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.

Are youth protected from age-based discrimination?

Scenario:

Jordan, Mary, and John are 16 year-old high school students who are feeling hungry and exhausted after a long day in class! Naturally, a short walk down the road to the local gas station to get some refreshments is agreed upon, and they get going. 

 Upon arrival to the station's store, however, they see a clearly marked sign reading “ONLY 2 STUDENTS IN AT A TIME”. This sign is something the teenagers took offense to; they later expressed their concern with the store clerk in the hopes of some clarification, though they received more offensive comments. The clerk said that teenagers like them are more likely to shoplift, solely because of their age.

The store clerk has had his share of damage over the past years; various items have begun disappearing from his store since the school kids started visiting. As a small business owner, this cannot be tolerated as the ‘disappearances’ are costing him a fortune! It is for this reason; he is taking on a very harsh approach in terms of the operation of his store and his beliefs.

Are there existing laws that protect those under the age of 18 from such age-based discrimination from individuals like the station store clerk?

WHAT DO YOU THINK?

Should young people be protected by the law from age-based discrimination?  Why or why not?

Stay tuned for a new blog post in early October to learn about the law in this area and what, if anything, these youth can do.... 

This post was written by Shawn Malik, a JFCY volunteer on the PLE Team. 

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.

Looking for rental housing - Human Rights and Residential Tenancies

Scenario:

When Lukie was 16, she moved out of her mother’s home, where she had been experiencing abuse.  While she spent a couple of months staying with her friend Brian’s family, she was soon ready to move out on her own, and she began looking for a place.  Lukie qualified to receive Ontario Works, which is social assistance that can be available to youth in special circumstances, and she has now begun to receive monthly cheques.  She is also looking for work. (Check out our earlier post about leaving home here.)

What important things should Lukie know when she looks for a place?  Can a landlord refuse to rent to Lukie because she is only 16, or because she is receiving money from Ontario Works?

Protection against discrimination in housing: Ontario’s Human Rights Code

Ontario’s Human Rights Code is a law that makes it illegal to discriminate against an individual based on certain grounds.  In plainer language, this means that in certain areas (like housing, or education), a person cannot be refused services or treated badly just because of certain characteristics relating to their identity.  These characteristics, or “grounds” include things like age, race, and disability.

http://www.8422southbroadway.com/wp-content/themes/realestate/categoryimages/ForRent.png

 

When Lukie is searching for a place to live, she is protected against discrimination by the Code.  Usually, the Code only applies to people who are 18 or older.  However, in the case of housing, it also extends to people who are 16 or older and who are not living with their parents.  This means that landlords can’t treat her application differently or refuse to rent to her because she’s too young, and they think she’ll be too noisy or not clean enough because of her age.  The Code also forbids landlords from treating tenants or potential tenants differently because they are on social assistance, like Ontario Works.

The landlord is allowed to ask Lukie some questions in order to decide if she will be a good tenant, like her rental history or credit references.  However, the fact that Lukie has no rental history shouldn’t count against her.  Rent-to-income ratios (how much the rent is compared to how much Lukie earns each month) cannot be used to decide whether Lukie will be accepted as a tenant.  The landlord can also ask for a guarantor on Lukie’s lease.  This is a person who promises to pay the rent if Lukie can’t afford it.  However, the landlord can only ask for a guarantor if they ask all of their tenants for one – they can’t single out Lukie because of her age or how much money she makes.

Once Lukie has rented an apartment, she is also protected by the Code.  The landlord can’t refuse to do repairs and can’t treat her unfairly just because she is young.  The only exception to this is that the Code doesn’t apply to tenants who are sharing a kitchen or a bathroom with the landlord – Lukie should watch out for this when she is looking for a place.

To learn more about Human Rights and Rental Housing, check out the Ontario Human Rights Commission’s ELearning module.

Legal Protection of Tenants: the Residential Tenancies Act

In addition to human rights protection, when Lukie rents an apartment, she will become a tenant.  Tenants are protected by a law called the Residential Tenancies Act.  This Act contains rules about what rights and responsibilities both landlords and tenants have in relation to rental units (like apartments).  These rules can become very important to Lukie if, for example, she has a major repair problem in her apartment and the landlord refuses to fix it, or if the landlord is trying to raise the rent more than once a year.

Most rental units are covered by the Residential Tenancies Act.  However, some are not.  When Lukie is looking for a unit, she should think about whether her unit is covered by the Act.  Places that aren’t covered by the Act include co-op housing, units where the landlord and tenant share a bathroom or kitchen and temporary housing like motels or bed & breakfasts.  If Lukie sublets an apartment, which means that she rents it from another tenant, her relationship will be with the other tenant and not with the original landlord.  This could make her protection under the Act more complicated.  If Lukie moves into non-profit or public housing, or to a newer building (built after 1998, or not used for residential purposes before 1991), some of the rules in the Act about rent do not apply to her.

To learn more about the Residential Tenancies Act, check out this information from the Landlord and Tenant Board (LTB).  To learn more about the rights and responsibilities of landlords and tenants, read their Information for New Tenants.  You can also learn more about rental housing from this guide by CLEO.

This blog post was written by JFCY volunteer Leora Jackson.  Leora is a UofT law student who is currently working for the summer at Downtown Legal Services, where she represents clients in cases involving rental housing legal issues.