7. Goods, services and facilities

Section 1 of the Code prohibits age discrimination in "services, goods and facilities". This includes but is not limited to educational institutions, hospitals and other health services, community care access centres, long-term care facilities, insurance providers, public places like malls and parks, public transit services, stores and restaurants.

Older persons have a right to the same level and quality of services as everyone else and service providers have a legal responsibility to ensure accessibility, subject to the undue hardship standard.

Age discrimination in services can arise as a result of direct discrimination, for example through programs with age requirements that are discriminatory:

Example: An Ontario Ministry of Health assistive devices program provided closed circuit television magnifiers only to persons under age 25. A 71-year-old who was refused the visual aid successfully challenged the age limitation on the basis that it was an under-inclusive special program. The Court noted that special programs should be designed so that restrictions within the program are rationally connected to the objective of the program. In this case the connection was not established; rather, the program had age restrictions to have a small pool of clients and to conserve financial resources and not because younger persons had a greater need for such aids and less access to them.[50]

Age discrimination in goods, services and facilities often results from a lack of access to services that meet the needs of older adults. As well, ageism persists as a problem with regard to provision of services and facilities to older persons. The social construction of age, which involves incorrect assumptions and stereotypes, results in perceptions that older persons are a drain on services such as health care and home care or leads to undue attention being given to age when an issue, such as driving accidents, arises. At the same time, the other manifestation of ageism in services and facilities is the failure to take the real needs of older persons into account. For example, buildings may not be designed in a manner that promotes full accessibility, appropriate transit services may not exist that will allow older persons to participate in their communities and services may be structured around how quickly and ‘efficiently’ clients can be served, with the result that insufficient time may be allotted for older clients.

The relationship between age and other Code grounds becomes particularly apparent when services are involved.

Example: A residential care facility does not allow a resident’s same-sex partner the same visiting privileges as opposite-sex spouses.

Example: A transit service provider offers a conventional service and a paratransit system. Many older persons who have disabilities do not qualify for the paratransit system and must struggle to use the conventional transit system. Therefore, the extent to which it is accessible (e.g. contains elevators, uses low floor buses, provides access to TTY phones and so forth) has a direct impact on older persons, particularly if they also have a disability.

Example: A hospital recognizes the need for food that is culturally appropriate for patients on its geriatric ward. It therefore makes arrangements for special meals to be brought in several times a week.[51]

The right to be free from age discrimination in goods, services and facilities covers direct discrimination based on age and also policies, rules and requirements that appear neutral on their face but which have an adverse impact on older persons. The three-step test to justify requirements that discriminate on the basis of age (described in section 4.3 of this policy) also applies to claims of discrimination with respect to goods, services and facilities.

As well, consistent with the Supreme Court of Canada’s decision in Eldridge v. British Columbia (Attorney General), those who are responsible for the provision of services to the public must take positive steps to ensure that disadvantaged persons benefit equally from those services.[52] Once again, this requires providing services in a manner that is inclusive and accessible from the start and also providing accommodation, subject to the undue hardship standard.

With respect to insurance services, section 22 of the Code provides that automobile, life, accident, sickness or disability insurance, group insurance or life annuity policies that are outside of the employment context may make distinctions based on age and other grounds but these must be made on reasonable and bona fide grounds.[53] In Bates v. Zurich,[54] the Supreme Court of Canada stated that a discriminatory practice in the insurance industry is "reasonable" if a) it is based on a sound and accepted insurance practice and b) there is no practical alternative.

[50]Roberts, supra, note 11.
[51] Services that are not culturally sensitive have been identified as a particular problem for older persons; see Kinnon, supra note 6 and J.A. Auger, “Ethnic Seniors: Accessing Health Services” in R. Masi, L. Menash and K.A. McLeod, eds. Health and Cultures: Exploring the Relationships, Vol. II (Oakville: Mosaic Press, 1993) at 155-167.
[52]Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. In Eldridge the Supreme Court of Canada found that hospitals must provide sign-language interpreters for Deaf patients in order for them to access health care services on equal terms.
[53] For further information, see the OHRC’s Discussion Paper and Consultation Report on Human Rights Issues in Insurance, available online at http://www.ohrc.on.ca.
[54]Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321