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Service animals for mental health: An emerging issue in disability law

| January 28, 2016
Service animals for mental health: An emerging issue in disability law

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What to do with Peaches? In 2014, a woman moved in with her common‑law partner in Barrie, Ontario and, while aware that the condominium's bylaws restricted owners from having dogs over 25 pounds, proceeded to move in with her 40‑pound retriever cross, Peaches. The property manager demanded that she remove the dog and the owner responded with a request for accommodation under the Ontario Human Rights Code, claiming that Peaches was a service dog who supported her with "stress and past abuse issues." Ultimately, the court evicted Peaches, ruling that the owner had not provided sufficient information about her disability to establish that Peaches was a necessary accommodation.

This case highlights an emerging issue in disability law. For people with disabilities, animals can be a vital support assisting with a range of activities. The classic example is of a seeing‑eye dog providing assistance to a visually impaired owner in navigating the physical environment. However, animals also provide vital assistance to those with cognitive and mental health disabilities, from medication reminders to emotional support in the midst of an anxiety attack. Few would argue that the dog in the former situation is not a necessary accommodation, however, it is not uncommon for the service animals of people with mental health disabilities to be turned away as unnecessary or illegitimate.

Disability, service animals and human rights

Human rights codes prohibit housing and service providers and businesses from discriminating on the basis of several grounds, including disability. A person who requires a dog, cat or other animal as a result of a disability may be allowed to keep one regardless of rules prohibiting animals set by condominiums, landlords or businesses such as restaurants.

However, these establishments do not have to accommodate all requests for pets they receive. There must be a Code‑related reason for the animal and the service provider must accommodate the individual only to the point of undue hardship. 

a) Code-related reason:

Provincial and federal human rights statutes protect people from discrimination on the basis of several grounds such as age, race, language and disability. To be entitled to accommodation, the need for the service animal must be related one of these grounds. There are many physical disabilities for which a service animal may be a required accommodation including vision loss, epilepsy and limited mobility.  Further, the court recognises that animals provide necessary support for people with mental health disabilities such as depression, anxiety and trauma. In all cases, the individual asserting the need for accommodation must provide documentation, usually from a doctor, that they have a disability for which the service animal is a necessary accommodation.

b) Accommodation to the point of undue hardship

Requests need only be accommodated to the point of undue hardship. The standard is high; the service provider must show that allowing the animal would jeopardize their financial well‑being or pose a serious health and safety risk. For example, a housing provider may deny a request for a service dog if it is persistently aggressive towards other residents.

Despite these human rights protections, issues with accommodation of service animals for individuals arise often. The court denied Peaches' owner's request for accommodation in part because "stress" is not a recognized disability under the Ontario Human Rights Code.

Issues also arise from an inability to accept emotional support animals as legitimate service animals. Recently, a former Canadian soldier diagnosed with depression and anxiety resulting from her time in the armed forces was barred from bringing her emotional support cat on an Air Canada flight, a decision which she and the Canadian Mental Health Association decried as discriminatory and differential treatment on the basis that she had a mental health, rather than physical, disability. The airline responded simply that they "do not accept emotional support animals on domestic or international flights."

Accessibility legislation

Accessibility legislation sets out further requirements both for service animal owners and service providers that vary from province to province.

In Ontario, service providers must comply with the Accessibility for Ontarians with Disabilities Act and its regulations. Service providers must allow individuals to keep the service animal with them at all times while on the premises unless it is "otherwise excluded by law" (i.e. if allowing the animal causes health and safety concerns). It must be "readily apparent" that the service animal is needed for their disability or the individual must provide medical evidence to that effect.  

While this may seem reasonable, one must consider the differential impact on people with less visible disabilities including mental health diagnoses. It is "readily apparent" that a guide dog is necessary to assist someone with a visual impairment. How can one make it readily apparent that their animal is providing companionship that helps to mediate their past trauma issues? The alternative is for the individual to plead their case by providing medical evidence of their disability, inherently private information, to any restaurant, housing provider and building operator who may wish to exclude their support animal. 

In B.C., the Guide Dog and Service Dog Certification Act took effect on January 18, 2016. This Act requires that all service dogs be certified in one of two ways: trained by an established service dog program or certified by the Justice Institute of B.C. as meeting a minimum training standard. The Act also mandates that service providers provide access to all certified service animals and significantly increases the fines for those who do not. The rules are intended to increase access for people with disabilities while ensuring the public is protected from unruly and potentially dangerous pets masquerading as service animals. Other provinces including Newfoundland and Alberta have similar legislation.

Many people with mental health disabilities need their animals for emotional support which neither requires formal service animal training nor for the animal to be particularly well-trained in other aspects. B.C.'s new rules may therefore differentially impact people with mental health disabilities because unlike seeing‑eye dogs or physical support animals for which there are well‑established training programs, emotional support animals are less likely to have the training available to them. Further, a broad range of animals provide emotional support -- how does the B.C. government intend on certifying a cat or rabbit as being adequately trained as a service animal? Remember, if an animal cannot be certified, its owner is not entitled to the access protections of the Act.

There are no analogous federal regulations, meaning that, beyond the duty to accommodate, federally regulated industries such as air travel do not have formal requirements with respect to service animals.

The various rules create a patchy framework that simply is not adequate to protect the rights of individuals with mental disabilities to the much‑needed assistance of a support animal.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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