Endnotes

[1] R.S.O. 1990, c. H.19. The Code provides for equal treatment without discrimination on the basis of age. The Preamble to the Code promotes as public policy goals the recognition the dignity and worth of every person, the provision of equal rights and opportunities without discrimination, the creation of a climate of understanding and mutual respect, and ensuring that each person feels a part of the community and able to contribute fully to the development and well-being of the community.

[2] United Nations, Principles for Older Persons, G.A. Resolution 46/91. These principles were adopted in 1991, pursuant to the International Plan of Action on Ageing. The Principles recognize the contributions that older persons make to their societies, appreciate the diversity of older persons, and acknowledge the many stereotypes about aging and older persons. The Principles encourage governments, whenever possible, to incorporate into their national programs for older persons the five principles of independence, participation, care, self-fulfilment and dignity.

[3] World Health Organization, Active Ageing: A Policy Framework, 2002. This framework emphasizes interdependence, intergenerational solidarity, participation, ability to realize potential, and adequate care and assistance.

[4] United Nations, Convention on the Rights of Persons with Disabilities, 13 December 2006, G.A. Res. 61/106.

[5] The National Framework on Aging (NFA) was developed by the Federal/Provincial/Territorial Ministers Responsible for Seniors, in conjunction with the community. The NFA recognizes three interdependent goals of promoting the well-being of older persons, recognizing their valuable contributions and eliminating ageism. The NFA adopts the five principles of dignity, independence, participation, fairness and security.

[6] Ontario Human Rights Commission, Policy on Discrimination Against Older Persons Because of Age (Toronto: 2007), available online at www.ohrc.on.ca/en/resources/Policies/agepolicyen.

[7] Since the Ontario Human Rights Code was amended in 2006 to remove protections for most mandatory retirement provisions, mandatory retirement is permissible only where it can be shown to be a bona fide occupational requirement (BFOR). Some police and firefighter services have taken the position that mandatory retirement at fixed ages is a BFOR due to the safety sensitive nature of this work. The Ontario Human Rights Commission has taken the position that a BFOR for a mandatory retirement policy will be shown only where individualized assessment is impossible (in the sense that there is no appropriate method for carrying it out) or would cause undue hardship. See, Ontario Human Rights Commission, Policy on Discrimination Against Older Persons on the Basis of Age, cited above at note 1, at section 4.5.

[8] For example, the Canadian Policy Research Networks has adopted intergenerational equity as a lens for examining issues related to an aging society. See Nuala Kenny, What’s Fair? Ethical Decision-Making in an Aging Society, (Canadian Policy Research Networks; Ottawa, 2004), available online at www.cprn.org/documents/29378.pdf.

[9] See, for example, the United Nations’ World Youth Report, 2003, Young People in a Globalizing World, available online at www.un.org/esa/socdev/unyin/wyr03.htm. See also the Quebec Declaration of Intergenerational Solidarity (Intergovernmental Agency for Francophone Communities: Quebec City, 1999), available online at www.aifa.ca.

[10] Martin Turcotte and Grant Schellenberg, Portrait of Seniors in Canada (Ottawa: Statistics Canada, 2006) at 48.

[11] Turcotte and Schellenberg, cited above, at pp. 47-48.

[12] Submission from the Canadian Association for Community Living (July 2008), at p. 2

[13] See the Law Commission of Canada’s 2004 Discussion Paper, Does Age Matter? Law and Relations Between Generations (Law Commission of Canada: Ottawa, 2004).This project was not completed due to the de-funding of the Law Commission of Canada in 2006.

[14] The Guaranteed Annual Income System provides a guaranteed minimum income to Ontario seniors, in conjunction with the federal Old Age Security pension and Guaranteed Income Supplement, through monthly payments of up to $83.00. See Ontario Guaranteed Annual Income Act, R.S.O. 1990, c.O.17, and for further information, see http://www.rev.gov.on.ca/ english/credit/gains/index.html.

[15] See Ontario Agricultural Museum Act, R.R.O. 1990, Reg. 866, s. 2; s. 2(4); Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, O. Reg. 664/98, s. 2.

[16] Until 2006, the Ontario Human Rights Code did not prohibit age-related discrimination in the area of employment against persons aged 65 and older. Bill 211, the Ending Mandatory Retirement Statute Amendment Act, 2005, which came into effect December 12, 2006, amended the definition of “age” in the Human Rights Code and as a result, mandatory retirement now violates the Code, except where a bona fide occupational requirement can be shown, or for judges, masters or justices of the peace, who are the subject of a specific statutory exemption.

[17] Section 25(2) of the Ontario Human Rights Code protects from challenges pension and benefit plans that comply with the Employment Standards Act, 2000 and its accompanying regulations. O. Reg. 286/01, which regulates employment-related health, insurance and dental plans, regulates such plans only insofar as they apply to persons between the ages of 18 and 65, thereby permitting differential treatment of persons over age 65. The Ontario Human Rights Commission has expressed concerns regarding these provisions, and recommended legislative change.

[18] Employment Standards Act, 2000, S.O. 2000, c. 41, s. 44(1); O. Reg. 286/01, ss. 4, 7, 8.

[19] Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321.

[20] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, ss. 41, 43.

[21] Courts of Justice Act, R.S.O. 1990, c. C.43, s. 47.

[22] Highway Traffic Act, R.S.O. 1990, c. H.8, O. Reg. 340/94, s. 16(a).

[23] See, for example, the discussion in the Ontario Human Rights Commission’s A Time for Action: Advancing Human Rights for Older Ontarians (Toronto: 2001), at pages 35-36, available online at http://www.ohrc.on.ca/en/resources/discussion_consultation/TimeForActionsENGL

[24] Ontario Human Rights Commission, Policy on Discrimination Against Older Persons Because of Age (Toronto: 2007) at page 3, available online at http://www.ohrc.on.ca/ en/resources/Policies/agepolicyen.

[25] Christie Ford, “Bright Lines: Status, Recognition and the Elusive Nature of Ageing”, (1996) 2 Appeal 4-7.

[26] Special Senate Committee on Aging, First Interim Report: Embracing the Challenge of Aging (Ottawa: Senate of Canada, March 2007), at 8 and following; Marie Beaulieu and Charmaine Spencer, Older Adults’ Personal Relationships and the Law in Canada: Legal, Psycho-Social and Ethical Aspects (Ottawa: Law Commission of Canada, 1999), at 21.

[27] See, for example, Ontario Human Rights Commission, Policy on Discrimination Against Older Persons because of Age, Ontario Human Rights Commission, Policy on Discrimination against Older Persons because of Age (Toronto: 2007), section 4.5.

[28] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.

[29] Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 15.

[30] Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 14.

[31] For an interesting discussion of common ageist stereotypes relating to older persons, see the 1994 Curriculum Module on Ageism prepared by Professor Barry Robinson of the University of California at Berkeley, available online at http://ist-socrates.berkeley.edu/~aging/ModuleAgeism

.html.

[32] The main statutes at issue are the Substitute Decisions Act, 1992, S.O. 1992, c. 30, and the Health Care Consent Act,1996, S.O. 1996, c. 2, Schedule A.

[33] Representation Agreement Act, RSBC 1996, c.405.

[34] Vulnerable Persons Living With a Disability Act, C.C.S.M. c.V90.

[35] Ontario Building Code Act, 1992, S.O. 1992, c. 23.

[36] S.O. 2005, c. 11.

[37] Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A.

[38] Original submission provided in French, as follows:

“Un obstacle qui n’est pas mentionné, c’est le manque d’accès à des services en français qui freine le recours aux tribunaux par les aînés francophones. Or la Loi de l’Ontario stipule que cette catégorie de citoyens, les parlant français, ont le droit à des services juridiques dans leur langue. Nulle part il n’est fait mention dans votre document de consultation que l’un des obstacles à l’accès au système judiciaire pour la population de langue française … est la faible disponibilité des services en français de qualité équivalente à ceux dispensés en anglais.”

[39] The Ombudsman of Ontario has launched a “Push for MUSH”, advocating for an expansion of its investigative powers to the Municipalities/Schools/Universities/Hospitals sector, which would thereby bring its powers more in line with those of Ombudsmen in other parts of Canada: http://www.ombudsman.on.ca/en/hot-topics/push-for-mush.aspx.

[40] Hospitals frequently have adopted “First Available Bed” policies as a means of addressing shortages of beds and resources. Such policies may require patients who are awaiting placement in a long-term care home to accept the first bed available within their designated area, or may require patients to chose a placement from a short-list of homes that have short or no waiting lists. “First Available Bed” policies were raised frequently in submissions to the LCO as a serious concern for older adults.

[41] For example, grandparents may have difficulty in maintaining access to their grandchildren following a marital breakdown, or if conflict arises between parents and grandparents. Other issues may arise when grandparents become either temporary or full-time caregivers for their grandchildren. In both situations, concerns have been raised regarding the lack of legal protections and supports. For an introduction to some of the issues, see Pamela Cross, Grandmothers and the Law (Ontario Women’s Justice Network: May 2005) and the report of the Nova Scotia Law Reform Commission on grandparent-grandchild access: Final Report: Grandparent – Grandchild Access (Nova Scotia Law Reform Commission: Halifax, May 2007), available online at www.lawreformns.ca/Downloads/GrandparentFinal.pdf.

[42] Ontario Human Rights Commission, The Cost of Caring: Report on the Consultation on Discrimination on the Basis of Family Status (Toronto: 2006) at 12. Available online at http://www.ohrc.on.ca/en/resources/discussion_consultation/famconsult. This concern was re-emphasized in the OHRC’s submission to this consultation.

[43] Family Law Act, R.S.O, 1990, c. F.3, s. 32. For a somewhat dated examination of these provisions see Wendy Bernt, “Lines of Dependence: The Rebirth of Parental Support Legislation in Canada”, (1996) 2 Appeal 52-57.

[44] Martin Turcotte and Grant Schellenberg, Portrait of Seniors in Canada cited above at note 10 at page 138.

[45] R.S.O. 1990, c. N.7.

[46] R.S.O. 1990, c. H.13.

[47] R.S.O. 1990, c. C.9.

[48] S.O. 2007, c. 8, s. 194.

[49] S.O. 2006, c. 17, s. 5.

[50] Ontario Seniors’ Secretariat, News Release, September 7, 2007.

[51] In July 2008, the Ombudsman of Ontario has announced an investigation into the monitoring of standards at long-term care homes in Ontario and the effectiveness of the current system in ensuring that care homes meet government standards: http://www.ombudsman.on.ca /en/media/press-releases/ombudsman-to-investigate-monitoring-of-long-term-care-facilities.aspx

[52] See note 40 above.

[53] Ontario Seniors Secretariat, Diversity in Action: A Toolkit for Residential Settings for Seniors (Government of Ontario: 2008), available online at www.culture.gov.on.ca /seniors/docs/DiversityInAction_ENG_Web.pdf.