Endnotes2017-03-03T18:30:48+00:00

[1] Federal/Provincial/Territorial Committee of Officials for the Federal/Provincial/Territorial Ministers Responsible for Seniors, Seniors’ Policy Handbook: A Guide for Developing and Evaluating Policies and Programs for Seniors (June 2009), at 3, online: <http://www.seniors.alberta.ca/seniors/docs/SeniorsPolicyHandbook.pdf>. The work of the Committee came to the attention of the LCO after this project was commenced in February 2008.

[2] For information on this project, please visit the LCO website, online: <http://www.lco-cdo.org/en/content/persons-disabilities>

[3] This Paper may be found online: <http://www.lco-cdo.org/en/content/older-adults-pre-study-consultation-paper>

[4] This Paper may be found online: <http://www.lco-cdo.org/en/older-adults-consultation-paper>

[5] Quebec supported the Vision and Principles, but intended to assume full responsibility for the entire range of activities relating to health and social services, and so did not participate further in the development of the NFA, online: <http://www.phac-aspc.gc.ca/seniors-aines/nfa-cnv/nfaguide1_e.htm>

[6] United Nations, “Principles for Older Persons”, G.A. Resolution 46/91.

[7] United Nations, “Madrid International Plan of Action on Ageing”, Report of the Second World Assembly on Ageing (April 2002), online: <http://www.un-ngls.org/orf/pdf/MIPAA.pdf>

[8] Special Senate Committee on Aging, Final Report, Canada’s Aging Population: Seizing the Opportunity (Ottawa: 2009), online: <http://www.parl.gc.ca/Content/SEN/Committee/402/agei/rep/AgingFinalReport-e.pdf>

[9] Ontario Human Rights Commission, A Time for Action: Advancing Human Rights for Older Ontarians (Toronto: 2001), at 20, online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/TimeForActionsENGL>

[10] Ontario Human Rights Commission, Policy on Discrimination Against Older People Because of Age (Toronto: 2007), online: <www.ohrc.on.ca/en/resources/Policies/agepolicyen>

[11] The materials related to the Law Commission of Canada’s project on Law and Relations Between Generations can be found online: <http://epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/2006-12 06/www.lcc.gc.ca/research_project/age_matter-en.asp.> The project was left uncompleted with the demise of the LCC. The reports of the Nova Scotia Law Reform Commission can be found online: <http://www.lawreform.ns.ca/introduction.htm> The 2008 report of the Western Conference of Law Reform Agencies on enduring powers of attorney may be found on the website of the Alberta Law Reform Institute, online: <http://www.law.ualberta.ca/alri/docs/WCLRA%20epa%20fr.pdf>, as well as on the websites of the other western law reform agencies.

[12] World Health Organization, “Active Ageing: A Policy Framework”, A Contribution of the World Health Organization to the Second United Nations World Assembly on Ageing (April 2002) at 12-13, online: <http://www.who.int/ageing/publications/active/en/index.html>

[13] Federal/Provincial/Territorial Ministers Responsible for Seniors, National Framework on Aging (Minister of Public Works and Government Services Canada, 1998), online: <http://www.phac-aspc.gc.ca/seniors-aines/nfa-cnv/nfaguide1_e.htm>

[14] For a brief history of elder law in the United States, see Allen Bogutz, “Elder Law: A Personal Perspective” in Israel Doron, ed., Theories of Law and Aging: The Jurisprudence of Elder Law (Heidelberg, Germany: Springer-Verlag Berlin Heidelberg, 2009) at 1.

[15] The “Third Age” is generally considered to refer to the span between retirement and the advent of age-imposed limitations, and so includes those who are retired from work, in reasonably good health and socially engaged. The “Fourth Age” includes those individuals of advanced age who are experiencing an increased likelihood of declining health, impairment and end of life. See Charmaine Spencer, “Ageism and the Law: Emerging Concepts and Practices in Housing and Health” (2009) at 3, online: Law Commission of Ontario <http://www.ontla.on.ca/library/repository/mon/24009/304762.pdf>

[16] Martin Turcotte & Grant Schellenberg, A Portrait of Seniors in Canada (Ottawa: Statistics Canada, 2007) at 8, online: <http://www.statcan.gc.ca/pub/89-519-x/89-519-x2006001-eng.pdf>.

[17] This approach was adopted in the Special Senate Committee on Aging, First Interim Report: Embracing the Challenge of Aging (Ottawa: Senate of Canada, March 2007) at 11. However, the Special Senate Committee’s Final Report rejected this approach, noting the diversity of the aging experience, and the risk of defining the experience of aging solely in terms of the experiences of the “frail elderly” or of reducing the “frail elderly” to their “frailty”.

[18] See, for example, Bill Bytheway, “Ageism and Age Categorization” (2005) 61 Journal of Social Issues 361 at 369 and following.

[19] Law Commission of Canada, Does Age Matter? Law and Relations Between Generations, (Ottawa: 2004) online: <http://epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/2006-12-06/www.lcc.gc.ca/pdf/does_age_matter.pdf>.This project was not completed due to the de-funding of the Law Commission of Canada in 2006.

[20] Ontario Human Rights Commission, Policy on Discrimination, note 10 at section 1.

[21] See especially the discussion of the reasons of the Supreme Court in the mandatory retirement cases of McKinney v. University of Guelph, [1990] 3 S.C.R. 229 and Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483.

[22] Bytheway, note 18.

[23] Law Commission of Canada, “Does Age Matter? Law and Relationships Between Generations” (Ottawa: 2004) at 22, online: <http://epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/2006-12-06/www.lcc.gc.ca/pdf/does_age_matter.pdf>

[24] The term “inclusive design” was initially developed in the context of the built environment and persons with disabilities, but has since expanded to include the concept of “design for all”, and to apply to policy and program development, as well as the built environment. The Supreme Court of Canada adopted the principle of inclusive design in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, stating that:

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. [para. 38]

[25] A helpful survey of the issues associated with the use of age-related categories is provided in Bytheway, note 16.

[26] Cristie Ford, “Bright Lines: Status, Recognition and the Elusive Nature of Ageing” (1996) 2 Appeal: Review of Current Law and Law Reform 4, at para. 3.

[27] Turcotte & Schellenberg, note 16 at 8.

[28] Ontario Human Rights Commission, Policy on Discrimination, note 10 at section 2.2.

[29] This distinction is highlighted in Bytheway, note 18 at 362.

[30] Special Senate Committee on Ageing, Seizing the Opportunity, note 8 at 3.

[31] Turcotte & Schellenberg, note 16 at 11.

[32] Turcotte & Schellenberg, note 16 at 13.

[33] Turcotte & Schellenberg, note 16 at 107 – 110.

[34] Turcotte & Schellenberg, note 16 at 212-218.

[35] Turcotte & Schellenberg, note 16 at 115.

[36] Turcotte & Schellenberg, note 16 at 116.

[37] Turcotte & Schellenberg, note 16 at 116.

[38] In 2005, only 32.5 per cent of workers were covered by an employer or union registered pension plan: Statistics Canada, Proportion of labour force and paid workers covered by a registered pension plan, Pension Plans in Canada Survey (Ottawa: Statistics Canada, June 2007).

[39] The poll contacted 2000 Canadians age 18 years and older, online: <http:// www.decima.com/en>

[40] Turcotte & Schellenberg, note 16 at 117-118.

[41] Human Resources and Skills Development Canada, Supporting and Engaging Older Workers in the New Economy (Ottawa: Expert Panel on Older Workers, 2008) at 6, online: <http://www.rhdcc-hrsdc.gc.ca/eng/publications_resources/lmp/eow/2008/page19.shtml>

[42] Human Resources and Skills Development Canada, Supporting and Engaging, note 41 at 10.

[43] Human Resources and Skills Development Canada, Supporting and Engaging, note 41 at 10.

[44] Ontario Human Rights Commission, Older Ontarians, note 9 at 41-42.

[45] Turcotte & Schellenberg, note 16 at 64.

[46] The rate of low income before taxes was about 18 per cent for those under 18, and 15.5 per cent for those 18 to 64. However, the picture changes if one looks to low income after taxes, where the comparator figures are approximately 12 per cent for those under age 64: Turcotte & Schellenbert, note 16 at 95.

[47] Andre Bernard and Chris Li, Death of a Spouse: The Impact on Income for Senior Men and Women (Ottawa: Statistics Canada, July 2006); and Chris Li, Widowhood: Consequences on Income for Senior Women (Ottawa: Statistics Canada, July 2004).

[48] Turcotte & Schellenbert, note 16 at 95.

[49] Turcotte & Schellenberg, note 16 at 69.

[50] Turcotte & Schellenberg, note 16 at 66.

[51] See Konrad Yakabuski, “Retirement Lost”, The Globe and Mail (October 24, 2009) B1 online: The Globe and Mail <www.globeandmail.com>.

[52] Alternative Planning Group, “Citizenship Matters: Re-examining Income (in)Security of Immigrant Seniors”, Wellesley Institute: Community Perspectives Series, (May 2009), online: <http://wellesleyinstitute.com/files/APG%20report%20final.pdf>

[53] Armine Yalnizyan, “The Problem of Poverty Post-Recession” (August 2010) at 6-7, online: Canadian Centre for Policy Alternatives <http://www.policyalternatives.ca/publications/reports/problem-poverty-post-recession>

[54] Acrobat Research, “National Survey on Aging in Place”, (December 2009) online: Living Assistance Services <www.laservices.ca>

[55] For example, the Alzheimer’s Society, in its recently released policy paper on the implications of the increasing incidence of dementia associated with an aging society, recommends as one option providing increased support for informal caregivers to delay transition into long term care facilities and reduce the economic burden of dementia: Alzheimer’s Society, “Rising Tide: The Impact of Dementia on Canadian Society” (2010), online: <www.alzheimers.ca>

[56] Jane Lin, The Housing Transitions of Seniors Canadian Social Trends (Statistics Canada: Winter 2005) at 22, online: <http://www.statcan.gc.ca/pub/11-008-x/2005003/article/8969-eng.pdf>; Helen Trottier et al., Living at Home or in an Institution: What Makes the Difference for Seniors? (Statistics Canada: Spring 2000) at 49, online: <http://www.statcan.gc.ca/studies-etudes/82-003/archive/2000/5067-eng.pdf>; Kelly Cranswick, Help Close at Hand: Relocating to Give or Receive Care (Statistics Canada: Winter 1999) at 11, online: <http://www.statcan.gc.ca/pub/11-008-x/11-008-x1999003-eng.pdf>

[57] Turcotte & Schellenberg, note 16 at 16.

[58] For a compendium of research on these issues, see B.C. Network for Aging Research, “Aging Well in Northern, Rural and Remote Communities: Conference Report”  (July 2008) online: <http://www.bcnar.ca/sites/default/files/events/Northern%20Aging%20Well_Conference%20Report.pdf>

[59] Turcotte & Schellenberg, note 16 at 138.

[60] The Home Adaptations for Seniors’ Independence (HASI) program offers limited financial assistance (a forgivable loan of up to $3500) for minor home adaptations for qualifying low-income seniors to enable them to perform the activities of daily living safely and independently, online: <http://www.cmhc-schl.gc.ca/en/co/prfinas/prfinas_004.cfm>. The Residential Rehabilitation Assistance Program for Persons with Disabilities provides forgivable loans in variable amounts up to a maximum of $36,000 to homeowners or landlords for more significant accessibility modifications, such as ramps, chair lifts, and height adjustments to counter tops, online: <http://www.cmhc-schl.gc.ca/en/co/prfinas/prfinas_003.cfm>

[61] For a discussion of the nature of reverse mortgages, potential concerns and law reform options, see Canadian Centre for Elder Law Studies, “Consultation Paper on Reverse Mortgages” (Vancouver: 2005), online: <http://www.bcli.org/bclrg/publications/consultation-paper-reverse-mortgages>

[62] Home Care and Community Services Act, 1994, S.O.1994, c. 26.

[63] Advocacy Centre for the Elderly, “Submission to the Law Commission of Ontario Concerning the Law as it Affects Older Adults” (July 2008) online: <http://www.advocacycentreelderly.org/appimages/file/Law_as_it_Affects_Older_Adults_July_2008.pdf>

[64] See the discussion in Special Senate Committee on Aging, Second Interim Report: Issues and Options for an Aging Population (Ottawa: March 2008) at 39 – 44.

[65] Centre for Equality Rights in Accommodation, “Human Rights in Housing in Canada: An Advocate’s Guide” (May 2008) online: <http://www.equalityrights.org/cher/National%20Guide%20English%20Final.pdf> at 21. 

[66] For an overview of the circumstances of older renters in Ontario see Spencer, note 15.

[67] An overview of social housing in Ontario is provided by Social Housing Services Corporation, “Ontario Social Housing Primer” (December 2008), online: <http://www.shscorp.ca/shscnew/content/rc/doc/shprimer.pdf>

[68] Kingston, Community and Family Services, Public Information Guide on Rent-Geared-to-Income Assistance and Special Needs Housing, (City of Kingston: March 2006), online: <http://www.cityofkingston.ca/pdf/housing/PublicInformationGuide.pdf>

[69] City of Toronto, Housing Toronto Seniors: Planning for the Future – Issues, Challenges and Directions (City of Toronto: Mayor’s Roundtable on Seniors, September 2006), online: <http://www.toronto.ca/seniors/seniorshousingreport_06.htm>

[70] Region of Peel, Social Housing for Seniors: Information Sheet, (Region of Peel: 2007), Online: <http://www.peelregion.ca/housing/initiatives-resources/programs/seniors.htm>

[71] The Canada Mortgage and Housing Corporation’s 2010 Seniors Housing Report (Ontario: 2010) places the number of retirement home spaces in Ontario at 42,680. Online: <https://www03.cmhc-schl.gc.ca/catalog/home.cfm?lang=en&fr=

1296247116893>

[72] For a national review of the landscape around assisted or supported living, see Canadian Centre for Elder Law Studies, “Discussion Paper on Assisted Living: Past, Present and Future Trends in Canada” (Vancouver: December 2008) online: <http://www.bcli.org/sites/default/files/2008-10-31_Assisted_Living.pdf>

[73] See for example Ontario, Legislative Assembly, Official Report of Debates (Hansard) (14 April 2010) at 612 (John O’Toole) and at 616 (Peter Kormos).

[74] S.O. 2006, c. 17.

[75] Advocacy Centre for the Elderly, “Submission to the Ontario Seniors’ Secretariat Concerning Ontario’s Consultation on Regulating the Retirement Home Industry” (March 2007) online: <http://www.advocacycentreelderly.org/appimages/file/Ontario%20Seniors%27%20Secretariat%20-%20Retirement%20Home%20Regulation%20-%20March%202007.pdf> ACE expressed a number of concerns regarding serious issues in some sectors of the retirement industry, including:

failure to follow proper procedures for the storage and distribution of medication;
improper evictions of older persons following a health crisis that results in hospitalization;
failure to take appropriate steps to protect residents from assaults by other residents or to address such assaults once they have occurred; and
·         refusal to accommodate the needs of residents with mobility impairments who use walkers or wheelchairs.

[76] Retirement Homes Act, 2010, S.O. 2010, c. 11.

[77] Turcotte & Schellenberg, note 16 at 138.

[78] See Alzheimer Society, “Rising Tide”, note 55 at 20.

[79] An overview of some of the most pressing issues may be found in the Advocacy Centre for the Elderly’s “Law as it Affects”, note 63. 

[80] Long Term Care Homes Act, 2007, S.O. 2007, c. 8.

[81]World Health Organization, “Active Ageing” note 12 at 28.

[82] Kathryn Wilkins, Social Support and Mortality in Seniors, (Ottawa: Health Statistics Division, 2003) at 21, <online: http://www.statcan.gc.ca/studies-etudes/82-003/archive/2003/6598-eng.pdf>

[83] Figures are from Turcotte & Schellenberg, note 16 at 145.

[84] Cited in Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 74.

[85] Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 76.

[86] Turcotte & Schellenberg, note 16 at 138.

[87] Figures are from Turcotte & Schellenberg, note 16 at 138.

[88] Turcotte & Schellenberg, note 16   at 141 – 142.

[89] Figures are from Turcotte & Schellenberg, note 16   at 143-145.

[90] Figures are from Turcotte & Schellenberg, note 16   at 147 and 151.

[91] Turcotte & Schellenberg, note 16  at 155.

[92] Turcotte & Schellenberg, note 16  at 166.

[93]World Health Organization, “Active Ageing” note 12 at 37.

[94] Ontario Human Rights Commission, Older Ontarians, note 9 at 73-76; Ontario Human Rights Commission, The Cost of Caring: Report on the Consultation on Discrimination on the Basis of Family Status (Toronto: 2007), online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/famconsult>

[95] Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 118.

[96] Turcotte & Schellenberg, note 16   at 153.

[97] United Nations, “MIPAA”, note 7 at para. 106

[98] Turcotte & Schellenberg, note 16   at 170-174.

[99] Turcotte & Schellenberg, note 16   at 174-178.

[100] Turcotte & Schellenberg, note 16   at pages 178-183.

[101] Turcotte & Schellenberg, note 16   at 13.

[102] Kim Dayton, “A Feminist Approach to Elder Law”, in Israel Doron, ed., Theories of Law and Aging: The Jurisprudence of Elder Law (Heidelberg, Germany: Springer-Verlag Berlin Heidelberg, 2009) at 46, online: <http://www.springerlink.com/content/r101226u877247u3/fulltext.pdf>

[103] In 2003, while almost 70 per cent of men over the age of 65 receive income from a private pension plan, only 53 per cent of women of the same age do so (M. Turcotte and G. Schellenbert, note 16   at 66). 95 per cent of senior men receive CPP/QPP benefits, while 85 per cent of senior women do so (M. Turcotte and G. Schellenbert, note 16   at page 94). Women receive significantly lower levels of CPP/QPP benefits ($4,900 on average versus $6,500 on average) (M. Turcotte and G. Schellenbert, note 16   at 66).

[104] Turcotte & Schellenberg, note 16   at 107.

[105] United Nations, “MIPAA” note 7 at para. 112.

[106] See, for example, the World Health Organization’s “Active Ageing”, note 12 and United Nations, “MIPAA” note 7.

[107] Turcotte & Schellenberg, note 16 at 23.

[108] For an overview, see Turcotte & Schellenberg, note 16, Chapter 7 “Immigrant Seniors” at 271.

[109] Turcotte & Schellenberg, note 16 at 23.

[110] Turcotte & Schellenberg, note 16 at 24.

[111] Fédération des aînés et des retraités francophones de l’Ontario (FAFO), Consultation  de la Commission du Droit de l’Ontario concernant les modifications à faire à la Loi de l’Ontario pour tenir mieux compte des personnes matures et âgées (2008).

[112] Office of Francophone Affairs, Statistical Profile – Francophone Seniors in Ontario (1999), online : <http://www.ofa.gov.on.ca/en/franco-stats-1999seniors.html>

[113] FAFO, Consultation  de la Commission, note 111 .

[114] For an overview, see Neena Chappell, Lynn McDonald & Michael Stones, “Aging and Ethnicity” in Aging in Contemporary Canada, 2nd ed. (Toronto, Ontario: Pearson Education Canada, 2008) at 136 – 166.

[115] Turcotte & Schellenberg, note 16  at 25.

[116] Lynn McDonald, “The Economic Security of Minorities in Canada” (Toronto: Canadian Sociology and Anthropology Association, 2006).

[117] Ontario Human Rights Commission, Older Ontarians, note 9 at 28.

[118] Interview of Margaret Parsons, Executive Director of the African Canadian Legal Clinic, by Lauren Bates (September 16, 2008); Interview of Avvy Go, Metro Toronto Chinese and South Asian Legal Clinic, by Lauren Bates (August 28, 2008).

[119] Kirsten Manley-Casimir, “Law as it Affects Aboriginal Older Adults” (2009), [unpublished], at 9, 13.

[120] Kirsten Manley-Casimir, note 119 at 10.

[121] Kirsten Manley-Casimir, note 119 at 11- 12.

[122] Interview of Dick Moore, 519 Community Centre, by Lauren Bates (August 26, 2008). Also, for an overview of barriers faced by older LGBT individuals, see Ontario Human Rights Commission, Older Ontarians, note 9 at 25-27.

[123] For an overview of recent data on health and activity limitations for older adults, see Turcotte & Schellenberg, note 16 at 43- 51.

[124] Turcotte & Schellenberg, note 16 at 47 – 48.

[125] Turcotte & Schellenberg, note 16 at 48-49.

[126] Turcotte & Schellenberg, note 16 at 50 – 52.

[127] Law Commission of Ontario, “The Law as it Affects Persons with Disabilities: Preliminary Consultation Paper, Approaches to Defining Disability” (June 2009), online: <www.lco-cdo.org>

[128] Spencer, note 15 at 73-74.

[129] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal

(City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Boisbriand (City), [2000] 1 S.C.R. 665 at para. 77.

[130] Michael Oliver, “Societal responses to long term disability” in Gale Whiteneck et al., eds., Ageing with Spinal Cord Injury (New York: Demos Publications, 1993) 251 at 253.

[131] Mark Priestley, “Disability and Old Age” in Disability, A Life Course Approach (Cambridge: Polity Press, 2003) 143.

[132] Priestley, note 131.

[133] Priestley, note 131 at 161.

[134] Interview of Dick Moore, note 122.

[135] DAWN- RAFH Canada, “Submission to the Law Commission of Ontario”, Montreal, Quebec, July 7, 2008.

[136] Interview of Avvy Go, note 118.

[137] Canadian Association for Community Living, “Response to the Law Commission of Ontario’s Consultation Paper on the Law as it Affects Older Adults” (July 7, 2008).

[138] It has been argued, for example, that elder abuse within the Chinese Canadian community may take the form of disrespect that violates Chinese cultural norms of filial piety. Sandra Tam & Shelia Neysmith, “Disrespect and Isolation: Elder Abuse in Chinese Communities” (2006) 25 Canadian Journal on Aging 141.

[139] Interview of Dick Moore, note 122.

[140] Interview of Renee Brady, Northwestern Independent Living Services by Lauren Bates (July 8, 2009).

[141] Spencer, note 15 at 12.

[142] Adult protection and mandatory abuse reporting laws are discussed in Chapter III of this Interim Report.

[143] Margaret Hall, “Equity Theory: Responding to the Material Exploitation of the Vulnerable but Capable”, in Isreal Doron, ed., Theories of Law and Ageing: The Jurisprudence of Elder Law (Heidelberg, Germany: Springer-Verlag Berlin Heidelberg, 2009) 107 at 108.

[144] Martha Fineman, “The Vulnerable Subject and the Responsive State”, 60 Emory Law Journal , Research Paper No. 10-130 at 28, online: <http://ssrn.com/abstract=1694740>

[145] Fineman, note 144.

[146] Concerns regarding the use of mandatory reporting laws are discussed at some length in Chapter III of this Report.

[147] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 67.

[148] Of note, the “Vanguard Project” suggested a definition of vulnerability in the context of capability issues that focuses on the relative, relational and social aspects of vulnerability. B.C. Adult Abuse/Neglect Prevention Collaborative, Vulnerable Adults and Capability Issues in B.C. – Provincial Strategy Document (January 2009) at 14-16.

[149] The access to justice issues for older adults living in institutional settings will be considered throughout this Report. An invaluable resource on the barriers in accessing the law faced by residents of institutions is the report produced by the Advocacy Centre for the Elderly, “Congregate Living and the Law as it Affects Older Adults”, Research Paper for the Law Commission of Ontario (August 2009) online: <http://www.advocacycentreelderly.org/appimages/file/ACE-LCO-Congregate_Living_and_the_Law_as_it_Affects_%20Older_Adults.pdf>

[150] Fineman, note 144.

[151] Hall, note 143 at 3.

[152] Spencer, note 15 at 70.

[153] Spencer, note 15 at 69.

[154] Ontario Bar Association, “Getting it Right: The Report of the Ontario Bar Association Justice Stakeholder Summit” (April 2008) at 8, online: <http://www.oba.org/en/pdf/Justice%20Summit_sml.pdf>

[155] See, for example, the discussion on lack of accessible plain language resources on elder abuse in Selina Lai, “Community Mobilization Empowering Seniors Against Victimization”, Final Report: Community Mobilization Empowering Seniors Against Victimization to the National Crime Prevention Centre of Canada Public Safety Canada (March 2008) at 13 and 15, online: <http://www.uscont.ca/pdf/final_report_march_2008.pdf>

[156] Ontario Bar Association, “Getting it Right: The Report of the Ontario Bar Association Justice Stakeholder Summit” (April 2008) at 6, online: <http://www.oba.org/en/pdf/Justice%20Summit_sml.pdf>

[157] Advocacy Centre for the Elderly, “Congregate Living” note 149.

[158] Turcotte & Schellenbert, note 16 at 31.

[159] For a comprehensive consideration of barriers to access for persons in rural and remote areas, see Karen Cohl & George Thomson, “Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services”, Final Report of the Linguistic and Rural Access to Justice Project (Law Foundation of Ontario: December 2008) at 31-35, online: <http://www.lawfoundation.on.ca/pdf/linguistic_rural_report_dec2008_final.pdf>

[160] Lai, note 155 at 11.

[161] The province of Ontario has undertaken a number of initiatives to enhance the accessibility of its courts, following a December 2006 report from the Courts Disabilities Committee, “Making Ontario’s Courts Fully Accessible to Persons with Disabilities”, online:http://www.ontariocourts.on.ca/accessible_courts/en/report_courts_disabilities.htm. Ongoing initiatives of the Ontario Courts Accessibility Committee are documented online at
http://www.attorneygeneral.jus.gov.on.ca/english/courts/accessibility_committee/default.asp.

[162] See Irwin Bess, Seniors Behind the Wheel (Statistics Canada: Autumn 1999) online: <http://www.statcan.gc.ca/kits-trousses/pdf/social/edu04_0125a-eng.pdf> At the time of the study, 60 per cent of rural seniors were drivers, as compared to 46 per cent of urban seniors. Senior men are more likely to continue to drive than women.

[163] Spencer, note 15 at 69.

[164] ARCH Disability Law Centre, “Addressing the Capacity of Parties Before Ontario’s Administrative Tribunals: Respecting Autonomy, Protecting Fairness”, Access to Administrative Justice for Persons with Disabilities (November 1, 2009) online:  <http://www.archdisabilitylaw.ca/?q=addressing-capacity-parties-ontario%E2%80%99s-administrative-tribunals-respecting-autonomy-protecting-fairne>

[165] Robert Butler, “Age-Ism: Another Form of Bigotry” (1969) 9 The Gerontologist 243 at 243, online: <www.careandrepair.org.uk/…/Age-Ism %20another%20form%20of%20Bigotry.doc>

[166] Butler, note 165.

[167] Ontario Human Rights Commission, Policy on Discrimination, note 10 at section 2.2.

[168] Morley Gunderson, “Age Discrimination in Employment in Canada” (2003), 21 Contemporary Economic Policy 319.

[169] Ontario Human Rights Commission, Older Ontarians, note 9 at 20.

[170] United Nations, “MIPAA”, note 7 at para. 112.

[171] A thorough examination of this issue was undertaken in the Special Committee on Aging of the United States Senate, The Image of Aging in Media and Marketing, Serial No.107-35 (Washington: U.S. Government Printing Office, 2003). For a Canadian context, see Julia Rozanova et al., “Seniors and Portrayals of Intra-generational and Inter-generational Inequality in the Globe and Mail” (2006) 25 Canadian Journal of Aging 373.

[172] Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 14.

[173] Ontario Human Rights Commission, Older Ontarians, note 9 at 18; Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 16; United Nations, “MIPAA”, note 7 at para. 112-113

[174] Gunhild Hagestad and Peter Uhlenberg, “The Social Separation of Old and Young: A Root of Ageism” (2005), 61 Journal of Social Issues 343 at 351.

[175] For an overview of these theories, see Linda Whitton, “Ageism: Paternalism and Prejudice” (1997), 46 DePaul Law Review 453.

[176] Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 12, referencing the submissions of the Ontario Network for the Prevention of Elder Abuse.

[177] For an overview of recent media portrayals of older adults in Canada’s Globe and Mail newspaper, see Julia Rozanova et al., “Seniors and Portrayals of Intra-generational and Inter-generational Inequality in the Globe and Mail” (2006) 25 Canadian Journal of Aging 373. For an analysis of the “demographic tsunami” meme regarding the Canadian healthcare system, see A. Cassels, “The “Demographic Tsunami” Meme and Canadian Media Coverage” (UBC Centre for Health Services and Policy Research: Feb 22, 2011), online: <http://www.chspr.ubc.ca/files/conference/2011/Slides/Cassels-BoomerangstConf.pdf>

[178] United Nations, “MIPAA”, note 7 at para. 112.

[179] Advocacy Centre for the Elderly, “Law as it Affects”, note 63 at 7.

[180] Todd Nelson, “Ageism as Fear of our Future Selves” (2005), 61 Journal of Social Issues 206 at 210.

[181] Human Resources and Skills Development Canada, Supporting and Engaging, note 41 at 14-15.

[182] Spencer, note 15 at 13.

[183] Spencer, note 15 at 12.

[184] Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 11. 

[185] Michael Billig, Arguing and thinking: A rhetorical approach to social psychology (Cambridge: Cambridge University Press, 1987) at 125, cited in Bytheway, note 18.

[186] Human Resources and Skills Development Canada, Supporting and Engaging, note 41 at 13.

[187] Stoffman v. Vancouver General Hospital, note 21 at 51.

[188] Ontario Human Rights Commission, Policy on Discrimination, note 10, The Commission stated that

“Older workers are often unfairly perceived as less productive, less committed to their jobs, not dynamic or innovative, unreceptive to change, unable to be trained or costly to the organization due to health problems and higher salaries.” [at section 5]

[189] Gunhild Hagestad & Peter Uhlenberg, “The Social Separation of Old and Young: A Root of Ageism” (2005), 61 Journal of Social Issues 343 at 351 and 355; Nelson, note 180 at 209.

[190] Nelson, note 180 at 211-212; Ontario Human Rights Commission, Older Ontarians, note 9 at 56.

[191] A panel discussion at the 2010 Canadian Conference on Elder Law among various Ontario law schools regarding initiatives related to the law affecting older adults highlighted the current dearth of elder law courses or other opportunities for Ontario law students to learn about older adults and the law.

[192] Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) online: <http://www.oba.org/en/pdf/older_adults_lco.pdf>

[193] Advocacy Centre for the Elderly “Law as it Affects”, note 63 at 11.

[194] Whitton, note 175 at 479 and following.

[195] Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) at 10, online: <http://www.oba.org/en/pdf/older_adults_lco.pdf>

[196] Rozanova et al., note 177 at 376.

[197] Ontario Human Rights Commission, Older Ontarians, note 9 at 36

[198] Turcotte & Schellenberg, note 16 at section 4.3.

[199] McDonnell Estate v. Royal Arch Masonic Homes Society, [1998] 5 W.W.R. 268.

[200] Ontario Human Rights Commission, Older Ontarians, note 9 at 61.

[201] This issue has recently been studied by the Nova Scotia Law Reform Commission: see their “Final Report: Grandparent-Grandchild Access” (May 2007) online: <http://www.lawreform.ns.ca/Downloads/GrandparentFinal.pdf> Also see P. Cross, Grandmothers and the Law (Ontario Women’s Justice Network, May 2005).

[202] Ontario Human Rights Commission, The Cost of Caring, note 94 at 11.

[203] Canadian Association for the Fifty-Plus, “Response to the Law Commission of Ontario’s Consultation Paper” (July 7, 2008).

[204] Andy Martens, Jamie Goldenberg & Jeff Greenberg, “A Terror Management Perspective on Ageism” (2005) 61 Journal of Social Issues 223 at 223.

[205] Nelson, note 180 at 214.

[206] For a discussion of social exclusion as a manifestation of ageism, see Amy Cuddy, Michael Norton & Susan Fiske, “This Old Stereotype: The Pervasiveness and Persistence of the Elderly Stereotype” (2005) 61 Journal of Social Issues 267 at 278 and following.

[207] Gerard Quinn & Theresia Degener, “The Moral Authority for Change: Human Rights Values and the Worldwide Process of Disability Reform” in Gerrard Quinn and Theresia Degener, eds., Human Rights and Disability: The Current Use and Future Potential of United National Human Rights Instruments in the Context of Disability (New York: United Nations Publication, 2002) 9 at 17.

[208] Gerald Dworkin, “Paternalism” in Edward Zalta, ed., The Stanford Encyclopedia of Philosophy (Summer 2009) online: <http://plato.stanford.edu/archives/sum2009/entries/paternalism/>

[209] Whitton, note 175.

[210] Advocacy Centre for the Elderly’s “Law as it Affects”, note 63.

[211] For a valuable recent compendium that aims to build towards a theoretical approach to elder law, see Isreal Doron ed., Theories of Law and Ageing: The Jurisprudence of Elder Law (Heidelberg: Springer-Verlag Berlin Heidelberg, 2009) 

[212] A lengthy discussion of the development of the social model in the context of the disability rights movement may be found in the LCO ‘s initial paper on for its project on the law as it affects persons with disabilities: Law Commission of Ontario, “Defining Disability”, note 127 at 26 and following.

[213] Thomas Humphrey Marshall, Class, Citizenship and Social Development (Westport: Greenwood Press, 1964) at 84.

[214] See Alan Cairns “The Fragmentation of Canadian Citizenship” in Douglas Williams, ed., Reconfigurations: Canadian Citizenship and Constitutional Change (Toronto: McClelland & Stewart Inc, 1995) at 157 – 185.

[215] Michael Prince, Absent Citizen: Disability Politics and Policy in Canada (Toronto: University of Toronto Press, 2009) at 17 and following.

[216] “Making the Shift to a Rights-Based Approach” (Address delivered at the 2010 Canadian Conference on Elder Law plenary session, 30 October 2010), [unpublished].

[217] Centre for Universal Design, “Universal Design Principles” online: <http://www.ncsu.edu/www/ncsu/design/sod5/cud/about_ud/about_ud.htm>

[218] See Irving Zola, “Disability Statistics: What We Count and What It Tells Us: A Personal and Political Analysis” (1993) 4 Journal of Disability Policy Studies 9 at 24; see also Richard Scotch & Kay Schriner, “Disability as Human Variation: Implications for Policy” (1997) 549 Annals of the American Academy of Political and Social Science 148 at 154; see also Jerome Bickenbach et al., “Models of Disablement, Universalism and the International Classification of Impairments, Disabilities and Handicaps” (1999) 48 Social Science & Medicine 1173 at 1182; see also Douglas Surtees, “What Can Elder Law Learn from Disability Law?” in Israel Doron, ed., Theories on Law and Ageing: The Jurisprudence of Elder Law (Heidelberg, Germany: Springer-Verlag Berlin Heidelberg, 2009) 93 at 101.

[219] Richard Scotch & Kay Schriner, “Disability as Human Variation: Implications for Policy” (1997) 549 Annals of the American Academy of Political and Social Science 148.

at 154; Surtees, note 218 at 99 citing Michael Stein, “Disability Human Rights” (2007) 95 Cal. L. Rev. 75 at 75 & 86.

[220] Irving Zola, “Toward the Necessary Universalizing of a Disability Policy” (1989) 67 The Milbank Quarterly 401 at 410

[221] Scotch & Schriner, note 219 at 158; Jerome Bickenbach et al. “Models of Disablement, Universalism and the International Classification of Impairments, Disabilities and Handicaps” (1999) 48 Social Science & Medicine 1173 at 1182 at 1183.

[222] Surtees, note 218.

[223] This is acknowledged in the Ontario Human Rights Commission’s “Policy and Guidelines on Disability and the Duty to Accommodate” (Toronto: 2000), online: <http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2>, which proposes a three step approach to ensuring non-discriminatory employment, housing and services: first universal design to prevent barriers; then, barrier removal to identify and remove existing barriers; and finally, individual accommodation to address remaining needs.

[224] For an overview of what such an approach might mean, see Dayton, note 102. 

[225] United Nations, “MIPAA”, note 7 at para. 113.

[226] “International Covenant on Economic, Social and Cultural Rights”, United Nations, 993 U.N.T.S. 3., Can. T.S. 1976 No. 46, entered into force 03 January 1976, accession by Canada 19 August 1976 ((16 December 1966),. 

[227] United Nations, 999 U.N.T.S. 171, Can. T.S. 1976, No. 47, entered into force 23 March 1976, accession by Canada 19 August 1976 (19 December 1966).

[228] The term “ageing” is standard in international documents, while standard Canadian spelling is “aging”. The term “ageing” is therefore used when referring to international documents.

[229] United Nations, “Principles for Older Persons”, note 6.

[230] The “International Plan of Action on Ageing” was adopted by the first World Assembly on Ageing in Vienna in 1982, and endorsed by the United Nations General Assembly later that year (Res. 37/51). It was the first international instrument on aging, and guided thinking and the formulation of policies and programs on aging.

[231] United Nations, “MIPAA”, note 7.

[232] World Health Organization, “Active Ageing”, note 12.

[233] Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12. It is important to note that, although the concept of dignity was seen as a central principle in the equality analysis under section 15 in R. v. Kapp, [2008] S.C.J. No. 42, the Court has identified problems with the extreme emphasis on dignity in section 15 as making it more difficult for claimants to prove their claims (para.22). As a result, the principle of dignity will remain part of the analysis in section 15, but may not take on such a predominant role.

[234] Law v. Canada (Minister of Employment and Immigration) note 233 at para. 51-53.

[235] Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; see also B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.

[236] New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 SCR 46.

[237] R.S.O. 1990, c. H-19, s. 1.

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

[239]Ontario Human Rights Commission (Toronto: 2007), online: <www.ohrc.on.ca/en/

resources/Policies/agepolicyen>

[240] Online: <http://www.phac-aspc.gc.ca/seniors-aines/nfa-cnv/nfaguide1_e.htm>

[241] Federal/Provincial/Territorial Committee of Officials for the Federal/Provincial/Territorial Ministers Responsible for Seniors, note 1.

[242] Special Senate Committee on Aging, Seizing the Opportunity, note 8.

[243] A full description of the Lens and the principles and methods through which was established may be found in Penny MacCourt and Holly Tuokko, “Development of a Seniors’ Mental Health Policy Lens” (2005) 24 Canadian Journal of Community Mental Health 35.

[244] Prevention of Elder Abuse Working Group, Prevention of Elder Abuse Policy and Program Lens (Ontario Seniors’ Secretariat and the Elder Health Coalition, 2008).

[245] A ninth guiding principle, that of Advocacy, is specific to Ontario’s legislative framework.

[246] Withler v. Canada (Attorney General), 2011 SCC 12. at para. 39.

[247] Ontario Human Rights Code, R.S.O. 1990, c. H.19, Preamble.

[248] Miron v. Trudel, [1995] 2 S.C.R. 418. This statement was taken up by the Court again in Law v. Canada, note 233.

[249] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: 2000) at section 3.1.1., online: <http://www.ohrc.on.ca/en/ resources/Policies/PolicyDisAccom2>

[250] Online: <http://www.neami.org.au/publications/documents/TheDignityofRiskarticleversion.doc>

[251] See, for example, the Ontario Human Rights Commission Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: 2000) at section 4.3.3., online: <http://www.ohrc.on.ca/en/ resources/Policies/PolicyDisAccom2>

[252] Turnbull v. Famous Players Inc., [2003] O.H.R.T.D. No. 10.

[253] Law v. Canada, note 233..

[254] R. v. Kapp, 2008 SCC 41.

[255] World Health Organization, “Active Ageing”, note 12 at 12.

[256] World Health Organization, “Active Ageing” note 12 at 13.

[257] A helpful discussion of the nature of dignity as a basis for legal decision-making may be found in Darryl Pullman, “Dying with Dignity and the Death of Dignity”, (1996) 4 Health Law Journal 197.

[258] Robert Sharpe and Kent Roach, The Charter of Rights and Freedoms, 3rd ed. (Toronto: Irwin Law, 2005) at 204-205.

[259] Blencoe v. British Columbia (Human Rights Commission), [2000] S.C.R. 307.

[260] R. v. Clay, [2003] 3 S.C.R. 735 at para. 31-32.

[261] Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 at para. 77-29.

[262] United Nations, “MIPAA”, note 7 at para. 22.

[263] Ontario Human Rights Commission, Policy on Discrimination, note 10 at section 4.4.

[264] See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868.

[265] United Nations, “MIPAA”, note 7 at para. 19.

[266] United Nations, “MIPAA”, note 7 at para. 21

[267] Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 6.

[268] World Health Organization, “Active Ageing”, note 12 at 28.

[269] World Health Organization, “Active Ageing”, note 12 at 52.

[270]  Gosselin v. Quebec (Attorney General), note 261.

[271] Gosselin v. Quebec (Attorney General), note 261 at para. 82.

[272] [2003] 2 S.C.R. 504, 2003 SCC 54 at 103.

[273] [2004] 3 S.C.R. 657, 2004 SCC 78 at paras. 38 – 41.

[274] United Nations, “MIPAA”, note 7 at para. 113.

[275] Ontario Human Rights Commission, Policy on Discrimination, note 10 at section 4.5.

[276] Ontario Human Rights Commission, Policy on Discrimination, note 10 at section 3.

[277] See, for example, Claudia Stein & Inka Moritz, “A Life Course Perspective of Maintaining Independence in Older Age” (Genever: World Health Organization, 1999), online: <http://whqlibdoc.who.int/hq/1999/WHO_HSC_AHE_99.2_life.pdf>

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

[279] AGE, The European Older People’s Platform, “A Plea for Greater Intergenerational Solidarity” (April 29, 2009) at 5.

[280] The Honourable Justice Frank Iacobucci, “’Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2003) S.C.L.R. (2d) 137 at 158; see also Nedelsky, ‘Rights as Relationship” at 10; and see also BJ Wray, “Balancing Conflicting Rights: Towards an Analytical Framework” online: OHRC <http://www.ohrc.on.ca/en/resources/discussion_consultation/balancingrights/pdf> at 17.

[281] In “’Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2003) S.C.L.R. (2d) 137 at 158, the Honourable Justice Frank Iacobucci argues that the first and potentially most important aspect of reconciling tensions between principles is sensitivity to context; see also Nedelsky, ‘Rights as Relationship” at 10; and see also Wray, note 280.

[282] For a variety of perspectives on these issues, see the compendium, Association for Canadian Studies, 8 Canadian Diversity: Balancing Competing Human Rights 3 (Summer 2010).

[283] Iacobucci, note 280 at 162,167.

[284] Patricia Hughes, Legal Frameworks: The Reconciliation Model, Balancing Competing Human Rights (Ottawa: Ontario Human Rights Commission, 2010). 

[285] It has been noted that “Human rights discourse in the absence of a clear focus and understanding of differential access to power and resources loses sight of the principle of equality of citizenship. In other words, the policy framework must have integrated within it a component of access to justice.” (Lorne Foster & Lesley Jacobs, “Shared Citizenship as the Context for Competing Human Rights Claims” (Summer 2010), 8 Canadian Diversity: Balancing Competing Rights Claims 3 at 13.

[286] C.C.S.M. c. V90.

[287] R.S.N.L. 1990, c. N.3.

[288] R.S.N.S. 1989, c. 2.

[289] R.S.N.L. 1990, c. N.3, s.2.

[290] R.S.N.S. 1989, c. 2, s. 3.

[291] C.C.S.M. c. V90, s. 1(1), definitions of “mental disability” and “vulnerable person”.

[292] Manitoba Law Reform Commission, “Adult Protection and Elder Abuse” (Winnipeg: 1999) at 23. The Report provides a comprehensive principled overview of adult protection and domestic violence legislation in Canada.

[293] C.C.S.M. c. V90, s.21(1);  R.S.N.S. 1989, c. 2, s.5(1); R.S.N.L. 1990, c. N.3, s. 4.

[294] Advocacy Centre for the Elderly, “Law as it Affects”, note 63 at 10.

[295] A comprehensive recent study on barriers to reporting was completed by the United Senior Citizens of Ontario with funding from the National Crime Prevention Strategy of the Government of Ontario. See Lai, note 155.

[296] Lai, note 155 at 11.

[297] Manitoba Law Reform Commission, “Adult Protection”, note 292 at 38.

[298] Government of Manitoba, Protecting Vulnerable Persons from Abuse and Neglect: Reporting Requirements for Direct Service Providers at 6, online: <http://www.gov.mb.ca/fs/pwd/pubs/spl_for_service_providers.pdf>

[299] Manitoba Law Reform Commission, “Adult Protection”, note 292 at 39.

[300] For a description and analysis of the concepts of progressive realization and the duties to respect, protect and fulfill, see Maria Green, “What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement” 23 Human Rights Quarterly 1062 at 1062-1097.

[301] As is discussed in Chapter IV’s analysis of issues surrounding workplace transition for older adults, the assumption that mandatory retirement protected job opportunities for younger adults and that its abolition would lead to negative outcomes for younger age groups is by no means accepted wisdom among economists.

[302] R.S.O. 1990, c. H-19, s. 1.

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

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

[305] [1990] 3 S.C.R. 229.

[306] [1990] 3 S.C.R. 229 at page 76.

[307] [1990] 3 S.C.R. 483.

[308] McKinney v. University of Guelph, note 21 at 68.

[309] Stoffman v. Vancouver General Hospital, note 21 at 51.

[310] Canada (Employment and Immigration Commission) v. Tetrault-Gadoury, [1991] 2 S.C.R. 22. 

[311] Law v. Canada, note 233.

[312] Gosselin v. Quebec (Attorney General), note 261.

[313] Withler v. Canada (Attorney General), 2011 SCC 12.

[314] The Human Rights Tribunal of Ontario has not, since the transformation of the human rights system of Ontario, released reports detailing the numbers and breakdown of applications in the system. Figures related to the old system of human rights complaints can be obtained through the Ontario Human Rights Commission’s Annual Reports, online: <www.ohrc.on.ca/en/resources/annualreports>. Complaints related to age discrimination generally made up between 5 and 8 percent of all complaints. It is not possible to determine from the statistics what portion of these complaints were of discrimination based on younger age, and what portion were of discrimination based on older age.

[315] For information on the work of the OHRC, online: <www.ohrc.on.ca>. Work on age-based discrimination included a public consultation related to age-based discrimination, resulting in the report Ontario Human Rights Commission, A Time for Action: Advancing Human Rights for Older Ontarians (Toronto: 2001), online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/TimeForActionsENGL>, the development of a Policy on Discrimination Against Older Persons Because of Age, a public education campaign, and advocacy on the issue of mandatory retirement.

[316] Canada (Employment and Immigration Commission) v. Tetrault-Gadoury, [1991] 2 S.C.R. 22.

[317] Ontario Human Rights Commission v. Ontario, 19 O.R. (3d) 387, 117 D.L.R. (4th) 297 (Ont. C.A.).

[318] Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143

[319] A.C. v. Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 S.C.R. 181at para. 110.

[320] Withler v. Canada (Attorney General), 2011 SCC 12 at para. 67.

[321] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3  [the “Meiorin” decision]

[322] Ontario Human Rights Commission, Policy on Discrimination Against Older People Because of Age (Toronto: 2002, updated 2007), section 4.5, online:  <http://www.ohrc.on.ca/en/resources/Policies/agepolicyen> (emphasis in the original).

[323] R. v. Kapp, 2008 SCC 41

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

[325] For more information on special programs under the Code, see Ontario Human Rights Commission, Guidelines on Special Programs (Toronto, 1997), online: <http://www.ohrc.on.ca/en/resources/Policies/specialprogramsen>

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

[327] As noted earlier, the Supreme Court of Canada upheld mandatory retirement policies against a series of Charter challenges: while such policies discriminated on the basis of age under section 15(1) of the Charter, the Court found that they were saved under section 1: McKinney v. University of Guelph, note 21, Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, Stoffman v. Vancouver General Hospital, note 21. The Supreme Court also upheld age 60 mandatory retirement provisions for firefighters or police officers in Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Saskatchewan (Human Rights Commission) v. Moose Jaw (City), [1989] 2 S.C.R. 1317; Large v. Stratford (City), [1995] 3 S.C.R. 733. ADD BOROUGH OF ETOBICOKE, ETC.

[328] As is discussed later, an exception in the Code for justices of the peace was recently the subject of a successful Charter challenge in which the Ontario Superior Court of Justice held that the provisions of the Code protecting mandatory retirement policies at age 70 for justices of the peace violated the equality rights provisions of the Charter. Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General), 292 D.L.R. (4th) 623, [2008] O.J. No. 2131.

[329] Espey v. London (City) (No.1), (2008) CHRR Doc. 08-1702, 2008 HRTO 412, application for reconsideration refused in 2009 HRTO 271.

[330] For example, the Ontario Municipal Employees Retirement System Act maintains age 65 as a “normal retirement date”, but also creates a “factor 85” unreduced pension entitlement for employees age 55 and older, whose age and years of service add up to 85. Ontario Municipal Employees Retirement System Act, S.O. 2006, c. 2, s. 9(3) 2.

[331] Income Tax Act, R.S.O. 1990, c. I.2, s. 40.1.

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

[333] The amendment is a rare example of a statute explicitly overriding the primacy provisions of the Ontario Human Rights Code. It provides that the Workplace Safety and Insurance Act, the regulations under it, and any decisions or policies under the Act or regulations that require or authorize a distinction on the basis of age continue to apply: Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 2.1.

[334] Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A, O. Reg. 134/98, s. 27.

[335] Income Tax Act, R.S.O. 1990, c. I.2, s.8(3.2).

[336] For example, see the Toronto Islands Residential Community Stewardship Act, 1993, O. Reg. 817/93, s. 6.

[337] Ontario Guaranteed Annual Income Act, R.S.O. 1990, c. O.17, s. 2.

[338] Ontario Drug Benefits Act, O.Reg. 201/96, s. 2.

[339] Health Insurance Act, R.R.O. 1990, Reg. 552, s. 17.

[340] Homemakers and Nurses Services Act, R.R.O. 1990, Reg. 634, s. 8(3).

[341] Ontario Works Act, 1997, O. Reg. 134/98, s. 41.

[342] Highway Traffic Act, R.S.O. 1990, c. H-8, Highway Traffic Act, O. Reg. 340/94 s. 2, 15, 16

[343] Agricultural Museum Act, R.R.O. 1990, Reg. 866, ss. 1-2.

[344] Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, O. Reg. 664/98, s.2.

[345] Ontario Guaranteed Annual Income Act, R.S.O. 1990, c. O.17

[346] Ontario Works Act, 1997, O. Reg. 134/98, s. 41.

[347] An overview of social housing in Ontario is provided by Social Housing Services Corporation, Ontario Social Housing Primer (December 2008), online: <http://www.shscorp.ca/shscnew/content/rc/doc/shprimer.pdf>

[348] Kingston, Community and Family Services, “Public Information Guide on Rent-Geared-to-Income Assistance and Special Needs Housing”, City of Kingston, online: <http://www.cityofkingston.ca/pdf/housing/PublicInformationGuide.pdf>

[349] City of Toronto, Mayor’s Roundtable on Seniors, “Housing Toronto Seniors: Planning for the Future – Issues, Challenges and Directions”, City of Toronto Roundtable on Seniors, online: <http://www.toronto.ca/seniors/seniorshousingreport_06.htm>

[350] Region of Peel, “Social Housing for Seniors: Information Sheet”, Region of Peel, online: <http://www.peelregion.ca/housing/initiatives-resources/programs/seniors.htm>

[351] Ontario Human Rights Commission, A Time for Action: Advancing Human Rights for Older Ontarians (Toronto: 2001) at 44, online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/TimeForActionsENGL>

[352] Ontario Human Rights Commission, Policy on Discrimination Against Older People Because of Age (Toronto: 2001) at section 6, online: <http://www.ohrc.on.ca/en/resources/Policies/agepolicyen>

[353] Law Reform Commission of Nova Scotia, “Seniors-Only Housing: Final Report” (April 2011) at 29, online: <www.lawreform.ns.ca>

[354] See, for example, Naresh Agarwal, “Mandatory Retirement and the Canadian Human Rights Act”, A Paper Prepared for the Canadian Human Rights Act Review Panel (October 1999)

[355] Decima Research poll conducted in 2003 of 2,000 Canadians aged 18 and older. Online: <www.decima.com/en>

[356] Espey v. City of London (2008) HRTO 412 (Wright).

[357] This was pointed out in the Human Rights Tribunal’s decision in Espey, where the Tribunal noted that:

Different methods of risk analysis may have particular advantages and disadvantages from the standpoint of human rights values. There are, for example, potential human rights consequences to a system in which every firefighter, of any age,is analyzed on an individual basis using the methods proposed by Dr. Freeman. firefighter forced to retire under age 60 because of a high level of risk could argue discrimination based upon disability or perceived disability. [at para 90]

The Adjudicator does not expand on this point, leaving an unexamined and unexplained inference that discrimination on the basis of age is less problematic than discrimination on the basis of disability.

[358] The design and implementation of eligibility criteria for disability-based supports and programs is a major issue in the area of disability law, and in the LCO’s project on the law as it affects persons with disabilities.

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

[360] Zurich Life Insurance Co. v. Ontario (Human Rights Commission, [1992] 2 S.C.R. 321 at 36.

[361] Zurich Life Insurance Co. v. Ontario (Human Rights Commission, [1992] 2 S.C.R. 321 at 40.

[362] 92 O.R. (3rd) 16, 2008 CanLII 26258.

[363] Espey v. London (City) (No.1), (2008) CHRR Doc. 08-1702, 2008 HRTO 412, application for reconsideration refused in 2009 HRTO 271.

[364] McKinney v. University of Guelph, note 21 at 129.

[365] John McKinnon, “Age-Based Discrimination in Ontario’s Worker’s Compensation Laws”, A Paper Presented at the 2010 Canadian Conference on Elder Law (Injured Workers’ Consultants Community Clinic: October 2010) at 3, online: <http://www.lco-cdo.org/ccel-papers/>

[366] The amendment is a rare example of a statute explicitly overriding the primacy provisions of the Ontario Human Rights Code. It provides that the Workplace Safety and Insurance Act, the regulations under it, and any decisions or policies under the Act or regulations that require or authorize a distinction on the basis of age continue to apply: Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 2.1.

[367] For a full discussion of the age-based limitations in Ontario’s worker’s compensation laws, see John McKinnon, “Age-Based Discrimination in Ontario’s Worker’s Compensation Laws”, A Paper Presented at the 2010 Canadian Conference on Elder Law (Injured Workers’ Consultants Community Clinic: October 2010) online: <http://www.lco-cdo.org/ccel-papers/>

[368] Section 41, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A.

[369] Section 43, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A.

[370] United Nations, “Principles for Older Persons”, note 6.

[371] United Nations, “MIPAA”, note 7 at para 23

[372] The Law Commission of Ontario has undertaken a project which explores some of the issues surrounding vulnerable workers and precarious work, including the employment experiences of women, new Canadians and racialized individuals. For more information on this project, see online: <http://www.lco-cdo.org/en/content/vulnerable-workers>

[373] For an overview of key demographic and labour market changes, see Thomas Klassen, “The Elimination of Mandatory Retirement: Unfinished Business”, A paper prepared for the 2010 Canadian Conference on Elder Law (October 2010) online: <http://www.lco-cdo.org/ccel-papers/3A%20-%20Tom%20Klassen.pdf>

[374] Ontario Human Rights Commission, Submission to the Standing Committee on Justice Policy on Bill 211 (November 23, 2005), online: <http://www.ohrc.on.ca/en/resources/

submissions/bill211english>

[375] McKinney v. University of Guelph, note 21 at 73-74.

[376] New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc. [2008] 2 S.C.R. 604, at para. 23-24. The challenge took place in the context of the provisions of the New Brunswick Human Rights Act that specified that termination of an employee pursuant to a bona fide retirement or pension plan did not violate the Act. 

[377] Espey v. London (City) (No.1), (2008) CHRR Doc. 08-1702, 2008 HRTO 412, application for reconsideration refused in 2009 HRTO 271, para. 92-97.

[378] Canada (Employment and Immigration Commission) v. Tetrault-Gadoury, [1991] 2 S.C.R. 22. 

[379] Charles Beach, “Economic Profile of Older Workers”, A Report Prepared for the Expert Panel on Older Workers  (2007)

[380]  Thomas Klassen, “The Elimination of Mandatory Retirement: Unfinished Business”, A paper prepared for the 2010 Canadian Conference on Elder Law (October 2010) online: <http://www.lco-cdo.org/ccel-papers/3A%20-%20Tom%20Klassen.pdf>; see also Don Kerr & Roderic Beaujot “Demographic Change and Mandatory Retirement in Canada” in Gillain, C.T., David MacGregor, & Thomas Klassen eds., Time’s Up! Mandatory Retirement in Canada (Toronto: James Lorimer and Company Limited, 2005), and Norene Pupo & Ann Duffy “Locating Mandatory Retirement in the Midst of Economic and Social Transformations”, also in Time’s Up!

[381] Section 23.1, Workers Compensation Act, [RSBC 1996] c. 492

[382] Section 155(1), O. Reg 79/10, Long Term Care Homes Act, 2007 S.O. 2007, c.8.

[383] Some younger persons with complex medical needs have raised concerns about the social and recreational effects of living in long-term care settings that are overwhelmingly populated by persons much older than themselves. The Ministry of Community and Social Services has made some efforts to group together younger persons with complex medical needs in some specific long-term care facilities. For some discussion of these issues, see Brock v. Ontario Human Rights Commission 2009 CANLII 709 (ON S.C.D.C.) January 13 2009

[384] O.Reg. 79/10, s. 166.

[385] Health Care Consent Act, S.O. 1996, c.2, Sched. A., s. 21(2)

[386] Jane Meadus, “Discharge From Hospital to Long-Term Care: Issues in Ontario”, A paper prepared for the 2010 Canadian Conference on Elder Law (October 28, 2010) online: <http://www.lco-cdo.org>

[387] Concerns arising from financial abuse of older Aboriginal adults who received settlement monies played a key role in the inception of the LCO’s project on Fees for Cashing Government Cheques, the final Report for which is available online: <http://www.lco-cdo.org/en/content/fees-cashing-government-cheques>

[388] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 45

[389] Margret Hall, “Developing an Anti-Ageist Approach Within Law”, (July 2009) at 27, online: Law Commission of Ontario <http://wwww.ontla.on.ca/library/repository/mon/24009/304765.pdf>. .

[390] A comprehensive review of the available literature can be found in Isreal Doron, From Guardianship to Long-Term Legal Care: Law and Caring for the Elderly (Doctorate of Jurisprudence Thesis, Osgoode Hall Law School, 2000) [unpublished].

[391] Doron, From Guardianship, note 390 at 240.

[392]Doron, From Guardianship, note 390 at 240.

[393] See, for example, Advocacy Centre for the Elderly, “Law as it Affects”, note 63 and Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) online: <http://www.oba.org/en/pdf/older_adults_lco.pdf>

[394] Dementia is relatively rare prior to age 85: the prevalence rises sharply among the very old, and particularly among women. For those between the ages of 65 and 74, the rate was 28 cases per thousand women and 19 per thousand men. After age 85, the rate increased sharply to 371 per thousand women and 287 per thousand men: Gerry Hill et al. Dementia Among Seniors, (Statistics Canada: Autumn 1996) at 7 and following. 

[395] Alzheimer Society of Canada, “Rising Tide: The Impact of Dementia on Canadian Society” (2010), at 17, online: <http://www.alzheimer.ca/english/rising_tide/rising_tide.htm>

[396] The Advocacy Centre for the Elderly has noted that they frequently encounter situations where the decisional capacity of an older adult is unnecessarily questioned, or a presumption of incapacity appears to operate: see Judith Wahl, “Capacity and Capacity Assessment in Ontario”, (May 2009) at 1-3, online: Advocacy Centre for the Elderly <http://www.advocacycentreelderly.org/index.php>.

[397] Canadian Centre for Elder Law Studies and British Columbia Law Institute, “A Comparative Analysis of Adult Guardianship Laws in B.C., New Zealand and Ontario”, Canadian Centre for Elder Law Studies, Report No. 4, British Columbia Law Institute, Report No. 46, (October 2006) at 11, British Columbia Law Institute Online:  <http://www.bcli.org/sites/default/files/Comparative_Analysis_of_Adult_Guardianship_Laws-1.pdf>

[398] The province of Alberta, in its 2008 Adult Guardianship and Trusteeship Act (AGTA) (in force since October 30, 2009) embraces court-appointed supported decision-making as well as supported decision-making authorizations as a means of promoting the least-restrictive alternative for decision-making. The AGTA offers a range of supportive and substituted decision-making options, aimed at allowing adults to receive assistance according to their needs and to maintain autonomy as much as possible. Adult Guardianship and Trusteeship Act, 2008 S.A. 2008, c. A-4.2. As is discussed at length elsewhere in this Report, Ontario offers a single regime for capacity and guardianship.

[399] McDonnell Estate v. Royal Arch Masonic Homes Society [1998] 5 W.W.R. 268.

[400] It was suggested, for example, that older African Canadians, may be exploited by church communities: Interview of Margaret Parsons, Executive Director of the African Canadian Legal Clinic, by Lauren Bates (September 16, 2008). Older gay men may be at risk of violence or financial exploitation from younger sexual partners: Interview of Dick Moore, 519 Community Centre, by Lauren Bates (August 26, 2008).

[401] Hall, “Developing an Anti-Ageist Approach”, note 389 at 49.

[402] McDonell Estate v. Royal Arch Masonic Homes Society 1997 CanLII 1762 (B.C.S.C.) at 11.

[403] See, e.g, Banton v. Banton (1998) 164 D.L.r. (4th) 176.

[404] Banks v. Goodfellow (1870) L.R. 5 Q.B. 549 (Eng. Q.B.)

[405] Succession Law Reform Act, R.S.O. 1990,  c. S. 26, s. 16.

[406] Succession Law Reform Act, R.S.O. 1990, c. S. 26, s. 44, O.Reg. 54/95, s. 1.

[407] Family Law Act, R.S.O. 1990, c. F.3, s. 6.

[408] For a discussion of these issues, see Wendy L Griesdorf, “Crazy in Love: Caregiver Marriages in the Context of Estate Disputes” (2005-2006) 25 Estates, Trusts and Pensions Journal 315.

[409] Jan Goddard, “Substitute Decision-Making and Family Relationships”, (Presentation delivered at the 2008 Canadian Conference on Elder Law, Vancouver B.C., November 14, 2008) [unpublished].

[410] Nina Kohn, “Outliving Civil Rights” (2009) 86 Washington University Law Review 1053.

[411] Merryn Gott & Sharron Hinchliff, “How important is sex in later life, The views of older people” (2003) 56 Social Science and Medicine 1617; P. Ginsburg and K. Framer, “A study of sexuality and health among older adults in the U.S.” 357 NEJM 762; Insa Fooken, “Sexuality in the later years – the impact of health and body-image in a sample of older women” (1994) 23 Patient Education and Counseling 227 online: <http://www.sciencedirect.com/science?_ob=MImg&_imagekey=B6TBC-4C00PJ8-2W-1&_cdi=5139&_user=866177&_pii=0738399194900388&_origin=gateway&_coverDate=07%2F1%2F1994&_sk=999769996&view=c&wchp=dGLbVlz-zSkzS&md5=da393ac2c6a9532d372af8a2d56768c3&ie=/sdarticle.pdf>

[412] Micheal Bauer, Rhonda Nay & Linda McAuliffe, “Catering to love, sex and intimacy in residential aged care: What information is provided to consumers?” (2009) 27 Sexuality and Disability 3 at 3.

[413] Shari Brotman et al. “Coming Out to Care: Caregivers of Gay and Lesbian Seniors in Canada” (2007) 47 The Gerontologist 490 online: <http://gerontologist.oxfordjournals.org/content/47/4/490.full.pdf+html>

[414] Michael Bauer, Linda McAulifee & Rhonda Nay, “Sexuality and the Reluctant Health Professional”, in Rhonda Nay & Sally Garrat, eds., Caring for Older People: Issues and Innovations, 3rd ed. (Sydney, Australia: Elsevier, 2009)  at 292 – 309.

[415] Long Term Care Home Act, 2007, S.O. 2007, c. 8, s. 1.

[416] Long Term Care Act, 2007, S.O. 2007, ss. 19, 20.

[417] For a thorough review of the relevant legal issues related to older age, long-term care, legal capacity and sexuality, see J. Wahl, “Sexuality in Long-Term Care Homes – the Legal Issues”, online: <http://www.rgpc.ca/rgpc_resource_library/Sexuality%20in%20Long%20Term%20Care%20Homes%20-%20The%20Legal%20Issues.pdf>

[418] J. Wahl, “Sexuality in Long-Term Care, Advocacy Centre for the Elder Newsletter” (Summer 2008) online: < http://www.acelaw.ca/appimages/file/NewsletterSummer2008.pdf>

[419] Hall, “Developing an Anti-Ageist Approach”, note 389 at 3

[420] This argument for mandatory retirement is examined in depth, and dismissed as based on a profound misunderstanding of basic economic principles, J.R. Kesselman, “Challenging the Economic Assumptions of Mandatory Retirement” in C.T. Gillin ed., Time’s Up! Mandatory Retirement in Canada (Toronto, Ontario: James Lorimer & Company Limited, 2005) at 161- 189. The author notes that:

The young workers argument runs counter to elementary economic principles by assuming the economy offers only a given total amount of work— what economists call “the lump-of-labour fallacy.” Job displacement may arise in the very short run, in narrowly defined occupations, or in recessionary periods, but over the long run the economy can create as many jobs as there are workers able and willing to fill them. Indeed, an economy’s long-run growth is constrained by the availability of workers with the requisite skills, motivation, and experience. Moreover, young workers are hardly a substitute for the skilled and experienced workers who are forced to leave on account of mandatory retirement provisions. [at 170 – 171]

[421] Advocacy Centre for the Elderly “Law as it Affects”, note 63 at 5.

[422] United Nations Department of Economic and Social Affairs, Division for Social Policy and Development, Programme on Ageing “Report of the Expert Group Meeting, ‘Rights of Older Persons’” (Bonn, Germany: May 5-7 2009) at 10 online: <http://www.un.org/ageing/documents/egm/bonn09/reportofegm.pdf>.

[423] For example, the Osgoode Hall Law Journal  recently devoted an issue to various perspectives on the notion of access to justice, with a particular focus on the complex relationship between legal justice and social justice: [2008] 46 Osgoode Hall Law Journal.

[424] For information about these projects, visit the LCO website at www.lco-cdo.org.

[425] Ontario Bar Association, “Getting it Right: The Report of the Ontario Bar Association Justice Stakeholder Summit” (April 2008) at 10, online: <http://www.oba.org/en/pdf/Justice%20Summit_sml.pdf>

[426] Spencer, note 15 at 72.

[427] R.S.O. 1990, c. N.7, section 2(2).

[428] Long Term Care Homes Act, 2007, S.O. 2007, c. 8, s. 3.

[429] For a discussion of the barriers to use of civil litigation as an effective response to violations of rights in congregate settings, see Advocacy Centre for the Elderly, “Congregate Living” note 149 and Advocacy Centre for the Elderly, “Law as it Affects”, note 63 at 18 – 20.

[430] For a more thorough summary of legislative responses to elder abuse, whether under the Criminal Code or provincial statutes, see Hall, “Developing an Anti-Ageist Approach” note 389 at 37-47.

[431] Hall, “Developing an Anti-Ageist Approach”, note 389 at 37.

[432] Lai, note 155 at 11. Also see Donald Poirier & Norma Poirier, “Why is it so difficult to combat elder abuse, and in particular, financial exploitation of the elderly?” (Law Commission of Canada: July 1999) at section 5.3.3., online: <http://epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/2006-12-06/www.lcc.gc.ca/research_project/99_elder_2-en.asp#p14>.

[433] [2006] 2 S.C.R. 737.

[434] Ontario Law Reform Commission, “Report on Avoiding Delay and Multiple Proceedings in the Adjudication of Workplace Disputes” (Toronto: 1995), at 13.

[435] Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., Part IX, Part XI.

[436] Ombudsman Ontario, Long-Term Care Monitoring – Summary of Ombudsman’s Findings (December 2010) at 6-7, online: <http://www.ombudsman.on.ca/en/what-we-do/special-ombudsman-response-team/sort-investigations.aspx>

[437] Substitute Decisions Act, S.O,1992, c.30, ss. 27, 62.

[438] Substitute Decisions Act, S.O. 1992, c. 30, ss. 82, 83.

[439] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 26.

[440] Canadian Association for Community Living, “Response to the Law Commission of Ontario’s Consultation Paper on the Law as it Affects Older Persons” (July 7, 2008) at 7.

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

[442] Ontario Human Rights Commission reports and publications are available on its website, online: <http://www.ohrc.on.ca>.

[443] See Ontario Human Rights Commission, From Research to Legislation: Challenging Public Perception and Getting Results (International Symposium on Age Discrimination: London, England, September 5, 2005) online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/AgeSymposiumENG/pdf>

[444] Statistics on complaints made to the Ontario Human Rights Commission prior to the transformation of the human rights system which came into effect in June 2008 can be found in the OHRC’s Annual Reports, available on the OHRC website, online: <http://www.ohrc.on.ca/en/resources/annualreports>. For 2007-2008, the last full year in which the OHRC was charged with receiving human rights complaints, approximately 9 per cent of all complaints cited age as one of the grounds of alleged discrimination (328 complaints in total). Of those complaints, 246, or 75 per cent, were in the area of employment. It’s important to note that complaints related to “age” can include complaints of discrimination on the basis of youth (age 18 and over) as well as older age.

[445] See Ombudsman Ontario, Annual Report 2008-2009, (June 2009) at 15, online: <http://www.ombudsman.on.ca/en/publications–resources/annual-reports.aspx>

[446] Ombudsman Ontario, Long-Term Care Monitoring, note 436.

[447] Legal Services Act, 1998, S.O. 1998, c. 26, s.1.

[448] For detailed information regarding the mandate and activities of ACE, consult their website online: <www.advocacycentreelderly.org>

[449] Basic information on eligibility for Legal Aid is provided, online: <http://www.legalaid.on.ca/en/getting/eligibility.asp>.

[450] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 19.

[451] Mental Health Act, R.R.O. 1990, Reg. 741, ss. 14 – 16.

[452] Health Care Consent Act, S.O. 1996, c. 2, Sched. A, s. 17.

[453] College of Physicians and Surgeons of Ontario, “Policy Statement #4-05: Consent to Medical Treatment” (January/February 2006), online: <http://www.cpso.on.ca/policies/policies/default.aspx?ID=1544>

[454] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 24

[455] The powers and functions of Residents and Family Councils are set out in the Long Term Care Homes Act 2007, S.O. 2007, c. 8, ss. 56 – 67.

[456] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 37

[457] World Health Organization, “Missing Voices: Views of Older Persons on Elder Abuse” (2002) at 9, online: <http://whqlibdoc.who.int/hq/2002/WHO_NMH_VIP_02.1.pdf>

[458] Lai, note 155 at 12-13.

[459] For an overview of these issues see Spencer, note 15 at 34-35.

[460] See Ontario Human Rights Commission, Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario Regarding the Draft Policies Relating to Establishing and Ending Physician-Patient Relationships (February 14, 2008), online: <www.ohrc.on.ca/en/resources/submissions/surgeons> Also see College of Physicians and Surgeons of Ontario, “Accepting New Patients, Policy Number 1-09” (April 2009), online: <http://www.cpso.on.ca/policies/policies/default.aspx?id=1778>

[461] World Health Organization, “Missing Voices: Views of Older Persons on Elder Abuse” (2002) at 13, online: <http://whqlibdoc.who.int/hq/2002/WHO_NMH_VIP_02.1.pdf>

[462] Spencer, note 15 at 44.

[463] Advocacy Centre for the Elderly, “Retirement Home Industry”, note 75 at 3.

[464]Spencer, note 15 at 43-44.

[465] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 86.

[466] Retirement Homes Act, 2010 S.O. c. 11, s. 2.

[467] For example, the Advocacy Centre for the Elderly has expressed concerns that retirement homes may operate locked units and use restraints on residents without the same oversights and protections required for long-term care homes. Advocacy Centre for the Elderly, “Law as it Affects”, note 63 at 11.

[468] S.O. 2006, c. 17, s. 140.                               

[469] Concerns are highlighted in the summary of consultations on the Ontario Seniors’ Secretariat website, online: <http://www.culture.gov.on.ca/seniors/english/programs/rhc> Also see Advocacy Centre for the Elderly, “Law as it Affects”, note 63. 

[470] Spencer, note 15 at 60-61.

[471] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A , s. 4(2); Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 2.

[472] Health Care Consent Act, S.O. 1996, c. 2, Sched. A, s. 70.

[473] Health Care Consent Act, S.O. 1996, c. 2, Sched. A, s. 80.

[474] Health Care Consent Act, S.O. 1996, c. 2, Sched. A, s. 81.

[475] Substitute Decisions Act, S.O. 1992, c.30, ss. 22, 55.

[476] Substitute Decisions Act, S.O. 1992, c.30, ss. 22, 55(2).

[477] Substitute Decisions Act, S.O. 1992, c.30, ss. 27, 62.

[478] Substitute Decisions Act, S.O. 1992, c.30, ss. 32, 38.

[479] Substitute Decisions Act, S.O. 1992, c.30, ss. 66, 67.

[480] Alberta Law Reform Institute, Enduring Powers for Attorney: Safeguards Against Abuse (Edmonton: February 2003)

[481] Substitute Decisions Act, S.O. 1992, c.30, s. 8(1)

[482] Substitute Decisions Act, S.O. 1992, c.30, s. 32

[483] Substitute Decisions Act, S.O. 1992, c.30, s. 32(6)

[484] Substitute Decisions Act, S.O. 1992, c.30, s. 66.

[485] Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) at 13 and 23, online: <http://www.oba.org/en/pdf/older_adults_lco.pdf> and Advocacy Centre for the Elderly, “Law as it Affects”, note 63 at 12.

[486] Poirier & Poirier, note 432.

[487] Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) at 16, online: <http://www.oba.org/en/pdf/older_adults_lco.pdf>

[488] United Nations, “Convention on the Rights of Persons with Disabilities”, 13 December 2006, G.A. Res. 61/106, Art. 12(4).

[489] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 23.

[490] Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) at 18, online: <http://www.oba.org/en/pdf/older_adults_lco.pdf>

[491] Advocacy Centre for the Elderly, “Law as it Affects”, note 63 at 12

[492] Canadian Association for Community Living, “Response to the Law Commission of Ontario’s Consultation Paper on the Law as it Affects Older Persons” (July, 2008) at 7.

[493] Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) at 16, online: <http://www.oba.org/en/pdf/older_adults_lco.pdf>

[494] Western Canada Law Reform Agencies, “Enduring Powers of Attorney: Areas of Reform – Final Report” (2008) online: <http://www.law.ualberta.ca/alri/docs/WCLRA%20epa%20fr.pdf>

[495] Hall, “Developing an Anti-Ageist Approach”, note 389 at 32.

[496] This is a point made by Doron, From Guardianship, note 390 at 284.

[497] Spencer, note 15 at 71-72.

[498] Some of the key issues are highlighted in the Background Paper for this project, released in December 2010, online: <http://www.lco-cdo.org/en/vulnerable-workers-background-paper>

[499] For information on the Ontario Courts Accessibility Initiative, see the December 2006 “Report of the Courts Disabilities Committee”, online: <http://www.ontariocourts.on.ca/accessible_courts

/en/report_courts_disabilities.htm>

[500] Residential Tenancies Act, S.O. 2006, c. 17, s. 186 and 204.

[501] Special Senate Committee on Aging, Seizing the Opportunity note 8 at 87.

[502] Statistics Canada. Table 358-0124 – Canadian Internet use survey, Internet use, by location of access, sex and age group, every 2 years (percent), CANSIM (database).

[503] Spencer, note 15 at 69.

[504] Office of the Ombudsman, A Duty to Care: An Investigation into Municipal Licensing and Standards’ Treatment of a Resident with Dementia (City of Toronto: November 2010) at 12 -13, online: <http://ombudstoronto.ca/sites/default/files/MLSInvestigationFINAL_0.pdf>

[505] A helpful discussion of the relevance of universal design to the law affecting older adults may be found in Douglas Surtees, “What Can Elder Law Learn from Disability Law?” in Israel Doron, ed., Theories on Law and Ageing: The Jurisprudence of Elder Law (Heidelberg, Germany: Springer-Verlag Berlin Heidelberg, 2009) 93 at 95 – 105.

[506] British Columbia Law Institute, “Response to the Law Commission of Ontario Consultation Paper” (July 2008) at 3.

[507] Poirier & Poirier, note 432.

[508] Ontario Bar Association, “Submission to the Law Commission of Ontario” (July 2008).

[509] McDonell v. Royal Arch Masonic Homes Society, note 197.

[510] Advocacy Centre for the Elderly, “Law as it Affects”, note 63 at 12.

[511] Ontario Human Rights Commission, Time for Action: Advancing Human Rights for Older Ontarians (Toronto: 2001) at 15-18, online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/TimeForActionsENGL>; Special Senate Committee on Aging, Seizing the Opportunity, note 8 at 14-16; United Nations, “MIPAA”, note 7 at para. 112.

[512] For more information, visit the ONPEA website, online: <www.onpea.org>

[513] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 86.

[514] Ontario Human Rights Commission, A Time for Action: Advancing Human Rights for Older Ontarians (July 2001) at 17, online: <http://www.ohrc.on.ca/en/resources/discussion_consultation/TimeForActionsENGL>

[515] Ontario Human Rights Commission, Policy on Discrimination Against Older People Because of Age, (March 2002, updated February 2007) at section 4.4, online: <http://www.ohrc.on.ca/en/resources/Policies/agepolicyen>

[516] For example, the Elliot Lake Police Service has a Seniors’ Issues Office blending social work and police services, and focusing on seniors’ community development and prevention/intervention services for at-risk seniors, online:  <www.cityofelliotlake.com/en/cityservices/seniorsissuesofficer.asp> Edmonton Police Services has an Elder Abuse Intervention Team, a collaboration between the police service, City of Edmonton Community Services, Catholic Social Services and the Victorian Order of Nurses, online: <www.edmontonpolice.ca/communitypolicing/familyprotection/elderabuse.aspx>, Los Angeles has an Elder Abuse Advocacy and Outreach Program, and Connecticut has a specialized  Elder Abuse Unit in the Office of the Chief State’s Attorney. These are only a few examples.

[517] For information on these programs, see online: <www.aoa.gov/AOARoot/AOA_Programs/Elder_Rights/EAPrevention/index.asp>

[518] This is a complex scheme, for which this can be only a very cursory summary. A more detailed description is provided in Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 70 – 72.

[519] Commission for Older People (Wales) Act 2006 U.K. 2006, c. 30.

[520] Lai, note 155 at 11.

[521] S.O. 2006, c. 17, s.148(3)

[522] Spencer, note 15 at 3.

[523] See generally Susan Gary, “Mediation and the Elderly: Using Mediation to Resolve Probate Disputes Over Guardianship and Inheritance” (1997) 32 Wake Forest Law Review 397; Suzanne Schmitz, “Mediation and the Elderly: What Mediators Need to Know” (1998) 16 Mediation Quarterly 71.

[524] The University of Windsor Mediation Services Elder Mediation and Conflict Resolution program is a dedicated elder mediation clinic. Some of these generalized programs, including the University of Windsor’s, do decline to mediate cases of serious elder abuse.

[525] In the Cornwall area, four community agencies are piloting an elder mediation program for caregivers of patients with Alzheimer’s and related dementias. The project is funded by a grant from the Ontario Aging at Home strategy, and is a partnership between the Alzheimer Society of Cornwall & District, the Cornwall branch of the Champlain Community Care Access Centre, the Community Living office and the Canadian Mental Health Association branch. In these disputes, the older adult will not necessarily participate in the process, as he or she may not have the capacity to do so. These are still considered elder mediations, in the sense that they are designed in order to productively manage the interpersonal dynamics at the heart of older adults’ disputes.

[526] See John Bertschler & Patricia Bertschler, “Addressing the Power Imbalance of Power in Elder Mediation Cases” (2009) 59 ADR Forum 5 for more on strategies for rectifying power imbalances in elder mediations.

[527] See Susan Crawford et al., “From Determining Capacity to Facilitating Competencies: A New Mediation Framework” (2003) 20 Conflict Resolution Quarterly 385 online: <http://onlinelibrary.wiley.com/doi/10.1002/crq.33/pdf> for more on maximizing individuals’ participation in processes.

[528] In particular, the University of Windsor’s Elder Mediation program and the Cornwall’s elder mediation program.

[529] For pilot projects in elder mediations as creating alternatives guardianship, see Susan Butterwick et al., “Evaluating Mediation as a Means of Resolving Adult Guardianship Cases”, A Report Submitted by the Center for Social Gerontology to the State Justice Institute (October 2001) online: <http://www.tcsg.org/mediation/SJI_01.pdf>

[530] Arlene Groh & Rick Linden, “Addressing Elder Abuse: The Waterloo Restorative Justice Approach to Elder Abuse Project” (2011) 23 Journal of Elder Abuse and Neglect 127.

[531] Groh & Linden,note at 6.

[532] Groh & Linden,note at 8.

[533] Arlene Groh, “Restorative Justice: A Healing Approach to Elder Abuse” (Paper delivered at the 6th International Conference on Restorative Justice, June 2003), [unpublished] at 4.

[534] Groh & Linden, note at 19.

[535] Groh & Linden, at 21.

[536] Arlene Groh, A Healing Approach to Elder Abuse and Mistreatment: The Restorative Justice Approaches to Elder Abuse Project, (Kitchener, Ontario: Pandora Press, 2003) at 28-29.

[537] Groh & Linden, at 19.

[538] Groh & Linden, at 21-22.

[539] Groh & Linden, at 27.

[540] Groh & Linden, at 26.

[541] Groh & Linden, at 27.

[542] Sean O’Sullivan, You’ve Got a Friend: A Review of Advocacy in Ontario (Toronto: Ontario Ministry of the Attorney General, 1987) at vi.

[543] O’Sullivan, note 542 at 5.

[544] O’Sullivan, note 542 at 57.

[545] Ontario Bar Association, “Submission on the Law Commission of Ontario’s Law as it Affects Older Adults Consultation Paper: Shaping the Project”, (July 21, 2008) at 10, online: <http://www.oba.org/en/pdf/older_adults_lco.pdf>

[546] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 91.

[547] Advocacy Centre for the Elderly, “Congregate Living” at 88-102.

[548] Commissioner for Older People (Wales) Act 2006 (U.K.) 2006, c. 30.

[549] Cited in Gareth Griffith, A Commissioner for Older People in NSW? Briefing Paper No. 3/08 (New South Wales: Parliamentary Library Research Service, April 2008) at 3, <online: http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/3FC49510516B6E0DCA257433001C90E3/$File/CommissionerFINAL&INDEX.pdf>

[550] See the website of the Older People’s Commissioner, online: <http://www.olderpeoplewales.com/en/splash.aspx>

[551] Commissioner for Older People (Wales) Act 2006 (U.K.) 2006, c. 30, s. 2.

[552] The activities of the Older People’s Commissioner are documented in their Annual Reviews, online: <http://www.olderpeoplewales.com/en/splash.aspx>

[553] Griffith, note 549

[554] Advocacy Centre for the Elderly, “Congregate Living”, note 149 and the “Law as it Affects” note 63 at 94.

[555] This law reform proposal is more fully described in Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 94 and following.

[556] Advocacy Centre for the Elderly, “Congregate Living”, note 149 at 111.

[557] The Ontario government has developed an Aging at Home Strategy, a four year, $1.1 billion  strategy that aims to provide a range of community-based services to help older adults remain healthy and continue to live independently in their homes for as long as possible, online: <<http://www.health.gov.on.ca/english/public/program/ltc/33_ontario_strategy.html>>. Aging in place was also promoted in Special Senate Committee on Ageing, Seizing the Opportunity, note 8. The Alzheimer Society’s work on planning for increasing prevalence of dementia in the population recommends increasing supports so that affected older adults can remain in their homes for longer, see Alzheimer Society, “Rising Tide”, note 55.

[558] The Change Foundation, “Because This is the Rainy Day: A Discussion Paper on Home Care and Informal Caregiving for Seniors with Chronic Heart Conditions” (February 2011) at 3.

[559] Advocacy Centre for the Elderly’s “Law as it Affects”, note 63 at 16.

[560] Office of the Auditor General of Ontario, Annual Report of the Auditor General of Ontario (Ottawa: Office of the Auditor General of Ontario, 2010) at 117, online: <<http://www.auditor.on.ca/en/reports_health_en.htm>>.

[561] Home Care and Community Services Act, 1994, SO 1994, C 26,

[562] Home Care and Community Services Act, 1994, SO 1994, C 26, s 1.

[563] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 1(3), (4), (5), (6), (7).

[564] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 3.

[565] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 4.

[566] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 5, 6.

[567] For a discussion of the reform, its rationale and some of its effects, see Margaret Denton et al, “Market-Modeled Home Care: Impact on Job Satisfaction and Propensity to Leave” (2007) XXXIII Canadian Public Policy Special Edition 81.

[568] Community Care Access Corporations Act 2001, O. Reg.554/06.

[569] Auditor General of Ontario, Annual Report, note 560 at 114.

[570] Auditor General of Ontario, Annual Report, note 560 at at 119.

[571] Denton, note 576 at 83.

[572] Regulation 386/94, Provision of Community Services, s. 2.

[573] See VK v North East Community Care Access Centre, 2011.

[574] Regulation 386/94, Provision of Community Services, s. 3.

[575] Auditor General of Ontario, Annual Report, note 560 at 121.

[576] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 22.

[577] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 23.

[578] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 31.

[579] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 25.

[580] Home Care and Community Services Act, 1994, SO 1994, C 26, ss. 26, 27.

[581] Home Care and Community Services Act, 1994, SO 1994, C 26, ss. 33 – 36.

[582] Home Care and Community Services Act, 1994, SO 1994, C 26, ss. 61 – 62.

[583] Home Care and Community Services Act, 1994, SO 1994, C 26, ss. 50 – 52.

[584] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 53.

[585] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 3(3).

[586] Home Care and Community Services Act, 1994, SO 1994, C 26, s. 39.

[587] Home Care and Community Services Act, 1994, SO 1994, C 26, ss. 40 – 48.

[588] Ontario Association of Community Care Access Centres, Submission to the Standing Committee on Finance and Economic Affairs (February 2011) at 1.

[589] See online: <<http://www.homecareontario.ca/public/about/home-care/system/facts-and-figures.cfm>>

[590] In a study of older women using home care services, some participants commented on the effect of their baths rationed to once per week, or of having a revolving cast of strangers responsible for personal tasks such as catheter changes: Jane Aronson, “Frail and Disabled Users of Home Care: Confident Consumers or Disentitled Citizens?” (2002) 21 Canadian Journal on Aging 11 at 16 – 18.

[591] Auditor General of Ontario, Annual Report, note 560 at 115.

[592] Auditor General of Ontario, Annual Report, note 560 at 115.

[593] Ontario Association of Community Care Access Centres, Submission, note 588 at 3-5.

[594] Ontario Association of Community Care Access Centres, Submission, note 588 at 6.

[595] Ontario Association of Community Care Access Centres, Submission, note 588 at 6.

[596] Susan Bronskill et al, “Aging in Ontario: An ICES Chartbook of Health Service Use by Older Adults”, A Report from the Institute for Clinical Evaluative Sciences (September 2010).

[597] Auditor General of Ontario, Annual Report, note 560 at 121-22.

[598] Lautens, Richard, “Seniors find little care in provincial aging strategy” The Toronto Star (18 February 2011), online: <<http://www.thestar.com/news/article/941343–seniors-find-little-care-in-provincial-aging-strategy>; The Toronto Star, “Begging for care: Keeping seniors healthy and at home” (23 February 2011), online: <<http://www.thestar.com/opinion/editorials/article/943179>>; Moira Welsh, “Daughter copes at home with two ailing parents”, The Toronto Star (21 February 2011) online: <<http://www.thestar.com/news/article/941697>>.

[599] Community Legal Education Ontario, Home Care Complaints and Appeals (May 2010) at 15, online: <<http://www.cleo.on.ca/english/pub/onpub/PDF/health/homecare.pdf>>.

[600] Spencer, note 15.

[601] Jane Aronson, “Silenced Complaints, Suppressed Expectations: The Cumulative Impacts of Home Care Rationing” (2006) 36 International Journal of Health Services 535.

[602] Aronson, “Silenced Complaints”, note 601 at 546.

[603] Aronson, “Silenced Complaints”, note 601 at 545.

[604] Community Care Access Centre- Toronto Central, Feedback about your experience, online: <<http://www.ccac-ont.ca/Content.aspx?EnterpriseID=7&LanguageID=1&MenuID=8>>.

[605] Community Care Access Centre- South East, Feedback about your experience, online: <<http://www.ccac-ont.ca/Content.aspx?EnterpriseID=10&LanguageID=1&MenuID=8>>.

[606] Home Care and Community Services Act, 1994, SO 1994, C 26, s 3(8).

[607] Community Care and Access Centre, Complaints, Appeals and Feedback, online: <<http://www.ccac-ont.ca/Content.aspx?EnterpriseID=15&LanguageID=1&MenuID=8>>.

[608] Auditor General of Ontario, Annual Report, note 560 at 125.

[609] Home Care and Community Services Act, 1994, SO 1994, C 26, s 5(1)(ii).

[610] Ministry of Health and Long Term Care, Ontario Strengthens Home Care Services (December 2008).

[611] Home Care and Community Services Act, 1994, SO 1994, C 26, s 27.

[612] Home Care and Community Services Act, 1994, SO 1994, C 26, s 68(26).

[613] Home Care and Community Services Act, 1994, SO 1994, C 26, s 23(1).

[614] Ontario Association of Community Care Access Centres, note 588 at 3.

[615] Auditor General of Ontario, Annual Report, note 560 at 124.

[616] Auditor General of Ontario, Annual Report, note 560 at 124.

 

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