The Ontario Human Rights Code (the “Code”) protects against discrimination on the ground of age in relation to accommodation (housing), goods, services and facilities, employment, contracts and membership in vocational associations.
This paper deals with discrimination as it relates to the older person. It has been developed as part of the Ontario Human Rights Commission’s (the “Commission”) mandate under s. 29 of the Code and the policy framework of the Policy and Education Branch to develop policy on the major grounds in the Code.
The year 1999 was the International Year of Older Persons. This designation by the United Nations (the “UN”) was designed to recognize the contributions made by older persons and their value to society.
Based on the case law, demographic trends and the types of cases coming to the Commission through complaints, a strategic focus was adopted to ensure that the paper dealt with the most prevalent issues. Briefly summarized, these issues relate primarily to:
- Employment for persons aged 45 to 65 and over;
- Housing for persons 55 and over; and
- Services and facilities for persons over 65 years of age.
Our population is aging. It is estimated that by the year 2021 Ontario will be home to three million senior citizens, up from one and a half million in 1998.
As the population ages, the ability of service providers to meet the needs of older persons as well as access to appropriate facilities and housing become increasingly important. In the area of employment, the "downsizing defence" combined with rapid growth of new technologies may have a disproportionate impact on older workers. The dignity and worth of older persons are infringed by stereotypes about aging, and neglect and abuse of seniors in services and facilities have been reported in several parts of the country. For example, elder abuse in institutionalized settings is the subject of an inquiry in the Province of Quebec.
Case law and social commentary suggest that age discrimination is approached differently from other forms of discrimination. Aging is something that all individuals who do not die prematurely will eventually experience. This distinguishes age from other "traditional" grounds that reflect characteristics that do not change throughout a person's lifetime, such as race, colour or ancestry. More important is the fact that, in many cases, age discrimination is treated as permissible on the basis it has social utility. In fact, almost 30 years ago, in a seminar sponsored by the Commission’s Age Discrimination Division, the following was noted:
As you have doubtless observed, age discrimination does not seem to invoke the same sense of moral outrage at the community level as is the case with discrimination based on race, creed and national origin. Nevertheless, the consequences of age discrimination are no less severe in the economic sense, in the social sense and in the psychological sense. The victims are crippled in equal measure by age discrimination.
This observation still applies today despite the advent of the Canadian Charter of Rights and Freedoms (the “Charter”) and the evolution of equality jurisprudence. The Commission’s treatment of age discrimination complaints suggests that a similar approach is taken to this somewhat unique form of discrimination.
The International Year of Older Persons
The United Nations (the “UN”) has identified five key areas of importance for older people:
- Independence: opportunities for employment, education or training and provision of the support required to enable older people to live at home for as long as possible.
- Participation: an active role in decision making and communicating in the family, the community and society as a whole.
- Care: access to health care based on need, and social, legal and other services that enhance personal security and provide a safe, humane and caring environment for those in residential care or a treatment facility.
- Self-fulfillment: personal development opportunities, with access to cultural, spiritual and recreational resources.
- Dignity: full human rights, including respect for older persons' beliefs, privacy and security.
The theme for the International Year of Older Persons, “Towards a Society for All Ages”, embraces the notion of a society that adjusts to the needs and capabilities of all, thereby releasing the potential of all, for the benefit of all. Like the UN, Canada has signalled the need to prepare for this important demographic change.
The theme mirrors the Preamble to the Code, which recognizes the dignity and worth of every person and the need to provide for equal rights and opportunities without discrimination so that each person feels a part of the community and able to contribute fully to the development and well-being of the province. As part of the commitment that follows the International Year of Older Persons, it is particularly appropriate to examine the treatment of older persons within Ontario in light of the letter and spirit of the Code.
Indeed, the Province of Ontario has proclaimed:
Ontario's 1.45 million seniors, by volunteering thousands of hours to their families and to their communities, truly make "Ontario, a Province for All Ages". Thus the Province of Ontario proclaims 1999 as The International Year of Older Persons: a year to honour our seniors and lay plans for lasting legacies that will ensure respect and recognition for our seniors in the next millennium.
Consistent with this statement, and in keeping with the theme of Ontario being a “Province for All Ages”, the Commission has undertaken this review of human rights issues affecting older persons. This paper considers social issues that relate to age discrimination, including the changing demographics of society, attitudes towards aging, and the evolving nature of the workplace. It examines provisions of the Code, human rights legislation in other Canadian jurisdictions, international human rights documents, and jurisprudence and literature that relate to age discrimination.
It is hoped that this paper will form the basis for community consultation followed by formal Public Policy which will help set the stage for an approach to human rights that will reflect and address emerging realities as well as growing needs of older persons in the 21st century.
 Discrimination and harassment issues that affect young persons are quite different and will not be considered in this paper.
 From the Province of Ontario’s International Year of Older Persons Web Site, online: Province of Ontario <http://www.gov.on.ca/mczcr/seniors/English/iyop.htm>.
 Opening remarks of G.A. Brown, “The Older Worker in Today’s Economy and Community”, Report of Proceedings of First Seminar on Age Discrimination and the Age Discrimination Act of Ontario (Toronto: 4 June 1970) [unpublished].
 From discussion of International Year of Older Persons 1999, online: United Nations <http://www.un.org/esa/socdev/iyop/iyopaag.htm>.
 From Ontario’s International Year of Older Persons Web Site, supra note 2.