By: Jennifer Koshan
PDF Version: Alberta Agrees to Amend Human Rights Legislation to Expand Prohibitions Against Age Discrimination
Case Commented On: Ruth Maria Adria v Attorney General of Alberta, Court File No 1603 05013, Consent Order filed 13 January 2017
Human rights legislation exists in every province and territory in Canada, and at the federal level, but protection against discrimination varies amongst jurisdictions with respect to what grounds and areas are protected. Until recently, the Alberta Human Rights Act, RSA 2000, c A-25.5, only protected against age discrimination in the areas of publications and notices (section 3), employment practices and advertisements (sections 7 and 8), and membership in a trade union, employers’ organization or occupational association (section 9). Age was not a protected ground in relation to the provision of goods, services, accommodation or facilities customarily available to the public (section 4), or in relation to tenancies (section 5).
In January 2017, the Alberta government agreed to expand the Alberta Human Rights Act to include age as a protected ground under sections 4 and 5. This development was prompted by an application brought in March 2016 by Ruth Maria Adria under section 15 of the Charter, the constitutional equality rights guarantee, to have the omission of age declared unconstitutional and to have age read in to these sections. The Adria case is similar to Vriend v Alberta, [1998] 1 SCR 493, 1998 CanLII 816, where a section 15 challenge went all the way to the Supreme Court of Canada before a reading in remedy was granted to add sexual orientation to Alberta’s human rights legislation (see ABlawg posts on Vriend here and here). Unlike Vriend, however, the government did not fight the challenge in the Adria case. As noted in the consent order signed by Justice R.P. Belzil of the Alberta Court of Queen’s Bench, the Minister of Justice and Solicitor General of Alberta consented to the reading in remedy, which will be suspended for one year (presumably to allow parties who are covered by the new prohibition against age discrimination to amend existing policies and practices as needed). The Alberta Human Rights Commission will begin accepting complaints on the ground of age under sections 4 and 5 when the government amends the legislation or on January 6, 2018, whichever occurs first.
There is one important caveat to this significant legal development. Age is defined in the Alberta Human Rights Act to mean 18 years of age or older (section 44(1)). Therefore, service providers and landlords will still be able to deny goods, services, accommodations, facilities and tenancies to persons under the age of 18 years without facing a human rights complaint. Ms. Adria’s application was motivated by concerns about discrimination against the elderly in the areas of services and tenancies (Adria is affiliated with the Elder Advocates of Alberta Society). This is certainly a valid concern, as a previous ABlawg post on the treatment of elderly condominium residents makes clear, as do the case studies on the Elder Advocates website. However, now that it is looking at this issue, the government might consider extending the protection against age discrimination to include youth under the age of 18.
Alberta is not the only province to exclude youth from protection against discrimination based on age – for example, Ontario and Saskatchewan also define age as over 18 years old (Human Rights Code, RSO 1990, c H.19, section 10(1); Saskatchewan Human Rights Code, SS 1979, c S-24.1, section 2), and in British Columbia, age discrimination is only prohibited for those 19 years and older (see Human Rights Code, RSBC 1996, c 210, section 1). In Ontario, however, youth who are 16 or 17 years old and who have withdrawn from parental control have “a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old” (Human Rights Code, section 4). This type of provision recognizes that some youth live independently and have housing needs that should not be denied simply on the basis of their age. Youth homelessness has been recognized as a problem in Alberta (which has a youth homelessness initiative; so does the Calgary Homeless Foundation and other municipalities). Amending the Alberta Human Rights Act to protect against age discrimination without any limits, or at the very least in the context of housing for independent youth, would be one positive step forward in this context. It would also recognize that youth under 18 are employable, and should have the same right to be free from discrimination in the employment context as those over 18 (see Alberta Human Right Review Panel, Equal in Dignity at 57).
The government’s rationale for excluding age discrimination claims from youth may be to avoid a flood of claims, given that age is a common basis for limiting entitlements in society (driving, voting, working, admission to facilities serving alcohol, etc.). Other provinces have dealt with this issue by creating specifically tailored limits on age discrimination protections in their human rights statutes. For example, the Manitoba Human Rights Code, CCSM c H175, provides in section 13(2) that “Nothing … prevents the denial or refusal of a service, accommodation, facility, good, right, licence, benefit, program or privilege to a person who has not attained the age of majority if the denial or refusal is required or authorized by a statute in force in Manitoba”, with an equivalent exception for employment discrimination in section 14(10) (see also New Brunswick’s Human Rights Act, RSNB 2011, c 171, which has similar provisions in sections 4(7), 5(5) and 6(3)). These sorts of carefully tailored provisions would be much more likely to withstand scrutiny under section 1 of the Charter, the reasonable limits clause, than the blanket exclusion of discrimination against youth that currently exists in the Alberta Human Rights Act, if it were to be constitutionally challenged.
In 1994, the Alberta Human Right Review Panel recommended that age be added to Alberta’s human rights legislation for all areas of discrimination, with no limits on age (see Equal in Dignity at 16). The Alberta government has now agreed to the first recommendation; it is time for it to implement the second.
This post may be cited as: Jennifer Koshan “Alberta Agrees to Amend Human Rights Legislation to Expand Prohibitions Against Age Discrimination” (7 February, 2017), online: ABlawg, https://ablawg.ca/wp-content/uploads/2017/02/Blog_JK_AHRA_Age.pdf
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Dave
Time to get with the times and remove all age restrictions. Let’s make Alberta a welcoming place for families of all ages.
Benno Muench
Does this all mean that age restrictions on condos ie 55 plus will be changed in Jan. 2018?
Anonymous
I do not agree with the amendment at ALL! I bought a condo in an age restricted complex because I have every right to live in peace and quiet and that is the main reason I paid good money to buy in a place that offers that. There are plenty, plenty of condos and apartments that don’t have age restrictions, so younger people and families can have at her in those places if they want to. It just takes one cry baby to ruin it all! I have rights too and changing things is infringing on my rights!
Anonymous One
I completely agree with Anonymous! Age restriction was a very large consideration for me when I purchased my condo.
Shannon Eresman
We also bought a condo in an age restricted building for the same reasons as anonymous states. We would be losing our rights as seniors to choose not to live in a condo complex that allows children. It is my understanding that 90% of housing in Alberta does not have an age limitation.
This means, that families with children have 90% of the market from which to choose a home, while I have 10%. How is this not enough for families? By removing my 10% of the market share of multi-family housing, you would be, in effect, removing any choice anyone wishing to live without the accoutrements of children has. Would this seem fair and equal? I think not. If I had 90% of the market to choose from, I doubt very much, that I would be lobbying for more.
In my opinion, if families cannot be content to have access to the lion’s share of the market, then they are just plain selfish, and I strongly disagree that their selfishness should outweigh my right to live in peace and quiet.
Phil Rosenzweig
At a meeting on June 13, 2017, the Board of the Condo Owners Forum Society of Alberta unanimously passed the following resolution:
“Be it resolved that Condo Owners Forum asks the Government of Alberta to
consider an exemption on Age as protected grounds for Condominiums in the
Alberta Human Rights Act sections 4 and section 5, not because they agree or
disagree with the changes to the Act, but because they are changes to the property
rights of Albertans who own Condominiums.”
Our Condo Owners Forum is asking for an exemption for Condominiums, in the impending changes to the Alberta Human Rights Act sections 4 and 5, advocating Age as protected grounds against discrimination as this is a property rights issue, not a Human Rights issue.
Condominiums neither offer rental accommodations, provide services, or should be considered a ‘facility’ in the definitions of the two clauses that purportedly support this change. They Condominiums are a form of private Home Ownership.
James Cyrynowski
Re: Phil Rosenzweig
Back in 2002, the Alberta Human Rights Commission decided that Condominiums do provide services. They write in Ganser v. Rosewood Estates Condominium Corporation, 2002 AHRC 2 (CanLII), “The basis of the complaint is that the Complainant was discriminated against with respect to the services provided by the condominium corporation that are customarily available to the public because of her disability.
The Respondent, Rosewood Condominium Corporation, is a private corporation. Generally speaking, the actions of the corporation and resident owners are governed by private contract and property rights. So the question is whether the nature of the relationship of these parties is public or private for the purposes of s. 3 of the Act. If it is private, it is outside the scrutiny of human rights legislation. If it is public, then the services offered by the Respondent to the Complainant fall under the scrutiny of the human rights legislation.
A starting point is to remember that the Act is to be given broad and liberal reading to give effect to the equality aims and goals of human rights legislation, as described in O’Malley v. Simpson Sears (1986) 7 C.H.R.R. D/3102. This is to ensure that people in a variety of relationships are protected from discrimination on the basis of specified prohibited grounds. However, it is generally accepted that the legislation would not extend to all relationships, that there are some that are private and therefore determined by the parties themselves. Therefore, the Respondent puts forth that, “The interpretive approach to section 3 must be balanced against the limiting words of the provision and the intention of the legislature.” This is referred to in University of British Columbia v. Berg (1987) 18 C.H.D.D. D/310 wherein Lamer C.J. stated,
“The legislature has stated, though the limiting words of s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature…”
It is necessary to examine this relationship, in order to determine whether or not it is included in or excluded by the wording of section 3. The relationship between the condominium corporation and condominium owners is created when a person purchases property subject to the management by such a corporation. There are no selection or eligibility criteria other than the willingness and ability to purchase the property. Any member of the general public potentially could be a resident owner. The corporation provides services and the resident owners are the recipients or users of those services. Generally, the corporation provides management services in relation to the upkeep, development and maintenance of the property to the owners.
The Respondent provides a variety of services to the owners of property in the condominium complex, therefore, according to Berg, the owners make up the public to whom the services are ‘customarily available’. One of the services provided by the Respondent is in relationship to parking. Parking is customarily available to owners. A more specific subset of parking services is the assignment of parking stalls. Pursuant to By-Law 58(h), the Board of the Corporation has full discretion in assigning and re-assigning parking stalls.
The eligibility criteria must not be discriminatory in order to be legitimate. If the criteria are discriminatory based on the analysis in the next section, then it fails from excluding her as part of the public.