by Karin McCaig, articling student
People who use service animals may be denied access that others take for granted
such as being able to eat at a restaurant, go grocery shopping or live in the
apartment of their choice. As a result, ARCH receives inquiries from people
who use service animals about their legal rights.
Service animals are animals trained to perform specific functions and services
to assist someone with a disability. For example, they may alert people to sounds,
guide around obstacles, retrieve dropped articles, provide physical support,
or detect oncoming seizures. Service animals may be used by people with any
form of disability. Because of the nature of the services these animals perform,
they typically accompany the user throughout their daily activities.
There are laws that address service animals and they do so in different ways.
In general, there are legal protections which prevent the exclusion of or discrimination
against people who use service animals. However, each law is different in its
coverage – some laws apply only to dogs and some only protect people with certain
disabilities. The form of proof needed to receive legal protection also varies.
As a result, the rights of people who use service animals can be confusing and
may go unenforced. It is important to know what action may be available to address
discrimination and refusals of access connected with the use of a service animal.
Protection For Guide Dog Users: Blind Persons’ Rights Act
People who are blind and rely on guide dogs have clear legal protections. The
Blind Persons’ Rights Act (the BPRA) protects a blind person accompanied by
a guide dog from the denial of, or discrimination in the provision of, accommodation,
services or facilities available in any place to which the public is customarily
admitted. This includes restaurants, hotels and taxis, none of which may refuse
service to a blind person with a guide dog. The BPRA also specifically prohibits
discrimination in relation to a housing unit against someone who is blind and
uses a guide dog.
The BPRA defines a “guide dog” as a dog trained as a guide for a
blind person. The Regulations to the BPRA provide a list of thirteen training
facilities accepted under the Act, and allows for any other facility to be accepted
by the Attorney General provided certain criteria are met.
The Attorney General provides identification cards to people who are blind
and their qualifying guide dogs. The card may be used as proof that the person
is entitled to be accompanied by a guide dog. The back of the card sets out
the key provisions of the BPRA, and the penalty for contravening it. An application
form for an identification card can be obtained by calling the Ministry of the
Attorney General’s general inquiry line at 416-326-2220 (callers from outside
of Toronto may call collect). Guide dog schools should also be able to provide
an application form.
It is an offence to deny access or discriminate against someone who is blind
on the basis of having a guide dog, and the person who does so may be fined.
Potential For Expanded Protection For Service Dog Users: Bill 70
Coverage of the Blind Persons’ Rights Act is limited in that it does not address
the rights of people with disabilities who are not blind, nor the rights of
users of service animals other than guide dogs. There are many types of service
dogs used by people with other disabilities in addition to guide dogs for people
who are blind. These include hearing dogs, assistance dogs for people with mobility
impairments, special skills dogs that detect oncoming seizures, and dogs trained
to offer specific emotional support to psychiatric consumer/survivors.
A Bill was recently introduced in the provincial legislature that aims to expand
the BPRA’s protections to all people with disabilities if they are dependent
on a guide dog or service dog. Bill 70 An Act to Amend the Blind Persons’ Rights
Act, was introduced in the legislature on May 7, 2008, by MPP Gerry Martiniuk
(Cambridge). The Bill would amend the BPRA so that in addition to guide dogs,
“service dog” users would be protected from discrimination. Service
dogs would include dogs trained to provide services for people with disabilities,
by a qualified training facility, and not only guide dogs used by people who
are blind. Service dogs would receive all the same rights as guide dogs currently
receive under the BPRA, and would also be eligible for identification cards.
More information and a PDF version of Bill 70 can be obtained on the Legislative
Assembly of Ontario website at:
http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1975
Non-Dog Service Animals
If passed, Bill 70 would represent a step forward in rights protection for
service dog users. However, it would still not provide rights for users of service
animals other than dogs, or animals not trained by a formal institution.
Although dogs are by far the most common type of animal used to assist people
with disabilities, many different types of animals can be used. For example,
in the United States, miniature horses are growing in popularity as an alternative
to guide dogs for people who are blind. Monkeys can be trained to perform a
variety of simple tasks for people with mobility impairments, including opening
doors, pouring drinks and brushing hair.
Human Rights Protections For Service Animal Users
Human rights legislation does protect people with disabilities who rely on
all types of service animals. However, this legislation does not specifically
address the scope of protection provided.
The Ontario Human Rights Code offers broad protections to service animal users.
The Code provides that people with disabilities have a right to be free from
discrimination because of their disabilities. More specifically, individuals
and organizations have a legal obligation not to refuse entry or access to a
building, premise, good or service because of a person’s disability. Individuals
and organizations are required to accommodate people with disabilities up to
the point of undue hardship.
If a person is accompanied by a service animal for reasons related to their
disability, to deny access to the service animal would be discrimination on
the basis of disability. Case law shows that the service animal user will have
to prove that they have a disability within the meaning of the Code, and that
the animal is necessary for reasons related to the disability. This typically
requires some form of medical documentation. The definition of disability in
the Code includes physical reliance on a guide dog or other animal.
Service Animal Users And Air, Train And Ferry Travel
People who rely on service animals are given specific rights relating to travel.
Based on the Air Transportation Regulations, an airplane must accept a service
animal for carriage at no extra charge. There are three requirements for acceptance
on board the aircraft: the service animal must be required by a person for assistance;
it must be certified, in writing, as having been trained to assist a person
by a professional service animal institution; and it must be properly harnessed.
The animal does not have to be required for tasks during the flight, but rather
must perform tasks or services for the person on a day-to-day basis. More information
about the Air Transportation Regulations can be found in the publication “Air
Travel Accessibility Regulations – Summary,” available online at http://www.cta-otc.gc.ca/access/regs/air_e.html.
The Canadian Transportation Agency’s Codes of Practice for rail cars and ferries
also contain provisions relating to service animals. These Codes of Practice
can be accessed online at http://www.cta-otc.gc.ca/access/codes/index_e.html.
Health And Safety Laws And Service Animals
Members of the public may attempt to deny access to premises on a mistaken
belief about health and safety laws. They may be unaware that there are health
and safety laws that contain specific exceptions to allow service animals in
areas where animals would normally not be allowed.
The Health Protection and Promotion Act provides a specific exception for service
dogs in the Regulations regarding food premises, which otherwise exclude animals
in places where food is served, offered for sale or sold. This means that service
dogs are allowed into restaurants and food stores. Unfortunately, this exception
is limited to dogs and does not apply to other kinds of service animals.
Similarly, the Food Safety and Quality Regulations exclude animals in any area
of a meat plant, but makes an exception for service dogs in certain areas of
meat plants. For example, if a meat processing factory had a store on the premises
that sold their products, service dogs would be allowed in the store. This law
is also limited to service dogs, rather than applying to all service animals.
Looking Forward: Protection under the Accessibility for Ontarians with Disabilities Act, 2005
The rights of service animal users in Ontario will be reinforced by the introduction
of the Accessibility Standards for Customer Service (the “Standards”)
under the Accessibility for Ontarians with Disabilities Act, 2005. The Standards
will apply to public sector organizations by January 1, 2010, and private businesses,
non-profit organizations and other service providers by January 1, 2012. The
Standards require organizations to allow a person with a disability to be accompanied
by a guide dog or service animal in their premises that the public has access
to. If service animals are excluded from the premises by another law, the organization
must ensure that alternate means are available to enable a service animal user
to access their goods or services.
The Standards will apply to guide dogs as defined in the BPRA and service animals.
An animal is a service animal if the person provides a letter from a physician
or nurse confirming that he/she requires the animal for reasons related to a
disability. However, no such letter will be necessary if it is “readily
apparent” that the animal is used by the person for reasons related to
a disability. For instance, the animal may be wearing a harness that identifies
it as a service animal, it may have an identification card, or it may be engaged
in service activities such as opening doors or pulling a wheelchair.
Conclusion
Although there is some legal protection for service animal users, applicable
laws limit the scope of protection. If Bill 70 is successful in expanding the
Blind Persons’ Rights Act to all service dogs, it will be one step towards strengthening
the laws protecting service animal users. In the meantime, people who rely on
service animals should know that they already have important legal rights in
relation to their animals. Although the existing laws may be confusing, they
do protect service animal users and can be asserted when access is denied or
discriminatory treatment has occurred.
Reproduced from the ARCH Alert – 08 August 2008 Issue