantive equality. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other. …

Section 15(2) is more than a hortatory admonition. It tells us, in simple clear language, that s. 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of s. 15.[100]

Relying on the language of Section 15(2), the Court required that the program only have an ameliorative purpose, not an ameliorative effect. The Court also found that the ameliorative purpose need not be the program’s sole purpose. R. v. Kapp also explicitly warns that further refinement of the Section 15(2) test may be necessary:

In proposing this test, we are mindful that future cases may demand some adjustment to the framework in order to meet the litigants’ particular circumstances. However, at this early stage in the development of the law surrounding s. 15(2), the test we have described provides a basic starting point – one that is adequate for determining the issues before us on this appeal, but leaves open the possibility for future refinement.[101]

The Supreme Court also made clear that the defence does not apply to broad social programs.[102]

In Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development), the Court of Appeal of Alberta considered the constitutionality of the Métis Settlements Act (MSA), which requires the termination of Métis settlement status upon registration under the Indian Act. The appellants applied for status to access health care benefits. At the Court of Appeal, the government respondents argued that so long that they are able to point to an ameliorative purpose relating to disadvantaged persons, the impugned legislation will be saved by Section 15(2), regardless of whether the appellants could make out a case of discrimination.[103]

The Court of Appeal disagreed and found that the legislation did not rationally advance the purported purposes, and that Section 15(2) is not a bar to the consideration of Section 15(1).[104] The Supreme Court granted leave in March, and the hearing is tentatively scheduled for December.

In Jean, v. Minister of Indian and Northern Affairs Canada, the student members of a landless nation were denied access to an educational program.[105] The program offers funding for educational services on reserves. Because the applicants did not have a reserve, they were ineligible for the program’s assistance. The Federal Court of Appeal upheld the Federal Court’s decision that there was no breach of Section 15(1) on an enumerated or analogous ground (place of residence, or lack of land base). The Federal Court of Appeal remarked only in passing to the issues raised by Section 15(2). In particular, Justice Trudel offered the following comment on Kapp:

[8]  . Kapp taught us that subsection 15(2) may be more than an interpretive aid or an exemption to the applicability of section 15 [citations]. According to Kapp, a third possibility is that it has an independent role in that it tells us, “in simple clear language, that subsection 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of subsection 15” (Kapp, at paragraph 38). Therefore, if the government can demonstrate that (1) the Program has an ameliorative purpose and (2) the Program targets a disadvantaged group identified by the enumerated or analogous grounds, it may be unnecessary to conduct a subsection 15(1) analysis at all….

[9]  There was considerable debate before this Court as to whether the guidance of Kapp, a case of reverse discrimination, could be applied in a case of discrimination owing to the overly restrictive scope of a program. In that regard, two observations must be made: (1) if Kapp had been intended to be read in a limited manner, the Supreme Court of Canada would have stated so; and (2) Kapp is part of the line of cases of Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143 [Andrews] and Law v. Canada (Minister of Employment and Immigration),1999 CanLII 675 (S.C.C.), [1999] 1 S.C.R. 497 [Law], neither of which dealt with a case of reverse discrimination. Therefore, I do not believe that the teachings of Kapp should be rejected outright for the purposes of this appeal. However, I note that in that case, the third possibility was stated after the Court concluded that “the appellants [had] established that they [had been] treated differently based on an enumerated ground, race” (Kapp, above, at paragraph 29). Since I do not intend to draw a conclusion related to an analogous ground, my analysis will proceed along the path laid out by the trial judge.[106]

In Jean, the Women’s Legal Education and Action Fund (LEAF) intervened at the Federal Court of Appeal on the proper interpretation of Section 15(2).[107]  LEAF distinguished the Jean case from Kapp (a classic case of reverse discrimination). In particular, LEAF argued that Kapp did not consider Section 15(2) in the case of a disadvantaged group alleging that a remedial program is underinclusive. As LEAF set out in its factum to the Federal Court of Appeal in Jean:

The consequence of an approach that protects all ameliorative programs from Section 15(1) Charter scrutiny would be a two-tiered hierarchy of equality rights that would accord second class status to members of disadvantaged group who are excluded from these programs. The particularly vulnerable and marginalized members of disadvantaged group –  those who experience multiple and intersecting groups of discrimination, including on the basis of sex, race, Aboriginality, disability, poverty, marital status and sexual orientation –  would be most likely to suffer from such exclusion and diminished constitutional recognition.[108]

Leave to the Supreme Court was refused in June 2010.

Recently in Cooper, the Ontario Superior Court heard the Section 15 complaints of students who did not receive special education benefits in private faith based schools, available to children in public and separate schools. The Superior Court found that the Province was not obliged to extend funding to special education services to faith based schools. The Court also found that the Province extended health services – but not special education services – to private schools. The extension of health services had an “obvious ameliorative and remedial purpose”. Citing Kapp, the Court found that the students’ claims failed because the provision of “health services” was ameliorative.[109]

The next Section highlights the implications of the third wave’s expansion of the ameliorative program defence for persons with disabilities in Ontario. It reviews current caselaw demonstrating that government respondents are increasingly often raising ameliorative program defenses to the Charter and Code claims of persons with disabilities.