As is apparent from the discussion in Chapter IV, equal attention must be paid to both the substance of laws and how they are implemented. Laws which on their face are neutral or even positive with respect to older adults, may be in practice ineffective or negative due to inadequate implementation and poor enforcement. This is the problem that the Advocacy Centre for the Elderly (ACE) has referred to “good law, bad practice”. 

In a number of areas of law, the law is good but the practice is bad. Therefore, law reform per se would not be necessary, but research on why the law is not being followed could be very useful since it has a negative impact on older adults and their rights. Good laws should not be changed merely because there is resistance to comply.[421] 

The Report of the United Nations Expert Group Meeting on the Rights of Older Adults specifically urges governments to “close the gap between law and the implementation of the law”.[422]  

One aspect of the implementation gap is access to justice (or the lack thereof) for older adults. While the importance of access to justice is widely discussed, there is considerable divergence of opinion as to what “access to justice” means and what would be required to ensure it.[423] It is beyond the scope of this document to consider these debates in depth; however, as a starting point for considering the issues in this section, it is essential to clarify some terms as they are used here.  

In its broadest sense, the term “access to justice” can incorporate concepts of social justice, and involve considerations of substantive outcomes and the achievement of justice for vulnerable groups. In that sense, this Project as a whole aims to increase access to justice for older adults.  

More narrowly, the term “access to justice” may be used to refer to access to the legal system as one mechanism for ensuring that the law as written is effective as intended. Unless the law is actually implemented and enforced, and is a living reality, it has little meaning for those whom it was intended to benefit.  The term “access to the law”, as it is used in this Report, refers to the ability of individuals to effectively access the intended benefits of the law.  

This concept of access to the law is clearly closely related to the issue of “good law/bad practice”, as referenced above. Lack of effective mechanisms for accessing and enforcing existing laws may be one of the reasons for this phenomenon. 

Clearly, one element of access to the law is access to the legal system, which includes the ability to acquire information about one’s legal rights, to obtain competent legal advice and representation as required, and to access existing legal dispute resolution mechanisms. However, access to the law can be ensured in many other ways; for example, through advocacy organizations such as ombuds’ offices, or administrative complaint systems or through proactive monitoring and auditing structures.  Some mechanisms for facilitating access to the law are discussed in this Chapter.

 

A.    Older Adults and Access to the Law

As is described in Chapter II of this Report, older adults are an extremely diverse group, ranging widely in income, education, health status and place of residence, among other factors. The nature and level of concerns related to access to the law will therefore vary widely among older adults. For example, a married couple in their early 60s, in good health and with solid retirement savings and access to pension benefits, will have considerably fewer challenges in accessing the law than a widow who was recently sponsored to come to Canada in order to help care for her grandchildren, who is not entitled to government supports such as OAS, who does not have connections and supports in the community, and who does not have strong English language skills.  

Of course, concerns regarding access to the law are not confined to older adults. Many disadvantaged groups find their access to the law limited in a variety of ways. Immigrants may experience linguistic barriers in accessing the law, while those with low or moderate incomes will face financial barriers. Discrimination and the effects of historical disadvantage may marginalize racialized, Aboriginal or LGBT individuals, as well as others. As discussed at length in the LCO’s project on the law as it affects persons with disabilities, physical or other barriers may reduce access for persons with disabilities. As many older adults are also immigrants, low-income, racialized, Aboriginal, LGBT, persons with disabilities or members of other marginalized groups, they will face disadvantages as members of these groups, which in some circumstances are compounded by their age. 

There are also some circumstances that are particularly prevalent among older adults that may limit access to the law for this group. These circumstances were discussed at some length in Chapter II of this Interim Report and include fixed incomes and withdrawal from the workforce, lower than average literacy and educational levels, the onset of health and activity limitations with the advancement of age, and limitations in life expectancy. Some significant portions of the older adult population also have their experiences shaped by cognitive disabilities, living environments that reduce their autonomy and community inclusion, and the consequences of physical, financial or other forms of dependency.  

Any discussion about access to the law and older persons must be placed in the context of the larger and ongoing discussion regarding the accessibility of Ontario’s legal system, issues also examined in the LCO’s projects on entry to the family law system and on vulnerable workers and precarious work.[424] Concerns have been raised from many quarters regarding the accessibility of the legal system, and in recent years numerous initiatives and reports have been undertaken to address the problem. As summarized by the Ontario Bar Association’s Report, Getting it Right:

Ontario’s legal system is in critical need of reform. A lack of resources in terms of judicial appointments, court facilities, justice and community support services and the under-funding of Legal Aid have combined with other challenges to create significant barriers to justice for Ontarians.  

We need change: just as a health care system is there to deliver health care, Ontario’s justice system is there to deliver justice. If we think health care is expensive, try disease. There comes a point in a patient’s deterioration that bandages just won’t work anymore. Ontario’s justice system is at that stage now. [425]

Older adults may of course deal with the full range of legal issues that affect individuals in general. However, as was noted in previous chapters, due to their circumstances there are some issues which older adults are more likely to encounter. For example, because older adults tend to have withdrawn from the workforce and are also disproportionately likely to have needs related to impairments or disabilities, they are more likely to be users or potential users of government programs and services. They are therefore more likely to be affected by the laws related to the provision of certain government programs, such as health care, income security, long-term care homes, and home care supports. Because issues related to the receipt of government programs and services will often involve general policies and procedures rather than individual interactions and decisions, the legal issues that older adults face may often be extremely complex and may require systemic remedies. 

As well, the importance of issues like elder abuse, powers of attorney, estate planning and informal caregiving to older adults, means that when older adults encounter the law, it will very frequently be in the context of their domestic lives and their personal relationships. This has implications for how older adults may access the law, and what outcomes they may seek from it. For example, they may be less willing to explore adversarial mechanisms for resolving issues.  

Charmaine Spencer has noted some of the implications of these dynamics for access to justice for older adults:

[T]he legal process often pits an individual against someone with whom they have an ongoing relationship – a landlord or home care agency – so that many people who face real and serious barriers are reluctant to file complaints. This means that they will often wait until they have already suffered substantial harm before trying to deal with it. Formal and informal advocates can face significant challenges when acting for older adults and advocating for them in systems on which they are dependent or will need. There is the ever-pressing need to address ‘conflict’ while recognizing the reality that the older client must continue to use the service of the service provider with whom they are having conflict.[426]

 

B.    Assessing the Access Mechanisms Available to Older Adults

Taking the above considerations into account, how well do currently available mechanisms for accessing and enforcing the law serve the older adult population? 

Given that older adults, as part of the general populace, are affected by all laws of general application, and therefore have access to all of the complaint and enforcement mechanisms available to the general populace, there are a wide variety of mechanisms available and regularly used by older adults in accessing the law. It is well beyond the scope of this discussion to outline in detail all mechanisms available to older adults for accessing and enforcing the law. Rather, the focus will be on outlining some of the most important mechanisms currently available, given the types of issues most commonly encountered by older adults. This overview, albeit cursory, allows for some assessment of the characteristics and potential of various types of mechanisms in enhancing access to the law for older adults.

1.                  Selected Key Mechanisms for Accessing the Law

Civil Litigation

Often rights accorded to older adults must be enforced through civil actions. A notable example of this is the “Resident’s Bill of Rights” which was initially found in the  Nursing Homes Act,[427] and in an amended and expanded version is in the new Long Term Care Homes Act, 2007.[428]  The “Resident’s Bill of Rights” includes the right to be treated with courtesy and respect; to be properly sheltered, fed, clothed, groomed and cared for; to be afforded privacy in treatment and in caring for personal needs; to keep and display personal possessions in one’s room; to be informed about procedures when being considered for restraints; to communicate in private and to receive visitors; and many others. Under both the (now superseceded) Nursing Homes Act and the Long Term Care Homes Act, these rights are the subject of a deemed contract between the resident and the licensee. Enforcement of these rights would therefore take the form of an action against the licensees for breach of contract.

Civil litigation is a challenging route for enforcement of rights. It is often a slow and time-consuming process. It is also a costly one, dependant as it is on access to a lawyer, and therefore out of reach for low-income Ontarians, excepting the minority who can access Legal Aid funding. The adversarial nature of the process may make it unsuitable for resolving some types of issues. For example, in the case of rights under the Resident’s Bill of Rights, the power imbalance between care home residents and licensees makes an action for breach of contract an unhelpful means of pursuing such basic rights.[429] Finally, individual actions are unlikely to provide an adequate remedy where systemic