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Human Rights (Ont) - 'Special Programs' [s.14]. Lisikh v. HRTO
In Lisikh v. HRTO (Div Court, 2024) the Divisional Court considered, in a motion to extend time to file a JR under s.5 of the JRPA, a 'special program' which the HRTO held was exempt from the HRC [under HRC 14]:[2] Mr. Lisikh’s application to the Tribunal was related to a summer education program provided at several Ontario school boards. Mr. Lisikh’s son was interested in the program. The program was described as providing opportunities to Canadian youth of Black and African-Canadian heritage. Mr. Lisikh’s son did not fall within this group. Mr. Lisikh alleged that the program was discriminatory because it was available to Black youth only.
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[11] Mr. Lisikh also has not explained on this motion why he says the Tribunal’s conclusion that the summer program constitutes a “special program” under the Code was unreasonable.
[12] Subsection 14(1) of the Code provides:14(1) 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. [13] The Tribunal concluded the summer program in this case fell within s. 14. It reasoned that a program that aimed to “provide equal opportunities to persons who are disadvantaged on the basis of a Code protected ground, such as colour or race or disability, can, without in any way breaching the Code, limit its services to individuals who are identified by the prohibited ground, which in this instance is their race or colour.”
[14] In his reconsideration request, Mr. Lisikh stated that s. 14 is invoked to justify exceptions for programs that are otherwise discriminatory. He stated the Tribunal’s analysis did not clearly acknowledge the discriminatory nature of the program. He also submitted the Tribunal should not have concluded without further evidence the program fell within the requirements of s. 14.
[15] The Tribunal noted there was nothing new in these submissions to justify a reconsideration. I would add that, to the extent Mr. Lisikh relies on these submissions (which were filed in his material on this motion) to say the Tribunal decisions were unreasonable, s.14 does not state a finding of discrimination is required for it to be invoked and Mr. Lisikh has not provided any authority for this proposition. I also do not see a basis to interfere with the Tribunal’s factual findings that the summer program fell within the requirements of a s. 14 program.
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