IX. A PROPOSED TEST FOR THE AMELIORATIVE PROGRAM DEFENCE, AND A PRACTICAL GUIDE2017-03-03T18:35:38+00:00

Given that government respondents will increasingly rely on “ameliorative program” defences, there is an urgent need to empower persons with disabilities to defend their claims against “ameliorative program” defences. This Section is intended to be of practical use for equity-seeking groups, including advocates for the rights of persons with disabilities. It proposes resources and arguments available to groups seeking to protect themselves from governments’ “ameliorative program” defences.

 

This Section also proposes a vision of a rigorous, principled ameliorative program defence. This Section relies heavily on the input of expert consultants. It is also an evolving area – law reform strategies must be revisited and refined as the law changes and Courts address the questions set out in the preceding Section VIII.

 

A. The Dangers of Deference: Taking the Ameliorative Program Defence Too Far
 

Developing the “ideal” test for an ameliorative program defence is challenging. On one hand, persons with disabilities may benefit from well-developed ameliorative programs. In that way, it should be easy enough for governments to set up ameliorative programs. The Court of Appeal in Lovelace found that if ameliorative programs can be too readily challenged, governments will be discouraged from initiating such programs.[240] Sheppard made the following comment on striking that balance:

 

It is significant that Section 15(2) does not require a prior finding of discrimination against a particular group before remedial affirmative action can be taken. To impose such a prerequisite would undermine voluntary equity initiatives since employers, educational institutions. Governments may be reluctant to admit to past discrimination to the extent that such an admission would leave them open to legal claims for redress.[241]

 

In addition, the defence should be able to efficiently dispose of Type 1 (“reverse discrimination”) complaints, typical of the American jurisprudence.

 

On the other hand, there is a danger of too deferential (to the government’s policy making/resource allocation role) an approach. In the extreme situation, if the defence is too deferential, the government respondents may be tempted to characterize all government “law, programs and activities” as ameliorative. LEAF offered the following comment on the dangers of too deferential an approach:

 

A deferential approach in cases involving a challenge by a disadvantaged claimant to an under inclusive remedial program is not consistent with Section 15’s purpose of furthering substantial equality.[242]

 

 

Lepofsky and Bickenbach also addressed the dangers of an over-expansive test for Section 15(2):

 

…If ameliorative legislative purpose were the sole test under section 15(2), a legislature could easily circumvent the egalitarian requirements under section 15(1) by including in any potentially discriminatory legislation a clause which provides that ‘this Act has as its object the amelioration of the conditions of … a disadvantaged group.’ [243]

 

In its factum to the Supreme Court in Lovelace, the Council of Canadians with Disabilities also warned that – if taken too far – most of the government’s work could be held to be “ameliorative”, and therefore insulated from review.

 

Much of what government does could be described as having as its object the amelioration of disadvantage. It was never intended that such programs as health care, education (including special education), disability and employment insurance, social insurance and pensions plans should be exempted from s. 15(1) review altogether. Such programs are extremely important to persons with disabilities.[244]

 

 

The goal then is to strike a balance between making it easy for governments to set up ameliorative programs, but not so easy that the defence is used to avoid, pre-empt or limit Code or Charter scrutiny. In our consultations with expert advocates for persons with disabilities, we developed the following Proposal. While this Proposal focuses on the Charter, its principles apply to the special program defence under the Code.

 

B. Kapp is only Available to Reverse Discrimination Claims
 

For claims from privileged complainants, the Kapp analysis is satisfactory. Indeed, the Kapp analysis was only designed for reverse discrimination claims. For a claim of reverse discrimination, the test from Kapp is two fold:

 

1) the program has an ameliorative or remedial purpose.

2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.[245]

 

The burden of adducing evidence of the purpose of Section 15(2) is entirely on the government.[246] This is different from the Section 15(1) analysis of the program’s ameliorative purpose or effect pursuant to the Law third stage.

 

If a Section 15(2) defence is made out the provision is saved, then the analysis stops and there is no Section 1 analysis. If a Section 15(2) defence is not made out, the analysis turns to Section 15(1). If a Section 15(1) breach is found, the analysis turns to Section 1 to determine if the Section 15(1) breach can be justified.

 

C. Mandatory Section 15(1) Analysis for Type 2 and Type 3 Complaints
 

As set out in Section V (“The Current Context: Expanding the Application of the Defence”), government defendants have relied on the ameliorative program defence in the context of claims of reverse discrimination (as in Kapp) as well as claims of under-inclusion. Any claim by a member of a disadvantaged group should not be funnelled through Section 15(2) of the Charter or Section 14 of the Code. For Type 2 (exclusion) or Type 3 (under-inclusion) complaints, there is no consideration of Section 15(2) principles. Everything else does violence to Section 15(1) jurisprudence.

 

For complaints from individuals who are members of disadvantaged groups, there should always be a fulsome Section 15(1) analysis. The analysis starts with the two-stage Section 15(1) analysis. The reformulated Kapp/Andrews test is:

 

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

 

The onus continues to be on the claimant at the Section 15(1) stage. If there is no Section 15(1) breach, the analysis ends. If there is a Section 15(1) breach the analysis turns to Section 1. The analysis of the programs’ ameliorative purposes – including the “rational connection” between the exclusion and the objective of the program – will be appropriately addressed at the Section 1 stage.

 

D. Complaints of Underinclusion, Section 15(1) and Section 15(2)
 

It is well established that when a government decides to provide benefits, it must do so in a non-discriminatory way, without arbitrary exclusions.[247]  Under-inclusion, in most circumstances, has been determined to constitute discrimination.[248]  Where determined to be discriminatory, that under-inclusiveness may be justified. It is at this point that special program provisions (that is, Section 15(2) of the Charter or equivalent human rights code provisions) have been relied upon to justify partial programs.

 

In Bliss v. Attorney General of Canada, the Supreme Court found that the denial of unemployment insurance to pregnant women did not offend the equality protections of the (now defunct) Canadian Bill of Rights.[249] The Court in Brooks went to some lengths to repair the damage of Bliss in Brooks v. Canada Safeway Ltd., with regards to the exclusion of pregnant women from an employee benefit program.[250]  Chief Justice Dickson held:

 

Under-inclusion may be simply a backhanded way of permitting discrimination…. Once an employer decides to provide an employee benefit package, exclusions from such scheme may not be made in a discriminatory fashion.[251]

 

Section 15(1)’s explicit reference to the protection of the “equal benefit” of the law reinforces that “under inclusiveness” is a violation of Section 15.[252]   In Eldridge, the Supreme Court held (as has often been cited) that once the state does provide a benefit, it is obligated to do so in a non-discriminatory manner.[253]

 

The Ontario Human Rights Commission’s Position Paper offers a fulsome analysis of the definitions of “special programs” and of the Roberts analysis.[254] The Commission, in its Guidelines of Special Programs, provided:

 

Even where a program appears to qualify as a special program under section 14(1) [of the Code], the program provider can not arbitrarily discriminate based on other prohibited grounds under the Code.[255]

 

While not in the context of Section 15(2) and instead in the context of Section15(1), Justice Iaccobucci in Law found, relying on Vriend, that under inclusive ameliorative legislation that excludes from its scope the members of a historically disadvantaged group will “rarely escape the charge of discrimination”.[256]

 

E. The Importance of the Review of Programs that Support Persons with Disabilities
 

If Kapp were to apply to Type 2 or Type 3 complaints, the operation of ameliorative programs would essentially be immune from review. The Court of Appeal in Roberts held that discrimination in the provision of a service to a person who is a member of a disadvantaged group for whom a special program is designed must be subject to review.[257] Sheppard also emphasized the importance of review of programs by a person who is a member of a disadvantaged group for whom the special program is designed to benefit:

 

With respect to an individual who is supposed to be a beneficiary of the program, it does not make sense to interpret Section 15(2) in such a way as to foreclose legal challenges to both the ameliorative intent and the actual effects of the program. If the program is experienced by its intended beneficiaries as problematic, such concerns should be open to legal challenge.[258]

 

By requiring that they meet Charter standards, ameliorative programs are subject to review and are more effective. In that way, the Council of Canadians with Disabilities proposed:

Rather than encouraging governments to advance the purposes underlying s. 15(1) in their programs, immunizing them from review would diminish their incentive to update them and to ensure they further the cause of equality.[259]

 

 

The operation of a program must be open to challenge by beneficiaries of the program.

 

 

F. Statutory and Constitutional Interpretation
 

Courts have repeatedly emphasized that human rights should be offered a broad and purposeful interpretation, while exceptions and defences should be narrowly construed.[260] 

 

The Court in Lovelace found that in stating that Section 15(2) acts as an interpretive aid to Section 15(1) that “such an interpretation ensures the internal coherence of the Charter as a working statute.”[261] Section 15(2) only offers interpretative force to Section 15(1). Section 15(2) can not have an independent effect, since if it did Section 1 of the Charter would not be of any use.[262]  

 

Unless the ameliorative program defence places a burden on the respondent that is as heavy as the burden under other Code defences, an overly broad definition of the special program will undermine the rights set out in the Code. Relying on principles of statutory interpretation, Chadha advanced the argument that specialized transit complaints must be subjected to scrutiny under Section 1 of the Code (non-discrimination in services) and Section 17 (duty to accommodation), prior to any special program assessment.[263] Section 17 of the Code is under the same heading as Section 14. A respondent can not rely on Section 17 unless and until the respondent has demonstrated that the complainant was first accommodated to the point of undue hardship. Chadha elaborated:

 

 … [B]ased on the arrangement of the statute, as well as the fact  that section 14(1) comes under the “Interpretation and Application” heading, it is apparent that the purpose of Section 14(1) is foremost to serve as an interpretive guide to the rights under Part I, and secondly, only at the later stage of the discrimination analysis, to serve as an exception to those rights.[264] 

 

As set out in Rizzo & Rizzo Shoes Ltd., the Supreme Court of Canada reiterated that it is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.[265]  It would be clearly absurd if the ameliorative defence is used to undermine the rights of the disadvantaged groups that the defence was intended to support.

 

G. Legislative Intent: Kapp Only Applies to Reverse Discrimination Claims
 

The inclusion of Section 15(2) in the Charter arose from a concern that affirmative action programs be protected from challenge by privileged groups. Section 15(2) was added through “excessive caution”[266], in order to avoid the “reverse discrimination” litigation characteristic of the American context. Justice Iaccobucci in Lovelace held:

 

Section 15(2) was undoubtedly included in the Charter to silence this debate [in the US about affirmative action] and to avoid litigation similar to Bakke.[267]

 

Lepofsky and Bickenbach also contend that Section 15(2) was intended to only apply to American-style claims of “reverse discrimination”:

 

 

The Charter’s framers felt that section 15(2) was rendered necessary by the US Supreme Court’s controversial decision in Regents of the University of California v. Bakke… concern was expressed in Canada over the possibility that equality rights might be asserted to prevent the amelioration of conditions of minorities.[268] 

 

The Ontario Human Rights Commission also sets out that Section 15(2) was intended to apply to “reverse discrimination” claims:

 

In the United States, people were using the Constitution successfully to challenge special programs on the basis that they were “reverse discrimination.” Section 15(2) of the Charter was intended to prevent such challenges from successfully eroding or undermining special programs in Canada.[269]

 

The protections of the Ontario Human Rights Code developed out of the same types of concerns. In Roberts, the Ontario Court of Appeal remarked on the legislative context of the protections in the Code that were offered to “special programs”:

 

 

The history and intent of s. 14(1) is two-fold. They are the exemption of affirmative action programs from challenge by those not in the class the program is designed to benefit, and the promotion of equal opportunity through affirmative action. [270]

 

On the second reading of amendment to the Ontario Human Rights Code, the Hon. Mr. Elgie 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 views expressed by many special interest groups that special programs to help their members achieve equal opportunity should be allowed to operate with the minimum amount of difficulty. Exception is also made for government programs of similar intent, including tax legislation.[271]

 

During the debate on the 1981 amendments to the Code, the N.D.P. member for Riverdale, Mr. Renwick, commented:

 

Section 13 [now 14] is a very important section from the point of view of the position of the New Democratic Party on the achievement of equality of condition and equality of opportunity for people. This is the affirmative action section in the bill.[272]

 

Section 15(2) was only ever meant to apply to classic “reverse discrimination” claims. The government’s intention should reflect how that Section is analyzed. Section 15(2) was not intended to apply – even in an interpretative way – to complaints from members of disadvantaged, underprivileged, stigmatized, stereotyped or marginalized groups.

 

H. Drawing Lines
 

There must be more thought given to determine how to distinguish between claims of “reverse discrimination” from other claims (Types 2 and 3). The distinguishing principle is the privilege, vulnerability or disadvantage of the claimant (or the other members of the group to which the claimant belongs). There are various indicia to determine if the claimant is a member of a privileged group and whether – as a result – the Kapp analysis applies. (See Section VIII.C)

 

A claim from a person with a disability is not likely to constitute a claim of reverse discrimination. The Courts have been clear that persons with disabilities have been subject to historic patterns of oppression, exclusion and marginalization.[273]

 

There is more work that needs to be done to distinguish the appropriate tests to determine the ameliorative program defence raised by government respondents in Type 3 (“under-inclusive”) and Type 2 (“exclusion”) complaints. It is not clear that there should be two different tests. The Courts should provide additional guidance on this point.

 

Both Type 2 and 3 complaints may involve competing interests between different disadvantaged or oppressed groups. Careful attention should be paid to how the comparative analysis is constructed in the Section 15(1) analysis, in order to avoid a “race to the bottom”. Justice Binnie in Granovsky remarked the dangers of restrictive comparator group analysis, pitting groups of disadvantaged people against each other to determine who is more disadvantaged.”[274] In addition, Justice Iacobucci in Lovelace found:

This enquiry does not direct the appellants and respondents to a ‘race to the bottom’, i.e., the claimants are not required to establish that they are more disadvantaged than the comparator group.[275]

 

As set out by Justice Gonthier in Martin, the appropriate comparator group in the context of an under inclusive benefit is the group who is able to access the benefits.[276]  That decision was somewhat undermined by the Supreme Court’s decision in Hodge in 2004.[277]

 

This Section was designed to offer an alternative reading of the “ameliorative program” defence. It was also intended to support persons with disabilities – raising concerns about disability supports and services – who finding themselves having to defend themselves against the operation of the “ameliorative program” defence.

 

 

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