the Court of Appeal for Ontario held that section 14 has two purposes: (1) protection of
affirmative action programs from attack by people who do not experience the same
disadvantage as those the program is designed to assist; and (2) promoting substantive
equality to address disadvantage and discrimination.^154
A program must satisfy at least one of the criteria set out in s. 14 to be found to be a
special program. An example of a program that may qualify as a special program is the
provision of publicly funded services, supports and grants to people with intellectual
disabilities or their caregivers with the goal of facilitating their integration and full
participation in society; another example is government-funded employment supports
and training to assist people with disabilities to find and maintain employment.
In Roberts, the Court of Appeal cautioned that special programs must be designed so
that restrictions within the program are rationally connected to the program’s objective.
At issue in Roberts was whether the Assistive Devices Program, a government program
that provides financial assistance to people who purchase assistive devices,
discriminated against Mr. Roberts by excluding him from the program based on his age.
The government sought to use the special programs defence to shield the program from
human rights review. The Court of Appeal found that the age-based eligibility
requirement in the ADP program was discriminatory, and that the program could not be
saved under section 14 since it discriminated on the basis of age in an unreasonable
manner. Special programs aimed at assisting a disadvantaged group or individual
should be designed so that restrictions within the program are rationally connected to
the program’s objectives.^155
In Ball v. Ontario, the Human Rights Tribunal considered whether the provincial Special
Diet Allowance program violated the Code in the manner in which it provides benefits to
Ontario Disability Support Program (ODSP) recipients. The Special Diet Allowance
provides additional funds to ODSP recipients to relieve the disadvantage faced by
The Supreme Court of Canada recently considered the ameliorative program defense in the context of
Charter litigation in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37
(CanLII). 154
155 Ontario (Human Rights Commission) v. Ontario, 1994 CanLII 1590 (ON CA).^
Ibid.