– Advocacy Centre for the Elderly, 2008
A. The general issues
The Law Commission of Ontario points out that older adults may experience a variety of barriers in accessing the legal system and enforcing their rights. Older adults may be unaware of their legal rights, particularly when it comes to such issues as their rights as residents of retirement homes.[302] They may also experience physical barriers in attempting to access the legal system, including a lack of accessible transportation or services. For older adults in care homes, the care home staff may be their main link to external resources. Fixed incomes and the limited breadth of Legal Aid Ontario coverage can be impediments to justice. The Advocacy Centre for the Elderly points out that court proceedings are often lengthy and there are an insufficient number of lawyers practicing elder law and knowledgeable about areas of law affecting older adults.
However, there are many more considerations affecting access to justice. For example, the legal process often pits an individual against someone with whom they have an ongoing relationship – a landlord or home care agency – so that many people who face real and serious barriers are reluctant to file complaints. This means that they will often wait until they have already suffered substantial harm before trying to deal with it. Formal and informal advocates can face significant challenges when acting for older adults and advocating for them in systems on which they are dependent or will need. There is the ever-pressing need to address ‘conflict’ while recognizing the reality that the older client must continue to use the service of the service provider with whom they are having conflict. There can be also challenges in dealing with “experts” and other professionals when acting for the older client.
B. Information sources
Although public legal information has made important strides to make the law more understandable and accessible to many, it is still geared to the functionally literate person. That leaves many older adults, including older and more recent immigrants, at significant disadvantage. Written information is helpful for some, but does not meet the needs of older adults whose cultural background has traditionally used oral communication to share information.
Increasingly in many parts of Canada, public information on the law and government information about services and entitlements has been shifting from people sources to virtual sources such as the Internet. The Special Senate Committee on Aging notes that a reliance on web-based information assumes a basic level of literacy and people’s ability to access the internet.[303] Many older adults, particularly older women, do not have access to or cannot use the Internet. In 2007, about one third (33.8%) of all men aged 65 and over and less than one quarter (23.1%) of all women aged 65 and over in Canada accessed the Internet at home and only about 1% of seniors used computers in public places like libraries.[304] Internet use still is largely limited to higher income seniors and those with higher education.
C. Complexity of the law
Many areas of housing are exceedingly complex. For example, Toronto’s Rent Geared to Income Guide which explains the law for staff and directors of staff or directors of co-operative and non-profit housing providers is 213 pages.[305] The Advocacy Centre for the Elderly`s manual for practitioners on long term care and retirement homes now runs over 600 pages. The Landlord and Tenant Board website includes twelve different forms (including one to determine if one’s housing is covered by the RTA in the first place). Most of these have filing fees attached.
Other Canadian research has indicated the incredible complexity and frustrations of working through social assistance systems and seeking housing if one is an older sponsored immigrant whose sponsorship has broken down. The person tries to navigate both immigration and social assistance systems, facing significant procedural, language and cultural barriers along the way.[306]
D. Legally sanctioned power imbalances
In the Ontario Human Rights Commission consultation on housing discrimination, tenant advocates raised important concerns about tenants with mental illnesses (which can include older adults), who are vulnerable to eviction and homelessness when they are unable to effectively assert their rights under the RTA before the Landlord and Tenant Board. For example, they may not understand the legal issues at stake in a hearing at the Landlord and Tenant Board. There is no provision to appoint a legal case worker or litigation guardian to act on the behalf of a tenant who is mentally incapable of filing an application and pursuing a remedy at the Board. This interferes with the ability of tenants with mental illnesses to enforce their rights, including defending themselves against eviction. Tenants may not properly recollect events, understand the legal process, remember to attend at hearings or retain legal representation until after an eviction order has been enforced. These issues are equally pressing and relevant to many older adults who mental capability is deteriorating and who are facing evictions. Community social workers (where they exist) and health care providers who may be in contact with the older adult rarely have knowledge about these systems and procedures.
E. The issue of time
Timely access to justice is essential for any group, but has special import for older adults and those with precarious or deteriorating health. Time is important for older adults in two ways— first in terms of having adequate time to recognize there is a problem, know where to turn for help and support, and to be able access that assistance in a timely manner. Thus many short timeframes in areas such as housing evictions will work to the systemic disadvantage of the most vulnerable older adults.
Secondly, procedural processes that entail delay will also work to the systemic disadvantage of older adults and may effective negate their rights. Where the administrative process is lengthy, whether that is in the human rights field or other areas, it may be many months or even years before a decision is made on whether the complainant will receive basic procedural entitlements, such as a hearing before an independent and impartial board to determine if their rights were violated.[307]
There is a lack of recognition that this delay may effectively mean no remedy for the older individual.[308] For example, in the recent human rights case, Banghart v. Elgin Condominium Corporation No. 1, 2009 HRTO 13, the Tribunal turned down an application to expedite the case, although the complainants were aged eighty-eight and eighty-four.[309] Age alone should not be the determining factor, but it can be part of group of factors that affect effective use of existing legal remedies. It is not only the original case in which this is determinative, but also if either side seeks a review or appeal of the case. Older adults will tend to be disadvantaged whenever cases are delayed, reviewed or appealed.
In many cases the person is expected to use the administrative remedy as a last resort. This approach makes sense if the issue can be addressed properly at a more direct level. However for many of the issues that older adults experience, the “paper remedies” have little, if any, foundation in fact. Older adults or others acting on their behalf may be forced to go through processes that will have no real result but delay.
F. Limited jurisdictions of Ombudsman and Coroner
Unlike other Canadian jurisdictions, the Ombudsman Ontario office has limited jurisdiction over the health care sector, which means that there is less opportunity to question the procedural fairness within health systems in the province.[310] The Ombudsman’s jurisdiction within the area of health and housing includes fourteen Community Care Access Centres (CCACs), the Health Services Appeal and Review Board, the Health Professions Appeal and Review Board, fourteen Local Health Integration Networks, and the Long Term Care Branch. The Ombudsman Ontario office does not have jurisdiction over hospitals, which constitute a significant area of provincial health care budgets.[311] Jurisdictions related to housing include the Ministry of Municipal Affairs and Housing, and the Landlord and Tenant Board.
It has been noted that any watchdog agency such as a provincial ombudsman will automatically be limited in its function. It can examine the functioning of government departments and ministries within a business model, but treats each department as separate (i.e., as silos). As such, it is unable to identify the interaction effects among ministries.[312] These are all important considerations because health and housing law, policy and practice issues affecting older adults often involve an interplay of responsibility between ministries.
Jurisdictional policies can facilitate other potential areas of vulnerability for older adults in the context of housing and health. For example, Ontario has a process for coroners to investigate the deaths of seniors in long term care. However, deaths of residents in retirement homes do not need to be reported to the coroner in the same manner as deaths in long-term care homes even though some retirement homes serve a similar older adult population and are used as de facto long-term care homes. Recognizing this gap, in 2009 the Advocacy Centre for the Elderly in its brief to government recommended that Bill 115 (An Act to Amend the Coroners Act) include an amendment to section 10(2.1) so that it could include deaths of residents of retirement homes.[313]
There are wide swaths of health law, policy and health care in which older adults are the primary the recipients or “beneficiaries”. Where there are problems in the health care system, omissions, lack of protections, or where the existing processes are basically ignored, these legal and social gaps disproportionately affect older adults.
G. Nondisclosure of rights and lack of effective recourse
One of the common themes in many parts of health related law, policy and practice in Canada is the “illusion of recourse”, which is simply the fact that review and appeal routes on health matters may exist on paper but do not actually function. For example, it has been pointed out that while there is a review process for the Community Care Access Centres, the CCAC staff often do not let the clients know about this and clients are not informed how to exercise their rights.[314] Moreover, while a person has the right to appeal a CCAC decision to the Health Services Appeal and Review Board,[315] only termination of services can be appealed, not the quality of the services.[316] The Health Services Appeal and Review Board also states that they cannot deal with bill of rights issues.[317] Thus, older adults may have a bill of rights, and “rights“ for community care services, yet they lack real mechanisms for the enforceability of those rights.
Continuing Legal Education of Ontario (CLEO)`s publication on Home Care Bill of Rights explains the clients rights. It states that if the individual has gone to the CCAC for a review and has not received satisfaction, the person may consider suing the CCAC for breach of contract. This is a highly unlikely response for older adults in need of publicly funded home care,[318] given that Legal Aid does not cover these types of matters. CLEO notes that community law clinics offer free legal aid advice, although not all of them cover home care issues.[319] There is also the broader issue of whether there are any appropriate legal remedies in contract law for breach of the clients’ rights in the first place.[320]
H. Seeking remedies: ageism in the context of human rights law
1. The problem of under- inclusion in Canadian human rights law
Age as a protected ground in human rights law, a necessary but not necessarily sufficient step.
In general, older adults have not had the same level of protection in provincial or territorial human rights law or federal human rights law in Canada as other vulnerable groups. Although considerable attention has been given in law to the Canadian Charter of Rights and Freedoms as “the mechanism” for rights protections, the Charter only applies to “government” action. Provincial and territorial human rights laws have a much broader scope in that they cover both public (that is, government) and private bodies.
Age is still not a uniformly included protected ground in human rights law with respect to discrimination in “services, facilities and accommodation ordinarily available the public“ in some Canadian jurisdictions (for example, Alberta[321] and Newfoundland and Labrador). [322] Age was only added as a protected ground in this particular area within British Columbia’s human rights law in 2007/8, when “age“ was also expanded to cover all persons aged 19 and over. Prior to that, British Columbia’s ”age protection” only covered ages 19 to 64.
Alberta does not include age as a protected ground in tenancy under the provincial human rights law. Similarly, Newfoundland and Labrador does not include age protection for occupancy of a dwelling unit, or anywhere except employment. Even there, the age protection only covers people aged 19 to 65. New Brunswick includes age as a protected ground in services available to the public but does not provide age protection in contracts.[323]
As a result, for many years older adults in many parts of Canada have been excluded from human rights protections or had to try to seek redress “through the back door” under other protected grounds such as mental or physical disability. In effect, this simply reinforces the stereotypes about older adults as being mentally or physically disabled and dependent. Moreover, even under disability grounds sections, older adults’ circumstances may not come within the scope of the law.
2. Potential under-inclusion in disability
Discrimination issues affecting adults in later life often reflect an intersection of their status as older adults with other conditions such as physical disability. Section 10 (1) (a) of the Ontario’s Human Rights Code defines disability as: any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness [emphasis added].
The definition section on disability then goes on to offer illustrative examples “and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device.”
Other types of disabilities covered by Ontario human rights law are: a condition of mental impairment or a developmental disability; a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language; a mental disorder, or an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
These definitions will cover some older adults’ circumstances, but not all. While court cases emphasize that human rights legislation is to be read in an expansive and purposeful manner, and case law has expanded the human rights understanding of disability to include “social handicap”, on its face this definition of disability may fail to include some disabling conditions that arise by virtue of aging. Yes, in some cases there may be an identifiable “illness” or bodily injury per se (as might be considered for the case for a stroke or “brain attack”) causing the disability. In other cases there may not. Instead it may “simply be aging” — bodies wearing out, as is often the case with osteoarthritis, significantly affecting mobility and the person’s abilities to carry out day to day activities. Given that these types of disabilities are much more common among older women, the current definition may leave loopholes and a wide gender gap.
Another gap within Ontario’s human rights law is it that only speaks of “past and presumed disabilities”. Section 10 (3) of the Code states
“The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability. “ (emphasis added)
However s. 10(3) would not cover common situations such as a landlord’s failure to rent to older tenants because he or she believes that the older person applying for tenancy will develop some form of disability or will become a burden (perceived future events).
The issue of discrimination, disability and perceived future events has come to the attention of the courts. For example, the Supreme Court of Canada considered the meaning of the word “handicap” under the Quebec Charter of Rights and Freedoms in the context of employment in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), (the “Mercier” case).[324] The Justices identified that courts should adopt a multidimensional approach as opposed to a strict bio-medical approach that considered the socio-political dimension of the term. The emphasis should be on human dignity, respect and the right to equality rather than merely on the biomedical condition. The Court pointed out that a handicap may be real or perceived, and a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.
While Mercier can be informative to the discussion of ageism and disability, the complainants in the case had actual health conditions but no functional limitations. Older adults seeking or wanting to maintain their housing may or may not have a condition or functional limitation at the time of application. Their situation is based is the assumption that that they will develop some form of disability in the future even if it does not exist now. Some jurisdictions such as Manitoba have expressly identified perceived disability as included in the meaning for disability for the purposes on protection from discrimination under the human rights law. [325]
3. The problem of intersecting identities
One of the many challenges that older adults face in the context of discrimination cases, is that their circumstances often reflect an intersection of factors, such as age, gender and disability, or race, family status, or age and mental disability. Older women with disabilities are especially vulnerable to discrimination as a result of the combined effect of advanced age, severity and occurrence of disability, and their socio-economic status (many have spent a lifetime outside of the paid workforce and therefore have limited income sources).[326] Meyer-Harrington notes that “to be old, female, and poor is a triple jeopardy”. In these circumstances, it is less important to separate any one element as the “cause” of the discrimination and look at how the factors combine to leave older individuals or the group disadvantaged.[327]
The Ontario Human Rights Commission has for the past decade explicitly recognized the importance of intersecting identities.[328] While complainants are not required to only list one ground on which they believe they have experienced the discrimination, the actual interpretation and analysis in human rights cases tends to fall back to the position of applying only one entry point into analysis – older people, for example, are likely to be seen as either old or disabled. However this oversimplifies and reduces what are actually very complex systems of oppression. Canadian Research Institute for the Advancement of Women points out that prioritizing one identity entry point (i.e. gender) or one relation of power to the exclusion of others (i.e. race, class) misrepresents the full diversity of people’s lived realities. Social categories such as race, class, gender, sexualities, abilities, citizenship, and Aboriginality among others, operate relationally; these categories do not stand on their own, but rather gain meaning and power by reinforcing and referencing each other.[329]
4. The burden of responsibility
In the human rights area, the traditional perspective has been that “accommodation” is a joint process. There is considerable responsibility of the person claiming the “difference” to help the other party understand how he or she might be accommodated in order to access and benefit from the entitlement in question. The challenge for many older adults in the context of housing and the health care system in particular is that the systems are very complex. The individual may know what his or her special circumstances are. However, the joint responsibility presupposes that the person also knows the housing or health care system well and the available resources, which is often not the case. As a result he or she may not be able to identify ways in which accommodation may be accomplished.
5. System changes: human rights law
There have been recent changes in the human rights law system in Ontario. In particular there has been a shift from the Human Rights Commission as “gatekeeper” to “direct access” to the Human Rights Tribunal.[330] Although this lauded by some[331] as avoiding screening, reducing backlogs and giving direct access, it creates significant disadvantages for many vulnerable groups, including older adults. In part, this is because the human rights tribunal process is a complex administrative law process with many procedural and evidentiary requirements. Only 40% of new claimants have legal counsel.
Some groups such as the Accessibility for Ontarians with Disabilities Act Alliance (AODAA) have identified a number of major weaknesses and limitations in the changes including (a) it had not decreased the backlogs; (b) the lack of administrative fairness; (c) the technical rules; (d) lack of representation; and (e) the general complexity.[332]
The AODAA notes
“The Tribunal has a new, longer, more detailed application form than in the past. It is not safely completed without a lawyer. Once in the front door, the rules set up a series of demanding procedural steps and exacting time-lines, leading to a hearing. All of these are very risky to navigate without being represented by a lawyer.”
They point out
“…Given the rules that the tribunal has adopted, a discrimination claimant would be foolhardy to try taking on the Human Rights Tribunal process without a lawyer. …There are detailed procedures, they are complex and they serve as a trap for the unrepresented….anyone who goes before that tribunal unrepresented goes forward at their own peril. They need to have legal representation…We warned the tribunal and all the plain language in the world in their rules or their forms don’t remove that need.” [333]
They further express concern that the Ontario Human Rights Commission is losing its capacity for education, and raising awareness at a time in which the international stage is calling for capacity development.[334]
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