We climbe the slippery stairs of Infancy,
Of Childhood, Youth, middle age, and then
Decline, grow old, decrepit, bed rid lye,
Bending to infant weakness once agen,
And to our Cophines (as to our cradles) goe
That at the stair foot stand, and stint our woe.

– Thomas Bancroft [1]


Ageism is a relatively new socially constructed concept, first coined in 1969 by Robert Butler.[2] It can be defined as the stereotyping and discrimination against older people because of age with a distinct valuing of younger age groups. Ageism is also the structural framework within a particular society that can facilitate the devaluation of older adults as full citizens, create or perpetuate their marginalization (individually or as a group) and their exclusion. Ageism can contribute to a social apathy, implicitly accepting the negative ways that older individuals, particular groups of older adults, or older adults as a whole are treated. Ageism allows people to covertly justify certain discriminatory behaviours, and tolerate activities towards older adults that would be considered unacceptable if experienced by other adults. [3]

“Ageism” as used in social sciences refers to the set of attitudes that stereotype older adults, while “age discrimination” refers to the negative behaviours within law or society generally towards groups of persons at various ages. Ageism is more than discrimination that centres on a particular chronological age. Ageism reflects power relations between groups.[4] The behaviours are often premised on (or the consequences of) the ageist attitudes or beliefs, many of which are implicit in society and the way it is structured.

While ageism and age discrimination can occur at any age and different age groups experience different types of age discrimination (e.g. youth, later life), the focus within this paper is on ageism in later life. The paper draws on older adults’, service providers’ and advocates’ perspectives, in conjunction with the emerging literature. It considers ageism in the context of key issues such as subordination of older adults’ interests, older adults’ under-inclusion in law, as well as personal and systemic barriers that older adults face in access to justice. Within this paper, ageism will be discussed in several different but sometimes complementary forms, including (a) how aging adds another layer on other isms experienced in life such as racism, sexism, or ableism, and (b) ageism as an element that arises specifically at some point in later life and is experienced only by those who are old. Ageism will be described in the context of exclusion and loss, as well as social separation, as being treated as lesser persons, or having the spheres of people’s lives considered as less important, or less worthy of consideration.

Throughout Canada’s history, the law has both corrected and created deficits for various populations, including older adults. This paper examines ageism and its cousin, age discrimination, in the context of two important areas of law that have significant effects on people’s wellbeing in later life – housing law and health care in the community. More specifically it considers how discrimination in housing or health care is manifested in later life. The paper begins with an exploration of the concept of ageism, noting that not all distinctions are ageist, nor are all age-based criteria. Ageism is then considered in the context of several types of legal theory, ideology and structural issues. This is followed by specific examples of ageism in the context of health care and in rental housing outlining some of the areas in which ageism may be manifested in law, policy, or practice. The paper introduces some of the access to justice issues, looking at the capacity of and barriers in laws, including human rights, residential tenancy and others to adequately and fairly address the needs of older adults in this area.

The forms of ageism in areas such as housing or health are extremely diverse. Any one of them easily merits its own in-depth consideration. However this paper is only intended to introduce some of the forms, and areas of law in which there may be “special vulnerabilities”, and as such it is not intended as a comprehensive discussion. The paper does not address ageism in health care in the long term care (nursing home) settings, although this is an extremely important issue warranting its own special consideration.

The paper highlights the Ontario experience wherever possible, but also draws on examples and illustrations from health and housing in other jurisdictions. The paper considers ageism and the law issues from a “broad strokes” perspective and it is not intended to be an in-depth analysis of the specifics of residential tenancy law or aspects of health law in Ontario.

Throughout this paper, the term “older adult” and “seniors” are used interchangeably. There is a lack of consensus in society, including among older adults, about the most acceptable and preferred term for people in later life. For the past three decades in policy and practice, “seniors” has been considered as preferable to “the elderly”. Yet some now consider the term somewhat old fashioned, but still far better than newly coined marketing terms like “zoomers” that craftfully expand business markets.

A. Who is an older adult?
In any framework related to age, ageism and older adults, it is important to consider who we are talking about in the first place. The field of gerontology offers four ways of viewing aging. These are (a) chronological aging – the number of years the individual has lived; (b) biological aging – the physical changes that are taking place in the body; (c) psychological aging – changes that take place in relation to one’s adaptability, one’s intelligence, memory and learning; and (d) social aging – the nature of social interaction that the older person has with family, extended family, the work environment and the community and society more generally.

Gerontological frameworks in the 1970s and 1980s began to describe distinct ages of life: preparation (childhood and youth), achievement and fulfillment (young and middle age) and completion (retirees and those nearing death). Young and middle aged persons comprised the “Second Age” of life comprised of family and career. Although initially the “Third Age” of life was considered to include everything after that, today the term tends to refer to the span between retirement and the advent of age imposed limitations for people of post retirement years.[5] This group is often described as retirees from the work force who are in relatively good health and are socially engaged.[6] The “Fourth Age” is generally considered as represented by people of advanced age who are often experiencing an increased likelihood (but not certainty) of declining health, physical and mental impairment, and are facing end of life issues. Thus the Fourth Age is often typified as“ an era of final dependence, decrepitude, and death, essentially all the negative stereotypes of old age“.[7]

Using chronological age, people aged 60 to 65 are often referred to in the gerontological literature as “near seniors”; those aged 64 to 75 years as “young seniors” and those aged 75 and over as “old(er) seniors”. Young seniors are often considered to more closely represent the near seniors than people over the age of 75 years.

Practically speaking, Canadian society tends to use a beginning of age 65 when referring to “seniors” or “older adults”. This may represent a work force model of aging that is based on traditional retirement at age 65. At the same time the labour market field often uses ages 45 or 50 to delineate older workers who are considered as experiencing special challenges in gaining or retaining employment.[8] At a policy and program level, other age thresholds such as age 60 and age 55 have sometimes been used in special contexts such as housing to identify general ages of eligibility.

Internationally, the World Health Organization generally uses age 60 as a threshold for identifying any person as an “older adult”.[9] This reflects, in part, the different stages of economic development among countries in many parts of the world. It also captures the reality that some groups of people within a country will reach their “later years” at an earlier chronological age than others because of the more difficult conditions under which they live. In Canada, for example Aboriginal seniors, adults with developmental or severe physical disabilities, and older adults who are homeless are among some other of the groups of adults who may fall into this category of “premature aging”.

B. Aging: the Canadian success story
Many parts of the world (and Canada in particular) have witnessed a noteworthy demographic shift and a remarkable success story. Within less than three generations, the average longevity increased in Canada from 50 years in early 1910s to over 80 years for women and 78 years for men by the end of the century. [10] Only about two percent of the population in the 1920s was over the age of sixty five. Since then, as a result of lower mortality among mothers giving birth, lower infant and child mortality, along with improvements in health, housing and the workplace, a much greater percentage of people today have a reasonable expectation of living to reach milestones of 65, 80, and even 100 years.

Canada is in the mid range percentage in terms of industrial countries that are experiencing population aging. Italy and Japan, for example, have much higher percentages of older persons.[11] In 2008, there were over 4,563,000 people aged 65 and over in Canada (2,007,800 men and 2,555,000 women).[12] The percentage of older adults in Canada is expected to increase from about 14.5% in 2009 to over 25.0% by 2036.[13] The fastest growing segment among older adults is among people aged 85 and over.

The growth in the number of seniors in Ontario has been equally dramatic. In 1971 there were about 650,000 people aged 65 and over, representing 8.3% of the population. In 2008 there were 1,744, 000 seniors in Ontario, representing 13.5% of the population.[14] In several communities in Ontario, over one quarter of the population is already aged 65 and over. [15]

C. Aging: the diversity story
Older adults in Canada have become a growing and increasingly diverse population. Pre-eminent geriatrician Robert Moulias recently noted that

“in industrialized countries only a small minority (about ten percent) of people in later life are “the rich, young- like” (such as the recently retired). Disabled or dependent frail older persons are also a minority but larger in size. The large majority of the 60-100 year olds are neither young nor physically nor mentally dependent”.[16]

There is economic variation among older adults, increasing ethnic diversity, as well as differences in sexual orientation, and disability or physical or mental limitations. There are also important gender and cultural differences among seniors that affect how they age, as well as how they view and experience aging and later life.

As people age they may experience changes in physical or mental health, albeit with a wide range in the extent and speed at which that happens. The vast majority of older adults in Canada are mentally capable of making decisions about their personal lives and wellbeing. Only two percent of people aged 65 and over have dementia. However the percentage increases among age groups; one third of people aged 85 and over has dementia.[17]

1. Gender is important

Layered upon Ontario’s general aging trend is the gender distribution, which is fairly equal among people in their 60s, but changes rapidly after people reach their mid 70s. At this point, women outnumber the men, and as a result of widowhood, women are much more likely to live on their own. In 2005, for example, there were 184 women aged 80 years and over for every 100 men.[18] Older women are very likely to experience changes in their social and economic conditions in later life as a result of widowhood.

As noted, the population aged 85 and over is increasing rapidly.[19] In 2001 (the most recent figures available), almost two thirds (62.3%) of those aged 85 and over in Canada were widowed, compared to just over a quarter (28.6%) of seniors aged 65 and over.[20] At the same time, there are important differences and gaps in marital status for women and men in Canada. Over four in ten (42.2%) of women aged 65 and over were widowed, compared to only over one in ten (11.2%) of men in this age group. Over three quarters (77.2%) of women aged 85 and over are widowed, compared to one third (33.3%) for men aged 85 and over.[21] That status change may be a very important factor to consider in the context of understanding aging, ageism, and the law, in part because widowhood often represents an economic, social and power diminution for many older women.

2. Diversity in people, income and education

Older adults are not a homogeneous group, and the profile of older adults in Canada has been changed significantly in the past thirty or forty years. Immigrants, for example, comprise a relatively large proportion (over 28 per cent) of seniors in Canada. Most immigrant seniors have initially arrived in Canada when they were young adults. They typically came from the United Kingdom and Western Europe. Only nine percent of immigrant seniors arrived in Canada since 1991.[22] In 2001, about 7.2% of seniors were members of a visible minority.[23]

The 2006 report, A Portrait of Seniors in Canada, notes that there have been large changes over the last 20 years in the countries from which immigrants have come. Between 1981 and 2001, the share of all immigrants from Western or Northern Europe declined from 45.5% to 24.6%, while the share from Asia increased from 13.9% to 36.5%. These changes are just beginning to be reflected in the characteristics of immigrants aged 65 and older. For example, the share of seniors from Asia increased from 5.6% to 19.1% between 1981 and 2001. [24]

Ontario’s seniors’ population has the largest percentage of immigrants in Canada: about one half (53.1%) of them are long term immigrants.[25] Approximately 5,000 sponsored immigrants arrive in Canada each year, most living in Ontario or British Columbia. Most immigrant seniors speak either French or English. Only about six percent do not speak either French or English, although more than double that proportion (13-14 % of immigrant seniors) speak a language other than French or English at home, and some immigrant seniors lose their English or French fluency if their mental capacity deteriorates.

In 2001, more than 976,000 Canadians reported that they were Aboriginal, including about 39,600 Aboriginal seniors (65 years of age or older). Although the average life expectancy in Aboriginal communities has increased in recent decades, Aboriginal people still tend to have a much shorter life expectancy on average compared to the general population, reflective of a wide variety of social and environmental factors. The age gap in life expectancy between Aboriginal and non-Aboriginal persons was 5.2 years for women and 7.4 years for men in 2000.[26] Aboriginal older adults are nearly twice as likely to be living with extended family members compared to non-Aboriginal seniors, reflecting both the community’s cultural and economic realities.[27]

Older adults also vary in their physical, mental or social circumstances. For example, today many persons with physical or mental disabilities in Canada have an increased likelihood of surviving to middle age and longer. Those with developmental disabilities or severe physical disabilities now live longer than previously but their average life expectancy is less than that of persons without these disabilities. Life expectancy also varies as a function of the severity of the person’s physical disability.[28] Both disability groups can face an accumulation of disadvantage over the course of their lifetimes. Older persons who are homeless are also at an aging disadvantage. At age 55, many homeless people may have the equivalent health of 78 year olds who are not homeless.[29]

Older people who are lesbian, gays, bisexual or transsexual (LGBT) are still largely invisible, and marginalized.[30] Older LGBT adults are less likely than LGBT youth or younger adults to self identify as gay or lesbian.[31] While older LGBT adults may represent a small percentage of the population (an estimated five per cent), they are very likely to have different experiences or risk factors in the areas of housing and health, compared to other segments of the older adult population. [32]

· Level of economic security

The National Council on Seniors notes that overall today’s seniors, while not affluent, are financially secure.[33] The incidence of low income among seniors has been reduced significantly over the past thirty years. The Old Age Security (OAS) and Guaranteed Income Supplement (GIS) programs (both publicly funded programs which are age based) helped increase the overall living standards for many seniors and have played a critical role in ensuring that seniors have a modest base of income. In addition, the Canada Pension Plan which began in the mid 1960s has matured, adding another significant component to the income security for paid workers in later life.[34]

This represents a remarkable success story in poverty reduction. Still, a significant core group of seniors remains vulnerable: recent immigrants, “unattached” older adults (those who have always been single, or those who are widowed, divorced or separated), as well as those with fewer than ten years in the labour force, and Aboriginal seniors.[35] In addition, those in precarious work throughout their working life (in temporary, part-time, irregular hours jobs with little, if any security, low paid, no benefits) often find they are economically precarious in later life – little if any opportunity to save, no private pension or RRSP, no retirement benefits, and often few if any assets such as a home.[36] Working poor in middle age typically see some economic improvement when they reach age 65, but often remain poor throughout later life.

About one in seven (15.5%) unattached seniors lived below the Low Income Cutoff in 2006.[37] Women represented about three-quarters of the 179,000 unattached low-income seniors in Canada that year.[38] Low-income seniors spend most of their money on housing, food, transportation and health-related costs.[39] These costs along with access to services and benefits remain the major challenges for low income seniors.[40]

Couples, in general, fare better in terms of economic security. The median after-tax income of senior couples was $41,400 in 2006, an increase of 18 percent since 1996, and compared to about $54,100 median income for all other families. Between 1996 and 2006, the median incomes for unattached seniors increased by fourteen percent to $20,800.[41]

Low income for many seniors often reflects an accumulation of disadvantages over the course of the lifetime, race and gender differences, as well as structural issues. The Special Senate Committee on Aging notes, for example, that some seniors do not receive all the benefits they are entitled to because they cannot understand the complex programs that exist. Others are penalized due to interactions between various federal and provincial government programs. Still others receive multiple benefits – and still don’t reach the poverty line.[42] In addition to the percentage of older adults who are consistently in the lower income range, a larger proportion is only marginally better. Their circumstances are often strongly affected by changes in the economy (including investment environments) as well as changes in government policy and budgets, especially in areas affecting housing and health care.

Income and health are closely linked throughout life, but especially in later life. For example, the recently released Power Study (Project for an Ontario Women’s Health Evidence-Based Report) found that among Ontario women, 70 percent of low-income women aged 65 and older have two or more chronic conditions compared to 57 percent of higher-income women and 50 per cent of higher-income men. Low-income women and men are more likely to die prematurely.[43] These differences may affect their need for supports in housing and their contact with health services.

· Education

People’s level of education is associated with a very broad range of socio-economic outcomes. Many older adults have not had the same opportunities for formal education as the younger persons who are now becoming seniors. There have been considerable changes in the levels of educational attainment of older Canadians over the past 20 years. In 1990, two thirds (62.7%) of men aged 65 and older had less than high school. By 2004, this rate had declined to 46.6%, with similar rates and decreases for women.[44] The rates of lower education are higher among long term immigrant seniors, compared to non immigrant seniors. Many recent immigrant seniors have come to Canada under immigration’s family class category, which does not require specific education qualifications.

In 2003, over 80% of seniors had a level of literacy skills below the level considered sufficient to cope well in a complex knowledge society.[45] While the education level in general is higher for many people who are becoming seniors, many seniors retain their lifelong educational disadvantage.

Education (and the closely related issue of functional literacy) has important implications for older adults in terms of their knowledge of their rights, in key areas such as health and housing. Education level can also affect their access to justice. Moreover, Canadian literacy research indicates that people with the lowest level of literacy often are unaware that they are having difficulty understanding what they read (they may not know what they don’t know). This will become important in terms of understanding how rights information is being offered to older adults and the limits of plain language as a tool for justice.

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