A common theme in principles and frameworks related to older persons is the fundamental importance of participation: the right to have one’s voice heard, and to continue to contribute to and share in the life of the community. Legal frameworks may be an essential support in ensuring the right to participate.

A. Access to the Legal System

Some commentators have identified concerns regarding low levels of usage of the justice system by older adults. For example, discussions regarding the low reporting rate for elder abuse at times point to systemic barriers faced by older persons when accessing the justice system.[27]

The Advocacy Centre for the Elderly has for over 20 years done pioneering work in ensuring that the legal system addresses the needs and experiences of older adults, and the British Columbia Law Institute has created a division devoted to the law and older persons, the Canadian Centre for Elder Law Studies. Recently, the Canadian Bar Association has formed an Elder Law Section in order to promote education, advocacy and professional communication on elder law issues. However, overall there has been relatively little focus in Canada on identifying and overcoming barriers to access to justice for older adults.[28]

Older adults may experience a variety of barriers in accessing the legal system and enforcing their rights. Older adults may be unaware of their legal rights, particularly when it comes to such issues as financial exploitation by family members, or their rights as residents of retirement or long-term care homes.[29] They may experience physical barriers in attempting to access the legal system, for example, because of a lack of accessible transportation or services. An older adult who is living in an institutional setting may experience unique issues if he or she wishes to raise concerns regarding their treatment in that setting, as the care home staff may be their main link to external resources. Older adults are frequently on fixed incomes, and so may experience financial barriers. Finally, older persons may experience attitudinal barriers: police or lawyers may not take their concerns seriously or may have negative attitudes towards older adults.

B. Accessibility of Services and Facilities

As older persons are more likely to develop mobility or sensory disabilities as they age, accessible services are essential to maintaining the independence and autonomy of older persons. A lack of accessible housing options or of accessible transportation, health care and public services not only seriously impacts on the quality of life of older persons, but may be a factor in their early institutionalization. Accessibility in Ontario is currently governed by three overlapping, and sometimes competing statutes: the Ontario Building Code (OBC),[30] the Ontario Human Rights Code,[31] and the Accessibility for Ontarians with Disabilities Act, 2005 (AODA).[32] The OBC sets specific minimum accessibility standards for the built environment, and is enforced by municipal building inspectors. The AODA, a relatively new statute, creates a proactive mechanism for developing accessibility standards for specific industries, economic sectors, or classes of persons or organizations, with the goal of ensuring full accessibility by January 1, 2025. AODA standards are currently being developed in a wide range of areas, including employment, customer services, transportation and the built environment. The Ontario Human Rights Code does not set specific standards, but prohibits discrimination on the basis of disability in the areas of employment, housing, services and facilities. Organizations have a duty to ensure accessibility up to the point of undue hardship, a high standard. The Ontario Human Rights Commission develops principles and policies under the Code on specific accessibility issues. The Code has primacy over both the AODA and the OBC.[33]

No formal mechanism exists for coordinating these three pieces of legislation. In practice, the approaches to accessibility under each of these legislative frameworks often differ considerably, and the Ontario Human Rights Commission has frequently highlighted concerns with both the OBC and the AODA.[34] Service providers may therefore be required to meet three separate standards on any one accessibility issue; however, individuals may file complaints about a lack of accessible services only under the Ontario Human Rights Code.

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