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.