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Ageism and the Law in Canada

June is Seniors Month and June 15th was World Elder Abuse Awareness Day.

One assurance beholds all humans-the certainty of ageing and death regardless of race, gender, or ethnicity. We ought to be a great deal more concerned about taking proactive steps to shape our future so as to ensure the protection of rights, dignity, and, respect of our older population.

Most will agree that both ageism and age discrimination are harmful to older adults. Not all older adults fit the detrimental and often negative stereotypes of the frail and vulnerable older person. Nevertheless, it is also true that not all older adults are physically or mentally capable, independent, and autonomous. While ageism and age discrimination must be discouraged, conversations about, and the need for protections for older and vulnerable adults cannot be ignored. We need to do more than keep the discussion going, though important, we however need immediate action in almost every facet of older adult services, including protections.

Who are the “vulnerable” and in need of protection? We agree that “vulnerability” should not be automatically ascribed to an individual based on their age. There is social vulnerability which reflects an understanding that differing social conditions may make a person more, or less vulnerable. Ageism can also make older people broadly vulnerable as a class, even while individual older adults may not be, or identify as particularly vulnerable themselves.[1]

Statistics show, however, that many older adults face abuse and violence in their own homes, and in institutional and long-term care facilities. The Pandemic has revealed in a rather transparent yet shocking way, the lack of oversight and accountability in a broken system rife with neglect. This is obvious if only in reading Ontario’s Long-Term Care Covid-19 Commission Final Report in April.  Older adults are also sometimes denied the right to make decisions about their personal finances, their property and health care. Protection is sometimes required to prevent financial, even sexual, and physical abuse of older adults.

Research demonstrates that abuse or financial exploitation is most often perpetrated by a trusted family member, caregiver, service provider, or other person in a position of power or trust. This makes the job of detecting and preventing issues even more complicated since it is impossible to know who the persons are who may be assisting an older adult or person of compromised capacity.

From a Canadian legal perspective, our legislation and court processes are not particularly well equipped to easily and cost effectively remedy these complex situations and related disputes for either the abused or the persons trying to help.

From a public policy perspective, the maintenance of an individual’s fundamental rights, and freedoms, autonomy, and the presumption of capacity must be delicately balanced alongside societal demands of protecting the vulnerable, meaning that: those with diminished capacity; those who are under disability; those who are frail, whether through sheer aging and/or illness; those who are dependent; and, those who require some degree of protection form predators. Getting this delicate balance right is not easy on any front.

Media, employment, gender, cultural and sexual orientation, social themes and theories contribute to ageism. Key challenges exist in the law, legislation, dissemination of knowledge, and education and awareness, concerning the individual needs of particular individuals in society, which include older adults and those suffering from illnesses, abuses, disability or who otherwise may require protection.

The question of whether protection is always ageist and whether deficiencies exist in the law, in legislation, and within the public sector that impact society’s ability to protect persons vulnerable to abuse must include consideration of available remedies, tools and resources and the establishment of a protocol or forum for resolution of capacity disputes

WHAT IS AGEISM?

The term “ageism” was coined in 1969 by Robert N. Butler who headed the District of Columbia Advisory Committee on Aging.[2] Butler stated that ageism is a combination of prejudicial attitudes towards older people, old age, and the aging process; discriminatory practices against older people; and institutional practise and policies that perpetuate stereotypes about older people.[3] A more recent definition of ageism has been used by gerontologist Erdman Palmore, who defines it as “any prejudice or discrimination against or in favour of an age group.”[4]

The Ontario Human Rights Commission’s definition of “ageism” refers to two concepts: a socially constructed way of thinking about older persons based on negative attitudes and stereotypes about aging and a tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons.[5]

One of the common ways that ageism is reflected and reinforced in culture is by the use of ageist language which includes any and all stereotypes or beliefs about aging. These stereotypes can be found in media, healthcare and education systems, workplace, and even regular, everyday conversations i.e. “over the hill” or the “Grey Tsunami”.[6]

A University of Southern California study[7] examined 72 of the highest ranked TV series among U.S. viewers airing from June 2016 through May 2017.  Adults 60 and older represented less than 10 per cent of speaking characters on these shows. Older adults accounted for slightly more than 8 per cent of regular characters in a series. Older men were more likely than older women to be series regulars. Of the 39 series with main older adult characters, 41 per cent included at least one ageist comment. Some examples provided: “You like the color? It’s called ‘ancient ivory’, like you,” “Things just sound creepier when you’re older” and “I need to write down all these precious moments before I forget them”.[8] Shows without a 60 plus year old writer were more likely to feature an ageist comment than shows with a 60 plus year old writer, suggesting that ageist comments stem from the work of younger writers.[9]

Other disparities also appeared in the study. None of the 72 shows evaluated depicted a single senior Asian female; only 2 of the 62 shows showed an older Latina character and only 8 out of 72 had a black senior female character on the screen. Further only, 4 of the TV shows depicted an LGBTQ older adult character. [10]

In her paper Ageism, Language and the Law, Helene Love posits that ageist language permeates written judgments from our courts. Love writes that ageism is perpetuated in written judgments using ageist language, such as the word “elderly”. Judgments that employ the term “elderly” reinforce social science research that the term is associated with victimhood, vulnerability, and weakness. Love argues that “[w]hile these negative stereotypes may sometimes result in favourable treatment of older adults by the courts, ageist language has an overall negative effect on older adults; it reinforces negative social beliefs about older adults as a group”.[11]

Ageism is not only present in the media and justice system it is also present in healthcare institutions and workplaces. Ageism takes place on both the macro level in anti-aging beauty campaigns but also in the micro level in every-day language with derogatory comments about older people.[12]

So, why do we succumb to these ageist and stereotypical beliefs? Justice L’Heureux-Dube observed in the case of Dickason v. University of Alberta:

Because, in our society, old age tends to be less associated with wisdom and tranquility and more with infirmity and dependence, we fear it. We may be more likely to discriminate against elderly people, in a futile attempt to distance ourselves from what will inevitably occur to each one of us.[13]

The impact of ageism on older adults is serious. Older adults presented with negative images of age may display psychological issues such as depression, as well as negative physiological effects such as a decline in memory performance and a heightened cardiovascular response to stress.[14] Social sanctions against expressions of negative attitudes and beliefs about older individuals are exceedingly rare. In fact, they are socially accepted and rooted in culture and beliefs.[15]

Barbara Mikolajczyk in her paper, International Law and Ageism, notes:

The demographic trends in the age structure of the current world population are well known. The world’s population is now ageing faster than ever before, especially in the group called the “oldest old” (80+). Individuals in this age group are potentially more vulnerable to poverty, exclusion, violence, neglect, abuse and discrimination. However, younger older persons also suffer unequal treatment. They are overlooked for promotion and training, and finally, they are forced to retire against their wishes. Ageing challenges a person’s position in society and his/her belonging to family, local community and country. His/her right to choose a place and style of living become increasingly limited. Indeed, it is a widely accepted, or at least tolerated, idea that the elderly are less worthy and their human rights simply shrink.[16]

LAWS PROHIBITING AGEISM IN CANADA

All ten provinces and three territories in Canada have legislation designed to ensure the equality of its population.

Canada’s provisions prohibiting age discrimination are grounded in the Charter of Rights and Freedoms (the “Charter”),[17] which applies to all jurisdictions and governmental entities.  Section 15(1) of the Charter contains an equality clause, which provides as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (emphasis added).

The federal government and all provinces and territories have anti-discriminatory measures against age.  Specifically, each jurisdiction has a human rights statute which prohibits discrimination based on age.

Age discrimination is often not taken as seriously as other forms of discrimination. To fight ageism, it is necessary to raise public awareness about its existence and to dispel common stereotypes and misperceptions about ageing.[18]

The Supreme Court of Canada decision in R. v. Kapp[19] sets out the test for age discrimination in Canada and it requires that discrimination be motivated by or perpetuate stereotyping or prejudice. Pnina Alon-Shenker, in her article, “Age is Different”: Revisiting the Contemporary Understanding of Age Discrimination in the Employment Setting in the Canadian Labour and Employment Law Journal, argued that this current test has led adjudicators to fail to come to grips with wrongful ageism in the workplace. She proposes that the legal test for age discrimination should focus on wrongs done in the present, and not take account of any past or future wrong and proposes a broader view of age discrimination based on the “Dignified Lives Approach”, a theoretical framework she developed. The basic premise of this approach is that every individual must be treated with equal concern and respect at any given time, and not just over a lifetime. It requires individuals be treated in a manner that respects five substantive principles of equality: individual assessment, equal influence, sufficiency, social inclusion, and autonomy.[20] Alon-Shenker’s view focuses on comparing the treatment of young workers and senior workers, and on treating prejudice and stereotyping as the essential indicators of a discrimination, unduly limits the advancement of equality.[21]

In Canada, human rights in general are protected by federal, provincial, and territorial laws and stem from the Universal Declaration of Human Rights.[22]

Enforcement mechanisms against age discrimination differ depending on the jurisdiction in Canada, as some allow complaints to a Human Rights Commission (for example see Alberta, Manitoba, Nova Scotia) which will investigate the alleged incident and then decide whether to refer the complaint to an adjudicative process. In other jurisdictions (for example, Ontario and British Columbia) an individual can apply directly to the administrative tribunal which will accept, screen, mediate and adjudicate the complaint.[23]

Anyone who works for or receives services from a business or organization that is regulated by the federal government and is discriminated against can make a formal complaint to the Canadian Human Rights Commission (“CHRC”) which was established pursuant to the Canadian Human Rights Act.[24] The Canadian Human Rights Act gives the Commission the authority to research, raise awareness and speak out on any matter related to human rights in Canada. The Commission is also responsible for administering the law which protects people in Canada from discrimination when based on any of the enumerated grounds such as race, sex, disability, and age. The CHRC is also empowered under the federal Employment Equity Act.[25]

In the province of Ontario, the Ontario Human Rights Code[26] gives all people equal rights and opportunities without discrimination in specific areas such as employment, housing, and services. The Code’s goal is to prevent discrimination and harassment based on race, colour, gender identity or expression, sex, sexual orientation, creed, age and other grounds.

The Ontario Human Rights Commission (“OHRC”) was established as an arm’s length agency of the government in 1961 to prevent discrimination and to promote and advance human rights in the province of Ontario.[27] The OHRC is one arm of the human rights system in Ontario, alongside the Human Rights Tribunal of Ontario and the Human Rights Legal Support Centre. Since June 2008, the Tribunal has been tasked with hearing complaints when the Code has been violated. This includes complaints based on age discrimination.[28]

One example of case types before the tribunal dealing with age discrimination, are those that deal with mandatory retirement policies. Maximum age limits have been challenged under the Charter. Mandatory retirement at age 65 has been found justifiable by the Supreme Court of Canada. In McKinney v. University of Guelph,[29] the Supreme Court of Canada considered the constitutionality of s.10(1) of the Ontario Code, which limits protection from age discrimination in employment to persons between 18 and 65 and which permits mandatory retirement policies for those aged 65 and over. The Court found that the maximum age limit of 65 was prima facie discrimination based on age but it was a reasonable limit placed on the right and was saved by section 1 of the Charter.

A person can also allege age discrimination in the context of a civil claims. Often age discrimination is a corollary of other causes of action, however, a party can be awarded additional damages for age discrimination within the claim.

Ageism is not about age discrimination alone – ageism must also be about dignity – an aspect of dignity is security. Elder abuse, often stemming from discriminatory attitudes, denies the elderly the security they are entitled to as human beings.[30]

How can the law protect older adults and minimize abuse while still maintaining the human rights of older adults and avoid ageist actions?

Beverly McLachlin made several suggestions, including minimizing the barriers to criminal and civil prosecutions. Changes in the law and education may alleviate some of those barriers. McLachlin also suggested that lawyers and jurists work together to inform the public about the prevalence and illegality of elder abuse: “Our society once swept child abuse under the rug. It must not permit the same thing to happen in the case of elder abuse. The abuse of a vulnerable person is a moral and legal wrong, whatever the age of the victim”.[31]

Older adults not only should be free from ageism and ageist stereotypes, they should be free from financial, emotional, physical and sexual abuse. The law and society need to be vigilant in protecting those that may be vulnerable and susceptible to abuse and undue influence due to mental or physical incapacity. Beverly McLachlin observed that:

Different stages of life are characterized by different needs. The last stage of life is no exception. Among the needs that are critical at this stage are the need to be protected from discrimination, the need for security and protection from abuse, and the need for appropriate care and the need for autonomy. These are critical aspects of an elderly person’s ability to maintain his or her dignity. The law plays a vital role in meeting these needs.[32]

Beverly McLachlin concluded this speech by stating:

What should remain steadfast, however, is our commitment to the principle that every person, regardless of age, is entitled to live in dignity. This means being able to live in security, to be free from discrimination and abuse, and to be entitled to make one’s own choices to the maximum degree possible. In achieving these goals, we will need the expertise of economists, social workers, health care professionals, and many others, but the law, and the legal profession, also have an important role to play.

We can build a profession that is sensitive to needs of older people. We can pursue legal reform through legislation and litigation. And we can educate and sensitize the public and seniors themselves in the rights and needs of older demographic.[33]

[1] Vulnerable Adults and Mental Capacity in BC: Provincial Strategy Document, January 2009, BC Adult Abuse and Neglect Preventions Collaborative, online: http://www.bcli.org/sites/default/files/Vanguard_(16May09).pdf accessed on: 03.07.18.

[2] Andrew Achenbaum, The History of Ageism Since 1969, Journal of American Society on Aging, October 19, 2015. Accessed online 13.06.18: http://www.asaging.org/blog/history-ageism-1969

[3] Robert N Butler, “Ageism: A Foreword” (1980) 36:2 Journal of Social Issues 8; see also Helene Love, “Ageism, Language and the law” (2011) 31 Windsor Rev. Legal & Soc. Issues 134.

[4] Erdman Palmore, Ageism: Negative & Positive, 2d ed (New York: Springer 1999) at 89-90, as cited in Helene Love, “Ageism, Language and the Law” (2011) 31 Windsor Rev. Legal & Soc. Issues 133 [“Love”].

[5] Ontario Human Rights Commission, Ageism and age discrimination fact sheet, online: http://www.ohrc.on.ca/en/ageism-and-age-discrimination-fact-sheet

[6] Love at p.135.

[7] Dr. Stacy L. Smith, Dr. Katherine Pieper, Marc Choueiti et al, Seniors on the Small Screen: Aging in Popular Television Content, Media Diversity & Social Change Initiative, 2017. Online: http://assets.uscannenberg.org/docs/Seniors_on_the_Small_Screen-Dr_Stacy_L_Smith_9-12-17.pdf [“Smith”]

[8] Smith at p.25

[9] Smith at p.26.

[10] Smith at p.1-2.

[11] Love at p.136.

[12] Barbara Mikolajczyk, “International Law and Ageism” 2014 Polish Yearbook of International Law, Vol. 34 pp.83-107 at p.88 [“Mikolajczyk”]

[13] Dickason v University of Alberta, [1992] 2 SCR 1103 at para 1173, 95 DLR (4th) 439.

[14] Love at p.134.

[15] Mikolajczyk at p.89.

[16] Mikolajczyk at p. 84, citing Beverly McLachlin, “Human dignity at any age: the law’s response to an aging population”, 6 Journal of International Aging, Law & Policy 111 (2013) at p. 112

[17] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[18] “Ageism and age discrimination (fact sheet)” Ontario Human Rights Commission, online http://www.ohrc.on.ca/en/ageism-and-age-discrimination-fact-sheet Accessed on 05.07.18.

[19] R v Kapp 2008 SCC 41.

[20] Alon-Shenker at p.44.

[21] Alon-Shenker at p.63.

[22] United Nations, The Universal Declaration of Human Rights, 1948, online: http://www.un.org/en/universal-declaration-human-rights/

[23] Mathews Dinsdale LLP, “Canada Age Discrimination Info” August 19, 2016, online http://www.agediscrimination.info/international-age-discrimination/canada Accessed on 05.07.18.

[24] Canadian Human Rights Act, RSC 1985, c H-6 online: http://laws-lois.justice.gc.ca/eng/acts/h-6/

[25] Employment Equity Act, SC 1995, c 44, online: http://laws-lois.justice.gc.ca/eng/acts/e-5.401/

[26] Human Rights Code, RSO 1990, c H 19, online: https://www.ontario.ca/laws/statute/90h19?search=e+laws

[27] Ontario Human Rights Commission, online: http://www.ohrc.on.ca/en

[28] Human Rights Tribunal of Ontario, online: http://www.sjto.gov.on.ca/hrto/

[29] McKinney v. University of Guelph, [1990] 3 SCR 229 (“McKinney”).

[30] McLachlin at p.118.

[31] McLachlin at p.120.

[32] McLachlin at p.122.

[33] McLachlin at p.131.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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