This Section explores why attention to the constitutional protection of ameliorative programs is particular pressing. Government respondents increasingly rely on “ameliorative program” defences as a shield from claims of discrimination. In that way, the defence is reconfigured from a shield to a sword. Persons with disabilities are required to defend themselves from the defence raised by sophisticated government defendants. This Section reviews Charter and Code analyses of ameliorative programs, including occasions where it has been used as a defence against claims of discrimination. This Section focuses on Ontario examples of government actors seeking the protection or the insulation of the “ameliorative program” defence.
A. Specialized Transit Cases before the Ontario Human Rights Commission (2002-2006)
Transit providers have frequently taken the position that specialized transit services are “special programs” within the meaning of Section 14 of the Code. In these series of cases, the complainants were users of the specialized transit systems who challenged the way that the services were provided. The providers sought to defend themselves by arguing that the specialized transit services were “special programs”.
In Odell et al. v. Toronto Transit Commission (2002), the Commission settled a series of complaints against the Toronto Transit Commission’s specialized transit services (“Wheel Trans”). The Board of Inquiry considered a preliminary motion brought by the TTC that Wheel Trans was a special program, and to have the complaint dismissed at the outset of the hearing. The Board of Inquiry quashed the preliminary motion. Given that the TTC did not concede a prima facie violation of the Code, the defence could not be raised as a preliminary matter.
In 2004, the Commission settled a series of complaints against the City of Hamilton’s specialized transportation services. The City of Hamilton claimed that its “Accessible Transportation Services Program”, including the Disabled and Aged Regional Transit System (DARTS) service, constituted a “special program” within the meaning of Section 14 of the Code.
Neither of these settlements addressed the important issue of whether the specialized transit services were “special programs” for the purpose of Section 14 of the Code. In 2006, the Ontario Human Rights Commission authored a position paper on the question of whether specialized transportation was a “special program”. That paper determined that specialized transportation programs are not special programs within the meaning of Section 14 of the Code.
B. Wynberg v. Ontario (2006)
In Wynberg v. Ontario, the applicants challenged the age limitations to the funding for services/supports for children with autism. Services to children with autism were only available to children under the age of six. Relying on Section 15(2) of the Charter of Rights and Freedoms, the government defendants argued that the funding for children with autism and autism spectrum disorder had an ameliorative purpose.
Justice Kiteley of Superior Court of Justice found that she must address Section 15(1) before considering the government’s Section 15(2) arguments. She found that the age cut-off violated the Charter’s equality guarantees. Justice Kiteley accepted that the special education regime is an ameliorative program. Nevertheless, she found that the funding for children is a rare example of a targeted ameliorative program that is unconstitutional.
Justice Kiteley’s decision was overturned by the Court of Appeal. There is a brief discussion of Section 15(2) in the Court of Appeal’s decision:
… The Court [in Lovelace] also makes clear that a claim that such a program is discriminatory is properly assessed under s. 15(1), but that exclusion from a targeted ameliorative program is less likely to be associated with stereotyping or stigmatization or conveying the message that the excluded group is less worthy of recognition and participation in the larger society than might be the case with exclusion from a more comprehensive ameliorative program.
The Court of Appeal’s decision in Wynberg did not rely on Section 15(2). Indeed, there is only fleeting attention paid to Section 15(2).
C. Ball v. Ontario (2010)
The Human Rights Tribunal of Ontario recently considered whether the provincial Special Diet Allowance (SDA) program violated the Code in the way it provides benefits to Ontario Disability Support Program (ODSP) recipients. The SDA provides additional funds to ODSP recipients to relieve the disadvantage faced by people who have extra dietary costs related to therapeutic diets prescribed by their health care professionals. In 2005, there were significant changes made to the SDA program, reducing the benefits to people with particular types of disabilities.
During the hearing, Ministry of Community and Social Services (MCSS) relied on Section 14 of the Code to argue that the Special Diet program was a “special program”, and therefore immune from a finding that it violates the applicants’ Code rights. The MCSS argued that the Roberts decision ought to be re-visited given the Supreme Court’s decision in R v. Kapp (2008).
The HRTO distinguished Kapp from the claims before it, and concluded that the Roberts analysis still applies under the Code.
The analysis in Kapp does not detract from or contradict the reasoning in Roberts about why, when a member of the targeted group is excluded on a prohibited ground, substantive equality is undermined…..
Therefore, I conclude that the Roberts analysis still applies under the Code. Considering the Roberts test in the circumstances of this case, I conclude that the analysis above regarding the purpose of the program disposes of the s. 14 issue. Under s. 1 of the Code, the analysis, following the approach in Gibbs and other cases, is to determine whether the claims fall within the purpose or underlying rationale of the program in order to determine whether there is substantive discrimination. Roberts provides that s. 14 of the Code does not shield a program from scrutiny where the claimant has a disadvantage the program was designed to benefit. The analysis under s. 14 is the same as that under s. 1.
The HRTO left open whether Kapp is inapplicable in the context of the Code, or whether Kapp is inapplicable in the case of under inclusive claims. If Ball is read to be limited to the Code context, only Code applicants will be protected from the formalistic operation of the “ameliorative program” defence. People with disabilities who raise Charter arguments will still have to defend their Charter claim against the operation of the ameliorative program defence. In that way, Charter litigation becomes increasingly less accessible for persons with disabilities and the Code becomes a more attractive forum. Section VI (“Barriers to Defending against Ameliorative Program Defence”) offers further comment on the barriers experienced by Charter applicants.
D. Larromana v. Ontario (Director of the Ontario Disability Support Program) (2010)
In Larromana v. Ontario (Director of the Ontario Disability Support Program), the Divisional Court found that the Ontario Disability Support Program (ODSP) was a special program. The appellant challenged the Ontario Disability Support Program Act’s definition of disability, which is different from the Code’s definition. The decision applies to ODSP in its entirely, and not just to the special diet allowance, as in the Ball decision at the HRTO, which was rendered a week before the Larromana decision. The appellant did not seek leave to appeal that decision.
The Court relied on Roberts to find that a special program can not discriminate on grounds relevant to the purpose of the program. But it’s not clear that the Divisional Court applied a fulsome discrimination analysis, under Section 1 of the Code.
 As a matter of law, the Tribunal correctly determined that disability benefits provided under the ODSPA constitute a program designed to ameliorate the conditions of a disadvantaged group and is not discriminatory merely because the group provided with that advantage is not as broad as the group meeting the definition of disabled persons for the purposes of the Code.
 The primacy of the Code over other legislation is engaged only when other legislation conflicts with the Code. However, the mere fact that one statute defines “disability” differently from the definition in the Code is not necessarily discriminatory, and is not necessarily a conflict that engages the primacy provision. In this case, the two statutes have fundamentally different purposes, and the different definitions reflect those different purposes.
 The broad definition of disability in the Code is designed to protect a broad range of individuals from discriminatory treatment based on any degree of actual or perceived disability. The much narrower definition of disability in the ODSPA is designed to provide a financial benefit to a smaller disadvantaged group, those with more serious degrees of impairment. That benefit meets the requirements of s. 14(1) of the Code which provides, inter alia, that rights to be free from discrimination guaranteed under the Code are not infringed by a special program designed to relieve hardship or disadvantage. Even a program that falls within s. 14(1) is not permitted to discriminate on grounds not relevant to furthering the purpose of that program: Ontario Human Rights Commission and Roberts v. Ontario 1994 CanLII 1590 (ON C.A.), (1994), 19 O.R. (3d) 387 (C.A.). However, where the government elects to provide a benefit to a group identified by a prohibited ground of discrimination (such as disability), it is not required to extend that benefit to every conceivable member of that broad class. Here, the group excluded from benefits under the ODSPA is less disadvantaged than those who are included. It is not discrimination on the basis of disability to provide benefits to the most disadvantaged in order to ameliorate that disadvantage, without providing such benefits to all persons with any degree of impairment: Lovelace v. Ontario 1997 CanLII 2265 (ON C.A.), (1997), 33 O.R. (3d) 735 (C.A.); R. v. Kapp.  S.C.R. 483; Granovsky v. Canada, 2000 SCC 28 (CanLII),  1 S.C.R. 703. Indeed, such programs are consistent with the Code’s general purpose of enhancing the equal rights and opportunities of the most disadvantaged, rather than the contrary.
The Court cites Kapp as valuable to the determination of constitutionality the allegedly under-inclusive legislation. Kapp is included in the list of citations at the end of the sixth paragraph. Our interpretation of Kapp differs on this point. Section IX of this paper (“A Proposed Test for the Ameliorative Program Defence, and a Practical Guide”) offers further comment on this point. Kapp is only instructive in the case of a claim of “reverse discrimination”. We argue that Kapp is not instructive in the case of a complaint of “underinclusion”.
E. Tranchemontagne v. Ontario (Director, Disability Support Program) (2010)
Tranchemontagne v. Ontario (Director, Disability Support Program) considered the exclusion of persons from ODSP supports whose sole disability is addiction. The case went to the Supreme Court on the question of whether administrative tribunals, who were legislatively barred from considering the Charter, had the authority to determine Code issues. The case was returned to the Social Benefits Tribunal. Tranchemontagne was recently heard at the Court of Appeal again, on the question of the influence of the Charter on the test for discrimination under the Code.
In its factum to the Court of Appeal, the government respondents alleged that ODSP is a special program pursuant to the Code, and therefore immune from a finding of discrimination. The government respondents were ultimately barred from raising the “ameliorative program” argument at the Court of Appeal, since that argument had not been brought to the Social Benefits Tribunal.
In her oral remarks to the Ontario Court of Appeal, counsel for the Ministry of the Attorney General (Constitutional Law Branch) gave notice that the Ministry intends to rely on the “ameliorative program” defence increasingly often in the future.
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