Overview
Every province and territory in Canada provides protection for special programs (e.g. affirmative staffing) in their human rights legislation.
According to guidance provided by the Canadian Human Rights Commission, the Ontario Human Rights Commission, and the Manitoba Human Rights Commission such programs of provisions must:
- advance equality and address genuine disadvantage for a specific group or groups(documented);
- be designed and administered to ensure that substantive equality for the targeted group(s) will be advanced;
- ensure that any restrictions within the program are rationally connected to the program (nobody is excluded from the program who should not be)1;
- be periodically reviewed to assess their continued need (via valid evaluation) and be terminated when the disadvantaged targeted no longer exists.
1 See, e.g. Roberts v. Ontario (Ministry of Health) (No. 1) (1989), 10 C.H.R.R. D/6353 (Ont. Bd. Inq.), aff’d 14 C.H.R.R. D/1 (Ont. Div. Ct.), rev’d (1994), 21 C.H.R.R. D/259 (C.A.) where a program which provided financial assistance to individuals under age 30 with visual impairments was determined to have discriminated on the basis of age.
Alberta
Alberta Human Rights Act, RSA 2000, c A-25,5 s. 11
Reasonable and justifiable contravention
11 A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.
* “Employers often wish to expand their workforce through targeted recruitment strategies that achieve greater representation of historically disadvantaged groups. Section 11 of the Alberta Human Rights Act allows employers to develop programs to overcome historic systemic discrimination if the program or policy is reasonable and justifiable in the circumstances.”
https://www.albertahumanrights.ab.ca/employment/employer_info/recruiting/Page s/targeted_recruiting.aspx
British Columbia
Human Rights Code R.S.B.C. 1996, c. 210, s. 42
42. Special programs
42(1) It is not discrimination or a contravention of this Code to plan, advertise, adopt or implement an employment equity program that
(a) has as its objective the amelioration of conditions of disadvantaged individuals or groups who are disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability, sex, sexual orientation, or gender identity or expression, and
(b) achieves or is reasonably likely to achieve that objective.
42(2) [Repealed 2002, c. 62, s. 23.]
42(3) On application by any person, with or without notice to any other person, the commissioner may approve any program or activity that has as its objective the amelioration of conditions of disadvantaged individuals or groups.
42(4) Any program or activity approved under subsection (3) is not in contravention of this Code.
Manitoba
The Human Rights Code S.M. 1987-88, c. 45, s. 11
11. Affirmative action, etc. permitted
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.
New Brunswick
Human Rights Act R.S.N.B. 2011, c. 171, s. 14
14. Commission may approve programs
14(1) On the application of any person, or on its own initiative, the Commission may approve a program to be undertaken by any person designed to promote the welfare of any class of persons.
14(2) At any time before or after approving a program, the Commission may do any of the following as the Commission thinks fit:
(a) make inquiries concerning the program;
(b) vary the program;
(c) impose conditions on the program; or
(d) withdraw approval of the program.
14(3) Anything done in accordance with a program approved under this section is not a violation of the provisions of this Act.
Newfoundland
Human Rights Act, 2010 S.N. 2010, c. H-13.1, s. 8
8. Special programs
8(1) On the application of a person, the commission may approve programs designed to prevent, reduce or eliminate disadvantages respecting services, facilities, accommodation or employment that may be or are suffered by a group of individuals where those disadvantages would be, or are based on or related to, a prohibited ground of discrimination of members of that group.
8(2) Before or after the commission approves a program, 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 appropriate.
8(3) Nothing done in accordance with a program approved under this section is a violation of this Act.
North West Territories
Human Rights Act S.N.W.T. 2002, c. 18 to S.N.W.T. 2002, c. 18
67.
67(1) Affirmative action programs
Nothing in this Act precludes any law, program or activity that 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 5(1).
67(2) Previously approved programs
Any program designed to promote the welfare of any class of individuals that was approved under section 9 of the Fair Practices Act, R.S.N.W.T. 1988, c.F-2, is deemed, for the purposes of subsection (1), to be a program that has as its object the amelioration of conditions of disadvantaged individuals or groups.
Nova Scotia
Human Rights Act R.S.N.S.1989, c. 214 to R.S.N .S. 1989, c. 214
6. Exceptions
Subsection (1) of Section 5 does not apply
(a) in respect of the provision of or access to services or facilities, to the conferring of a benefit on or the providing of a protection to youth or senior citizens; …
(i) to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5.
9. Exemption by Commission
Notwithstanding anything in this Act, the Commission may exempt a program or activity from subsection (1) of Section 5, or a part thereof, where, in the opinion of the Commission, there is a bona fide reason to do so.
25. Approval of program
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 is deemed not to be a violation of the prohibitions of this Act.
Nunavut
Human Rights Act S.Nu. 2003, c. 12, s. 7
7(2) Affirmative action programs
Nothing in this Act precludes any law, program or activity that has as its objective the amelioration of conditions of disadvantaged individuals or groups, including those who are disadvantaged because of any characteristic referred to in subsection (1), and that achieves or is likely to achieve that objective.
Ontario
Human Rights Code R.S.O. 1990, c. H.19, s. 14
14(1) Special programs
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.
14(2) Application to Commission
A person may apply to the Commission for a designation of a program as a special program for the purposes of subsection (1).
14(3) Designation by Commission
Upon receipt of an application, the Commission may,
(a) designate the program as a special program if, in its opinion, the program meets the requirements of subsection (1); or
(b) designate the program as a special program on the condition that the program make such modifications as are specified in the designation in order to meet the requirements of subsection (1).
14(4) Inquiries initiated by Commission
The Commission may, on its own initiative, inquire into one or more programs to determine whether the programs are special programs for the purposes of subsection (1).
14(5) End of inquiry
At the conclusion of an inquiry under subsection (4), the Commission may designate as a special program any of the programs under inquiry if, in its opinion, the programs meet the requirements of subsection (1).
14(6) Expiry of designation
A designation under subsection (3) or (5) expires five years after the day it is issued or at such earlier time as may be specified by the Commission.
14(7) Renewal of designation
If an application for renewal of a designation of a program as a special program is made to the Commission before its expiry under subsection (6), the Commission may,
(a) renew the designation if, in its opinion, the program continues to meet the requirements of subsection (1); or
(b) renew the designation on the condition that the program make such modifications as are specified in the designation in order to meet the requirements of subsection (1).
14(8) Effect of designation, etc.
In a proceeding,
(a) evidence that a program has been designated as a special program under this section is proof, in the absence of evidence to the contrary, that the program is a special program for the purposes of subsection (1); and
(b) evidence that the Commission has considered and refused to designate a program as a special program under this section is proof, in the absence of evidence to the contrary, that the program is not a special program for the purposes of subsection (1).
14(9) Crown programs
Subsections (2) to (8) do not apply to a program implemented by the Crown or an agency of the Crown.
14(10) Tribunal finding
For the purposes of a proceeding before the Tribunal, the Tribunal may make a finding that a program meets the requirements of a special program under subsection (1), even though the program has not been designated as a special program by the Commission under this section, subject to clause (8)(b).
PEI
Human Rights Act R.S.P.E.I. 1988, c. H-12 to R.S.P .E.I. 1988 , c. H-12, s. 34
20. Approved programs
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.
Quebec
Charter of Human Rights and Freedoms CQLR, c. C-12, s. 86
86. Affirmative action program
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.
Non discriminatory
— An affirmative action program is deemed non-discriminatory if it is established in conformity with the Charter.
Equal access employment program
— An equal access employment program is deemed not to discriminate on the basis of race, colour, gender or ethnic origin if it is established in accordance with the Act respecting equal access to employment in public bodies (chapter A-2.01)
Non-discriminatory
— An equal access to employment program established for a handicapped person within the meaning of the Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration (chapter E-20.1) is deemed to be non-discriminatory if it is established in conformity with the Act respecting equal access to employment in public bodies (chapter A-2.01).
Saskatchewan
The Saskatchewan Human Rights Code, 2018 S.S. 2018, c. S-24.2, s. 16 and s.55 and s.56
16(9) The provisions of this section shall not be construed to prohibit distinctions in terms or conditions of employment if those distinctions are permitted by virtue of Part II of The Saskatchewan Employment Act or the regulations made pursuant to that Act.
55. Programs, approved or ordered by commission
55(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 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, creed, religion, colour, sex, gender identity, sexual orientation, family status, marital status, disability, age, nationality, ancestry or place of origin of members of that group, or the receipt of public assistance by members of that group, by improving opportunities respecting services, facilities, accommodation, employment or education in relation to that group or the receipt of public assistance by members of that group.
55(2) At any time before or after the commission approves a program, or a program is ordered by the commission or the court, 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.
55(3) Nothing done in accordance with a program approved pursuant to this section is a violation of the provisions of this Act.
56. Reasonable and justifiable measures
56(1) Subject to subsection (2), it is not a contravention of this Act for a person to adopt or implement a reasonable and justifiable measure:
(a) that is 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 if those disadvantages would be or are based on or related to one or more prohibited grounds; and
(b) that achieves or is reasonably likely to achieve that objective.
56(2) If a program has been approved or ordered pursuant to section 55, a measure mentioned in subsection (1) must comply with the terms and conditions of that program.
Yukon
Human Rights Act R.S.Y. 2002, c. 116, s. 13
13. Special programs and affirmative action
13(1) Special programs and affirmative action programs are not discrimination.
13(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.
13(3) Affirmative action programs are programs designed to reduce disadvantages resulting from discrimination suffered by a group identified by reference to a prohibited ground of discrimination.