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 Special
Diet Allowance program, reducing benefits to people with particular types of disabilities.
The government sought to rely on the special programs defence, and argued that
pursuant to section 14 the Special Diet Allowance should be immune from a finding of
Code liability. The Tribunal confirmed that the analysis set out in Roberts continues to
apply. Section 14 only insulates a program from review where the challenge is from a
member of a historically privileged group or a disadvantaged person whose disability
the program was not intended to benefit. Section 14 does not shield a program from
scrutiny where the claimant has a disadvantage that the program was designed to
benefit. Special programs cannot internally discriminate against the people they are
meant to serve. Special programs must meet the same non-discrimination standard as
other services that are not special programs.The Tribunal also found that section 14
does not import a more deferential approach to government in the discrimination
analysis.
It is important to note that the availability of the special programs defence does not
remove the obligation on employers, service providers and landlords to accommodate
people with disabilities up to the point of undue hardship. The Human Rights
Commission has noted that, “(i)n some cases, what may appear to be a special
program is in fact part of the duty to accommodate... Such programs should not be
considered special programs.” The Commission has taken the position that paratransit
services are a form of accommodation for people with disabilities, not special programs.
The Commission has stated:
Where individuals are unable, because of their disabilities or because of
the non-inclusive design of many older transit systems, to access
conventional transit systems, transit service providers have a duty to
accommodate these needs, up to the point of undue hardship. While
some transit providers argue that para-transit is a type of voluntary special
program under human rights law, it is the position of the Commission that