It's not fair: Why are children and youth not protected from age-based discrimination in Ontario? And what can we do?

This blog post is a continuation from our post on September 21, 2012.

Comic made by PLE Team volunteer Shawn Malik

What can kids and teens do if they experience age-based discrimination in Ontario?

Unfortunately, not much...unless they up for a Charter challenge to the Ontario Human Rights Code.

As the law in Ontario currently stands, children and youth under age 18 are not protected from age-based discrimination. This is because definition of “age” at s. 10(1) in the Ontario Human Rights Code is “an age that is 18 years or more”. (*There is a small exception for 16 and 17 year-olds in the context of rental housing.)

The law means that people under age 18 cannot succeed in making an application under the Ontario Human Rights Code when they have experienced discrimination based on their age.

There are various scenarios when young people experience age discrimination in Canadian society. 

Here are a few examples:

q       Gyms and fitness facilities in condos, apartments and hotels that refuse entry to people under age 16.

q       Retail stores that only allow in two youth at one time.

q       Security guards and police officers who follow around youth, or otherwise unfairly monitor them, solely because of their age.

While young people are not protected from age-based discrimination by the Human Rights Code, the story does not end there.  This is because the Canadian Charter of Rights and Freedoms protects everyone, regardless of how young, from age-based discrimination that is created by our laws or government actors.  This means that laws made by the Federal, Provincial or Municipal government must NOT discriminate based on age. 

JFCY holds the opinion that the Ontario Human Rights Code violates the Charter because its definition of age discriminates against people under the age of 18. The definition of age in the Ontario Human Rights Code creates a clear distinction between those under age 18 and those over age 18, such that only those over age 18 are protected from age-based discrimination under the Code. The Code stereotypes, excludes, and devalues people under age 18. It assumes that people under age 18 are either not ever subject to, or not worthy of protection from age-based discrimination. Or, it places protection of children from other harms above protecting them from age-based discrimination, but is not responsive to individual circumstances where that may not be in a child’s best interest.

JFCY agrees that for reasons of safety and well-being, there are some distinctions that should be made between adults and children.  For example, it is reasonable for an employer to refuse to hire a seven-year old for a job, and for teens to be made to wait until a certain age to get their drivers license. However, the magic age should not be 18 for age-based protection from discrimination.  The definition of age in the Ontario Human Rights Code is not based on informed generalizations about children’s capacities, circumstances and needs. The definition of age in the Code is not effective in meeting the actual needs of claimants under age 18 and achieving the objective of the legislation, which is to prevent discrimination in society.

 JFCY supports some specific age-based protections to be carved into the Ontario Human Rights Code that seek to reasonably protect children in rationally necessary areas of life, as well as acknowledge that some types of discrimination should not be actionable.  Otherwise, all other age-based discrimination must be assessed on the test of whether there is a “bona fide and reasonable justification” (ie a good, sensible reason to discriminate).

There have been some Human Rights Tribunal cases dealing with the Canadian Charter of Rights and Freedoms and the Code in this context, but these cases are not “binding”.  There is a need for more cases to be brought forward on this issue in order to push for a change to this law. We see a specific need for cases that deal with age-based discrimination faced by youth and teens under age 18.  JFCY is up for this challenge and welcomes the opportunity to assist young people who believe they have experienced age-based discrimination in Ontario.

If you are under age 18 and live in Ontario and believe you have experienced age-based discrimination then please contact Justice for Children and Youth to discuss your legal rights and options.

To read a case that successfully challenged the definition of age in the Ontario Human Rights Code, click here.

This post was written by a JFCY staff lawyer.

Human Rights: Sexism

Scenario:

Joyce is starting high school this year and she couldn’t be more excited!  As the reigning 100 meter regional track champion she is looking forward to the challenges that training on a high school team will bring.

Three weeks after the start of classes Joyce sees a posting on the Phys. Ed. bulletin board for track tryouts.  She quickly signs up for the 100 meter tryout which will take place after school that day.

When she arrives after school she stretches and warms up with the other candidates, but is a little surprised that there aren’t any other girls trying out for the team.

When the coach arrives at the field, he begins yelling instructions to divide everyone into groups of runners.  Joyce listens and joins the other 100 meter candidates. 

When the coach approaches their group, he notices Joyce and says with a smile, “Honey, young ladies can watch and cheer from the bleachers.  You’ll have to let your boyfriend try out on his own.”  The other boys let out a little giggle at this.

“Oh no coach.  I’m trying out for the 100 meters team too.”

“Sorry, but this is a boys team,” the coach says, more seriously.

Joyce laughs at her own mistake.  “Oh sorry coach.  I didn’t know there was a separate tryout for the girls team.  In middle school everyone tried out together, and they would take the best runners for each of the teams.  Do you know when the girls tryouts are?”

“There is no girls team at this school.  Track is really a boys sport” the coach replied.

Stunned, Joyce has no response.  She is shocked that anyone would think that a sport could be for only girls or boys; she has always been taught that anything boys can do, girls can do too. 

How can Joyce respond?

Human Rights Law in Ontario

In Ontario, we are all protected from discrimination as a result of a provincial law called the HumanRights Code.

However, not all discrimination is protected by the Ontario Human Rights Code. For example, the Human Rights Code does not legally protect discrimination that happens between two private individuals (such as ex-partners or friends). The Human Rights Code deals with discrimination in the following social areas: employment; housing; contracts; services, goods and facilities; and unions or occupational/professional associations.

School, including elementary, secondary and post-secondary is considered a “service”.  The result is that Joyce is legally protected from discrimination that occurs at school.  According to the Human Rights Code, her teachers, guidance counselors and school sports coaches are not allowed to discriminate against her.

What is discrimination?

Treating someone unfairly may be discrimination if the unfair treatment is because of one of the following characteristics or grounds: race; colour, ancestry, place of origin, citizenship, ethnic origin, creed (religion), receipt of social assistance (housing only), sexual orientation, marital status , family , status, record of offenses (employment only, must have been pardoned), age, disability, and sex (includes gender identity and being pregnant).

Discriminatory treatment includes denying someone a benefit, excluding someone from an opportunity and/or imposing a different obligation on someone, or harassing someone because of a characteristic listed above.

In order to make out a claim for discrimination under the Human Rights Code you need to show evidence of a link between the bad conduct and a protected ground.  And the discrimination had to have occurred in one of the protected social areas.

In Joyce’s situation, she experienced discrimination on the ground of sex and the discrimination occurred in the social area of services (ie school).  The link between the bad conduct and the protected ground is clear.  Joyce is female and she was told by the coach that she could not try out for the school track team because she is female. The coach imposed discriminatory treatment on Joyce by denying her the opportunity to try out for the team. He treated her differently only because she is female.

What can Joyce do?

Joyce can file an Application (commonly called a “human rights complaint”) to the Human Rights Tribunal of Ontario.  A Tribunal is like a court, but it is specialized in a certain area of the law (in this case, human rights law) and is a bit less formal than court. 

Sometimes it is best to try and work it out with the person or organization causing the discrimination before filing at the Tribunal, as situations can sometimes resolve without having to take the serious legal step of starting a case.  For example, Joyce can talk to her Principal about this unfair rule and see if she or he is willing to talk the coach into letting girls try out for the team.

It is always best to speak to a lawyer if you feel you are experiencing discrimination.

If you are under age 18 and live in Ontario, you can call Justice for Children and Youth at 416.920.1633 (or toll-free at 1.866.999.5329) to talk to a lawyer for free.

If you are any age and live in Ontario, you can contact the Human Rights Legal Support Centre: http://www.hrlsc.on.ca/en/Default.aspx

To read the Ontario Human Rights Code click here.

This scenario was written by PLE Team volunteer Marsha Rampersaud.  Legal info was written by JFCY.

Special education and "exceptionality" explained

 Comic picture courtesy of JFCY volunteer Diana Rozo

Blogpost by JFCY volunteer Adrianna P, law student Daniel Lo and JFCY lawyers

Johnny is a 16 year-old grade 10 student. Since entering high school he has found that he is struggling with his course work and his grades are falling.  Johnny is having difficulty successfully completing and understanding his work and he is not performing well on math and English tests.  His teachers referred him for educational and psychological testing in order to determine the cause of his difficulties and the results have indicated that Johnny has a learning disability.   

Johnny’s mom thinks that the teaching styles that were used in elementary school enabled Johnny to get by but now high school is a more intense learning environment and Johnny does not possess the learning skills that are necessary for him to perform to his potential.
Since being formally identified with a learning disability, his principal and teachers feel that Johnny should be placed in a separate special education classroom. They feel that this is where the proper instruction can be given to Johnny and will help meet his needs.   Johnny on the other hand does not want to leave his friends and wants to stay in a regular classroom setting.  

What are Johnny’s Rights in this situation?

In this situation, it seems that Johnny, his parents, his principal and teachers are waiting for a reference to the Identification, Placement and Review Committee (IPRC). The IPRC is the committee that will decide three things: 1) whether Johnny is “exceptional” (ie has special learning needs), 2) what  type of exceptionality does Johnny have (behaviour, communication, intellectual, physical, and multiple);  and 3) what is the appropriate special education placement for Johnny.

Johnny’s parents can request an IPRC by writing a letter to the school Principal.    The law says that the principal cannot refuse to refer the student to an IPRC. A Principal can also refer a student for an IPRC without a parent’s request.

Since Johnny is 16, he is entitled to the following rights:

-    The right to attend his IPRC and to give the committee any information he thinks is useful in deciding his educational needs. In this case, Johnny could present his preference for staying with his current classroom setting because the support of his friends is beneficial to his learning.

-    He is entitled to receive a copy of any information about him that others will give the IPRC. Johnny is entitled to see a copy of the educational and psychological test results that his teachers registered him for.

-    The opportunity to be consulted about his Individual Education Plan (IEP), which contains specific learning expectations and the school’s outline of educational services to address them. In this case, Johnny may request a less intrusive method of service, such as an educational assistant, so as to allow him to stay in a regular classroom setting.

-    His parents can be present.

-    Johnny and his parents may bring a representative to speak for them if they feel more comfortable, or even advocates from organizations such as the Learning Disabilities Association, or the Association for Community Living

-    He may bring an interpreter if needed.

If following the decision of IPRC, Johnny and/or his parents do not agree, they can appeal the decision and may receive a second meeting with the IPRC. If Johnny and/or his parents still do not agree with the decision made, they can appeal to the Special Education Appeal Board, and subsequently the Ontario Special Education Tribunal. In addition, Johnny and/or his parents can file an Application with the Human Rights Tribunal of Ontario if they feel like that Johnny has experienced discrimination based on his disability. IPRC appeals and human rights applications can be complicated and it is important to talk to a lawyer before deciding what to do next. You can call the following organizations for assistance:

Justice for Children and Youth- 416.920.1633 (1.866.999.5329 for outside GTA)

Child Advocacy Project (Pro Bono Law Ontario) – 416.977.4448

Human Rights Legal Support Centre (note: they do not do IPRC appeals) – 416.314.6838

For more information, take a look at this pamphlet on special education.