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 and unemployment benefits, the Court noted that it was doubtful that the objective of fitting the Act within the government’s legislative scheme for social programs could in itself be sufficiently important to justify the infringement of a Charter rights.
Some of the most important and controversial Supreme Court of Canada decisions under section 15 of the Charter have involved age-based distinctions, although not older adults. Law v. Canada involved a clear age-based distinction: restrictions on survivor benefits for widows and widowers under the age of 45. Despite the clear distinction based on an enumerated ground, the Court found no substantive discrimination, as the distinction was not based on stereotypes, and persons under age 45 were not a disadvantaged group.
Gosselin v. Quebec (Attorney General) challenged the provisions of Quebec’s social welfare scheme that provided lower social assistance rates for persons under age 30 who did not participate in education or work programs. Following Law, the Court found that young adults as a class were not especially vulnerable or disadvantaged, and that the program, far from being based on stereotypes, responded to the actual needs and circumstances of younger persons.
Most recently, in Withler v. Canada, the Supreme Court dismissed a section 15 challenge to federal pension provisions that reduced supplementary death benefits to widows based on the age of their husbands at the time of death. While the provisions obviously constituted a distinction based on an enumerated ground, the Court determined that these provisions were, overall, effective in meeting the actual needs of the claimants and in ensuring that retiree benefits were meaningful, and therefore found that section 15 was not violated.
Like the Charter, the human rights system has not been a major venue for raising issues relating to age and inequality. Human rights complaints (now applications) related to age discrimination have in the past made up only a small percentage of the total. A review of decisions by the Human Rights Tribunal indicates that most complaints of age discrimination have related to employment discrimination.
The Ontario Human Rights Commission (OHRC) has in the past made use of its broad powers under section 29 of the Code to address ageism and age discrimination through public consultations, comments on government laws and policies, development of policy statements and public education campaigns.
B. Laws Targeting Older Adults
As discussed in Chapter II, age is commonly used as a category and to mark transitions in the life-course. This includes the use of age as a legal category. Although less common than they once were, there are still numerous age-based distinctions found in Ontario law and policy, based on both younger and older ages. An LCO review of Ontario statutes and regulations located approximately 50 statutes and regulations that incorporate explicit distinctions based on older age.
Laws that employ age-based distinctions raise complex issues of law and policy, and so are dealt with below at some length.
1. The Legal Framework for Age-Based Distinctions
The use of age-based distinctions in law and policy is of course subject to the requirements of the Charter and the Code. These laws provide a framework in which to consider the appropriateness of current age-based distinctions. Both section 15 of the Charter and the provisions of the Code protect the equality and anti-discrimination rights of older persons, and thereby recognize that age-based distinctions may undermine equality and human dignity. As noted above, section 15(1) has been used to strike down some age-based distinctions, such as the provisions of the Unemployment Insurance Act prohibiting persons aged 65 and older from collecting benefits and restricting them to a minimal lump sum benefit. Similarly, the provisions of human rights statutes have been used to successfully challenge age-based criteria, such as restrictions on access by older persons to visual aids under the Ontario Assistive Devices Program.
However, the caselaw under both the Charter and the Code makes it clear that not every distinction will violate equality rights.
In its decision in Andrews, the Supreme Court of Canada underlined that the mere fact that a law classifies individuals based on a prohibited ground does not in itself amount to a violation of section 15(1). Legislative classifications are necessary for governance in a modern society, and section 15 was not intended to eliminate all distinctions in the law – only those that are discriminatory. As is clear from the brief discussion above, age-based distinctions challenged under section 15(1) have frequently been upheld by the Supreme Court of Canada.
In A.C. v. Manitoba, a recent decision of the Supreme Court of Canada dealing with age-based distinctions related to younger age, the Court emphasized that “age-based distinctions are a common and necessary way of ordering our society” and that while such distinctions have an element of arbitrariness, this alone will not invalidate them, so long as the age chosen is “reasonably related to the legislative goal”. In the Court’s most recent decision relating to age-based distinctions, Withler v. Canada (Attorney General) (briefly highlighted above), the Court stated that
In determining whether the distinction perpetuates prejudice or stereotypes a particular group, the court will take into account the fact that such programs are designed to benefit a number of different groups and necessarily draw lines on factors like age. It will ask whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme.
That is, the use of age as a basis for distinctions is not necessarily – or even presumptively – troubling, making the analysis of age-based distinctions a somewhat different exercise than the analysis of distinctions based on other grounds such as gender, race or sexual orientation.
Similarly, the Code permits age to be used to make distinctions in employment, services or housing where age is a bona fide requirement. For example, under section 24(1) (b) of the Code, an employer may discriminate for reasons of age or certain other grounds if the ground in question is a reasonable and bona fide qualification because of the nature of the employment.
In its decision in Meiorin, the Supreme Court of Canada set out three requirements that must be met for a policy, program or standard that has a differential impact on a protected group to be found a bona fide requirement: the respondent must establish on a balance of probabilities that the standard, factor, requirement or rule
was adopted for a purpose or goal that is rationally connected to the function being performed,
was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal, and
is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
The ultimate issue is whether the person who seeks to justify the discriminatory standard, factor, requirement or rule has shown that accommodation has been incorporated into the standard up to the point of undue hardship. This sets a high standard, particularly since the standard for establishing undue hardship itself is a high one. In establishing the existence of a bona fide requirement, the respondent must, for example, demonstrate that it has investigated alternative non-discriminatory or less discriminatory approaches, considered whether it is possible to have differing standards that reflect group or individual differences and capabilities, and that the standard is properly designed to ensure that the desired qualification is met without placing undue burdens on those to whom it applies.
It is the policy of the OHRC that age-based qualifications or requirements will only be justified where individual assessment would result in undue hardship.
Those seeking to justify age based policies must show that individualized assessment as a form of accommodation is impossible, i.e. there is no method to do so, or that it represents an undue hardship. The onus is on those seeking to justify a discriminatory standard to show they have provided individualized assessment and accommodation that recognizes the ‘unique capabilities’ of every individual, unless to do so would cause undue hardship. Specifically, rather than judging individuals against presumed group characteristics, individualized assessment or testing to determine whether a person has the necessary aptitude or qualifications should be used, subject to the undue hardship standard.
Both the Charter and the Code protect the use of legislative and policy distinctions that are intended to address disadvantage among individuals or groups. Section 15(2) of the Charter specifically permits the use of enumerated grounds (including age) as the basis of distinctions in government law and policy, when such distinctions are included in programs, activities or laws that are intended to ameliorate disadvantage among individuals or groups. In the recent decision of the Supreme Court in R. v. Kapp, the Supreme Court stated that section 15(1) and 15(2) work together to promote the vision of substantive equality that underlies the section as whole: while the focus of section 15(1) is on preventing the government from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice, or imposing disadvantage on the basis of stereotyping, section 15(2) preserves the right of governments to proactively combat discrimination by developing programs aimed at helping disadvantaged groups to improve their situation.
Section 14 of the Code provides a shield for special programs. Policies or programs based on identified grounds do not violate the Code’s anti-discrimination provisions, so long as they:
Relieve hardship or disadvantage;
Help disadvantaged persons or groups to achieve equality; and
Contribute to eliminating the infringement of rights under the Code.
These provisions permit employers, housing providers and service providers to develop programs and policies that specifically target older adults, so long as a link can be demonstrated between the objectives of the program or policy and specific disadvantages or inequalities experienced by older persons. The Code also specifically exempts programs, policies or activities that provide preferential treatment for persons aged 65 and older from the definition of age discrimination. This provision operates to protect policies and practices that provide preferences in favour of older adults aged 65 and older that do not meet the higher standard required for special programs under section 14. For example, section 15 shields from human rights scrutiny the common retail practice of providing “seniors’ discounts”.
2. Current Ontario Laws Using Older Age-Based Distinctions
The Ontario laws currently relying on distinctions based on older age can be classified into three general categories: those related to employment and income security; health, ability and capacity; and special programs and preferential treatment.
Employment and Income Security
The vast majority of legal distinctions based on older age relate to the complex web of programs and policies associated with withdrawal from the workforce and maintenance of income security for older adults once they are assumed to have left the labour force.
Until 2006, Ontario law permitted employers to maintain mandatory retirement programs for employees aged 65 and older without a requirement to justify such programs as a bona fide occupational requirement. Currently in Ontario, unless an employer can demonstrate that mandatory retirement at a particular age is a bona fide occupational requirement, such programs will be considered discriminatory on the basis of age. A recent decision of the Human Rights Tribunal of Ontario which upheld mandatory retirement at age 60 for firefighters provides a sense of the circumstances under which a mandatory retirement policy may be considered a bona fide requirement.
Despite the end of mandatory retirement as a widespread practice, the assumption that age 65 remains a marker for withdrawal from the workforce remains common in the law. For example:
Some statutes continue to maintain age 65 as the normal (although now in most cases not mandatory) retirement date for pension purposes. Under the Ontario Income Tax Act, pension tax credits assume age 65 for pension benefits.
Regulations under the Employment Standards Act permit employers to provide employees aged 65 or older with lesser or no benefits as compared with younger employees, presumably on the assumption that these older employees no longer have the same need for benefits that younger ones do.
As is discussed at more length below, at the time when the provisions of the Human Rights Code protecting mandatory retirement policies were removed, the Workplace Safety and Insurance Act (WSIA) was amended to shield from challenge the older age-based distinctions in that statute and the regulations, policies and decisions under it.
The Ontario Works social assistance program requires those receiving benefits to seek employment, volunteer or retraining opportunities. However, the Ontario Works Act specifically exempts recipients aged 65 or older from these participation requirements. That is, the Ontario Works program assumes that persons aged 65 and older, unlike younger persons, will not rejoin the workforce, and does not require these individuals to make efforts towards doing so.
Ontario also provides some specially targeted benefits and income security programs for older persons once they reach age 65, presumably on the basis that withdrawal from the workforce increases the economic vulnerability of persons in this age group. For example:
The Ontario Income Tax Act provides for special property, income and sales tax credits for “seniors” who have reached at least age 65 by December 31st of the previous year. Some municipalities make special provisions to discount property tax increases for older persons.
The Guaranteed Annual Income Supplement (GAINS) provides a small income supplement for persons aged 65 and older who meet the requirements for the federal Old Age Security supplement and meet residency requirements.
The Ontario Drug Benefit Program, which covers most of the cost of prescription drugs listed in the Ontario Drug Benefit Formulary, is automatically available to all Ontarians once they reach age 65, although some co-payments are required.
Health, Disability and Capacity
As was noted in Chapter II of this Report, it is widely assumed that advancing age is associated with declines in health and certain types of capacities and abilities, and an increase in disability. A number of age-based distinctions in Ontario law reflect the assumption that health, abilities and capacity may decline with age. Because the evidence regarding the decline in health and capacities with age is complex, these types of assumptions may be a problematic basis for public policy.
In some cases, this assumption results in the provision of greater or more easily accessible benefits for older persons. For example:
The Health Insurance Act provides a reduced fee for optometry services for persons aged 65 or older.
Persons over aged 65 who are applying for home nursing or personal care services must show that they have “a sustained or periodic impairment” that creates an inability to “carry out the activities of normal living that are necessary to maintain independence, health and well-being”, a different and arguably lower standard than that applied to younger persons, who must demonstrate “a physical disability or deteriorating mental condition that a physician confirms is not expected to improve”.
The Ontario Works Act provides a special diet allowance for persons over age 65.
Occasionally, assumptions about declining health, ability and capacity are the basis for laws restricting the activities of older persons or requiring them to take extra steps to demonstrate ability and capacity. A perennially controversial example is the Ontario Seniors Drivers’ License Renewal Program. In Ontario, persons with Class G driving licenses must undergo an exam every two years once they reach the age of 80. Generally, this process involves a written test and a vision test, as well as a group education session. These drivers may also be required to take a road test if, for example, they have acquired demerit points on their driving record over the previous two years, or the counselor leading their driver education session finds that the senior driver has trouble understanding the tests or following the group discussion. As well, drivers aged 70 and older who have an accident may be required to undergo a written, driving and/or medical/visual exam.
Special Programs and Preferential Treatment
A number or Ontario laws and policies provide special benefits or protections for older persons and may fall within the ambit of section 15(2) of the Charter or of the special program or preferential treatment provisions of the Code.
Some of these laws deal with relatively trivial issues and could be characterized as minor preferential treatment. Examples might be the reduced entry charges for persons aged 65 and older under the Ontario Agricultural Museum Act or the provisions under the Fish and Wildlife Conservation Act allowing persons aged 65 who have a valid birth certificate to engage in sport fishing without obtaining a sport fishing license.
There are also legislative distinctions in favour of older persons that are substantial, and may be better characterized as special programs rather than as preferential treatment. Often these are linked to low income or economic vulnerability, or to declining health: the GAINS benefit for low-income seniors or the special diet allowance provided under the Ontario Works Act for persons aged 65 and older are examples.
A widespread and significant example of services specially tailored to the needs of older adults is “seniors housing” aimed at low-income or frail older adults. Social housing, which targets many vulnerable groups, older adults among them, is delivered through a complex network of services and providers. Social housing providers include private, cooperative, and municipal non-profit corporations, as well as local housing corporations. Funding may come from the federal, provincial or municipal governments. Social housing may take the form of affordable housing units, non-profit housing, co-operative housing with rent-geared-to-income, and supportive housing that provides personal support and homemaking services for the frail elderly and persons with various types of disabilities in a community residential setting.
Provisions for seniors’ housing are generally found under municipal by-laws and policies. Many municipalities make provision for specialized social housing for low-income seniors. For example, the City of Kingston has eight social housing projects that house either “seniors” only, or a combination of older adults and persons with disabilities. Kingston has a “cascading” admissions policy for its seniors housing: persons aged 65 and older are prioritized on its waiting list, followed by those aged 60 and older, and then those aged 55 and older. The City of Toronto operates over 19,000 seniors-only social housing units (including those which are rent-geared-to-income and market rents in non-profit, municipal or cooperative housing). The City of Toronto has established aged 59 as the minimum age to qualify for such housing. Peel Region has 32 buildings dedicated to housing for persons aged 65 and older, whether rent-geared to income, market rent, or subsidized housing.
Seniors housing brings to the fore the complex issues highlighted in the section on “Vulnerability, Inequality, Risk and Older Adults” in Chapter II of this Report. To what degree are low-income older adults disadvantaged or at heightened risk of negative outcomes, and therefore entitled to special protections such as seniors housing? Are low-income older adults more disadvantaged or at risk than other low-income individuals, and if so, how or why? How do we determine whether and when some or all older adults are entitled to special protections?
The OHRC in A Time for Action, its Consultation Report on human rights and older Ontarians, reported significant concerns regarding the availability of accessible and affordable housing for older persons, and of special needs housing. In its Policy on Discrimination Against Older People Because of Age, the OHRC stated that:
It is the Commission’s view that older persons benefit from the support, community, and income security offered by seniors’ housing projects. As well, the concept of “aging in place” has been recognized by the Commission as a central consideration so that in some cases it may be appropriate to offer ‘seniors’ housing’ to those under the age of 65 who may have special needs that will remain as they age. Therefore, the Commission would encourage housing aimed at older persons, including those less than 65 years of age, which will foster the objectives of the Code.
The Law Reform Commission of Nova Scotia has recently completed a project on seniors’-only housing. In its December 2010 Discussion Paper, the Commission reaches the conclusion that a blanket statutory exemption for seniors’ housing is not desirable:
While such an exemption would facilitate seniors-only age limits, and the benefits that may spring from them, we are not persuaded that such benefits are more significant than the interests of those who would be excluded from housing that is otherwise suitable for them… The Nova Scotia Human Rights Act already permits seniors-only age limits where they are shown to be necessary to ensure the protection of seniors’ distinctive interests, or to ameliorate seniors’ particular disadvantage. The current legislative context does not appear to dissuade proponents of housing developments.
The debate over this issue highlights the complexity and difficulty of the issues surrounding special programs for older adults. At the core of the debate is the question as to whether the use of age as a criteria is actually addressing needs and concerns unique to older adults, or is using age as a proxy for other, less easy to measure qualities.
3. Using Age as a Proxy
This review of Ontario’s age-based legislative distinctions reveals that in most cases, age is being used as a proxy for low-income, withdrawal from the workforce, for some form of capacity, ability or health limitation, or for some form of vulnerability related to these other qualities.
This raises some concerns. In some cases, the use of age as a proxy is merely the employment of ageist stereotypes and assumptions. For example, the use of age as a marker for the ability to adapt within a workplace, or to bring “cutting-edge” or creative new ideas to a job is really nothing more than a fairly blatant form of age-based discrimination: evidence does not support the assumption that older persons are less able than younger adults to learn or adapt, or to be creative. Where unsupported assumptions are at play, the use of age-based criteria may be merely a form of age-based stereotyping. It is therefore essential that when age is being used as a proxy it is based on a careful review of the current available research on the circumstances and needs of older adults, as well as consultation with older adults themselves.
It is also important that this evidentiary base be regularly reviewed and re-evaluated. For example, the assumption that older persons will withdraw from the workforce at age 65 once had a fairly solid basis, but changing demographics and labour market patterns indicate that it is substantially less true now than it once was, and that engagement of older persons in the labour force is likely to continue to increase. In 1996, 15 per cent of Canadians wished to continue to work past age 65, or for as long as their health would permit them; in 2003, this figure was 26 per cent. Similarly, healthy life expectancies for Canadians have been increasing: old assumptions about the abilities and capacities of older persons may be incorrect.
As well, whenever one uses age as a proxy for other attributes, one is inevitably ignoring the diversity and individuality of older adults. Age is not identical with ability or capacity, or with preparedness to withdraw from the workforce: whatever the level of correlation between age and the attribute targeted by the program in question, there will inevitably be situations where the use of age as a proxy results in either under-inclusion or over-inclusion. This may result in significant injustice for some.
Of course, the decision to use age as a proxy for some other attribute is not necessarily or not simply always the result of stereotypical assumptions. There may be a meaningful degree of correlation between age and some types of abilities or circumstances. For example, in Espey v. City of London, the Human Rights Tribunal of Ontario found that the relationship between advancing age and the risk of on-the-job cardiac events for firefighters was sufficient to justify the city’s mandatory retirement policy. Because age is simple and straightforward to measure, the use of age can be a very efficient way of allocating benefits, resources or requirements. This becomes of particular importance where extensive and complex social programs are being administered. For example, the identification and measurement of disability is difficult, controversial and complicated, and may itself raise human rights issues. Often, substantial adjudication mechanisms must be developed to determine whether a person meets disability-based program requirements. These mechanisms can pose substantial hardships, not only for governments administering programs, but also for individuals attempting to prove that they meet the program requirements. The use of age as a criterion avoids these difficulties.
The Supreme Court of Canada considered the human rights implications of the use of protected grounds as proxies in the case of Zurich Insurance Co. v. Ontario (Human Rights Commission). This case dealt with the practice of insurance companies of using age, sex and marital status as proxies for assessing risk levels for drivers, and thereby for setting rates for insurance premiums.
The Court acknowledged that the use of protected grounds such as age, sex and marital status for making determinations was a prima facie violation of human rights principles:
Human rights values cannot be over-ridden by business expediency alone. To allow “statistically supportable” discrimination would undermine the intent of human rights legislation which attempts to protect individuals from collective fault. To allow discrimination simply on the basis of statistical averages would only serve to perpetuate traditional stereotypes with all of their invidious prejudices. Society has decided not to hold the individual responsible for the sins of his or her “group” and the courts must seek to further rather than restrict this decision.
Given the violation of human rights principles resulting from the use of age, marital status and sex as a basis for making distinctions in the provision of insurance, the Court determined that this insurance scheme could only be upheld if it was demonstrated that there was no alternative which was practicable in all the circumstances. The Court found that there was no practical alternative available at that time, and therefore upheld the practice. The Court stated, however, that:
The insurance industry must be allowed time to determine whether it can restructure its classification system in a manner that will eliminate discrimination based on enumerated group characteristics and still reflect the disparate risks of different classes of drivers. It would therefore be inappropriate for this Court to find a particular practice to be unreasonable when no reasonable alternative exists. While the situation as it existed in 1983 did not provide a reasonable alternative to setting premiums based on age, sex and marital status, the situation today and in the future may be quite different. The insurance industry must strive to avoid setting premiums based on enumerated grounds.
That is, there is a high standard set for demonstrating that the use of age-based distinctions is permissible. Such distinctions are permissible only where other alternatives are not reasonably available. If the same case was brought again before the Court, the result might now be different.
In general, what alternatives exist to the use of age-based distinctions as a proxy for other characteristics?
One may, of course, attempt to directly measure the characteristic in question, whether it be ability or economic vulnerability or withdrawal from the workforce. Where the correlation between age and the characteristic in question is high, this may decrease efficiency and increase costs, although it will increase accuracy. As well, where disability is at issue, one must take into account that abilities and circumstances also vary among individuals with disabilities, and that individualized testing is generally considered preferable to the use of bio-medical categories as determining factors. That is, the concept of disability itself may be a proxy for other characteristics.
A variant on the individualized testing approach is to use individual testing beginning at a certain age. For example, most senior drivers’ license programs in Canada provide for individualized assessment beginning at a specific age. A modified version of this was endorsed by the Ontario Superior Court in Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General). A requirement for justices of the peace to retire at age 70 was held to violate section 15 of the Charter. In order to address concerns regarding security of tenure, rather than striking down mandatory retirement altogether, justices of the peace, like provincial court judges, were permitted to remain in office after age 65, subject to an annual review by the Chief Justice, with mandatory retirement postponed to age 75.
A third option is to create a rebuttable presumption: age is used as a category, but older persons are provided with the opportunity to demonstrate that they should not fall within the rule. This was the suggestion of the Human Rights Tribunal in Espey: that mandatory retirement for firefighters at age 60 should stand because of the risk of on-the-job cardiac events, but that a process or mechanism could be developed for individuals to demonstrate that their risk was no higher than that for younger persons and that the rule should therefore be waived for them.
4. Assessing the Use of Age-Based Laws
It has frequently been pointed out that age-based distinctions risk undermining the dignity of older adults by suggesting that their age makes them somehow different and lesser. As Wilson J. stated in her dissent in McKinney, the Code protection for mandatory retirement provisions
discriminates because it does not distinguish between those who are and those who are not able to work. In this way, the section operates to perpetuate the stereotype of older persons as unproductive, inefficient, and lacking in competence. By denying protection to these workers the Code has the effect of reinforcing the stereotype that older employees are no longer useful members of the labour force and their services may therefore be freely and arbitrarily dispensed with.
Age-based distinctions have been used to restrict the participation and contribution of older persons. By their nature, age-based distinctions reinforce the notion that older adults are a homogenous group, obscuring their diversity and individuality. Inevitably, the use of age-based distinctions undermines the principle of diversity and individuality.
On the other hand, some age-based distinctions have been of considerable benefit to older persons. The use of age-based income-support programs have significantly contributed to the reduction of poverty among older adults, for example.
When assessing age-based distinctions in law or policy, one must begin by considering the assumptions on which such distinctions are based. Are they based on current, reliable, research on the characteristics, needs and circumstances of older adults? Or are they based on assumptions that have their basis in ageist attitudes and stereotypes about the abilities, contributions and worth of older adults? Do they take into account, to the extent possible, the individuality and diversity of older adults?
It is also important to consider the purpose of such distinctions. Do they aim to promote the independence and autonomy, dignity, participation and inclusion, and security of older persons? Age-based income support programs, for example, aim to increase the economic security of older persons, and may thereby also promote their independence and participation.
In some cases, like mandatory retirement or drivers’ license testing, part of the purpose of the age-based distinction may be to protect the opportunities or the health and safety of others, whether younger workers, or others who are using the roadways. In addition to considering whether the identified risks are indeed borne out by the evidence, it is important to ensure that the rights of older persons are not lightly dismissed or subordinated to those of others, and that the impact of restrictions on older adults are fully taken into account and considered.
The purpose of an age-based policy or program may not, however, be borne out in implementation. Mandatory retirement, for example, is often conceived of in the context of pension planning, as a means of assuring the economic security of older adults, and providing a dignified exit from the labour force. No doubt, for many older adults, mandatory retirement programs operated in this way. But for older adults who were in some way disadvantaged – women or immigrants who had interrupted work histories, vulnerable workers without access to pension plans or the opportunity to build up assets for retirement – mandatory retirement had the effect of reducing their economic options and opportunities and of further diminishing their economic security. As well, employers who assumed that older workers would leave the workforce at age 65 may not have continued to invest in those employees – to offer coaching, opportunities for training and enrichment, or considered them for advancement, thereby undermining the ability of aging workers to continue to contribute meaningfully to their workplaces.
Given the risks to dignity and individuality associated with age-based policies, one must also consider whether there are alternatives, such as individual assessment or inclusive design, which would achieve the same objectives but have a lesser impact on the dignity, security, independence, participation and individuality of older adults. Where individual assessment is not possible, other alternatives that would reduce the impact of age-based distinctions, such as the creation of a rebuttable presumption, should be considered.
CASE EXAMPLE: AGE-BASED DISTINCTIONS IN THE LAWS
Age-Based Restrictions under the Workplace Safety and Insurance Act
One of the Ontario statutes that retains older age-based restrictions on benefits is the Workplace Safety and Insurance Act (WSIA). Ontario’s workers’ compensation system was originally envisioned as a compromise between the needs of employers and employees: injured workers were entitled to legislated no-fault benefits, speedily administered, related to their earning power and paid for as long as the disability lasted. In return, employers were protected from lawsuits by workers and funded the system on a collective liability basis through which their annual rates were easily incorporated into the cost of production and passed on to customers in the price of goods. This is often referred to as the “historic compromise”.
At the time when the provisions of the Human Rights Code protecting mandatory retirement policies and other employment-based distinctions aimed at persons age 65 or older were removed, the WSIA was amended to protect the age distinctions in that statute and the regulations, policies and decisions under it. There are five provisions limiting or terminating rights for older workers. For the purposes of this discussion, the focus will be on the following two provisions terminating benefits for older workers:
While the WSIA places a limited duty on employers to re-employ injured workers, this duty ends at the point when a worker reaches age 65. Under the WSIA, workers who have more than one year’s service and who have lost time from work due to a compensable injury in a workplace with 20 or more employees are entitled to return to their old job or a comparable one. If the injured worker is not able to perform the essential duties of their old job but can do other work, the employer is obligated to offer suitable work if it is available. In either case, the employer is obligated provide disability-related accommodations to enable the employee to perform the work, to the point of undue hardship. In all cases, the employer’s obligation continues for a maximum of 2 years, or one year after the injured worker is able to return to their pre-injury work. However, the re-employment obligation also ends when a worker reaches age 65, so that workers who are injured between age 63 and 65 receive a reduced re-employment opportunity, and those injured after age 65 receive no re-employment opportunities at all.
The WSIA places age 65 limits on loss of earnings benefits. Workers who experience an income loss due to a work related accident are entitled to loss of earnings benefits until the day on which the worker reaches age 65 years of age, if the worker was less than 63 years of age at the time of the injury; or two years after the date of the injury if the worker was 63 years or older at the time of the injury.
These provisions ignore the importance to older persons of having the choice to continue to participate in the workforce. This has been recognized, notably, in the United Nations’ Principles for Older Persons (IPOP), which includes, as elements of the principle of independence, the opportunity to work or to have access to other income-generating opportunities and to participate in determining when and at what pace withdrawal from the labour force takes place. The Madrid International Plan of Action on Ageing (MIPAA) emphasizes that “Older persons should be enabled to continue with income generating work for as long as they want and for as long as they are able to do so productively.”
Age-based rules regarding workforce participation, such as the limitation on the duty to re-employ, make age a central, overriding factor in assessing the needs and abilities of workers, ignoring the diversity of experiences and circumstances among older workers. Women, of course, will often have different labour market experiences than men. The caregiving responsibilities that women disproportionately take on may lead to interruptions in their workplace participation or to reduced participation. As well, women are more likely to be found in low-paid or precarious work. As a result, women have more difficulty in developing pensions or other resources for retirement. New Canadians may have a shorter period of employment in Canada upon which to build up assets for retirement and they, along with racialized persons and persons with disabilities, also tend to have more restricted access to the labour market, lower incomes and greater unemployment during their working lives. Overall, Canadian’s lifecycles and labour force patterns have shifted dramatically since the 1970s, and are now much more varied and complex.
It has been argued that these age-based distinctions on the ability of older workers to continue in the workforce and to continue to equally access workplace protections and benefits undermine the fundamental dignity and worth of older adults. In its submission to the Standing Committee on the Ending Mandatory Retirement Statute Amendment Act, the OHRC stated that:
The provisions of Bill 211 respecting benefits and workers’ compensation are a form of age discrimination. They send a message that older workers are essentially of lesser worth and value than their younger co-workers, and reinforce negative and ageist stereotypes and assumptions about the abilities and contributions of older workers. They fail to recognize the contribution of older employees to their workplaces, or the importance of work to older workers. These provisions are offensive to dignity, and the Commission believes that they will be vulnerable to challenge under the Charter.
One of the key reasons advanced for the use of these age-based distinctions in employment is that they are frequently seen as part of a complex web of benefits and trade-offs that as a whole promote the security and dignity of older persons by allowing an orderly withdrawal from the labour force and the provision of basic income protections. Indeed, the overlapping structure of federal and provincial income-support structures for older persons, including the Canadian Pension Plan and Old Age Security are generally seen as having successfully reduced the incidence of poverty among older persons.
This understanding has shaped key Supreme Court decisions regarding age-based distinctions in the areas of employment and income supports. The Supreme Court in McKinney noted that the acceptance of age 65 as the “normal” age for retirement had profound implications for the organization of the workplace – the structuring of pension plans, for fairness and security in the workplace, and the provision of workplace opportunities, such that mandatory retirement “has become part of the very fabric of the organization of the labour market in this country”. In a recent decision, the Supreme Court of Canada upheld the provisions of a pension that required mandatory retirement as part of the plan, noting that the provisions were an attempt to balance concerns regarding age discrimination with the importance of ensuring the financial protection of employees under genuine pension plans. The Human Rights Tribunal in the Espey decision made a similar point, noting that the mandatory retirement provisions in question were part of a collective agreement that had been shaped as a trade-off to maximize a number of goals important to the parties.
On the other hand, the Supreme Court of Canada, in striking down restrictions on unemployment insurance benefits for persons aged 65 and older, noted that was doubtful that the objective of fitting the provisions of the Unemployment Insurance Act within the government’s legislative scheme for social programs, could in itself be sufficiently important to justify the infringement of a Charter rights.
The view that these common age-based distinctions are part of a broader package that is overall favourable to older adults has been challenged. It has been pointed out that there have been very significant shifts in demographics, in the labour market, in occupational conditions, and in life cycles since the mid-1960s, when current laws, policies, institutions and assumptions regarding withdrawal from the workforce were developed. Given the aging population, increasing diversity in life cycles, and the shift towards service work and non-standard jobs (and the subsequent decline in the number of workers who have access to employer-sponsored pension plans), older workers are increasingly economically vulnerable, uncertain about the future, and unable to afford retirement. The assumption of a single standard age for withdrawal from the workforce is increasingly tenuous. The use of age 65 as the sole marker for the end of protections and benefits under the WSIA is therefore problematic.
Other jurisdictions have taken different approaches, without jeopardizing the financial stability of the regime. For example, in British Columbia, although the “normal” age for the end of worker’s compensation protections remains age 65, workers can individually present their particular circumstances. Where the Board is satisfied that the worker would have retired later than 65 years of age, or more than 2 years after the injury, the legislation allows the Board to pay workers’ compensation benefits up to the date the worker would retire.
C. Laws of General Application – Laws that Affect Mainly Older Adults
Some laws do not explicitly reference age, but mainly impact on older adults. Such laws may operate almost like age-based programs and are often thought of as such because the vast majority of those affected are older adults. However, there are no age-based criteria at play – it is only that the law in question deals with an issue that disproportionately affects older adults.
In these types of laws, the issues regarding the law as it affects older adults are raised most clearly and directly. Are stereotypes or negative attitudes regarding older adults affecting the design or implementation of the law? Does the law promote the principles of dignity, autonomy, participation, security and respect for diversity? Does the law adequately take into account the circumstances of older adults? Is the wellbeing of older adults treated as of equal importance to that of other citizens?
One of the clearest examples of this is the law regulating long-term care homes. The criteria for admission as a long-stay resident in a long-term care home is set out in the regulations under the Long-Term Care Homes Act, 2007:
A placement co-ordinator shall determine a person to be eligible for long-term care home admission as a long-stay resident only if,
(a) the person is at least 18 years old;
(b) the person is an insured person under the Health Insurance Act;
(c) the person,
(i) requires that nursing care be available on site 24 hours a day,
(ii) requires, at frequent intervals throughout the day, assistance with
activities of daily living, or
(iii) requires, at frequent intervals throughout the day, on-site supervision or on-site monitoring to ensure his or her safety or well-being;
(d) the publicly-funded community-based services available to the person and the other caregiving, support or companionship arrangements available to the person are not sufficient, in any combination, to meet the person’s requirements; and
(e) the person’s care requirements can be met in a long-term care home.
Beyond the requirement that the person seeking admission be an adult, the criteria are not age-based. In fact, some younger persons with complex and significant medical needs live in long-term care facilities. However, the vast majority of the residents are older adults.
Persons living in long-term care homes are more vulnerable than many other Ontarians. They have significant medical or disability-related needs that require the extensive nursing supports available in such settings, and these needs can leave them dependent on or vulnerable to those who provide them with care. While long-term care homes provide vital supports not available to their residents in the community, the trade-off is that their residents are living in institutional settings, removed from the broader community and the supports, community and social roles available there. To manage the needs of some residents whose disability-related behaviors put themselves or others at risk, long-term care homes have considerable powers over residents, including the use of restraints and placement of residents in locked-in wards. Good long-term care homes are vital to the dignity and security of older adults; poorly operated long-term care homes place their residents at significant risk and undermine security, dignity, autonomy, inclusion and respect for individuality and diversity.
Ontario law regulating long-term care homes has just undergone major reforms with the Long Term Care Homes Act, 2007, most of the provisions of which came into force July 1, 2010, and it will take some time to assess the extent to which the new law addresses concerns identified under the predecessor legislation.
In some cases, all that is necessary to ensure that the law meets the needs of older adults is to ensure that it does not itself violate the rights of older adults. In other cases, positive steps are necessary to ensure that individuals, service providers, employers or others do not violate the rights of older adults. In some cases, it may be necessary for the government to take steps to ensure that the minimum needs of older adults for physical, mental or financial security are met. Most laws that mainly address older adults fall into this category.
Because older adults are disproportionately likely to have withdrawn from the workforce and to be dependent on a fixed income, and to have or to develop various impairments or disabilities, older adults are more likely than members of other age groups to be reliant on government supports or protections to meet their basic needs. This may include income support programs, like Ontario’s GAINS program, or services such as health care, home care or long-term care homes.
As such, older adults not infrequently encounter the effects of resource limitations in programs intended to provide benefits. Programs that are intended to provide basic supports for the vulnerable may be in effect rationed by tight eligibility criteria or long waiting lists, and may therefore not achieve their intended impact. The effects on the dignity, autonomy, inclusion and security of older adults may be significant.
CASE EXAMPLE: LAWS AFFECTING MAINLY OLDER ADULTS
First Available Bed Policies
A consistently raised concern in the area of elder law in Ontario is “First Available Bed” policies, policies which have been implemented by hospitals and Community Care Access Centres (CCACs) to manage the transition of older adults from hospital care to placement in a long-term care home.
Placement in a long-term came in Ontario is regulated by the Long-Term Care Homes Act (LTCHA) and its regulations. The law places responsibility for placement in a long-term care home with the local CCAC placement coordinator, so that the individual in question or their substitute decision-maker must make an application through the placement coordinator. Where application is being made with respect to a person who is currently hospitalized, the hospital discharge planner or other hospital staff may work to facilitate the application.
Under the regulations to the LTCHA, an individual seeking long-term care may select up to five long-term care homes to apply to (in crisis situations, more may be selected). An individual’s choice of a long-term care home is regulated by the Health Care Consent Act (HCCA), which requires that the person or their substitute decision-maker apply for the homes of their choice, and that valid consent is required prior to placing a person on a waiting list for a long-term care home. Section 46 of the LTCHA defines the elements of a valid consent as including that it relate to the admission, that it be informed, that it be given voluntarily, and that it not be obtained through misrepresentation or fraud. Section 46 further sets out the information that individuals are entitled to prior to giving a consent, including what the admission entails, the expected advantages and disadvantages of the admission, alternatives to the admission, and the likely consequences of not being admitted. The HCCA sets out requirements where a substitute decision-maker is involved, the fundamental principle being that the admission must be in accordance with the prior capable wishes of the individual involved, or where these are not known, the best interests of the individual. Under the HCCA, the best interests of the individual include:
(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;
(b) any wishes expressed by the incapable person with respect to admission to a care facility that are not required to be followed under paragraph 1 of subsection (1); and
(c) the following factors:
1. Whether admission to the care facility is likely to,
i. improve the quality of the incapable person’s life,
ii. prevent the quality of the incapable person’s life from deteriorating, or
iii. reduce the extent to which, or the rate at which, the quality of the incapable person’s life is likely to deteriorate.
2. Whether the quality of the incapable person’s life is likely to improve, remain the same or deteriorate without admission to the care facility.
3. Whether the benefit the incapable person is expected to obtain from admission to the care facility outweighs the risk of negative consequences to him or her.
4. Whether a course of action that is less restrictive than admission to the care facility is available and is appropriate in the circumstances.
The legislation, in total, sets out a framework that is based on the autonomy and security of the older person. It does not priorize as a consideration the needs of the hospital or long-term care systems.
In practice, however, consent to placement in a long-term care home is constrained by a range of policies and practices that arise from the shortage of hospital and long-term care beds in the province of Ontario: hospitals are overcrowded, and waiting lists for long-term care are long. To manage the difficulties of the resource shortage, administrators have developed and implemented a range of policies, frequently referred to as “First Available Bed” policies, which arguably violate both the letter and the spirit of the legislative framework. The issue of First Available Bed policies has been raised in the provincial legislature. The Advocacy Centre for the Elderly (ACE) notes that in 2010 alone, the clinic received over 160 requests for assistance related to discharge from hospital and admission to long-term care homes:
Most hospitals in Ontario have discharge policies with which they require patients to comply when moving from hospital into another care setting. The policy may require that the patient or their substitute decision-maker select a certain number of “short list” long-term care homes from a list provided by the hospital or CCAC; or may require the patient to accept a “suitable bed” as determined by the hospital, which may not be in one of the homes chosen by the patient or their substitute decision-maker. Usually, the person is told that if they do not comply with the policy, they will be charged the “daily rate”. This is the rate charged for an acute care bed for someone who does not have OHIP or other insurance. Although there is no specific number, this rate may range from $500 to $1,500 or more per day.
Patients may be offered other options to accepting the first available bed, such as returning home to wait for their home of choice, or moving to a retirement home to await their home of choice.
While recognizing the pressures under which the health-care and long-term care systems operate, one cannot ignore the negative effects on older adults of First Available Bed policies. Beds which are deemed “acceptable” from the perspective of administrators may be far from such from the perspective of the individual involved, whether because of the extent or quality of the care available in the placement, or because it is at a distance that completely removes the older adult from families and community support systems. In some cases, long-term care homes may have beds available because of the low quality of services provided, and individuals may be coerced into accepting placements in homes with poor records in terms of respecting the dignity, autonomy and security of their residents.
D. Laws That Affect a Disproportionate Number of Older Adults
In other cases, while older adults do not make up the majority of those affected by a particular law and the law has an impact across age groups, a substantial portion of older adults are affected by that law.
The extent or nature of the disproportionate impact may vary among groups of older adults. For example, laws regarding financial exploitation will have particular significance for older adults as a whole, as financial abuse is the most common type of abuse of older adults. They may be especially significant, however, for Aboriginal older adults, many of whom are residential school survivors, and who may be targets of financial abuse due to their receipt of settlement monies.
As laws of general application are likely to be age-neutral on their face, it is essential to examine whether or how laws addressing large numbers of older adults may, in design or implementation be shaped by ageist attitudes or assumptions. Not uncommonly, the consequences of ageist attitudes may play out in the day-to-day context in which service providers, legal professionals and decision-makers address the rights and needs of older adults. Regardless of how well-designed a law or program is, ageist or paternalistic attitudes on the part of those charged with implementing the law or program will make it ineffective for older adults. If, for example, competent older adults attempting to exercise their rights to make choices for themselves are undermined by health care providers who think that older adults should defer to others, the laws regarding consent and capacity will be ineffective. ACE has provided examples in long-term care settings of competent older adults being prevented from leaving their residences, even for short periods of time, unless they are accompanied by family members or family members have provided consent. There have also been instances of care providers discussing care issues with the resident’s family instead of the competent resident. The influence of this type of ageism is hard to make visible as it happens in small, everyday decisions and interactions and is not overt, and so may not be recognized even by those who are carrying it out.
Margaret Hall provided an example in her paper for the LCO on developing an anti-ageist approach to the law:
The system or scheme created by Ontario’s substitute decision making legislation is non-ageist, and does a good job of protecting the individual’s rights; balancing the individual’s rights to autonomy in decision making with the individual’s rights to physical dignity and integrity, not to be subjected to prolonged suffering or denied treatment. The implementation of that legislation is, however, problematic; rights that cannot be effectively exercised are rights “in the air” (as opposed to rights on the ground). Older adults who become engaged with substitute decision making, under either the Substitute Decisions Act or the Health Care Consent Act, will be in a vulnerable situation; entrenched ageist attitudes and stereotypes among professionals implementing the legislation will increase that vulnerability and the likelihood that autonomy will not be respected. The frequently high-conflict family context in which the legislation is implemented also increases the likelihood that substitute decision making will not occur in accordance with the guidelines set out in the legislation, but reflect conflicts and the interests of family members… [P]rofessionals and (possibly particularly) institutional staff may tend to make decisions that primarily meet institutional interests, in the absence of a strong counter-weight. These tendencies do not connote “badness” or selfishness, but reflect the coincidence of basic human tendencies to prefer decisions in one’s own interests, where they can be plausibly justified, with the ageist social attitudes that provide that justification.
Recognizing that older adults may have different needs and circumstances from other populations, one of the challenges in laws that affect disproportionate numbers of older adults is to balance the particular needs of older adults with those of others who are affected by the law.
CASE EXAMPLE: BALANCING NEEDS ACROSS GROUPS
Capacity and Guardianship Laws
Laws regarding legal capacity, consent and decision-making provide a good example of laws that have this type of disproportionate impact on older adults, and the challenges of designing laws and programs in these circumstances. While there is surprisingly little in the way of empirical research into the relationship between older adults and Ontario’s legal capacity and decision-making framework, what information is available does indicate that these systems have a disproportionate impact on older adults. For example, information obtained from the Ontario Public Guardian and Trustee (OPGT) for the fiscal year 1996/1997 indicated that just over half of those individuals who were under personal or property guardianship through the OPGT were aged 65 or older, and 57 per cent of that group was over the age of 75. Approximately 60 per cent of those individuals over age 65 were female, and over 90 per cent were living in an institutionalized setting. The typical case for emergency guardianship involved an older woman who lived alone, had dysfunctional family relationships, and had experienced neglect or misuse of money or of a power of attorney. Advocates for older adults have identified capacity and guardianship laws as having a very significant impact on the rights of older persons, and as a key locus for law reform efforts.
This disproportionate effect on older adults is largely due to the incidence of dementia among older adults. Dementia is a disease of aging which is also a significant cause of loss of legal capacity, and has its most significant impact on the very old. As the population continues to age over the next 30 years, issues related to consent, capacity and decision-making are likely to become more pressing. The Alzheimer’s Society of Canada recently released a report estimating that the prevalence of dementia will more than double over the next 30 years, to a projected 2.8 per cent of Canada’s population.
However, capacity and guardianship laws are not age-specific, or disability-specific. The laws apply equally to persons with developmental disabilities at any point in their lives, to persons with psychiatric disabilities, and to persons who develop cognitive disabilities such as Alzheimer’s Disease as they age. An assessment of the impact of these laws is therefore complex. The life experiences of a person with a psychiatric disability will be very different from those of a person with dementia or a developmental disability. Equally, the experiences and needs of a young person with a developmental disability may be different from those of the same person in old age. One must bring both an anti-ableist and an anti-ageist analysis to this area of the law.
As well, one must keep in mind that different types of disabilities will affect legal capacity differently. For example, persons with cognitive disabilities such as Alzheimer’s Disease will vary in their capacities over time, and will often vary in their abilities from day to day, which may present special challenges.
In bringing an age-based analysis to these laws, it is important to take into account how capacity and decision-making laws may impact differently across various groups of older adults, and consider the circumstances, both of those older adults who have acquired a disability at birth or early in life and are living into old age, and those who have acquired a disability later in life.
Older adults who have developed cognitive disabilities late in life are more likely to have gathered some significant financial assets, if only a house. These assets may prove a temptation to financial abuse or exploitation. On the other hand, those who have lived with a disability since their younger years are more likely to have experienced poverty and marginalization throughout their lives, and to lack the financial resources necessary to obtain adequate supports as they age.
As well, the development of cognitive disabilities later in life may subject older adults and their families to difficult and often confusing role reversals, as adult children find themselves called upon to provide support and assistance to the parents who once were responsible for guiding and providing for them, and old family dynamics take on new forms. On the other hand, those who have lived with disabilities throughout their lives may lose what have been central lifelong support systems as their parents and siblings age and die.
It is also important to keep in mind that older adults as a whole are subject to stereotypes about their frailty, incapacity and need for protection. Older adults who are capable within Ontario’s laws may nonetheless be treated as if they are incapable, because of assumptions about the abilities of older adults in general, and for those who have an intellectual, psychiatric or cognitive disability, the effect of that disability may be exacerbated or exaggerated due to its intersection with these general stereotypes about the incapacity of older adults.
Therefore, while older adults with cognitive disabilities will share concerns and experiences with others who find themselves subject to Ontario’s capacity and guardianship regime, there will also some concerns and experiences that will be unique.
These differences in needs, life experiences and perspectives between those affected by capacity and guardianship laws raise challenges for law reform. It may be impossible for a single approach to adequately address the range of views and needs. It has been suggested that the differences in approaches may be a barrier to law reform in some cases. While dialogue across differences may promote greater understanding and identify greater common ground, it is unlikely to do away with all of these differences. The perspectives and circumstances of older adults must be respected, as must those of persons with intellectual or psycho-social disabilities.
Given the diversity among older adults, and among the range of persons with disabilities affected by these laws, it may be helpful to consider whether there is any single approach to this area of law that optimizes this balance, or whether the diversity among those affected indicates a need for flexibility and options in the legislative structure. That is, inclusive design may point one towards accommodating the needs of various groups by providing alternatives and offering choice.
For example, compared to other Canadian jurisdictions, Ontario law offers few alternatives to older adults (and others) in terms of decision-making options where legal capacity is affected by a disability. Supported decision-making, for example, may not be the preferred option for some or many older adults, due to their particular financial or relationship circumstances. However, that does not mean that this might not be the preferred option for some older adults or younger persons with disabilities, and that they should not have the option to use these types of decision-making supports upon incapacity. A greater menu of options, as with Alberta’s new legislation, may offer greater opportunity to meet the diverse needs of persons whose decisional capacity is limited or declining, as well as supporting autonomy and self-determination.
E. Laws of General Application – Affecting Older Adults Differently
In some cases, laws of general application may not affect more older adults as a group, but may impact differently on older adults as compared to others. In considering the impact of laws that appear on their face not to have any particular relationship to older adults, it is important to give thought to how the circumstances and experiences of older adults, or of some older adults, may differ from those who are younger, and whether that will have an effect on how older adults are affected by that law. For example, caselaw regarding damages awards create a barrier for older adults who are seeking justice: as most older adults are no longer working, they cannot claim damages for loss of income, and courts have narrowly interpreted damages for loss of companionship.
Laws may differentially impact on some older adults, or only a smaller subgroup, such as low-income older adults, or older adults with disabilities. Sometimes the extent or nature of the differential impact will vary among groups of older adults: for example, elder abuse may take different forms among some racialized communities, or among LGBT older adults.
In other words, laws that do not recognize the ways in which older adults may differ from other groups, and provide rules, rights and benefits as if those differences do not exist, may provide formal equality for older adults, but will fail to achieve substantive equality.
Margaret Hall, in her paper on developing an anti-ageist approach to the law, notes in the context of elder abuse and guardianship laws that:
The great majority of the legislation discussed in this paper is facially “age neutral.” Both subject areas will disproportionately impact older adults. Ensuring substantive equality in these areas means, therefore, recognising how “age neutrality” may play out in real life situations involving older adults in vulnerable situations: where capacity is in question and where others must make decisions on the person’s behalf, and where a person is suffering from abuse or exploitation or where abuse and exploitation is suspected. In these situations, pervasive social and individual-level ageist attitudes will interact with personal vulnerability in a way that makes ostensibly available “age-neutral” rights difficult to assert. Legislation that allows “space” for patronising and ageist approaches (as where incapacity is defined broadly and substitute decision making guidelines are not specific) effectively invites those attitudes in these contexts.
The effect of laws of general application on older adults may be shaped by ageist assumptions on the part of those interpreting and applying those laws. Ageist stereotypes may not be explicit, but may take the form of subtle assumptions about the worth or contributions of older persons. For example, the case of McDonell Estates v. Royal Arch Masonic Homes Society involved an action for damages against a long-term care home by the family of an older woman who died as a result of caregiver negligence. As the plaintiffs had not suffered any pecuniary loss as a result of their mother’s death, the damages sought were for loss of care and companionship. The Court rejected the plaintiff’s claim for loss of companionship consequent upon the death of their mother:
I have said these plaintiffs claim damages only for the loss of the companionship of their mother, not the loss of her love and guidance. With respect, I find the claim is without merit. Sadly their mother had long ceased to be a companion for she had been physically, mentally and emotionally incapacitated for a considerable time before her death. The plaintiffs had established lives and families separate and apart from their mother. I suspect they anticipated that following three disabling strokes, her death at any time was a distinct possibility. It is understandable that they suffered grief and sorrow over the loss of their mother and the cause of it.
CASE EXAMPLE: LAWS AFFECTING OLDER ADULTS DIFFERENTLY
Revocation of Wills Upon Marriage
One example of a law that impacts differently on older adults than on younger ones is the automatic revocation of wills upon marriage.
Under the law, a marriage where one of the individuals did not have the capacity to consent is void ab initio. The law in this area is not settled, and different lines of cases suggest different understandings of the capacity required to enter into a valid marriage. One line of cases suggests that marriage is a distinct kind of contract, for which the parties must have an understanding of the basis nature of marriage and its consequences. It is not clear whether this required understanding stretches beyond the emotional bond and responsibilities of marriage to include an understanding of its financial, estate and property consequences.
The capacity required to make a will differs from the capacity required to marry: to make a will, an individual must have “a sound disposing mind, which means the individual must understand the nature and effect of making the will; the extent of his or her property; and appreciate the moral claims of close family members to his or her property.”
Under the Succession Law Reform Act (SLRA), a valid will is revoked when an individual’s marital status changes. The law reflects that marriage is a significant life change, which should prompt an individual to reconsider his or her affairs, including testamentary dispositions.
It is important to note that if an individual dies without a valid will, the estate will be distributed according to the provisions of the Family Law Act and the SLRA. Essentially, if an individual dies without issue, the spouse is entitled to the property absolutely, whereas if there are issue, the estate is divided between the spouse and children. Parents, nephews and nieces, and siblings will only receive part of the estate if there is no surviving issue or spouse. Under the Family Law Act, a spouse may choose to receive entitlements under the SLRA, or to receive a division of net family property under the family law statute.
This web of laws related to capacity, marriage and wills has a particular effect on older adults. Because testamentary capacity requires a relatively sophisticated understanding of the consequences of making a will, while capacity to marry sets a lower standard, it is quite possible that an individual will have the capacity to marry, but not to make a will. And because marriage revokes previous wills, such individuals are left without the ability to make choices regarding the disposition of their estates, and their estates will necessarily be apportioned according to the rules of the SLRA and the Family Law Act.
Older adults are more likely than the general population to be affected by conditions like dementia that affect their testamentary capacity but may not affect their capacity to marry. They are also more likely to have complex family arrangements, including children from previous marriages, and thus complex obligations and wills as well as complex family dynamics. As divorce and re-marriage become increasingly common, these issues will continue to grow.
The automatic revocation of wills has also been identified as particularly problematic in the context of “predatory marriages”, in which a younger individual allegedly marries an older one in order to receive a share of the individual’s estate after death.
The law as it stands therefore, fails to adequately recognize and address the particular circumstances surrounding the marriages and wills of older persons.
F. Where Law is Silent
In some cases, law negatively affects older adults, not by what it does, but by what it fails to do. Law may fail to take into account the needs and experiences of older adults, and may therefore fail to address issues of pressing importance to this group. As a result, older adults may be left without adequate direction to make decisions on important issues, or without adequate supports or protections.
There are numerous examples of this problem. There is, for example, a lack of legal guidance around access to older adults. Where older adults have physical or mental impairments that restrain their ability to independently maintain their relationships, those individuals who provide care or support to these older adults may use their position to control access to that person. For example, a child living with his or her aging parent may be able to effectively cut off access to other siblings or to friends of that parent. Powers of attorney for property or personal care may be misused to attempt to control access to the older adult. There is no legislation directly dealing with these issues. In this vacuum, the SDA may be used as a mechanism whereby family members continue or attempt to resolve long-standing relationship issues revolving around the older adult.
CASE EXAMPLE: WHERE LAW IS SILENT
Long-Term Care Homes and the Sexuality Of Older Adults
One of the most prevalent stereotypes about older persons is that they lack the interest and/or the capacity to be sexually active. Indeed, attitudes may extend beyond the assumption that older adults are not interested in being sexually active to the belief that they should not be interested in being sexually active. This is further complicated by notions of older adults as dependents, akin to children, who must be protected in their best interests. However, research indicates that sexuality can remain meaningful and important to older people, and that older adults can and do participate in sexual activity throughout their lives.
In terms of anti-ageist principles, the sexuality of older adults may be linked to their autonomy (their right to make choices regarding their private lives), as well as their dignity (their right to be considered as full individuals, regardless of their age). Because some older adults are vulnerable (for example, due to a physical or intellectual disability) and experience a heightened risk of sexual abuse, the principle of security is also at play. As with many areas of the law as it affects older adults, there is a tension between the autonomy of older adults and their right to take risks and make bad choices, and the security of older adults, including their physical, emotional and mental well-being.
Physical health and disability may create barriers to sexual activity for older adults, as may loss of a partner. Often, a key barrier is institutionalization of older adults. There may be a variety of barriers to sexual expression in congregate settings.
Most older adults in long-term care facilities are housed in ward rooms, rather than private or semi-private rooms, and so older adults may lack the privacy necessary for sexual activity. Some LTC homes have set aside private rooms that residents may use for sexual activities. However, use of these rooms may be restricted.
Institutional staff may defer to family members, who may object to sexual activities on the part of their resident family members. Adult children, for example, may be profoundly discomforted by a parent’s sexual activity outside of their marriage.
Nursing school curricula and on-site training for staff deal only minimally with issues of sexual rights, sexual health, and capacity and consent. Staff may therefore be uncomfortable with sexual expression on the part of older persons, and view it as something to be discouraged or repressed.
For older adults who are LGBT, negative attitudes on the part of staff or other residents or concerns about homophobia may inhibit not only sexual expression, but even acknowledgement of their sexual identities, essentially forcing some of these older adults into the closet.
The development of physical disabilities may create difficulties for sexual expression unless assistance is provided, but staff may be uncomfortable about providing assistance with sexual expression.
These challenges are exacerbated by the fact that a significant portion of older adults who are living in long-term care settings have some degree of dementia, which may in some (not all) cases affect the capacity of that individual to consent to sexual activity.
The law provides little specific guidance on these complex issues. The new LTCHA has as a guiding principle that “a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.” This principle recognizes the importance of meeting the needs of residents in a holistic manner, and could be read in a way that includes a recognition of the importance of sexuality to meeting the psychological and other needs of older adults.
Section 3 of the Act, the “Resident’s Bill of Rights”, recognizes a range of rights relevant to the expression of sexuality, including the right to form friendships and relationships, to have his or her lifestyle and choices respected, to meet privately with his or her spouse or another person in a room that assures privacy, and to share a room with another resident according to their mutual wishes if appropriate accommodation is possible.
The LTCHA also places the responsibility on the operators of long-term care homes to protect residents from abuse, including sexual abuse and neglect, and to create policies regarding the prevention and the response to abuse.
The LTCHA does not provide, however, any further guidance on how these various rights and principles, all important, are to be implemented in practice. The issues are challenging, as they raise not only practical difficulties (including the necessity of combating the subtle effects of ageist attitudes among staff and family members), but also the necessity of balancing the promotion of autonomy of older adults with respect to their sexuality with the necessity of protecting the security of those older adults who are not consenting or not able to consent to sexual activity.
Some of the issues around sexual expression in long-term care homes are relatively straight forward in law, and require “only” better implementation through policies and training. For example, it is clear that the adult children of legally capable older adults should not be able to interfere with the sexual choices of their parents, no matter how uncomfortable those choices may make them, and that the staff of long-term care homes should not assist adult children in attempting to interfere with those choices. This does not mean that the issues are simple to resolve, but only that the substance of the law is not the cause of the difficulty.
Where the legal capacity to consent is unclear, however, the issues become much more difficult. Capacity for decision-making is not a blanket issue: it will vary according to the specific type of decision to be made. The capacity to make decisions about property will be different from the capacity to make decisions about whether one should be admitted to a long-term care home, or from the capacity to decide on which friends or acquaintances the older adult wishes to see. The capacity to consent to sexual activity therefore must be separately determined; however, the law is quite unclear on the test for that capacity. Nor is the process or the responsibility for determining capacity to consent to sexual activity anywhere clarified. As the SDA does not deal with the issue of decision-making related to sexual activity, it does not appear that a substitute decision-maker can consent to sexual activity on behalf of an incapable older adult.
In the absence of any clear test or standard, long-term care homes may default to paternalistic responses to sexual expression, in order to ensure that they meet their obligation to prevent sexual abuse. As a result, older adults who live in long-term care homes may be denied legitimate sexual expression.
As has been stated:
Sexual expression is a normal part of a healthy life. People that live in long-term care homes should be able to engage in “normal” living which includes the right to sexual expression. What is the legal framework related to sexuality that will ensure that those persons who can consent to engage in intimate sexual relationships are provided with privacy and the appropriate supports? Conversely, what is the legal framework for those persons who cannot consent in order to protect them from sexual exploitation and abuse?
In summary, the law as it relates to the sexuality of older adults living in institutional settings operates indirectly. There is little in the way of current caselaw or statute law that relates specifically to this issue, although the new Long Term Care Act, 2007 creates a legal framework that offers the opportunity for a positive approach. Currently, the law is framed mainly through the lens of elder abuse laws and policies. The overriding concern in institutional settings with respect to the sexuality of older adults is to prevent sexual abuse of older adults in institutional settings. This is exacerbated by the lack of clear legal standards regarding capacity, consent and sexuality among older adults. The lack of clarity leaves staff with little guidance, and in the attempt to minimize the risk of sexual abuse staff may unnecessarily intervene to prevent behaviour which is not, in fact, abusive. Therefore, the lack of guidance and clarity in the current state of the law appears to indirectly operate to constrain the expression of sexuality by capable older adults.
This is compounded by negative attitudes and lack of understanding regarding the sexuality of older persons on the part of institutional staff and family members. There is a failure to recognize that older persons, like younger ones, are sexual beings and to respect that older adults have a right to express their sexuality as part of their right to live a full human life. Respect for this right would require greater attention to the privacy of older adults, as well as greater efforts to provide training and education for staff on related issues.
As well, the paternalistic attitudes on the part of institutional staff and family members that operate to ill effect in many areas related to the rights of older adults are active here also, as staff and family members may act to prevent older adults from making “bad decisions” or to subordinate the needs of older adults to the wishes and needs of their family members.
G. Identifying Ageism and Paternalism in the Law
Given the above, how can we identify ageism and paternalism in the substance and implementation of the law as it affects older adults?
1. Stereotypes and Negative Attitudes in the Law or its Implementation
Stereotypes and paternalistic or negative attitudes towards older adults may be present in the substance or the implementation of the law, either explicitly or implicitly.
Stereotypes and problematic attitudes may be easiest to identify when examining laws that specifically target older adults (i.e., that employ age-based distinctions), or that are mainly targeted towards older adults. For example, assumptions about the capacity of older adults to actively participate in the workplace or attitudes about the value of their doing so may be apparent in some of the laws restricting the access of older adults to employment protections or benefits. Similarly, paternalistic attitudes may underlie mandatory reporting and adult protection laws. A review of the purposes of such laws in light of the principles of dignity, autonomy, participation, security and diversity can reveal the operation of ageist attitudes in the formation of the law.
Analysis of the substance of laws of general application which differently affect older adults, or affect some portion of older adults, is less likely to reveal the operation of ageist assumptions, except insofar as the impact on older adults may not have been considered during the development process. Rather, ageist assumptions may affect the implementation of the law, for example, through the stereotypes and attitudes of those charged with putting the law into practice. Presumptions about the incapacity and dependency of older adults may, for example, shape how the laws around capacity and consent are implemented by service providers, legal and health care professionals and decision-makers.
Margaret Hall suggests that when evaluating laws, in addition to considering whether a particular statute or regulation explicitly or implicitly includes or refers to ageist stereotypes and/or paternalistic attitudes, we should also ask whether there are “sufficient mechanisms provided for by the legislation to prevent or protect against the legislation being implemented in an ageist manner, including the acting out of individual ageism”, something particularly important when considering laws not directly targeted at older adults. Returning to the international rights framework of “respect, protect, fulfil” referenced in Chapter III of this Interim Report, this suggests that laws, rather than simply taking a neutral stance in terms of ageism, should actively recognize the existence of ageism and paternalism and include proactive measures to prevent or address it.
As is discussed further in the following Chapter, this might take various forms, such as providing education and training for service providers and professionals on ageing and ageism, providing strong complaint and advocacy mechanisms to ensure that older adults can make their concerns heard, or proactively monitoring and reviewing the implementation of law to make certain that the law is fulfilling its intended purpose and is being implemented in harmony with that purpose.
2. Failure to Take Older Adults into Account
Laws may, in either their substance or their implementation, fail to take into account the real needs of older adults. Laws that employ age-based criteria may, for example, be based on assumptions about the needs, circumstances and abilities of older adults that are true for some fail to recognize the diversity of older adults. As the example of the revocation of wills demonstrates, laws of general application may be designed or developed in a manner that does not take into account that older adults, or some significant group of older adults, may differ from the general population in meaningful ways. As another example, income eligibility criteria for programs may be designed in a way that does not take into account the fact that most older adults are on fixed incomes, and have no means of recouping any financial losses.
This points to the importance, both of increasing awareness and understanding about ageing and older adults among policy-makers and legislators, and of enhancing the opportunities for older adults to be involved in the design of laws and policies that may affect them.
3. Ignoring or Subordinating the Needs of Older Adults
Legislators, policy-makers, service providers and professionals face many competing priorities for time, attention and resources. This is a reality that is faced by all, not only older adults.
As was highlighted in Chapter III, it is also true that in some circumstances, the needs or rights of older adults may be perceived to compete with those of other groups. Laws regarding mandatory retirement and seniors’ driver’s license programs have been framed in this way. For example, the notion that older workers are “taking jobs” from younger ones continues to be raised by some, although it is not generally accepted among academics. A more complex issue is the ongoing debate regarding reform to capacity and consent laws: the issue is of considerably importance to both the disability and older adult communities, but there is significant variance between the two communities in terms of principles and priorities for reform.
As a starting point, it should be clear that the needs and circumstances of older adults should be considered to be of equal value and priority as those of other age groups. Negative attitudes towards older adults as dependents who have no further contributions to make to society may influence the willingness to provide adequate resources to ensure that laws are properly implemented and that older adults are able to live at basic levels of economic, physical and emotional security, or to address the issues that are of pressing concern to older adults.
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