Having identified principles for the law as it affects older adults together with a set of considerations relating to the needs and circumstances of older adults that should be taken into account by law and policy-makers, the next step in developing a framework is to consider how the principles and considerations might effectively be applied to the law. That is, for the principles and considerations to provide effective guidance to law and policy-makers, they must take into account the actual context of the law as it affects older adults. This points the way to a deeper understanding of the issues to be addressed by an anti-ageist approach to the law.
This chapter considers the different ways in which laws may affect older adults and proposes some ways in which ageism and paternalism in the law may be identified.
It should be noted here that the LCO is using the term “law” broadly as including not only statutes but regulations, but also as including the policies and programs through which those statutes and regulations are implemented, and examples of what private actors might need to do to make the law effective. That is, the law includes not only statutes as they are written, but also as they are experienced in the lives of older adults. Given the feedback that the LCO received early in this project, that the practice of the law was as much, or even more of, an issue for older adults as the provisions of the statutes, this approach is necessary to ensure that the outcome of this project will be meaningful and effective.
A consideration of the application of a principles-based framework for the law as it affects older adults must be based on a clear understanding of the many ways in which the law may shape the lives of older adults. There is a very wide range of laws that impacts on older adults. Consideration of how the law affects older adults has generally focused on laws that explicitly and directly address this group, whether through age-based criteria, or by targeting issues that overwhelmingly affect older adults (such as, for example, long-term care). However, it is equally important to consider the less obvious ways in which law may shape the experiences of older adults. For the purposes of analysis, this Interim Report breaks laws down into four categories:
laws which use age-based criteria to specifically address concerns particular to older adults,
laws of general application which nonetheless apply mainly or disproportionately to older adults,
laws of general application that affect significant groups of older adults, and
laws of general application which may have a different effect on older adults (or some group of older adults) than on the remainder of the population.
Each of these types of laws is considered separately below. In addition, some consideration is given to issues that may arise where law is silent.
All types of laws must operate within the framework of the Charter of Rights and Freedoms and the Ontario Human Rights Code. This section therefore commences with a brief overview of the provisions of the Charter and Code in terms of their relevance to laws and policies affecting older adults.
A. The Charter and Human Rights Law
Chapter III of this Interim Report briefly considered some key provisions of the Charter of Rights and Freedoms and the Ontario Human Rights Code as important sources of principles for a framework for the law as it affects older adults.
The Charter provides for civil and political rights, legal rights, language rights, expressive rights and equality rights. These rights are limited by section 1, which allows for such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Equality rights under section 15 explicitly recognize equality before and under the law, and equal protection of the law without discrimination on the basis of age, among other enumerated grounds. Section 7 of the Charter guarantees the life, liberty and security of the person, and the right not to be deprived of these except in accordance with the principles of fundamental justice. The right to liberty has been interpreted as including the right to make fundamental personal decisions, as well as freedom from physical constraint and interference with physical freedom.
The purpose of the Ontario Human Rights Code, as expressed in its Preamble, is to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community. The Code prohibits discrimination on the basis of age, as well as of sex, sexual orientation, disability, family and marital status, race, ethnicity, place of origin, and several other grounds. Where it is necessary in order to ensure equal treatment without discrimination on the basis of age, older persons have the right to accommodation up to the point of undue hardship for needs associated with their older age. These rights extend to the social areas of employment, housing, goods and services, professional and occupational associations, and contracts.
The Charter is, of course, fundamental law, applying to any body exercising statutory authority or pursuant to governmental objectives. Section 52 gives the Charter overriding effect, such that any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. To the extent that the government acts under common law or prerogative powers, the Charter also applies to such government actions. Section 47(2) of the Code, the “primacy clause” states that where a provision of an Act or regulation appears to require or authorize conduct that would contravene the Code, the Code prevails unless the Act or regulation specifically states otherwise. The Charter and the Code therefore have a unique status in relation to other laws that affect older adults.
The provisions of both the Code and the Charter recognize that older adults, as individuals or as a group, may experience marginalization or discrimination because of their age. Through the Charter and the Code older adults may challenge barriers to their equality, so that these documents share the potential to transform laws, policies and norms related to older age.
As is discussed at more length later, section 15(2) of the Charter shields laws, programs and activities that aim to ameliorate the disadvantaged condition of individuals or groups, including those experiencing disadvantage due to their age. Like the Charter, the Code permits special programs to alleviate hardship or economic disadvantage or that are designed to assist individuals or groups to attempt to achieve equal opportunity. The Code also includes some specific provisions related to age. It specifically exempts programs, policies or activities that provide preferential treatment for persons aged 65 and older from the definition of age discrimination.
The Charter has only infrequently been applied to issues related to older adults, and has not proved to be an agent of change for this population in the way that it has for the disability or lesbian and gay communities, for example. Charter cases have most frequently dealt with explicit age-based criteria, leaving aside more subtle or indirect inequalities or barriers that older adults may experience.
In a trio of cases in the early 1990s, the Supreme Court of Canada considered the constitutionality of mandatory retirement policies. In McKinney v. University of Guelph, the Court considered the (now removed) upper age limit of 65 in the protections of the Ontario Human Rights Code, which operated to prevent challenges to mandatory retirement policies. The Court found that, while the upper age limit was prima facie discriminatory, contrary to section 15 of the Charter, the provision was a reasonable limit on the right, and therefore saved by section 1. In concluding that the restriction on the rights of older persons was reasonable, the Court considered that the rule was intended to generally benefit workers, and was part of a complex scheme of pension and other employment rights.
Interestingly, in this case La Forest J., speaking for the majority, commented that age, as a ground of discrimination, differed from other enumerated grounds under section 15, in that “[t]here is a general relationship between advancing age and declining ability”. Similarly, in the companion case of Stoffman v. Vancouver General Hospital, which dealt with the revocation of hospital privileges for doctors at age 65, the majority commented on the importance of balancing the concerns of younger and older doctors. The decisions in these cases seem to indicate that the ground of age is viewed differently than other grounds.
Indeed, it might be argued that the decisions in these instances were subtly influenced by ageist assumptions. For example, the Supreme Court of Canada decision in the McKinney case was in part based on the finding that older adults are less intellectually capable than younger ones:
It may be argued that in these days, 65 is too young an age for mandatory retirement. At best, however, this is an exercise in “line drawing”, and in R. v. Edwards Books and Art Ltd., supra, at pp. 781-82, 800-801, this Court made it clear that this was an exercise in which courts should not lightly attempt to second-guess the legislature. While the aging process varies from person to person, the courts below found on the evidence that on average there is a decline in intellectual ability from the age of 60 onwards; see the reasons of Gray J., supra, at pp. 76-77, and of the Court of Appeal, supra, at pp. 145-46. To raise the retirement age, then, might give rise to greater demands for demeaning tests for those between the ages of 60 and 65 as well as other shifts and adjustments to the organization of the workplace to which I have previously referred.
Similarly, in the companion mandatory retirement case of Stoffman, the decision stated that:
In my view, the Board was amply justified, given the current climate of budgetary restraint pervasive in the public sector, in concluding that its ability to bring new doctors on staff depended on the timely retirement of some of those already there. Moreover, it cannot be said to have acted unreasonably in concluding that the retirement, as a matter of course, of those who had reached the age of 65 would ensure the departure from staff of those who would generally be less able to contribute to the hospital’s sophisticated practice. It must be stressed that the policy of applying Regulation 5.04 without exception, save in those “special cases where the physician had something unique to offer the hospital”, was an attempt by the Board to recognize that the assumption of declining capabilities in those 65 and over would not always hold true. Although it operated with regard to the hospital’s requirements rather than with regard to each individual doctor’s health and capabilities, this was probably necessary given the overriding objective of making staff positions available to doctors recently trained in the latest theories and methods.
However, in a later decision, the Supreme Court of Canada struck down provisions in the Unemployment Insurance Act preventing persons over the age of 65 from receiving insurance benefits and restricting them to a minimal lump sum benefit. While noting concerns that older persons might receive a double return of both pension a