Why treat people of different ages differently? This is one of the foundational questions for the area of law and aging, and was the focus of the Law Commission of Canada’s project Does Age Matter? Law and Relations Between Generations.[13] Why is age used as a category for apportioning benefits or imposing restrictions? Is this appropriate and/or effective? If so, under what circumstances? If universal laws and protections are insufficient for addressing older adults, why and in what circumstances? That is, under what conditions does age “make a difference”, and under what circumstances should it?

Use of Age as a Legal Category

It is very common for older adults to be treated separately for the purposes of law and social policy. Age is a criterion for access to social programs like the federal Old Age Security benefits, Ontario’s Guaranteed Annual Income System (GAINS),[14] and Ontario’s Drug Benefit Program, which pays for most of the cost of drugs that are listed in the Ontario drug benefit formulary.

On a lesser scale of significance, attainment of age 65 entitles Ontarians to access a range of government benefits, including reduced priced entry to the Ontario Agricultural Museum, reduced fares for public transportation and special provisions for sport fishing licenses.[15]

Following the abolition of mandatory retirement in Ontario on December 12, 2006,[16] most employers have retained age 65 as the “normal retirement date” for their employees, and there is a complex web of age-based requirements and entitlements related to income security in old age.

Law and policy also frequently permit restrictions on entitlements or increased obligations based on age. When mandatory retirement was ended in Ontario in December 2006, employers were given discretion as to whether or not to provide health, insurance and dental benefits to employees aged 65 or older. An employer may choose to provide lesser or no benefits to employees who decide to continue working after age 65.[17]

Less formal distinctions based on age are also common in the private sector. It is not unusual, for example, to see businesses providing “seniors’ discounts”.

Sometimes laws and policies permit “age” to be taken into account in decision-making, without specifying a particular age. For example, the law generally permits age to be taken into account in actuarial calculations for insurance purposes. The Employment Standards Act, combined with Regulation 286/01, permits employers to make age-based distinctions in the provision of pensions, life insurance and disability benefit plans when those distinctions are made on an actuarial basis.[18] The use of age as an actuarial basis for insurance rates was upheld by the Supreme Court of Canada in Zurich Insurance Co. v. Ontario (Human Rights Commission), although the Court cautioned that the use of characteristics such as age, sex and marital status raised human rights concerns, and directed the insurance industry to look for alternatives to the use of enumerated grounds in setting premiums.[19]

More frequently, a specific age is provided as a basis for action, most commonly age 65. The Workplace Safety and Insurance Act, 1997, for instance, uses age 65 as a turning-point date for the obligation to re-employ, compensation for loss of retirement income and payments for loss of earnings.[20] The Ontario Legal Clinic’s Workers’ Compensation Network and the Office of the Worker Advisor both pointed out that many older workers must continue to work past age 65 due to economic necessity, and that injured workers who can neither work nor qualify for compensation for lost earnings may find themselves in poverty.

Occasionally, other ages are used as turning points. For example, the Courts of Justice Act permits judges to remain in office until age 75, subject to annual approval after age 65 by the Chief Justice of the Ontario Court of Justice.[21] Ontario’s Senior Driver Renewal Program requires drivers aged 80 years and older to take part every two years in a group education session and to complete vision and knowledge tests.[22]

B. Rationales for Age-Based Distinctions

Most frequently, age-based distinctions in law are related to the complex system of income security programs for older adults that includes private and public pension schemes, income supplement programs such as Ontario’s GAINS, access to supplementary benefits, such as Ontario’s Drug Benefit Program, and more or less successful attempts to integrate these with other income support-type programs, such as Workers Safety and Insurance benefits and social assistance programs.

Occasionally, the notion of “intergenerational equity” is raised as a rationale for age-based distinctions. For example, one of the rationales advanced for mandatory retirement was that it was necessary in order to facilitate the hiring and promotion of younger persons, and thereby ensure opportunity across generations (although the validity of this rationale for mandatory retirement has been critiqued).[23]

Age is also often used as a stand-in for other characteristics, such as need or capacity. Programs that provide discounted costs for older adults, for example, are often based on the assumption that older adults have lower incomes than other segments of society. The Ontario Senior Drivers’ Renewal Program reflects concerns that age is correlated with declines in some capacities related to driving, and that older drivers therefore pose an increased risk on the road and require increased monitoring. The effectiveness of using age as a stand-in for other characteristics is questionable, however, as the situations and capacities of older adults of course vary widely. To the degree that age acts as a stand-in for other characteristics, such as need, vulnerability or capacity, it is worth considering whether this is an effective and appropriate approach, or whether it would it be more effective to directly target persons with the characteristics that are of concern.

The use of a specific age as a cut-off for entitlement or restrictions on access provides the benefits of clarity, simplicity and certainty. On the other hand, it almost inevitably raises concerns about arbitrariness. It is unlikely, of course, that most individuals will undergo a sea-change upon the attainment of a specific chronological age: changes in need, capacity, or vulnerability are generally the result of a gradual process, rather than a sudden “all-or-nothing” alteration. Further, as the Ontario Bar Association points out in its submission, chronological age is not an accurate measure of age-related vulnerability, capacity or need, and the capabilities of older adults vary markedly. For example, the Ontario Legal Clinics Workers Compensation Network and the Ontario Worker Adviser point out that aged-based termination of significant benefits under Ontario’s workers’ compensation system ignore the diversity among older adults: many need to work past age 65 due to economic necessity, and older women and recent immigrants are particularly vulnerable because they have not had the opportunity to build up either private or public retirement benefits. The Senior Drivers’ Renewal Program attempts to balance these various concerns by using a mix of age-based decision-making and individual assessment: unlike, for example, mandatory retirement programs that used age as a bright-line cutoff point, the Drivers’ Renewal Program uses age as a point at which individuals are required to demonstrate their continued capacity.

The Ontario Human Rights Commission’s Policy on Discrimination Against Older Persons Because of Age notes that age is a relative concept, and that the context should be taken into account.[24] It has also been noted that the human life span is a continuum, and that while for many purposes society describes the aging processes in terms of near water-tight compartments – adulthood begins at age 18, for example, and old age at 65 – this is essentially arbitrary and socially constructed.[25]

All this raises the difficult question of defining what an “older adult” or “older age” is. Although the terms are often taken for granted, there is no consensus definition of who may be considered “old” or “senior”, given the diversity of individual life paths and expanding life expectancy. The common use of essentially arbitrary markers of old age, such as retirement from the work force or the attainment of age 65, while providing clarity and simplicity, do not accord with the realities of aging, or the important role of attitudes, social expectations and specific context in how aging is experienced.

It has also been pointed out that the use of age-based criteria may suggest that older adults are homogenous, obscuring the diversity among older adults, and thereby supporting ageist thinking.[26] Individual assessment of need or capacity has been proposed as a preferable alternative.[27]

However, a number of consultees pointed out that age-based criteria can be very effective in addressing circumstances where older adults do face unique barriers or difficulties, often highlighting the success of age-based income support programs in addressing poverty among older adults. As an example of a situation where older adults may face special challenges that require a tailored response, Parkdale Community Legal Services raised the situation of older adults between the ages of 60 and 64 who have recourse to social assistance. This group of older adults may face significant age-related barriers in finding employment, and are more likely than younger persons to experience health and medical issues that impact on income and opportunities. Since the 1998 restructuring of social assistance which removed the “aged” category of assistance that previously existed under the Family Benefits Act, the social assistance system has failed to take the situation of these older persons into account, leading to considerable hardship. This submission noted that:

Although some age-based criteria may have discriminatory effects, the former Family Benefits “aged” category was one that benefited older adults and reflected the barriers that many of them face in finding employment… Although considered employable, people over the age of 60 face systemic hardship trying to find employment … The impact of the low benefits provided by OW is exacerbated by health and mobility issues that many of our older clients face, which make accessing other available services, such as food banks, more difficult. As well, many of the natural health issues which affect people over the age of 60, but are not necessarily considered disabilities per se, require medication and pose further mobility and unemployment issues.

C. Human Rights Frameworks and Age-Based Distinctions

International and domestic frameworks respecting older adults have recognized that older adults may have needs and circumstances that differ from other segments of society, and therefore require different policies and programs. Documents such as the United Nations’ Principles for Older Persons and Canada’s National Framework on Aging implicitly recognize that a distinct policy lens is necessary to ensure appropriate and effective responses to the needs of older persons, whether as a redress to the effects of historical ageism and marginalization of older persons, or to address the additional needs for care and support that may result from the aging process.

The Canadian Charter of Rights and Freedoms includes age as one of the enumerated grounds in section 15, which provides for equality before and under the law, and equal protection and benefit of the law without discrimination. That is, the Charter recognizes age as one of the grounds on which individuals may experience barriers to equality. Section 15 also permits the use of age as a factor in designing programs, activities or laws that are intended to ameliorate disadvantage among individuals or groups.

Ontario’s Human Rights Code prohibits discrimination based on age. Until recently, the Code defined age as being 18 years or more and under 65 years for the purposes of employment protections. Amendments in 2006 removed the cap of age 65, so that any person aged 65 or older is protected against discrimination in the social areas of employment, housing, services, contracts and vocational associations.

The inclusion of “age” as a ground in the Code as well as in the Charter reflects an acknowledgement that age, including older age, is not infrequently the unjustified basis for decisions that have a significant impact on the lives of older adults. The Ontario Human Rights Commission’s Report, A Time for Action, released on 2001, outlines myriad concerns with the ways in which age may be used to deny employment, housing, health care and key services to older persons. The identification of mandatory retirement as a violation of human rights principles played a significant role in the eventual decision of the Ontario government to amendment the law to abolish mandatory retirement.

However, the Supreme Court of Canada explicitly recognized in Law v. Canada (Minister of Employment and Immigration) that not all distinctions related to age should be considered discriminatory. This case revolved around a pension scheme under which full benefits were paid to surviving spouses over the age of 45, partial benefits were paid to those between 35 and 45 and no benefits were available to surviving spouses under age 35. The Court found that, even though the claimant was disqualified on the basis of her age from receiving a survivor’s pension when her spouse died, there was no Charter violation. Persons under age 45 have not historically been subjected to discrimination, younger persons do not face the barriers to long-term labour force participation that the benefit was designed to address, and the law did not stereotype, exclude, devalue or demean adults of the claimant’s age.[28]

The Human Rights Code does not forbid all age-based distinctions. It specifically exempts programs, policies or activities that provide preferential treatment for persons aged 65 and older from the definition of age discrimination.[29] The Code also permits age-based special programs designed to relieve hardship or economic disadvantage, or that is designed to assist individuals or groups to attempt to achieve equal opportunity.[30] That is, under the Code, all age-based decisions and policies are not necessarily problematic: one must enquire into the basis and effects of such distinctions in order to determine their appropriateness. For example, such provisions may shield seniors’ housing projects that aim to provi