Age is often used as a criterion in legislation, as well as public policies and programs. For example, upon attainment of age 65, Ontarians are eligible for the Ontario Drug Benefit Program, which pays for most of the cost of drugs that are listed in the Ontario drug benefit formulary. Many pension plans maintain age 65 as the ”normal retirement date” for the commencement of retirement benefits. On a less formal basis, many organizations offer “seniors’ discounts” or similar programs based on age criteria.
The Supreme Court of Canada has ruled that age-based distinctions do not necessarily undermine equality rights.[19] Although the Ontario Human Rights Code prohibits discrimination based on age, section 15 expressly permits preferential treatment of persons aged 65 or older. As well, section 14 permits organizations to create special programs to relieve disadvantage or hardship for groups that have experienced disadvantage, including older persons.[20]
Age criteria may be used to either confer benefits, or to deny them. When mandatory retirement was ended in Ontario in December 2006, employers were given discretion as to whether or not to provide health, insurance and dental benefits to employees aged 65 or older. An employer may choose to provide lesser or no benefits to employees who decide to continue working after age 65.[21]
While the use of age-based criteria is a long standing practice, its effectiveness has been questioned.[22] Age has frequently been used as a stand-in for ability, dependency or need. However, the situations and capacities of older adults will, of course, vary widely. It has been suggested that the use of age-based criteria may suggest that older adults are homogenous, and thereby support ageist thinking.[23] Individual assessment of need or capacity has been proposed as a preferable alternative.[24]
In the case of mandatory retirement, while a single standard retirement date had the benefit of clarity, simplicity and certainty, it did not reflect the very wide range of life experiences, capacities and needs of older adults. Mandatory retirement policies may now only be imposed in Ontario in those rare circumstances where individualized assessment is impossible (in the sense that there is no appropriate method for carrying it out) or would cause undue hardship.[25]
There has been recurrent debate as to whether age should be a trigger for additional driver’s license requirements. Ontario’s Senior Driver Renewal Program requires drivers aged 80 years and over to take part every two years in a group education session and to complete vision and knowledge tests. Based on individual assessment, some drivers may also be asked to take a road test to have their in-car skills assessed. Some have suggested that older drivers should be required to take a regular road test, while others have argued that age by itself is not an appropriate indicator of driving skills, and that either all drivers should be regularly re-tested, or that re-testing should be based on specific functional indicators. [26]
Another aspect of the discussion of the use of age as a criterion is the notion of “intergenerational equity” – the concept that there should be justice between generations, in terms of treatment and relationships. For example, in the context of the recent debate in Ontario about ending mandatory retirement, some commentators argued that mandatory retirement was necessary to make room for younger workers, and thereby transfer resources between the generations.
Question 4:  Should the use of age-based criteria in laws and programs affecting older adults be re-examined? Are there specific age-based criteria that warrant the attention of the LCO?
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