[1] Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012). Online: http://www.lco-cdo.org/en/older-adults-final-report [LCO, Framework for the Law as It Affects Older Adults].
[2] Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012). Online: http://www.lco-cdo.org/en/disabilities-final-report [LCO, Framework for the Law as It Affects Persons with Disabilities].
[3] Substitute Decisions Act, 1992, S.O. 1992, c. 30 [SDA].
[4] Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A [HCCA].
[5] Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A [PHIPA].
[6] Mental Health Act, R.S.O. 1990, c. M.7 [MHA].
[7] The concept of progressive realization emphasizes that the fulfilment of the principles is an ongoing process, as circumstances, understandings and resources develop, Efforts to improve the law should be undertaken, such that changes to law and policy respect and advance the principles, principles are realized to the greatest extent possible at the current time, and there is a focus on continuous advancement. The Frameworks further elaborate on the concept of progressive realization: LCO, Framework for the Law as It Affects Older Adults, note 1, 7; LCO, Framework for the Law as It Affects Persons with Disabilities, note 2, 96.
[8] Queensland Law Reform Commission, Assisted and Substituted Decisions: Decision-Making by and for People with a Decision-Making Disability (Brisbane: June 1996), 1. Online: http://www.qlrc.qld.gov.au/reports/r49v1Ch1_6.pdf.
[9] For a comprehensive overview of Ontario’s laws prior to the reforms of the 1990s, see David N. Weisstub, Enquiry on Mental Competency: Final Report (Toronto: Publications Ontario, 1990), Appendices II – V.
[10] Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: 1987), vii [Fram Report].
[11] Fram Report, note 10, 39-47.
[12] Weisstub, Enquiry, note 9, 55.
[13] Weisstub, Enquiry, note 9, 19.
[14] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 33rd Parl, 2nd Sess, No 81 (16 December 1986), 4255-56 (Hon Ian Scott) [Hansard]. See also Review of Advocacy for Vulnerable Adults, Terms of Reference, January 1987 in Sean O’Sullivan, You’ve Got a Friend: A Review of Advocacy in Ontario (Toronto: Ontario Ministry of the Attorney General, 1987), 162.
[15] You’ve Got a Friend, note 14, 121-22.
[16] Canadian Centre for Elder Law Studies, A Comparative Analysis of Adult Guardianship Laws in BC, New Zealand and Ontario (Vancouver: British Columbia Law Institute, 2006), 43. Online: http://www.bcli.org/bclrg/publications.
[17] Advocacy Act, 1992, S.O. 1992, c. 26.
[18] Ernie S. Lightman & Uri Aviram, “Too Much, Too Late: the Advocacy Act in Ontario” (2000) 22:1 Law & Pol’y 25, 40.
[19] Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, GA Res 61/106 (entered into force 3 May 2008, ratified by Canada 11 March 2010) [CRPD].
[20] CRPD, note 19, Art. 4.
[21] Lana Kerzner, “Paving the way to Full Realization of the CRPD’s Rights to Legal Capacity and Supported Decision-Making: A Canadian Perspective” (Paper prepared for the In From the Margins: New Foundations for Personhood and Legal Capacity in the 21st Century symposium at the University of British Columbia, April 2011), 19.
[22] Kerzner, note 21, 21.
[23] United Nations Treaty Collection, “Status of Treaties: Convention on the Rights of Persons with Disabilities.” Online: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en.
[24] Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, para. 66. See also R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.
[25] New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, paras 58-60.
[26] Fleming v. Reid (1990), 73 O.R. (2d) 169 (Dist. Ct.), rev’d (1991), 4 O.R. (3d) 74, 82 D.L.R. (4th) 298 (C.A.), para. 60.
[27] In R. v. Kapp, the Supreme Court of Canada stated that “Sections 15(1) and 15(2) work together to promote the vision of substantive equality that underlies [section] 15 as a whole”: [2008] 2 S.C.R. 483, 2008 SCC 41, para. 16.
[28] Human Rights Code, R.S.O. 1990, c. H.19, s. 47(2).
[29] Human Rights Code, note 28, Preamble.
[30] For explication of the nature, content and limits of duty to accommodate, see Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: 2000). Online: http://www.ohrc.on.ca.
[31] For example, the Commissioner for Human Rights for the Council of Europe has recommended the creation of an explicit legal obligation for government and key institutions (such as health care and financial service providers) to “provide reasonable accommodation to persons with disabilities who wish to access their services. Reasonable accommodation includes the provision of information in plain language and the acceptance of a support person communicating the will of the individual concerned”: Commissioner for Human Rights, Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities (Strasbourg: 2012), 5. Mona Paré has also made this argument: Mona Paré, “Of Minors and the Mentally Ill: Re-Positioning Perspectives on Consent to Health Care” (2011) 29:1 Windsor Y.B. Access Just. 107, 121.
[32] Ontario Human Rights Commission, Minds That Matter: Report on the consultation on human rights, mental health and addictions (Toronto: 2012), 92. Online: http://www.ohrc.on.ca/sites/default/files/Minds%20that%20matter_Report%20on%20the%20consultation%20on%20human%20rights%2C%20mental%20health%20and%20addictions.pdf.
[33] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11. Online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_05a11_e.htm [AODA].
[34] HCCA, note 4, s. 1.
[35] Note 4, ss. 10, 25.
[36] Note 4, ss. 10-11, 15.
[37] Note 4, s. 20.
[38] Note 4, s. 21.
[39] Note 4, Parts III, IV.
[40] Note 4, ss. 40, 57.
[41] Note 4, s. 70.
[42] Note 4, s. 75.
[43] SDA, note 3, s. 7.
[44] Note 3, ss. 46, 49.
[45] Note 3, ss. 7(7.1), 8, 46(8), 47.
[46] SDA, note 3; O Reg 460/05.
[47] SDA, note 3, ss. 16-17.
[48] Note 3, ss. 22, 55.
[49] Note 3, ss. 32, 38, 66-67.
[50] MHA, note 6, s. 54. There is an exception where the patient is already under guardianship or a power of attorney for property under the SDA.
[51] MHA, note 6, ss. 59-60.
[52] Note 6, s. 20, especially s. 20(1.1).
[53] HCCA, note 4, s. 4; SDA, note 3, s. 2.
[54] SDA, note 3, s. 3; HCCA, note 4, s. 81.
[55] British Columbia Law Institute, Report on Common-Law Tests of Capacity (Vancouver: September 2013).
[56] PHIPA, note 5, s. 4.
[57] Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 [PIPEDA].
[58] Long-Term Care Task Force on Resident Care and Safety, Report: Long-Term Care Task Force on Resident Care and Safety (May 2012), 16. Online: http://longtermcaretaskforce.ca/images/uploads/LTCFTReportEnglish.pdf.
[59] Long-Term Care Homes Act, 2007, S.O. 2007, c.8.
[60] Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, S.O. 2008, c. 14 [SIPDDA].
[61] SIPDDA, note 60, s. 3.
[62] SIPDDA, note 60, s. 4.
[63] SIPDDA, note 60, s. 11.
[64] Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: Analytical Report (Ottawa: Minister of Industry, 2007), 34 [PALS 2006 Analytical Report].
[65] Note 64, 30.
[66] Kerri Joffe (ARCH Disability Law Centre), Enforcing the Rights of People with Disabilities in Ontario’s Developmental Services System (Toronto: Law Commission of Ontario, June 2010), 13.
[67] National Advisory Council on Aging, “Seniors on the Margins: Aging with a Developmental Disability,” (Ottawa: Minister of Public Works and Government Services Canada, 2004), 8. Online: http://publications.gc.ca/collections/Collection/H88-5-2-2004E.pdf.
[68] Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: Tables (Ottawa: Minister of Industry, 2008), 12, 19. Online: http://www.statcan.gc.ca/pub/89-628-x/89-628-x2008011-eng.pdf [PALS 2006 Tables].
[69] Statistics Canada, Social and Aboriginal Statistics Division, Participation and Activity Limitation Survey 2006: Labour Force Experience of People with Disabilities in Canada (Ottawa: Minister of Industry: 2008), 13. Online: http://www.statcan.gc.ca/pub/89-628-x/89-628-x2008007-eng.pdf.
[70] National Advisory Council on Aging, note 67, 11.
[71] Note 67, 9.
[72] Edward F. Ansello & Peggy O’Neill, “Abuse, Neglect, and Exploitation: Considerations in Aging with Lifelong Disabilities,” (2010) 22 Journal of Elder Abuse and Neglect, 105, 110.
[73] According to Statistics Canada, in 2003, 37 per cent of individuals aged 65 and older considered themselves to be in very good or excellent health, as compared to 63 per cent of those aged 25 to 54: Martin Turcotte & Grant Schellenberg, A Portrait of Seniors in Canada (Ottawa: Minister of Industry, 2007), 43-51. Online: http://www.statcan.gc.ca/pub/89-519-x/89-519-x2006001-eng.pdf [Turcotte & Schellenberg].
[74] Alzheimer Society of Canada, Rising Tide: The Impact of Dementia on Canadian Society (Toronto: 2010), 18. Online: http://www.healthyenvironmentforkids.ca/sites/healthyenvironmentforkids.ca/files/Rising%20Tide_Full%20Report_Eng_FINAL_Secured%20version.pdf.
[75] Note 74, 17.
[76] LCO, Framework for the Law as It Affects Older Adults, note 1, 73.
[77] Note 1, 77-78.
[78] The rate of low-income among older adults is relatively low. However, unattached older woman are a group that is at particular risk of low-income, as historic gender roles resulted in many women who were dependent on their spouses for income security, such that widowhood or divorce might result in a slide into low income: See
Chantal Collin & Hilary Jensen, A Statistical Profile of Poverty in Canada (Ottawa: Library of Parliament, Septe