V. Examples of Ageism in Law, Policy, and Practice2017-03-03T18:30:47+00:00
A. Ageism and health law, policy and practice

The federal government is responsible for the Canada Health Act[112] but each of the provinces and territories is responsible for the administration of health care coverage and the overall distribution of health resources within health care and to different populations. Ageism in health care can be seen in many forms including the absence of services for older adults; age based decisionmaking in health and age rationing; making decisions about the quality of older people’s lives; paternalism; forced decisions; and gender bias. Ageism can be evident in the allocation of health care resources, the respective burdens of the individual and spouse or partner, other family and the state.

It has been noted that as an institution of society, the health system perpetuates ageist assumptions. Thus, cultural conceptions of older people can legitimate differential treatment and this can be perpetuated in the delivery of health care.[113] There is a growing international literature on the paternalistic and ageist ways that older adults are treated within health care systems. Renowned gerontologists Kane and Kane note

“Older people are always singled out as the most expensive demographically defined group of health care users. It is a cliché for journalists and many health policy authorities to remark to remark the X percent of people over the age of 65 account for XX percent of the health care dollar. Indeed older people do use disproportionately more care than do their younger counterparts as well they should. People accumulate chronic diseases as they age and some diseases have their onset in later life…. The unreflective repetition of this almost tautological claim about the high use of health care by older people (somewhat like the high use of health care by sick people) does verge on ageism. “[114] [emphasis in the original]

In “Time for Action”, the Ontario Human Rights Commission highlighted health care as one of the important areas in which older adults can face significant discrimination with profound effects on health, quality of life and their longevity. Here we see the intersection of multiple “isms”, predominantly ageism, sexism and ableism, but also heterosexism, and racism. Older adults note they are often treated differently by some in the health care system:

“it’s like health care at 60. They don’t want to be bothered with you. You’re a drag on society and doctors don’t have time. They just don’t want to take the time with an older person. And it gets back to health care. Every time they have to cut healthcare back, the seniors seem to get it . . . . We’re just living week to week to week. “[115]

There is a general concern expressed in many Canadian jurisdictions that the acute care system has failed to adapt to the changing needs of a changing population, in essence creating a “structural ageism”. In other words, when health care is shaped as a traditional service designed around isolated episodes of care within well-defined specialties and agencies, it cannot fully meet the needs of increasing numbers of older patients, especially those with chronic, multiple and recurrent medical problems.[116]

At both an individual level and a structural level it has been recognized that in healthcare, old persons are often treated differently. At a practice level, that ageism may involve withholding information, services, or treatment, or it may involve taking older persons’ complaints or symptoms less seriously and attributing them to old age.[117] Research on health care professional attitudes in acute and rehabilitative care show a fair amount of agreement about subtle and not so subtle ageisms. Physicians, for example often provide inadequate treatment to the elderly.[118] They give more respect and support, as well as more detailed medical information to younger patients.[119] They also solicit more information from younger patients.[120]

In a review of the health care literature and ageism, Dovios (2006) noted older people receive more medication prescriptions than younger people for equivalent symptoms.[121] Anxiety medication use by Canadians more than doubles from 65 years of age on, and the hypnotic medication use more than triples. This has particular significance given that 40% percent of all emergency department visits by older adults are medication-related.[122] Some physicians may rely on prescription medications as a substitute for taking time with an older patient, overlooking preventive care, good screening and diagnosis.

The Commission also points to the systemic effects of limited benefits coverage of health care system on older adults: Medicare does not cover all medically-related and dental health services. Instead, these must be paid by the individuals or from private insurance plans (which may have restrictions on coverage). This impact may be especially acute for older women. Similarly, there are inadequate facilities for chronic care, partly because the current health care system tends to focus on acute care facilities. Funding for long term care, complex continuing care, and rehabilitation (which are three key need areas for older many adults) is less a priority and funding adequacy is less developed in the current system.

The ways in which current health care funding is allocated disproportionately affects older women. Older women are much more likely than older men to have chronic conditions. Women are more likely to go into nursing homes, as they tend to live longer than men in general and older women tend to outlive their spouses. Many older women can expect to live twenty or thirty years as widows.

Prevention and rehabilitation tend to be viewed as less important with advancing age; and health care providers may feel that age limits for the access to medical services are acceptable and justifiable. [123] Kane and Kane draw a distinction between “disparity” (unfairness, inequality) and variation in health care practice. Legitimate reasons, unrelated to age, such as underlying conditions or ability to survive the treatment can make some distinctions between older persons and some younger persons with the same conditions justifiable.[124] Yet it is always important to be willing to test the underlying assumptions.

The effects of age related discrimination in areas such as health care are tangible, and discrimination is a life stressor. People who report experiencing discrimination also experience more mental health problems. Women who had experienced age discrimination have significantly lower positive well-being than men who had experienced age discrimination. [125]

Ageism may be manifested at any stage and within any type of health care. Some types are directed directly at older adults. Others are structural, affecting older adults and those who care and support them. Ageism can arise in the context of health care consent, as well as in the context of the protection of those who care for older adults in the health care system. It can arise in the context of health care policy in key areas such as home care.

Noel Simard has commented that paternalism is an insidious expression of ageism, widely seen among health professionals. It is expressed by a condescending attitude and infantilizing approach that considers advanced age as a debilitating disease that places older persons at the same level as small children or the mentally incompetent, unable to make sensible decisions regarding their health or well-being. [126]

There is a propensity in society to confuse the aging process with the disease process. That is, people tend to be more familiar with pathological aging (when things go wrong) than they are with healthy aging. The belief that continual decline is inevitable leads to disease or symptom management rather than health promotion or proactive intervention.[127] Symptoms are misdiagnosed in older adults because these are written off as part of the ‘normal aging process’.

Older adults are less likely to be referred for screening and treatment. For example, American data suggest that as many as nine of every ten adults over the age of 65 go without the appropriate screenings.[128] The Alliance for Aging Research notes: “Those numbers are startling considering that 80% of all fatal heart attacks and 60% of all cancer deaths afflict men and women age 65 and older, indicating that there is great need for aggressive screening measures within this age group”. [129] There is also a general tendency in health care to assume that older adults will not benefit from particular treatments, rather than find out from research and other clinical evidence whether that is actually the case.

Once an older patient encounters a health problem, studies show that physicians often use the person’s age, not his or her functional status, as a factor in determining the appropriate treatment. This means far fewer older patients receive interventions that can save their life or improve its quality. Their functional health, not their age, should remain the determining factor when deciding whether surgery is appropriate.[130]

. Structural ageism

(a) Omission from clinical trials

The systematic exclusion of older adults from clinical trials has been identified as one of the most flagrant examples of ageism.[131] Although older adults are the heaviest users of many prescription drugs because bodies wear out, they have historically been excluded from clinical drug trials through overt age cut-offs or less explicit exclusions based on co-morbidity and frailty. The use of specific age limits appears to be chosen arbitrarily.[132] Most trials (even those that specifically target therapies frequently used by older adults) try to actively exclude people with multiple diseases and conditions in the trial group. There are a number of practical and economic factors underlying this omission of older adults in clinical trials. Including them can complicate the data analysis and interpretation. However, very importantly from a marketing perspective, it dampens the effects sought (i.e. the drugs’ efficacy may come off in a less positive light). The effect of the lack of older adults in the clinical trials means that they become de facto laboratory rats once the drugs are on the market. Health care consent to the medications becomes illusory because there is little if any information on how the drugs work on older adults.

While some of the explicit exclusion of older adults from clinical trials has diminished over the years, it is still there. A survey of Spanish research, for example, indicated that in the 1990s, 36% to 40% of the intervention studies submitted had an upper age limit. This number decreased to 19% in 2007. Non-intervention trials (where a group of people receive no care or medication), by way of contrast, rarely had upper age limits.

Today in the United States, the Food and Drug Administration now requires the population being targeted for a particular drug’s use to be included in the drug trials. Nonetheless, the more complex cases and persons are still winnowed out.[133] International work shows some physicians are reluctant to enrol older patients in trials, citing concerns about coexisting conditions, the toxic effects of treatment, ineligibility, poor compliance, and lack of social support.[134] Thus it is often not chronological “age” per se that leads to the ageism in health care, but a number of interrelated factors that are associated with aging, as well as a lack of social effort to see if it is possible to address the underlying factors used to exclude older adults in the first place.

(b) Treatment and under treatment

Gender and age discrimination can intersect in areas such as health care treatment. Older adults often experience a fatalistic attitude among health care providers as expressed in the statement “Well, you are going to die of something …”. This often leads to a lack of consideration of whether there are some treatments from which the older person will benefit. The issue is not that the person will die (as all people will), but what efforts are made to support a reasonable quality of life for the person until then.

Grant (1996) notes

“Because ageism can be quite subtle, service providers need to continually examine their own attitudes toward aging and elderly people. Health care professionals need to move away from using the term “age” as an explanatory variable and the assumption that after enough time certain “things” will happen to people”.[135]

Medical research in several European countries and in the United States have found that the percentage of patients given cancer treatment varies with age, and this is independent of what stage of the disease a person has. For example, breast cancer treatment was significantly higher in the group younger than 70 than in the group of patients over 70 years.[136] Older women are less likely to be screened for breast cancer, and less likely to receive care (specifically, chemotherapy and radiotherapy) despite the fact that there were no differences in the disease stage between the two age groups at the time of diagnosis. This under-treatment explains why breast cancer-specific mortality rates have not declined among older women, to the degree to which they have among younger women. Older women are more likely than younger women to receive radical mastectomies, and less likely to be considered a candidate for and receive reconstructive surgery.

Research indicates that patterns of diagnosis, treatment and survival in cancer care differ considerably between younger and older age groups, even accounting for other underlying conditions in the older person. There is often a notion that many treatments are not tolerated well by older people.

Ageism and health care rationing often go hand in hand. In Ontario, research shows that whether or not a person is referred for dialysis will be affected by their age (less likely if they are older) and shorter life expectancy (less likely if they have other underlying conditions).[137]

Ethnicity can also create important health disparities. The National Council on Aging (2005) notes that language and cultural barriers lead to the underutilization of health care by some ethnic groups. Communication difficulties (stemming from language and cultural differences) can also lead to inappropriate health care, such as inefficient treatment, unnecessary testing and premature discharge for older adults.[138] In part, this reflects systemic problems such a lack of interpretation services, e.g. in hospital. These trends are disturbing particularly because they continue to exist in spite of human rights case law underscoring the responsibility of health systems to reasonably accommodate the needs of individuals so that they can have and benefit from equal access to services.[139]

2. Ageism in specific areas of health care

(a) Consent to health care

The legal right of the individual to control what happens to his or her body and life according to the person’s values and beliefs is considered fundamental under both common law and statute. However, for reasons ranging from paternalism to convenience and expediency, that right is often not respected in health care for many older adults.

The law on consent is clear. Before providing treatment, health care providers must get an informed consent or refusal of consent to a treatment from the patient, if the person is mentally capable of making that decision. Under s. 11 of the Health Care Consent Act, consent must relate to the treatment; must be informed; must be given voluntarily; and must not have been obtained through misrepresentation or fraud. The patient must receive information on the nature of the treatment; expected benefits of the treatment; material risks of the treatment; material side effects; alternative course of action; likely consequences of not having the treatment.[140] Treatment is defined as: anything done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose. It includes a course of treatment or plan of treatment.

Simard has commented

“Law is not well served if health care professionals perceive the achievement of consent as a legal password needed to do their job. They do not understand while adequate information for the patient is a necessity, paramount and a moral requirement of the integrity of the relationship. Consent is not only a kind of rite imposed by law. It should not be interpreted as acquiescence and agreement. This implies [there is] a freedom to act that is recognized [without] coercion and manipulation.”[141] [translation, Noël Simard, 1996]

Basic legal principles of health care consent often go by the wayside when older adults encounter the health care system. In recent years, there has been a push in health care practice to use screening tools on older patients to “diagnose” potential domestic violence and abuse,. Although the intention may be good, the practice occurs surreptitiously, without asking for consent, and often with the older adult having little control over what happens next.

The Advocacy Centre for the Elderly has noted the following practices and problems in Ontario. Some health providers, organizations or facility staff or administration do not seek informed consent before treatment. Other organizations may misuse advance care planning documents by using them as a replacement for informed consent and they do not obtain consent from capable older patients or the substitute decisionmakers when the older patient is not capable for treatment. Some organizations try to get “pre-consent” for health care. [142]

It is also not uncommon in health care to presume a person is mentally incapable if she or he is of an advanced age or has a physical or mental disability. As the Advocacy Centre for the Elderly has noted, people of advanced age or persons with physical or mental disabilities may still be capable of making all or some decisions for themselves. The definition of capacity does not make exceptions for age, physical disability or mental disability. The definition of capacity in the Health Care Consent Act is not based on a diagnosis, although some health care practitioners treat it that way.[143]

While it is clear that older adults have the same rights as other persons in terms of health care consent, age and aging are often taken for reasons to circumvent the requirement to seek and obtain true consent. It has been emphasized time and again that:

“The key is whether the person understands the information that is relevant to making a decision and is able to appreciate the reasonably foreseeable consequences of the decision or lack of the decision.

A person who is very old may, and most often does, have this capacity. A person with a physical disability, even if that physical disability makes communication difficult, is likely to have this mental capacity. Even a person who has been diagnosed as being mentally ill may still have capacity to make particular property, personal, treatment, admission and personal assistance service decisions.” [144]

(b) Selection and retention of patients

An increasingly worrisome area of health care in which ageism can be manifest is the process by which physicians select and retain patients. Canada, like other countries, has been experiencing shortages of physicians in a number of key areas. In general, the vast majority of older adults in Ontario have a physician, and the rate is higher than for other age groups.[145]

Physicians may have legitimate concerns about being able to competently manage their patient caseload and work within their clinical competence (their “scope of practice”). However in recent years there have been concerns raised in several Canadian jurisdictions about physicians who in the context of “caseload management”, screen and accept younger and relatively healthier patients (“cherry picking”) while turning down or shedding the “non compliant” patient or the patient with chronic or complex medical issues, many of whom are older people. This practice violates the Canadian Medical Association Code of Ethics.[146]

Some cases have come before on the Ontario Human Rights Commission on the issue.[147] The Ontario Human Rights Commission in 2004 strenuously reinforced the responsibility of all physicians to not discriminate in the provision of services. It further emphasized this point in 2008 in its submission to the College of Physicians and Surgeons of Ontario regarding the draft policies related to taking on new patients and ending physician-patient relationships.[148]

(c) Ageism in physician services

Older adults can also experience systemic ageism in health care with certain health care practices. For example, physicians may reduce the time spent with an older patient by limiting the patient to “one problem per visit”. This practice is sometimes used to retain control over scheduling and timeliness in offering appointments to patients. However it works to the systemic disadvantage of people who have chronic conditions that need ongoing management such as diabetes, or chronic obstructive pulmonary disease. The vast majority of people with these conditions are older. Gender and race, and social economic status are all reflected in the incidence of chronic diseases.

The issue of “one problem per visit” has also been identified in Saskatchewan, New Brunswick and in Newfoundland and Labrador.[149] Speaking to this tendency emerging in their province, the College of Physicians and Surgeons of Saskatchewan noted its negative impact on health care, including the fact it can lead to inadequate information being exchanged between the patient and the physician about their problem, and incorrect diagnoses.[150] The College has stated

“Office visits should be used as an opportunity to assess illnesses/medical conditions, review care plans, pharmacological therapies, potential drug-to-drug interactions, or review any new medications added by additional caregivers. It is appropriate for a patient to be able to provide the list of problems for which they are seeking assistance, and for the physician and patient to go through the list and determine what requires urgent attention and what can be deferred to another appointment.” [151]

One problem, one visit is more likely to lead to inadequate care.

(d) Ageism and mental health practices

The ageism issues in mental health care are similar to those for physical care. Compared to younger adults presenting with the same symptoms, older patients are referred less frequently for psychiatric assessments, and if they are assessed they are more likely than younger adults to be prescribed psychoactive drugs and less likely than younger adults to receive counselling and other therapies. The older the patient, the stronger this trend is.

The Ontario Human Rights Commission notes that negative attitudes in the health care context can result in significant difficulties for the older adults trying to access appropriate health care for their needs. [152] The Commission gives as an example, far fewer older adults being treated for depression, or anxiety disorders and not receiving care for dementia by the health care system. The Commission points out that older adults only receive 15% of Ontario’s mental health care, compared to more than 80% for those aged 20-to 64. The Commission states “the tendency to treat mental illness in older persons as less worthy of intervention is simply a direct form of systemic discrimination.”

There is also a tendency of physicians to diagnose senile dementia among older patients, rather than depression. The diagnosis is made based largely on the patient’s age, and often reflects the lack of training that physicians have with geriatric medicine.[153] The effect of not recognizing depression among older adults can be serious, even life threatening. Older males have the highest rate of successful suicides of any age group.[154] Seventy five percent of older adults that commit suicide do so within four weeks of seeing their primary care physician, and 39% do so within the same week. The Alliance for Aging Research report (2003) states that this clearly demonstrates “a discrepancy between the mental healthcare that is needed and what is actually initiated by primary care providers.” [155]

The issues for older adults extend beyond mental health practices, to the broader way in which mental health services are covered and delivered. The Canada Medical Association notes that while hospitals are covered under the Canada Health Act as insured services, the definition of hospital under the Act does not include “a hospital or institution primarily for the mentally disordered.” CMA notes “Simply put, how are we to overcome stigma and discrimination if we validate these sentiments in our federal legislation?”[156]

3. Ageism and home care

Much of the direct formal care and support provided to physically or mentally vulnerable older adults is delivered by home care services. In 2005/06, nearly 659,000 clients received home care in Ontario and almost 26 million visits/hours of home care were provided. On any given day, about 185,000 clients receive home nursing and supportive care, and many of them are long term clients, that is they require the services on an ongoing basis. In 2005/2006, the majority (58%) of clients were over 65 years of age.[157] Older adults represent an even larger proportion of those needing to receive home care services on a long term basis.

In general terms, home care goals are four fold: (1) to help people with health and/or functional deficits in the home setting maintain their ability to live independently and, in many cases, prevent health and functional breakdowns and eventual institutionalization (“maintenance and prevention); (2) to meet the needs of people who would otherwise require institutionalization (“long term care substitution”); (3) to meet the needs of people who would otherwise have to remain in, or enter, acute care facilities (“acute care substitution” such as when people are discharged from hospital early to recover at home); and (4) to meet the needs of clients who choose to die at home (palliative care).[158]

The relative balance of clients needing acute care and long term support and maintenance has become a pressing issue. A 2005 Ontario review expressed concerned that unless there was additional support made available for” maintenance clients”, the trend towards serving more acute clients may come at the expense of maintenance clients.[159] For example, a study in the Journal of Aging and Society reports “people in need of long term personal care and practical support are given lower priority and are gradually being rationed out of the system for all but the most minimal bodily maintenance. This medicalisation of home care generates particular jeopardies for the frail older people who dominate this category of need, most of whom are women.”[160]

A number of other systemic issues can adversely affect the amount and quality of care that older adults receive within the home care system. Personal support workers provide much of the direct formal care and support to older adults with physical or mental limitations. In Ontario, unlike other health care professions such as nurses, there is no regulatory body for personal support workers. There is a lack of standards for the training and education that personal support workers receive, and many work in very precarious employment. As a result, there is an extremely high level of staff turnover, affecting both continuity of care and the quality of care for older adults and others needing ongoing support.

Other structural issues such as the competitive bidding process in Ontario for home care contracts has been seen as lowering workers’ wages and creating an unstable work force, again undermining quality and continuity of care for older adults and other home care clients. The Ontario Health Coalition reported on public hearings about home care in Ontario,

“The home care system described in the public hearings process revealed worried and even frightened clients, exasperated citizen and public interest groups, demoralized workers and a seriously destabilized provider community.” [161]

In many cases, personal support workers are considered to be “casual employees” and therefore not subject to the Employment Standards Act.[162] Instead they come under “elect to work” policies. As a result, they have none of the protections afforded other health workers in the province under this Act.[163] The Ontario Health Coalition notes:

This status made them feel particularly insecure because “elect-to-work” meant they had to be available round the clock but never knew how many hours of work they would have in a given week. [164]

The Coalition goes on to note that elect-to-work also means no public holidays, notice of termination or severance pay for workers. At the same time “elect to work” policies meant that workers could cherry-pick the easiest clients and refuse to care for others. [165]

Personal support workers are not the only health care providers who are employed on this basis. According to the Registered Nurses Association of Ontario, elect-to-work allows “nurses to skim the patients they prefer.” The RNAO goes on to suggest “this results in patients with complex psychosocial needs having many different caregivers – a factor that only increases the client’s burden.” In reviewing home care in Ontario, the Procurement Review stated they were concerned that if this practice continues, the neediest clients will not receive necessary service.[166]

If there is a problem, adults receiving home care services can only turn to the agency to remedy it. The ARCH Disability Law Centre reports that complainants are reluctant to formally report abuse or misconduct for fear of reprisal such as further abuse or loss of services. The fear of reprisal may be heightened by the client’s physical vulnerability, the absence of alternative providers, and instances of employer inaction regarding an abusive staff member. [167]

Personal support workers are also not regulated. In 2005, the issue of whether they should be regulated under the Regulated Health Professions Act, 1991[168] came before the Health Professions Regulatory Advisory Council (HPRAC). Many personal support workers in Ontario have been advocating for this type of regulation to improve recognition of their work, standardize training and improve their working conditions. The HPRAC concluded that there was a risk of physical and psychological harm for patients when there was inadequate professional supervision, when clients did not have adequate recourse, or when employers were lax in ensuring that standards were met.[169] The HPRAC felt that enhanced supervision, adequate recourse for clients and patients, improved personal support workers’ training and the application of diligent employer standards were appropriate methods of addressing the issue of harm.

In the end, HPRAC recommended not regulating the personal support workers, but to have a registry system in place instead.[170] Parts of HPRAC’s analysis indicates a curious circular reasoning, in that they identified that personal support workers should not be regulated because they were not organized as a body and the workers were so poorly paid that they would not be able to support the costs of self regulation.[171] Thus a mechanism that might improve their conditions and ability to advocate, plus safeguard clients, was rejected by the HPRAC because the personal support workers were so vulnerable. In response, PSW Canada started “The Stand for Change” initiative in January 2009, which included a petition to the Ontario government to regulate the Personal Support Worker position within the province of Ontario.

4. Ageism and alternative level of care

The issue of where the care is provided has become increasing important in Ontario in recent years. Seniors may be hospitalized for an acute care condition, but may need the support of a long term care facility which may not be available. Older adults in these circumstances have often disparagingly been referred to as “bed blockers”, with the implication that they are blocking hospital beds for those who “truly deserve it.”

The formal designation for these patients is “alternative level of care” (ALC). In order to ease pressure in acute care, some hospitals and other service providers have entered into agreements with retirement homes (described in greater detail in subsequent sections) to provide accommodation and services to those awaiting placement in ALC at a reduced rate. In some cases, the hospital or service provider may subsidize the fee itself in order to free up beds; in others, the retirement home may agree to provide the same services for a lower amount in order to fill beds.[172]

According to the Canadian Institute for Health Information, the ALC patients represented 5% of hospitalizations and 14% of the hospital days in Canada. The rate of ALC is higher in Ontario and Newfoundland and Labrador compared to the rest of the country. Fifty eight percent of ALC patients are women and the median age is 80 years. Given that ALC seniors typically have dementia and many have had strokes, there are pressing questions about the ability of the retirement home staff to provide proper care and support to these older adults, and the residents’ lack of effective recourse if problems arise in the home. [173]

5. Ageism, health care and marginalized groups

There are a number of groups of older adults who are marginalized within society and by the health care system. People with dementia, older gays and lesbians, and ethnocultural groups are among them.

(a) People with dementia and their families

There is growing evidence nationally and internationally that the daily concerns and day-to-day toll of care-giving on those looking after someone with dementia are hugely burdensome. This is compounded by the additional load of social isolation, prejudice, discrimination and poorly-developed and fragmented services.[174] One key challenge for service providers and policy-makers is to understand to what extent the service difficulties are due to lack of planning in terms of the implications of a growing ageing population or due to either not valuing a particular group (people with dementia and their carers) or valuing the needs of other groups more. [175]

(b) LGBT older adults

Older gays and lesbians can experience a number of risks and vulnerabilities throughout life that make them more likely to need physical care and/or home-maker services in later life. Their experiences with health care system historically have often not been very supportive. Some may have experienced psychiatric treatments, including shock therapy, in the 1970s in attempts to ‘cure’ them of their sexual orientation or gender identity

Homophobia in health care practice is a reality. A 1998 survey of nursing students showed that 8–12% “despised” lesbian, gay, and bisexual people, 5–12% found them “disgusting,” and 40–43% thought they should keep their sexuality private. Internalized homophobia and/or heterosexism leads to a desire to remain invisible for self protection. There is often a distrust by LGBT people for authority and health care professionals, which causes communication barriers. For older gays and lesbians, disclosure of their sexual identity continues to be a risky business, and they regularly face the issue of whether they will be “in“ or “out” and to whom.

Research with older LGBT adults has found that they are more likely than heterosexual respondents to believe that they do not have equal access to health care and social services, that LGBT residents of care facilities are victims of discrimination, that LGBT sensitivity training programs would benefit staff and residents of care facilities, and that LGBT retirement facilities would be a positive development for older LGBTs.[176]

Older gays and lesbians are often made invisible throughout the health care system, starting with the intake process (questions asked on family status).[177] Health care employers also may fail to recognize their own and their staff’s attitudes or beliefs and may lack policies that prohibit discrimination based on sexual identity.[178] Home care services for older adults are often delivered by faith or cultural based agencies and the particular faith of the staff can lead to discriminatory and hurtful behaviour. If an older gay or lesbian’s health deteriorates, family members and health care providers may try to shut out their same sex partner’s involvement in health care decisionmaking.

(c) Ethnocultural groups

Ethnic seniors are at greater risk of having poor access to health care and less positive experiences within the health care systems, leading to health inequities. Brotman (2003) notes “Over the past decade, policymakers and practitioners in the field of aging have been increasingly challenged to develop appropriate health and social services for elders from diverse ethnic communities. This has largely resulted from concerns regarding the significant barriers to care faced by disenfranchised elders.“ [179]

As ethnic adults grow older, they can face problems owing to age-associated increased risks of common chronic diseases as well as racial discrimination.[180] These risks are further compounded by the fact there are cross-cultural differences in how and when people seek information, their communication styles, their perceptions of their health risk, and their ideas about prevention of disease, all of which have an impact on health. At the same time, institutional structures and power relations in health care may be marked by a lack of awareness of the needs of ethnocultural seniors and their families, and by racism. The lack of services in minority languages means that even basic necessities like conveying information and obtaining informed consent are lost.

There is evidence of discrimination in clinical-decision making and health outcomes, with a great number of studies showing differential clinical decision-making and even more studies showing differential health outcomes for minorities, particularly visible minorities.[181] A number of studies have shown differences in the provision of basic care, as well as lower rates of surgeries for various racial groups as compared to people who are not members of an identifiable racial group. At the same time, many health care practitioners have misconceptions about ethnocultural seniors, and their families. Two common myths are that (a) in an Asian family, for example, families want and are able to care for the elderly parent, and that the care that can be provided is sufficient and (b) if there is no use of services by the person or group, that implies there no need within the family.[182] In reality, there is often a shortfall between what older people in ethnocultural families need and the assistance they receive.[183]

While this trend to health care inequity is not limited to older ethnocultural persons, they often feel a disproportionate impact of it. An Ontario Human Rights Commission sponsored research paper on racial inequality in access to health care notes that racial inequality in the health care context is most often indirect and systemic. It is affected by socio-economic factors, the under-representation of racial groups in the medical profession, the manner of health care communication, and the lack of culturally sensitive care. The paper points out that equal access is not ensured by uniformity (treating everyone the same).

Research shows there is a positive impact in health care access and utilization when there is an “ethnic match” between patient and clinician. For example, American research has found that the greater the proportion of minority staff in a mental health centre, the greater the utilisation rate by that minority. The report also notes “…culturally sensitive delivery of health care is a necessity if equality is to be a serious goal.” The paper goes on to state that ”In evaluating cultural sensitivity, we must first explore if the current delivery of services is equitable, and if not, how it could be made equitable.”[184]

6. Advance care planning

The term ‘advance care planning’ refers to a variety of documents and strategies to help adults plan for future incapacity. Although any person may experience future mental incapacity, e.g. as a result of motor vehicle, boating or skiing accident, advance care planning documents are far more likely to be promoted to older adults than to any other group of adults, including those with disabilities.

There is concern among legal practitioners that (a) some of the advance planning publications made available to the public misstate provincial law, (b) there is a serious ethical conflict when those who are responsible for providing care (health authorities) are also behind the promotion of advance care directives that may limit care and (c) emergency care, acute care and long-term care staff often misunderstand the purpose of advance care planning instruments. As a result there is a real risk of their misuse. Research indicates that many emergency personnel are likely to interpret the existence of a living will (which may deal with comfort and care) as a do not resuscitate order, and not treat the person. [185]

Section 5 of the Health Care Consent Act states that a person may express “wishes” about future health care in a power of attorney for personal care, in any other written form, orally, or in any other manner.[186] The specific requirements for the Power of Attorney for Personal Care are set out in the Substitute Decision Act. [187] Personal care includes decisions about health care, nutrition, hygiene, shelter, safety and clothing. Under this Act the individual is selecting a person or persons to make decisions on her or his behalf if the individual becomes mentally incapable, and sets out specific duties of that substitute.

Advance directives and living wills are documents in which a person may express his or her wishes about future care. The terms “advance directive” and “living will” are not specifically defined in the Health Care Consent Act, Substitute Decisions Act or any other piece of Ontario legislation. The matter of requiring advance care planning by seniors, especially as a condition for receiving health care or other services, has been receiving increased attention in Canada at a policy level. This may be driven less out of respect for self determination and personal autonomy in making decisions, and more by the mistaken belief among policy makers that older adults “use” more than their fair share of the health care resources and that advance directives will help reduce health care costs.[188]

As previously noted, advance care planning documents are often used inappropriately as a substitute for informed consent from a capable older adult or for their substitute decisionmaker. In addition, the Advocacy Centre for the Elderly notes that some organizations use “levels of care forms” inappropriately as health care consents to determine what health care the person will or will not receive. Some health practitioners, when they disagree with a substitute decisionmaker, use what they purport to be the patient’s “wishes”, instead of using the proper legal remedies, such as making an application to the Capacity and Consent Board.[189] In each of these circumstances, the older adult becomes invisible, and it is easy for the older patient’s wishes to be overlooked, discounted or ignored.

7. Ageism, quality of life and end of life

When looking for a framework for understanding aging in the context of health law and practice, it is important to consider the history of normativity (“what’s ‘normal’” and “who says”). Western philosophy carries certain conceptions of what a ”good human life” is.[190] People who do not have a chronic illness or disability typically underestimate the quality of life of those with a chronic illness or disability to a significant degree and may assume that living with an impairment is a “bad life”. [191] Ageism must be considered in the context of the systemic devaluation of specific groups of people, including those who have disabilities and those who are old.

Ageism is also manifest at the extremes, particularly for dementia and end of life. In terms of people who have dementia, there is the unstated belief, “they are useless, they ought to die”. In some cases, professionals are more frank. In 2008, Baronness Warnock, who is described as one of the most influential experts on medical ethics in the United Kingdom, is reported as stating that

“If you are demented, you are wasting people’s lives, your family’s lives, and you are wasting the resources of the National Health Service.”[192]

This blatantly ageist perspective needs to be considered against the emerging work in gerontology and geriatrics to better understand persons with dementia as persons and as valued persons (including as persons with a continuing capacity to enjoy life).[193]

Some older adults express the wish to die. This may reflect a desire for control over their lives, but it may also be a response to an ageist society, people’s concerns about being a “burden,” and to the larger society’s implications that it wishes to be “rid” of such “burdens”. Ageism is an undercurrent in ethical discussions in health care about resource allocation, and qualitative and quantitative futility. To date, much of this discussion has been in the context of person with developmental disabilities, eugenics and children. Those whose lives are most likely to be affected – those who are old – remain invisible and marginalized.

Hospice palliative and end-of-life care is often said to not be about dying but about living well until the end. With appropriate end of life care, people at end of life and their families are supported through pain and symptom management, as well as physical, emotional, psychosocial, and spiritual care. It is an issue especially important to seniors and their families. More than 259,000 Canadians will die each year, and approximately 75% of these deaths will be people 65 years and over.[194]

There are many disparities in the delivery of palliative care across Canada, and it is estimated that only 25% of Canadians requiring hospice palliative and end-of-life care services are able to access these services. Considerable evidence exists that older people suffer unnecessarily due to widespread under-assessment and undertreatment of their problems as well as lack of access to hospice palliative care. [195]

8. Reasons for ageism in health care

(a) Lack of knowledge and expertise

It has been suggested that one of the reasons for ageism in health care is the general lack of qualified health care providers trained in the field of aging who can better understand and respond to the medical and other needs of older adults.[196] Health care providers working with older adults are often considered the overburdened “Cinderella” of health care, bearing heavy responsibilities with fewer and fewer resources.[197]

The lack of specialized knowledge and the lack of specialists working with older adults has important negative consequences. Older patients may be much less likely than younger counterparts with similar injuries to receive appropriate treatment in accident or emergency care. Medical staff may not always recognise the life-threatening nature of apparently ‘moderate’ injuries in older patients.

In cardiac surgery waiting lists, the age of the patient (and other social factors such as social position) appeared to tacitly influence where they were placed in terms of priority on the waiting list. [198] Decisions were rationalised in terms of technical feasibility. Age tended to be only explicitly acknowledged as an important factor in decision-making in cases where patients were young.

(b) “Good law, but bad practice”

A number of areas of health care law can help advance the rights and interests of adults, including older adults. For example, the Personal Health Information and Privacy Act, 2004[199] (PHIPA), sets out a positive framework for collecting, using and disclosing personal health information. However, as the Advocacy Centre for the Elderly notes, PHIPA is not well understood by either health information custodians or the public and this leads to a misunderstanding of the law:

“People are often not advised of their legal rights and face numerous barriers when they attempt to do anything connected to their records of personal health information.”

PHIPA is repeatedly misapplied by health care providers. This is a trend the Advocacy Centre for the Elderly staff describe as “good law, but bad practice“. The lawyers stress that “education about the statute is paramount to ensure that the rights of individuals are protected. Health information custodians must be reminded of the purposes of the legislation.”[200] Accurate information is essential for any health care consumer, but it is particularly important to take any extra needed steps to help overcome the challenges that many older adults with low functional literacy can experience when interacting with health care systems.

Along a similar line, they also point out that provincial governments may inadvertently encourage people to misapply the law. For example health facilities are required to use provincially approved assessment tools, such as the MDS-RAI (Minimum Data Set – Resident Assessment Instruments), which unfortunately contains misstatements of the provincial law on health care consent, and as a consequence increases the risk of reducing and restricting patients’ rights. [201]

(c) Misstatements and misunderstandings of the law

Ageism can be manifested when individuals and organizations do not take the time to understand and accurately represent the law to those to whom they are providing service. Older adults’ dignity, personal integrity, and health care rights are fundamentally affected by that inaction. It has been pointed out for example, that patients often receive misinformation from health care providers or sometimes from government forms on health care consent, advance care planning, etc. In some cases, as previously noted, tools such as advance care directives which are intended to be instruments to aid personal autonomy, become misused and in effect circumvent communication with the older person.

(B) Ageism in the context of housing law

Older persons should be able to live in environments that are safe and adaptable to personal preferences and changing capacities.

From United Nations Principles of Older Persons

Across much of the lifespan, the percentage of persons who are homeowners increases. Compared to other age groups, a larger proportion of older adults are homeowners (79% in 2006 compared to 63% among individuals aged 31 to 33, and 73% among those aged 37 to 39.). Older adults may own their property out right, or they may have other types of arrangements such as life leases. For this group, mechanisms such as age based property tax relief help them be able to retain that homeownership for a fairly long time. While older home owners as a whole may not experience a significant amount of ageism related to their home, those living in strata units can encounter it, usually in the context of strata bylaws or the attitudes of neighbours.[202]

Older couples and seniors who are in good health and are physically active will be most likely to be in a home that they own.[203] People are likely to move from home ownership to renting when their health deteriorates, and as their social support network changes (e.g., a spouse or partner become ill or dies, key friends become ill or move, or adult children live further away).

Older adults also represent an important group of renters. Some have been renters most or all of their lives; others make the change at widowhood or with changes in their health and ability, seeking housing environments that can help them live relatively independently with some support. Below, is a description of some of the ageism issues affecting older renters.

1. Understanding the general circumstances in rental housing in Ontario

In 2006, 21 percent of people aged 65 to 74 were renters, as were 28 per cent of people aged 75 and over. [204]

Most provinces during the 1960s and 1970s built a variety of forms of special, usually subsidized, housing for seniors. These were operated by non-profit organizations, municipalities or provincial governments with federal funding through the Canada Mortgage and Housing Corporation. However, by 1993, the federal government was no longer engaged in this area. Soon after, many provincial governments limited or ended their contributions to building affordable housing. This negatively affected many seniors.

The report “Where’s Home? 2008” prepared for the Ontario Non Profit Housing Association and the Cooperative Housing Federation of Canada notes the following significant trends in Ontario over the past decade: vacancy rates continued to decline; too few new rental housing units were being developed to meet demand, especially for people with low income; and rental increases exceeded the change in the Consumer Price Index; and increasing housing affordability problems for more renters.[205] The effect on renters has been harsh.

(a) Profile of older renters

Some older adults have been renters most or all of their lives. Others make the change to renting at widowhood (especially if their financial circumstances deteriorate) or with changes in their health and ability. This latter group is often seeking housing environments that can help them live relatively independently, but with some support. For many older adults there is strong preference to be able to live in safe, affordable appropriate housing for as long as possible without being expected to having to ”move on”.

Over one half (53.8%) of renters aged 65-74 and close to two thirds (61.8% percent ) of renters aged 75 and over have housing affordability problems, and spend 30% or more of their income on rental housing. Almost one in five (18.8%) of tenants aged 75 and over spend 50 percent of more of their income on rent. In the new climate of vacancy decontrol, landlords may increase the rent as high as they like at the start of a new tenancy. Some landlords will actively seek ways to terminate tenancies to create new higher paying ones.[206]

Older renters are often financially less well off than other seniors. Those who rent are typically women, widowed, and living alone. Widowhood creates economic vulnerability for many older women. Unattached older women represent the second largest poverty group in Canada.[207] Older women with low incomes who are living in large cities face significant problems in finding affordable housing, particularly in light of low vacancy rates. [208]

(b) Seniors in social (subsidized) housing

Seniors represent nearly one quarter of the applicants on a waiting list for social (subsidized) housing in Ontario.[209] Single adults (of which older adults are a large group) face the longest wait times for subsidized housing – six years. In some parts of the province, the waiting list exceeds twenty years. An average of 72% of all households on the waiting lists had annual incomes below $20,000.[210]

Each of these trends in housing generally is important to understanding the significant economic vulnerability of many older renters, especially those living alone. The trends can reinforce vulnerability, undermine housing security and create or open up opportunities for exploitation. They mean fewer and often less appropriate housing choices with older renters needing to stay where they are, no matter what the conditions.

2. Ageism in the context of housing policy

Housing policy analyst David Hulchanski argues that Canadian housing policy has by and large favoured home ownership, and given far less policy consideration to the needs of those who live in rental housing. This policy emphasis leaves many persons, at all ages, marginalized, vulnerable and forced to live in unaffordable, inadequate, and inappropriate housing, and a growing number are at risk of homelessness.[211] The result is not enough rental housing and not enough of the right types, leading to competition among groups for scarce resources. Older adults who rent are one of those groups who are particularly hard hit, because of their economic vulnerability and their special needs.

These economic conditions and the housing policies on which they are based create a “perfect storm” in which ageism can surface, and in which appropriate rental housing for many older adults becomes a pipe dream. Hulchanski notes five types of programs that are needed to improve rental housing situation across the lifespan:

“First, capital subsidies are required to build new units. Second, rent supplements can make housing affordable for very low-income households by filling the gap between the renter’s ability to pay and the rent level. These two subsidy types ensure an income mix of very low-income to moderate-income households in social housing, create communities rather than “projects,” and allow for better integration into existing neighbourhoods. The other three types of programs address the needs of people requiring supportive housing, the rehabilitation of aging housing, and assistance for people who are homeless.”[212]

The Ontario NonProfit Housing Association (ONPHA) in a June 2009 response to the Ontario Human Rights Commission report “Right at Home” (which was a consultation on human rights and rental housing in Ontario) stressed that “there are two fundamental conditions in the housing sector which provide a fertile ground for breaches of the Human Rights Code. The first is poverty –basically lack of income. The second is lack of affordable housing….”[213] ONPHA stressed that discrimination and disadvantage in housing is the result of the complex interplay of systemic factors including inequalities in income distribution, lack of appropriate supports and a wide range of competing needs.[214]

There are also pressing structural issues that impede efforts in affordable housing to be more inclusive and non-ageist. Much of the available housing stock was built in the 1960s and 1970s, and has not been built with the needs of older adults or adults with disabilities in mind. The cost of retrofitting multiple units can be significant, especially given the thin budgets within which the non profit housing sectors are forced to function.

At the same time, human rights law recognizes the duty to accommodate the needs of people with disabilities to the point of undue hardship. The principle of undue hardship was raised by ONPHA and its members in the context of inclusive physical design and the need for physical modifications to units to accommodate the needs of elderly and disabled tenants. “Housing providers, including the Toronto Community Housing Corporation (TCHC) drew the Commission’s attention to situations in which the impact of combined requests for accommodation from multiple tenants might amount to Undue Hardship. An example is where a large proportion of tenants simultaneously require modifications to allow them to remain in their social housing units.” In its submission, TCHC provided a detailed statement of the condition of the housing stock in its portfolio, the lack of resources to fund repairs to the aging stock and the profile of its tenant population which leads to multiple requests for accommodation on an ongoing basis. [215]

During the Commission’s roundtables, housing providers focused on cost and funding. They stated that accommodation requirements cannot be implemented without straining resources for other needs, such as building repair and maintenance. Generally, housing providers are not given the resources by the government to meet extensive needs for accommodation.[216]

Toronto Community Housing Corporation apparently requested that the Commission consider “relocation as a form of reasonable accommodation” since they felt this “would infringe less on the rights of individuals and acknowledge the accountability of different levels of government to provide adequate funding for housing providers to meet their duty to accommodate”. [217] On its face, the Toronto Community Housing Corporation’s position may or may not be ageist, depending on whether by “relocation”, they meant encouraging and facilitating internal moves within a building to physically more suitable suite or simply “move out of here”.

ONPHA on the other hand stressed

“Social Housing providers are not trying to reduce or avoid the duty to accommodate; we only wish to have explicit recognition of the need for those who fund the housing to provide the resources that will enable them to meet that duty. … , government departments go to extraordinary lengths to meet and even exceed Code requirements [in their services]. It seems reasonable that they should fund, or be required to fund, their transfer agencies to meet the same standard.”[218]

3. Types of rental housing used by seniors

There are a number of different types of rental housing used by seniors, including

(a) “independent housing “ (“ordinary apartments”) and

(b) housing with some additional formal support services.

The latter may include not for profit rental housing with supports, a specific type of housing in Ontario called “supportive housing”, as well as for private “retirement residences”.[219] Further along the housing/ care continuum are long term care homes (currently referred to in Ontario law as nursing homes, homes for the aged, and charitable institutions).[220] The focus of this section of the paper is only on independent rental housing and housing with some additional formal support services.

(a) What is “supportive housing?

The term “supportive housing“, as it is used in Ontario, refers to units occupied by people receiving formal support services in order to maintain their tenancy and live independently in the community. In some cases, support service agencies receive funding from the Ministry of Community and Social Services or the Ministry of Health and Long- Term Care.[221]

Supportive housing provides short or longer term housing for many different populations, including persons with developmental disabilities, and people with physical, mental health, or social needs requiring long term support. In some cases, special supportive housing has been established for people with mental health problems, people with substance use problems, or victims of domestic violence. A particular building may be completely comprised of supportive housing, or have some units in it that are considered supportive housing.

The term “retirement residences“ refers to a private pay residence with some support services. They are a form of supportive housing. According to the Ontario Retirement Community Association:

“Retirement residences offer private pay accommodation and services for seniors. The accommodation is typically a private room with a 3 piece bathroom that is rented on a monthly basis. Services generally include 24 hour supervision, meal preparation, laundry/ housekeeping, medication distribution, assistance with activities of daily living, social events and recreation.”[222]

(b) Legal framework

Supportive housing, retirement homes and “ordinary apartments“ are covered under the Residential Tenancies Act (RTA).[223] Some of this rental housing is private, for profit (“market”) housing; others are not- for- profit, and some of it may be subsidized (social housing or rent geared to income). The general rules of tenancies apply to supportive housing, retirement homes and “ordinary apartments “, but there are some special exemptions for what the RTA terms “care homes”. These are defined by s. 2 (1) of the RTA in the following manner:

“care home” means a residential complex that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy;

“care services” means, subject to the regulations, health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living;

In essence, this means most retirement homes and some supportive housing are considered “care homes” under the RTA.

Social housing refers to non-profit or co-operative housing communities where some or all the rents are subsidized. Subsidized households pay about 30% of gross income on shelter. If the older adult lives in “social housing” (profit or not for profit housing where the rent is subsidized by public funds paid to the tenant or the landlord), the tenancy is also subject to a number of exemptions from the general protections of the law, most related to rent increases.

It should be pointed out that the language used by various provincial government ministries for the different types of housing is not used in any consistent manner.[224] To further complicate conceptual matters, the Ontario Non Profit Housing Corporation points out there are three types of non-profit housing in Ontario, each distinctive in who owns and operates it. Private non-profits are buildings owned and managed by independent, community-based groups, such as faith groups, service clubs, ethnic organizations and community agencies. Municipal non-profits are owned and operated by over 100 different municipalities across Ontario. Local Housing Corporations are owned and managed by Service Managers – the local government body responsible for housing, social welfare and ambulance services. Until 2001, Local Housing Corporations were owned by the provincial government and were called “public housing”.

4. Opportunities for ageism in housing

In housing, ageism needs to be understood in the context of several intersecting factors, including growing older, often needing more supports in order to maintain some relative degree of independence, changing marital status (especially for women), as well as temporary or more long term health changes. The Centre for Equality in Rental Accommodation (CERA) notes older people experience significant barriers to accessing and retaining housing:

“Landlords who have minimum income requirements can make it difficult for anyone living on a pension or other fixed income to rent an apartment. Many landlords are also hesitant to rent to older people for fear that they will become disabled – and a “burden” to the landlord – in the future. Where an elderly tenant does develop health conditions that require modifications to their unit or an apartment building, landlords will frequently avoid making the necessary changes, forcing the tenant to either live in uncomfortable, unhealthy – and often dangerous – circumstances, or try to find alternate housing. Sadly, “aging in place” is impossible for many elderly tenants.”[225]

The potential reasons behind the ageism in rental housing are multiple — and may reflect economics, path of least resistance/ operational ease, or perceived efficiency. It may reflect in some cases a lack of knowledge, training or education on the needs of an older population among the operators, boards, and management companies, as well as “because they can” (power imbalances and legislative vacuums.)

In 2007/8 the Ontario Human Rights Commission looked at discrimination in housing and the ways it affected many groups. The Commission concluded that many of the problems in rental housing and access to housing were symptoms of systemic human rights violations. The Commission noted that the Human Right Code provides a range of tools to address violations of housing rights and situations affecting access to housing because of Code grounds, even if section 2 does not explicitly create a freestanding right to housing.[226]

(a) Separating discrimination from relevant distinctions

Housing discrimination is conceptually challenging for several reasons. First, numerous distinctions are regularly made in housing law, policy, and practice that affect identifiable groups such as older adults. Landlords and sellers often make distinctions based on what they believe is prudent management and efforts to mitigate risk that requires them to exercise some selectivity in accepting new tenants or requiring existing tenants to leave. [227]

Housing programs are often framed in terms of meeting the needs of certain groups (such as low income seniors), and by necessity exclude other groups. Reaching a specific age is often one of the criteria for receiving benefits such as shelter allowances. Seniors’ housing often operates as “special programs” under human rights laws. Separate housing for seniors is not usually considered as discriminatory. Much of this housing is geared to income and intended to ameliorate a historically disadvantaged group. Nonetheless some aspects of seniors’ housing or the ways in which it is operated are discriminatory towards older adults. The issue of housing discrimination forces us to critically examine how we promote health and well-being in housing; the ways in which we assist groups with distinct housing needs (including seniors, persons with disabilities, people who are homeless); and how we are addressing consumer concerns.

Increasingly popular, supported housing models of housing for older adults often make within-group distinctions based on individuals’ needs and functional abilities for their initial assessment of eligibility and in determining the point at which persons must leave. The fact that these supported living environments are functionally a combination of housing and health or related supports further complicates housing discrimination analysis. In the housing field, there are often competing responsibilities and expectations placed on providers– to provide housing and services, to reasonably accommodate individuals, and to balance individual versus collective needs. Providers may struggle with balancing concepts such as providing some degree of “aging in place” and reasonable efforts to accommodate persons, along with other competing legal responsibilities to not provide support and services that could be characterized as institutional care.

(b) Potential for ageism in rental housing generally

People in a position of authority, such as building managers, owners or directors of non -profit society boards, are able to exercise considerable power over older adults who rent. This may be a broad reflection of societal attitudes, but it may also reflect the absence of business or regulatory norms that reinforce appropriate or inappropriate behaviours.

(i) Age related discrimination

Discrimination in housing may occur at any point in housing, from the screening process for potential tenants, to contractual requirements having a differential impact on older tenants, to the way some or all persons are treated in the housing, to the point at which the older adult is being required to leave.

Housing researchers have found age related discrimination in several countries, including the United Kingdom, the United States and Japan.[228] Legally condoned ageism may be manifested in the fact that laws are often under-inclusive, by excluding the type of rental housing in which older adults are likely to live or by giving older adults fewer protections. In many Canadian jurisdictions, several types of rental housing in which predominantly seniors live, such as supportive housing and assisted living, are specifically excluded from regular tenancy legislation, and the laws they are covered by (if any ) do not have equivalent protections in tenancy, and may not have safeguards in terms of service standards.[229] The result is that tenants in these types of housing may have less security over rent and service cost increases, fewer rights of privacy, less control over the landlord’s entry, and fewer legal remedies.

Supportive housing and assisted living are not heavily regulated across the country because there is an assumption that consumers can exercise choice between providers, thus placing upward pressure on service standards. The Special Senate Committee on Aging notes consumers can only “vote with their feet”, however, if there are other suitable and affordable supportive housing options to which they can turn.[230]

This type of systemic discrimination against older adults in rental housing is not a phenomenon limited to Canada. In the United States, the federal Fair Housing Act [231] does not include age as a protected group, and their federal Age Discrimination Act of 1975[232] only covers publicly funded housing, not privately owned housing.[233]

Age related discrimination in housing can be manifested in a wide variety of ways, for example: by refusing the person’s application; in the terms or conditions on which the accommodation is offered to the person; by deferring the other person’s application for accommodation or according to them lower order of precedence in any waiting; by denying or limiting access to any benefit associated with the accommodation; or by evicting the person.

Older adults can be subject to direct discrimination. In some seniors’ housing, managers have openly acknowledged that they will not rent to those who are 85 years and older (“the oldest of the old”) because they are seen as “more trouble” than their younger senior neighbours who are likely to be less frail or disabled.[234] Operators and managers may assume that older adults are more likely to damage an apartment because they have a walker or wheelchair (particularly a motorized one), likely to be less capable of keeping the apartment in a good condition, or that they might set a fire by accident, etc. Even ordinary business risks become exaggerated when older adults are being considered. An older renter is seldom given any reason, let alone the real one, for being turned down or why the tenancy agreement was terminated. This creates evidentiary problems if the person tries to challenge the refusal. [235]

These types of discrimination reflect social perceptions both about people with disabilities and perceived likelihood of disabilities among older adults. They reflect failures to reasonably accommodate the needs of older adults. They also reflect adverse impact discrimination and systemic discrimination. [236]

(ii) Exploitation and legal onus

Both advocate experience with older tenants and the research literature indicate that exploitation of older tenants happens.[237] In both the non-profit and private rental markets, some landlords purposefully exploit older tenants by holding on to security deposits which they are legally required to return. They may intentionally neglect suite or building repairs[238] or may unlawfully evict the occupants. Older renters are forced to move so the suite can then be rented to younger tenants who will pay more.[239] Less than reputable landlords purposefully have older tenants sign fixed term tenancy contracts. This permits them to easily rid themselves of anyone who is considered “difficult”, and avoid having cases brought to rental arbitration over problems that may be occurring in the building. The abuse of process has proven to be a very effective means for them to keep the remaining older tenants fearful and ‘in line’. [240]

Older tenants sometimes find they are being evicted because they are trying to enforce their rights. The Landlord and Tenant Board has the authority to refuse or delay an eviction in these circumstances. However the Interpretation Guidelines note that the tenant has a higher onus.[241] Tenants must prove that the reason for the application to evict was because they were trying enforce their legal rights or other accepted motivations. However, as the Guidelines and caselaw point out, it is often difficult to prove another person’s state of mind.[242]

(iii) “House rules”

It is not unusual to see older adults in subsidized and seniors’ housing in many parts of Canada facing arbitrary and unreasonable internally imposed requirements and practices (“house rules”).[243] Houses rules may be limited to a particular building or systematically applied by public (social) housing authorities in their tenant policies or tenancy agreement. House rules can have legitimate purposes, assuring safety and fairness to tenants. House rules can also be infantilizing and sometimes restrict older adults’ tenancy or other rights.

It is not uncommon to find unreasonable house rules in rental housing where seniors live. For example this may include grandchildren being prohibited from visiting “because this is a seniors’ building”; and rules that limit who can visit and how long guests can stay (“the two week rule- a visitor may stay no more than 14 days total in a twelve month period”). Two rules specific to social housing are described in greater detail below. Provincial tenancy law in Canada is often silent on house rules generally, with Manitoba’s Residential Tenancies Act being a notable exception.[244]

House rules need to be considered in terms of their objectives, the method of achieving the objective, and in the context of the fairness to tenants generally and to specific groups. Perhaps one of the more troubling types of housing policies and one that creates the much controversy are those related to smoking. The issue significantly reduces the affordable housing stock for older persons who smoke.[245]

(iv) Suitability of the housing stock

Ontario Human Rights Commission in “Time for Action” noted a number of housing issues negatively affecting older adults in the province, including reduced housing affordability (leaves them vulnerable), the age and condition of the housing stock, the lack of barrier free design (affecting the older person’s ability to live there if physical or mental abilities decline), cost factors – adapting and renovating existing buildings can be costly, not designed for those with special needs, e.g. more insulation/sound proofing to accommodate older persons who are hard of hearing, and the housing location often did not encourage access to the community. Housing and care facilities for older persons should be close to amenities such as stores and transportation and near to other people.

The Commission notes that ageism occurs when planning and design choices do not reflect the circumstances of all age groups to the greatest extent possible.”[246] Even though many provinces allow certain rental housing stock to be designated specifically for older adults as “seniors’ housing”, there may be few if any requirements as to which rental housing can legitimately be designated in this way. As a result, a growing number of these apartment buildings or complexes are often not suited to the basic physical needs of many older adults (particularly those older adults with some degree of physical impairment). The housing often lacks basic consideration of good environmental design (steps, ramps, railing, lighting, safety features etc.) Developers often ignore other important considerations such as the location of the housing relative to the kinds of services that seniors commonly need and use. Seniors’ housing built between the 1960s to 1990s (the period when the federal government was providing funds for affordable housing) is often unable to accommodate newer independence technologies such as motorized scooters and bulky electric wheelchairs that need to be plugged in.

(v) Failure to accommodate

Older adults’ needs and capabilities can change as they age. When this happens, they frequently find there is little or no effort by housing authorities or property owners to accommodate their changing needs, in spite of the specific requirement under some human rights laws for reasonable accommodation in the area of facilities and services.

“Accommodation” in this age-related context could mean any range from minor to major adjustments (usually more the former). It may include training staff to understand age-related changes among tenants; changing a door handle or altering physical design of the suite, room and amenities of the housing to accommodate strollers, walkers or wheelchairs; or having some level of supportive services available to them such as home care so that the older adults can “age in place”. [247]

In an ageism-permissive environment, some housing providers will make little if any effort to adjust the living environment to meet the person’s changing needs. Instead the older person is expected to “put up with it” or move on to other “special” accommodation (e.g., housing with supports). The overall result is to deny older adults access to appropriate housing, support and care, or to force them into segregated special housing which may place significant restrictions on their independence in exchange for support or care.[248]

It has been pointed out that age-related discrimination in housing often intersects with age-related discrimination in health and community services. [249] In many communities, health and community resources such as home support have remained underfunded relative to the growing need. In many Canadian communities, these services have been drastically cut back, providing fewer hours of support to those in need. The parallel discriminations can lead to older adults having important needs going unmet, with increased risk of morbidity and mortality or being “pushed” into long term care. Top down discrimination filters its way through successive layers to negatively affect the lives and independence of older adults.[250]

(c) Potential for ageism in social housing

Subsidized housing or rent geared to income housing as it is referred to in Ontario is directed to people who have low incomes. By its nature this may create a potential power imbalance between the owner or operators and the tenants. While many staff members are very supportive of the tenants, in many buildings, staff may receive minimal training for the job (especially on understanding aging, or tenant relations).

(i) The charity game

Ontario communities and charitable institutions have a long history of providing shelter and some supports for “the elderly, poor, and the dependant”, beginning in the early 1800s with “houses of industry” and “ houses of refuge” , and later developing into the various types of homes for the aged. The individuals were highly dependent on the charity of local organizations and municipalities. Up to the 1960s, residents of these facilities were called “inmates“ and the operators were referred to as “keepers“. While the pejorative language has fortunately gone, a few vestiges of the `be thankful for what you have` attitude sometimes remain.

Seniors who rent identify having experienced several types of problems and forms of age-related discrimination from those who operate and manage the rental housing, springing from ageism and the marginalization of older people with low income. The difficulties they experience include: insulting behavior and insensitivity to their needs; having their legitimate concerns about the staff or the way that the building is run ignored or downplayed; threats and harassment (when they raise concerns, being told “you’re lucky to be subsidized” and “if you do not like it here you can go somewhere else”); infringement of their rights to privacy; and threats of eviction if they complain.[251] Societal ageism leaves some landlords or staff feeling entitled “to keep them in their place, because that’s all they deserve”. When low income older renters face a problem with discrimination or harassment in their building, they often cannot leave, as there is no affordable place to go.

These issues are very similar to those faced by other marginalized groups such as single mothers with children, and immigrants who are housed in similar accommodation, basically anyone who has few choices in terms of affordable housing and less power. However, age can also create important differences. Older adults frequently have less knowledge of their legal rights as tenants and a tendency to defer to authority. They often have fewer financial and physical resources to be able to use the available methods of redress such as tenancy mediation. They also have fewer social resources for self advocacy or advocacy by others.

(ii)“Over housed” / under utilization

Older adults more than any other age group are likely to face widowhood, which creates a special set of housing challenges, and arguably unfair burdens. In social housing under the law, when a spouse dies the tenant (typically an older woman) is expected she will leave her home and move to a smaller unit.[252] The assumption is that if she continues to live there she is “over housed” and the social housing is “underutilized.”

The Cooperative Housing Federation of Canada (CHFC) notes

“Governments, as managers of taxpayers’ money, try to guard against the perception that a subsidized member may be receiving “too much housing space”. With growing waiting lists for affordable housing, governments are increasingly viewing the issue as one of “making good use of a scarce resource”.[253]

On one hand, it is understandable to strive to meet the needs of the other tenants with larger families for appropriate housing. However, CHFC also notes the significant negative impact that forced relocation (as opposed to where people chose to downsize), and the fact that it affects largely older women.[254] At least one human rights case in British Columbia has heard this type of forced relocation matter, although the Tribunal found the rationale for the rule justifiable (Bone v. Mission Co-op Housing Association, 2008 BCHRT 122). [255]

Housing policy bases the argument for these moves within building or community on the need for housing stock “efficiency”, but in the process, the often frail older adults are treated as inanimate objects to be moved about. CHFC points to tangible costs (such as bearing the moving expenses at a time of diminished resources) and the very important intangibles such as the loss of sense of community and continuity when long time residents are forced to leave the housing cooperative because there are no one bedroom units in the co-operative.

Housing policy of this nature is also ageist in that it ignores the older woman or older man’s social and physical needs. Socially, it effectively restricts and undermines the family connections (there is no space for them to visit or care for her if she has an acute illness). The older adults’ physical world also shrinks to smaller environments, the person is forced to live with and is expected to accept less and less. Recognizing the overall impact of occupancy standards, the CHFC has put forward motions at their 2005 and 2006 Annual General Meetings for more flexible approaches by government and providers to the occupancy standards so that seniors would not be forced to move out of their housing co-operatives.[256]

(iii) Two week rule

In Ontario when the rent is geared to income, the person is limited to the length of time they can have guests. For example Waterloo Region Housing policy states the guests may stay two weeks without needing the property manager’s permission and the tenant must advise the property manager of the guest. To be able to stay longer requires asking for permission in writing, and the property manager may refuse in a variety of circumstances.[257]

A two week visitor rule in subsidized housing may be intended to avoid situations where other income earners are staying in the apartment and their income is not being considered in establishing the amount of the subsidy. Undeclared income may unfairly deprive others in need of rent geared to income.

However, advocates note that these guest policies have a disproportionate impact on lone mothers.[258] The rule also works to the significant disadvantage of (and creates a much greater burden on) any older adult who becomes ill or frail and needs the assistance of a family member after a period of hospitalization. Without the family support, their health and safety becomes jeopardized. The policy also ignores that a family member is usually there at substantial personal cost and is not an income source. House rules like the two week rule impede older adults‘ ability to “age in place”; they also mean the older adult is more likely to need public resources such as home care because family members are effectively shut out.

In the 2008 consultation on housing discrimination in Ontario, the Ontario Human Rights Commission was told that strict enforcement of these policies can have far reaching effects on the ability of tenants to maintain their privacy and lead normal lives while at the same time maintaining their housing. If the guest is deemed to be an illegal occupant, the tenant’s subsidy can be revoked and the tenant may be evicted.[259]

(iv) The 120 days rule

In ordinary rentals, individuals come and go as they please. In Ontario when the rent is geared to income, if a person is absent from the apartment for more than 120 days, except for medical reasons, the tenant then becomes ineligible for rent geared to income. [260] They are entitled to stay in their unit but will be paying market rent.

This rule works to the particular disadvantage of older immigrants or any older adult with a good relationship with an extended family, and where there is a cultural expectation of parents and grandparents being with them on extended visits (for example, seniors with South Asian or South East Asian backgrounds) . Some Aboriginal seniors for example may live in an apartment in town or the city during the winter and spend summer months on reserve with extended family, living on the land, being with family and teaching grandchildren. The 120 day rule appears to be based on the idea that if a person is “truly low income”, she or he should have little if any supports or family relationships.

(v) “Mixed housing” dilemma

In recent years, service providers working with seniors in several Canadian jurisdictions have expressed concern about an emerging housing policy strategy in their cities. “Hard to house” younger persons with severe mental illness (many of whom are homeless or at risk of homelessness) are priority for housing and are moved to what has traditionally been social housing for seniors.[261] Older adults in the now “mixed” housing environment often feel extremely vulnerable in this environment, and some can become increasingly isolated.[262]

This might be seen as competing “rights“ or needs of two vulnerable groups to appropriate housing. An anti- ageism lens however highlights that (a) vulnerable groups should not be put in positions where they are competing for scarce resources, and that the scarcity is an artefact of broader housing policies; (b) at a housing level, changes are typically made without consultation with older adults as key stakeholders (older tenants are treated as irrelevant) and (iii) pragmatic concerns that the persons with chronic mental illness are being housed without adequate support, creating safety risks for them and for frail older tenants. In some cases, risks for the older adult may come from the new tenant, in other cases, or from the new tenant’s entourage (“friends from the street”).

Toronto Housing Commission began a pilot in November 2008 to establish an integrated support network to promote the community and mental health needs of all residents, while ensuring the seniors population is fully supported to age-in-place. The study allows for Toronto Housing Commission to “review the impacts on seniors who live in buildings that, due to a large number of small bachelor units, have had an influx of residents experiencing a multitude of complex issues related to mental and physical health, substance use, heavy reliance on social assistance, and street acculturalization.”[263] The pilot includes diverse committee of agency staff, Toronto Community Housing staff and tenant leaders.[264] The pilot is expected to continue until the summer of 2009.

(d) Potential for ageism in retirement (care) homes

Retirement homes (or “care homes” as these they are referred to under the Residential Tenancies Act) have been recognized as having a special blend of rental housing and support services in Ontario. The term “retirement home” commonly used by the public and private industry and the legal term “care home “ will be used interchangeably below.

A “care home” is a rental unit where the tenant receives personal care services due to medical disability, commonly advanced age. Residents of this type of housing with supports are typically in their mid eighties, some entering at this age and others moving in their mid seventies and growing older there. Under Ontario law, all care homes are required to provide housekeeping, laundry services, assistance with transportation, and recreational or social activities.[265] They may provide other services, such as meals and personal care.

(i) An area of confusion

Retirement homes are often confused by prospective tenants and the general public with other types of services such as boarding homes, or at the other end of the continuum –long term care (nursing) homes. Retirement home suites may comprise a few units within a building, a whole building, or part of a larger facility that also offers long term care. It is often not possible for individuals to know what types of accommodation and service a building offers simply by its name.

The care services of the care/retirement home will depend on the individual’s needs and can include personal care or activities of daily living – assistance with dressing, bathing, feeding, or help taking medications; incontinence care; assistance with personal hygiene; assistance moving around (ambulatory assistance); personal emergency response services; and nursing care.[266] A person may have anything from mild impairment to fairly significant physical or mental impairments and live in a retirement home. There is no specific level of individual need or disability identified as appropriate or inappropriate for care homes.

To a large extent governments have taken a non- interventionist or laissez-faire approach to this kind of housing. Over the years, the primary legal approach to the special character of the retirement home housing has largely focused on providing contractual rights information (“so people know what they are signing”). For example, each tenant is to be provided with a Care Home Information Package (“CHIP”) at the time of entering into an agreement to help clarify exactly what they can expect to receive in terms of services and the costs associated with these.[267]

While required by law, the requirement is not always honoured by retirement home operators, even those who are deemed within the industry to be accredited. Clarity of legal information is important for any consumer and any renter. However, the only real effect of the CHIP requirement is that the landlord cannot legally increase rent or service charges until that information is provided.[268]

There are some important legal safeguards already in place for persons entering into contracts for this type of housing in Ontario. The care home agreement must be in writing (in an ordinary tenancy, terms can be written, oral or implied); and the person has a (limited) opportunity in the beginning to consult a third party and step away from the contract if the person changes his or her mind. To some extent these are seen as mechanisms to enhance clarity, build consumer awareness of what they are contracting for and help address part of the power imbalances that might otherwise occur for prospective older tenants, many of whom will have lower functional literacy. The difficulty, however, is that the approach equates “information” with “consumer power” or “choice”, when real choice may be much more elusive in this housing context.

Unlike many other Canadian jurisdictions, retirement home tenants in Ontario have some of the general protections available to other tenants, including timing and notice of rent increases. However, there are a number of ways in which the tenancy legislation is weaker for retirement homes than for either an “ordinary tenancy“ or for long term care facilities (nursing homes). Compared to ordinary tenancy, less notice is required for service cost increases in care homes. Tenants are subject to forced mediation and eviction for change in health. In contrast to long term care, there are few standards for care and support services and less effective recourse. Each of these problems or differences is described below.

The retirement home industry relies heavily on “consumer choice”. However, for the market to operate effectively certain conditions must be met

o consumers must have an adequate supply of products or services to chose from

o they must have adequate information about the products

o they must be capable of exercising choice (that is they must have decisionmaking capacity and be free from coercion or undue influence) and

o they must have recourse when things go wrong. [269]

These criteria are noticeably absent in retirement homes and similar types of supportive housing in Canada.

(ii) Lack of standards

Retirement homes vary considerably in the scope of the services they provide. One of the growing concerns for Ontario retirement homes and similar types of housing for seniors in many other parts of Canada is the lack of standards, regulations and effective oversight. Outside of regulations that generally relate to tenancy, building safety and individual rights, the industry is largely unregulated. The Advocacy Centre for the Elderly notes that tenants have few if any remedies when it comes to the quality of care and supports provided in retirement homes. [270]

It has been argued that in effect, some retirement homes function as “bootleg “ or underground nursing homes in that they are providing care, support and services to older adults with the same level of needs as some persons in long term care homes, but without the same regulatory safeguards.[271] For example, some retirement homes have locked units and use restraints on tenants, without providing any of the rights protection or other safeguards provided to residents of long-term care homes.[272]

The Advocacy Centre for the Elderly also points out that the retirement home system lacks accountability or enforceability of legislation, regulation, policies, and enforcement mechanism that the Ministry of Health and Long-Term Care has within the long-term care system and this double standard fails to ensure the safety and protection of retirement home tenants.[273] Drawing on their experience with problem care homes and the lack of effective industry oversight, the Advocacy Centre for the Elderly stresses:

“There is clearly a need for a comprehensive regulatory scheme for retirement homes so that all seniors can live in environments that that promote their independence to the extent possible, while also ensuring their safety and protecting their rights.”[274]

(iii) Patching the quality and safety gaps

In the past ten years, several Canadian jurisdictions have undertaken considerable efforts to establish standards and guidelines for housing similar to Ontario’s retirement homes. In British Columbia, a registry and administrative system of standards and guidelines for services was developed for “assisted living”, albeit still leaving a lacunae in terms of tenancy protections.

In 2007 the Ontario Seniors Secretariat undertook a consultation on possible regulatory approaches for retirement homes, including a third party regulatory model, (industry) self regulatory model, or municipal regulation. In its submission to the consultation on regulating retirement homes, the Advocacy Centre for the Elderly noted the special characteristics of the homes and the people who live there that made these models inappropriate. The Advocacy Centre for the Elderly has proposed that a more suitable alternative is to have a provincially run tiered, licensed approach with agreed upon standards for the various tiers.[275]

One of the many forms of ageism within society is the systemic subordination of older adults’ interests to those of others. Arguably, that is evident where the interests of private industry to minimize government oversight consistently take primacy over the interests of the older persons living in retirement homes or other supportive environments to a safe and secure environment with reasonable quality of care and support. The lack of enforceable regulatory standards and the lack of enforceability in retirement homes can create a systemic disadvantage and a significant burden that other adults do not experience.

Mahoney has argued that “In essence, care home tenants are reverse hostages held by care home operators. ‘No on else will house them and take care of them,’ operators tell the government, ‘so stop criticizing us and leave us alone. Otherwise, we’ll dump them right back in your lap.’ Landlords are given benefit of law, lest they withdraw their services and throw responsibility for these vulnerable adults back on the state. “[276]

iv) Fewer legal safeguards

Like ordinary tenancies there are legal restrictions on retirement homes on how frequently they can have a rent increase (once in twelve months).[277] On the other hand, retirement home services costs to the tenant can be increased more often as long as the landlord provides the tenant with at least ninety days written notice.[278] Tenancy agreements that set costs for an identified period cannot be altered during that period.

The care home tenant may face significant housing (service) costs increases. As a result, many tenants, especially those whose support needs are fluctuating as a recent of an acute or longer term condition are in a precarious position of not being able to anticipate whether they can continue to afford to live there. Some older adults may try to hide their changing needs so that they will not be seen as needing more and therefore more expensive services.

(v) The illusion of aging in place

Older persons should be able to reside at home for as long as possible.

from United Nations Principles of Older Persons

As previously noted, older adults who rent in Ontario often find that they are living in aging buildings environmentally unsuited to the physical needs of the tenants who are growing older. Similarly, there may be little effort for some housing providers to accommodate to their changing needs. The commonly held expectation is that the older tenants will “move on” to someplace else.

Under the current legal framework for care homes, security of tenure is tied to a person having a constant state of health. If his or her health needs changes for the better or worse, a care home landlord can apply to evict a tenant, alleging either the tenant no longer requires care or by claiming that the care required is beyond what the landlord can provide.[279] Moreover, tenants who experience a health crisis and are taken to hospital may find upon their discharge from hospital that the retirement home refuses to take them back. In effect they are being evicted with no legal cause under the governing landlord-tenant legislation.[280]

Care home tenants have a right to dispute their landlord’s application for eviction but they must first go to mediation where parties may agree to contract out of their rights under the Act. [281] However as Elinor Mahoney, an Ontario community legal aid worker, has noted:

“Care home tenants are the only group facing mandatory mediation when their shelter is at stake, and the prospect is not a healthy one. What chance does a dependent, vulnerable (and probably unrepresented) tenant have in mediation against a well-dressed, soft-spoken care home operator who swears that the tenant’s care needs can no longer be met? No wonder the treatment of care home tenants in the [Act] has been labelled “anti-advocacy” by concerned groups.“[282]

Mahoney points out that sometimes care home residents are blamed for the effects of their disabilities. They are labelled “hard to house” by governments, bureaucrats, landlords, and social workers. Problematic behaviours are treated not as symptoms of illness but as character defects. She states “Sympathy is reserved for the poor care home landlord who must cope with this behaviour. It is the landlords who are given benefit of law, lest they withdraw their services and throw responsibility for these vulnerable adults back on the state. “[283]

(vi) Accessibility in retirement homes

Retirement homes are intended for older adults and that obviously includes older adults with disabilities. There is a responsibility of all private and public providers under Ontario’s human rights law to accommodate to the point of undue hardship the needs of persons with disabilities as it relates to the right to occupancy of accommodation and when providing services, good and facilities. [284] However, the Advocacy Centre for the Elderly has noted several potentially discriminatory and ageist practices among some retirement homes in the general area of accessibility. These include:

residents relying on mobility devices (such as wheelchairs or scooters) are not welcome in the communal dining areas (since these devices make other people feel “old” or “disabled”);[285]
residents who cannot enter the dining area on their own (or with a walker) must eat their meals in their room or they are required to pay an extra fee for “tray service” for these meals to be delivered. [286]

Some retirement homes have policies limiting access within the home (e.g. “no motorized vehicles are permitted in the common areas of a retirement home”) and the policies are applied even if the resident is able to demonstrate that he or she is able to safely operate a motorized vehicle.[287] These internal policies significantly affect the older adults’ ability to live there, and use the basic retirement homes services for which they are paying.

(vii) Precarious tenancies

Older adults who reside in retirement homes often experience a precarious tenancy. Ordinary tenancy law provides for on-going “tenure” for almost all tenancies, i.e., tenancies “automatically renew” at the end of the term or period. The tenancy can be ended by the landlord only in specific circumstances. However, for care homes, if certain conditions are met, a care home landlord can require the tenant to give a Tenant’s Notice of Termination or to agree to an Agreement to Terminate as a condition of, entering into the tenancy agreement (i.e., the tenant’s notice is “pre-obtained”). [288]

This creates a true “term” tenancy which can be enforced by the landlord. The landlord can then decide to not renew the older adults’ term tenancy at the end of the term for any reason he or she sees fit. This mechanism (and ones like it in other Canadian jurisdictions for similar types of supportive housing) effectively undermine the basic security of tenure that is considered so fundamental to tenants of any age. The use of term tenancies also becomes a way that some landlords “keep tenants in line”, especially those brave enough to raise concerns about the services provided. The landlord simply refuses to renew the tenancy. It has a strong chilling effect on other older tenants.

Widows and widowers in care homes are also in a precarious position following death of a spouse. Under ordinary tenancy law in Ontario when a person named on the tenancy agreement dies, his or her spouse can continue to live there under the same terms of the tenancy. This is referred to as the spousal assumption.[289] However, there is no spousal assumption for retirement homes or social housing.[290] Instead the person is simply considered an “occupant”. The “new” widowed tenant “starts from scratch” and the application may be denied or the person may face higher rent and service costs.

The issue has been raised in at least one British Columbia human rights case (Paulsen v. Terra Property Management Ltd [2007] B.C.H.R.T.D. No. 471) where the tenancy contract required that “If any tenant leaves, the remaining persons whose names are shown cannot take over the tenancy or the premises without the written consent of the landlord.” In Paulsen, the plaintiff (a widow/surviving spouse) argued among other things that the provisions discriminated against her based on her marital status.[291] The discriminatory effect of the lack of tenancy protection for (usually female) spouses has been argued in legal cases affecting younger women in social housing, relying on a Charter analysis.[292] The issue of the lack of tenancy protection has also arisen in the context of a surviving family member living with and caring for an elderly parent who eventually dies.[293]

A similar issue can arise in cooperative housing, in the context of death of a member. Each household in cooperative housing has one membership (the “One Member Rule”). In Ford v. Lavender Co-operative Housing Assn. [2009] B.C.H.R.T.D. No. 38, the complainant (a widow) successfully argued that the application of the Cooperative’s One Member Rule was discriminatory in that it prevented her from obtaining security of tenure in her family home. The rule had required her to apply for co-operative membership after 23 years of residency, leaving her continued residency in her family home up to the discretion of the board of directors who would determine her ”suitability” at that time.[294]

(viii) Care home evictions

In the Ontario Human Rights Commission consultation on housing discrimination, tenant advocates raised important concerns about accommodation and the criteria for eviction and eviction processes under the RTA for persons living in care homes. The tenant can be evicted if the care home operator feels they cannot meet the tenant’s care needs.[295]

The special eviction process for care homes has several negative and disproportionate impacts on persons with illnesses and disabilities. For example, the criteria for eviction treat tenants who live in care homes because of age and/or disability, differently from other tenants. A care home tenant’s security of tenure is inappropriately made contingent on his or her state of health. It has been argued that the process set out in the RTA for care home evictions provides less protection to vulnerable older people with disabilities living in care homes, when more safeguards were warranted.

As previously noted, the only recourse through which a care home tenant can dispute the eviction is mandatory mediation, which can lead to poor outcomes for tenants when adequate steps are not taken to address power imbalances. Also many care home tenants have mobility problems, cognitive difficulties and other impairments, yet they have less time than other tenants to seek advice and to obtain legal assistance.

Very importantly threats of eviction under s. 148 could be used by housing providers to make care home tenants more compliant and prevent them from raising legitimate complaints. The Human Rights Commission was also told that the LTB may not always apply the Code principles of the duty to accommodate to the point of undue hardship when considering a landlord’s application to evict a tenant for reasons relating to a Code ground.

(ix) Special housing issues — mental health

Among the many groups of older adults who experience age related discrimination in housing, those with mental health conditions are particularly vulnerable. Aging adds another important layer they can experience in seeking and retaining housing over the life course. The Psychiatric Patient Advocate Office in Ontario (PPAO), in its brief to the Ontario Human Rights Commission on housing discrimination, for example points out that tenancy is often refused because many landlords and housing providers incorrectly assume that the person with mental health condition will be a “problem”. They note:

“Due to the vulnerability of and discrimination against many mental health consumers, there is often a power imbalance between consumers and housing providers, allowing particular landlords to mistreat consumers with little or no consequence. For instance, landlords will harass residents, ignore valid complaints and permit substandard living conditions for people with a mental illness due to negative attitudes and stereotypes. The paucity of available housing ensures individuals are afraid to speak out against improper landlords or to leave and seek alternate accommodation.” [296]

Geriatric nurses, housing advocates, and social workers have pointed out that older adults with acute mental health problems who are leaving hospital or whose medications have been modified are vulnerable in their return to housing. They may be discharged from hospital early, left without supports and not given the chance to stabilize, thereby running the risk of falls, confusion, or confrontations with others, each matters that can lead to an eviction.[297]

Another issue for mental health consumers is confidentiality of personal health information. One commonly raised question is what information can or must be shared with landlords as part of the screening process. In addition, landlords sometimes release confidential health information to third parties without the consent of the resident. The PPAO notes, for example, that some landlords will call a resident’s doctor with the goal of taking him or her to hospital in circumstances that clearly do not require this intervention. [298]

Section 27(4) of the RTA permits a landlord to enter a rental unit if written notice is given at least 24 hours before the time of entry to determine if the rental unit is in a good state of repair, fit for habitation and complies with health, safety, housing and maintenance standards. The PPAO points out that this can be extremely subjective and is susceptible to abuse; landlords may use this provision to harass tenants, especially mental health consumers, and impose their own values on tenants and their living conditions. [299]

The PPAO emphasizes the importance of building awareness and knowledge. The PPAO notes

“The Residential Tenancies Act is also silent about the training of the [Landlord Tenant] Board. Members of the Board encounter numerous people from many different walks of life, including those with mental illness. Accordingly, Board members should receive initial and ongoing training respecting mental illness. A culture of understanding and acceptance of mental illness is essential if we are to be an inclusive and caring community.[300]

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