Guidelines Informing the Use of Service Animals

(As of June 1, 2015)

Guidelines are not law. These guidelines reflect the Newfoundland and Labrador Human Rights Commission’s interpretation of the provisions of the Newfoundland and Labrador Human Rights Act 2010 (“the Act”) and the Service Animal Act , 2012 , legal decisions from across Canada with respect to the use of service animals. They are subject to decisions by Boards of Inquiry (called Tribunals in some provinces) and the Courts and should be read in conjunction with such decisions and with the specific language of the Act. Readers should be aware that as with all areas of law, legal obligations may evolve as new decisions emerge. If there is any conflict between these guidelines and the Act, the Act will prevail. Any questions regarding these guidelines should be directed to Commission staff. These guidelines should not be substituted for legal advice.

Introduction

In 2012 the Service Animal Act became law in this province. Prior to this Act, the Blind Persons’ Rights Act had provided rights to visually impaired persons needing the assistance of a guide dog. The new legislation has expanded the variety of animals that are recognized as “service animals” and has broadened the types of disabilities that are covered under this Act. Service animals are used by a number of people with various disabilities such as autism, epilepsy, vision impairment, brain injury, hearing loss and mental illness. The Service Animals Act recognizes this and prohibits discrimination against persons with these disabilities with respect to accommodations, services and facilities. It removes barriers to places such as hotels, restaurants, apartments and other services and facilities on the basis of the presence of a service animal.[1]

There is not a great deal of public awareness about service animals and the rights and responsibilities of those individuals with disabilities such as post-traumatic stress disorder, autism or epilepsy who use benefits from them. For the employer, service provider, or landlord, confusion often arises from a lack of awareness and clarity of what their obligations are under the legislation. While the legislation references the making of regulations under this Act, no regulations have been passed to date. The purpose of this guideline is to provide further information and clarity to persons with disabilities who are accompanied by service animals about their rights and responsibilities as well as to outline the rights and responsibilities of the providers of service and facilities to the public.

**What is the connection between the Service Animal Act and Human Rights legislation?**

The Human Rights Act, 2010 (“the Act”) protects individuals with disabilities from being discriminated against as a result for their disability from access to public goods and services, accommodation and facilities. The Act requires that their disability be accommodated by the provider of the goods, service, accommodation, or facilities up to the point of undue hardship.

Service animals assist many disabled people in their day-to-day activities. The Service Animal Act prohibits the provider of accommodation, goods and services and facilities in places that the public are customarily admitted from denying the disabled person access to the accommodation, goods and services, or facilities for the reason that they are accompanied by a service animal. The Service Animal Act also prohibits the charging of a fee for the use of a place for reason of the presence of the service animal.

In many ways, the Service Animal Act sets out legislated accommodation for disabled persons who can show that they need the assistance of their service animal. If a person is accompanied by a service animal for reasons related to their disability, to deny access to the service animal would be to discriminate on the basis of disability.

Under this legislation, people who are accompanied by a service animal may not be denied access to taxis and other public transportation, restaurants, shopping malls, apartments or hotels and education and health services by reason only that they are accompanied by a service animal.

Is Proof of Disability Required?

To be provided the protections under the Service Animal Act, the person must be a “person with a disability”. This is defined in the Act as “a person who has a degree of disability and is dependent upon a service animal.”[2].

The definition of “a person with a disability” in the Service Animal Act is consistent with the Human Rights Act and the United Nations Convention on the Rights of Persons with Disabilities and the Provincial Government policy.[3] Under the Human Rights Act, 2010, “disability” means a degree of physical disability, a condition of mental impairment or developmental disability, a learning disability and a mental disorder.[4].

A disability may include a condition that is visible (for example, a visual impairment or mobility restriction), but it can also include a condition that is not apparent or is hidden from view (for example, a learning disability or post-traumatic stress disorder). In some cases, the symptoms related to an invisible disability may go through phases where they are detectable or apparent, but also through phases where the individual appears asymptomatic or in remission for example where a person suffers from epileptic seizures. Because invisible disabilities are not “seen,” many individuals with these disabilities can also experience another barrier – this being reluctance by some members of the public to acknowledge the existence of their disability.

Under the Act, satisfying the requirement that the disabled person is “dependent upon a service animal” is demonstrated where it is readily apparent that the service animal is used by the person for reasons relating to his or her disability, or where the person provides a letter from a physician, a nurse or those persons or categories of persons prescribed in the regulations confirming that the person requires the service animal for reasons relating to the disability[5]

Some individuals may carry a physician or nurse’s notes with them at all times and promptly show it even without being asked. Where a person has a visible disability for which it is obvious that the service animal is required, then no further proof is necessary. To date there have not been any regulations passed which prescribe other categories of persons other
than physicians or nurses who may confirm that the person requires the service animal for reason relating to their disability.

In the interests of protecting the privacy of the individual and avoiding discriminatory treatment of the person accompanied by a service animal, in cases where the disability is not obvious further proof may not be necessary unless the circumstances require clear proof of the disability and the need to be accompanied by the service animal.

Examples where the service provider may wish to seek confirmation of the person’s disability and the appropriate training for the service animal include where the animal is misbehaving or causing safety risks to other patrons or where there are other members of the public with legitimate concerns which may need to be accommodated.[6]

What can I ask as the person with a service animal?

Some animals may in fact be certified as trained service animals and their owner may readily provide documentation to demonstrate this.

When the purpose of a service animal is not obvious, you can ask the following questions:

Is the animal a service animal required because of a disability?
What work or task has the animal been trained to perform?

Inquiries about the person’s disability or asking that the animal demonstrate its ability to perform the work or task are not appropriate.

What is the difference between a service animal and a pet?

A service animal is an animal trained to assist someone with a disability. They are different from a pet in that they are working to assist the disabled person. Some of the factors used to determine whether or not a particular animal meets the definition of a service animal include:

Does the animal work or perform a task for a person with a disability that relates to the person’s disability?
Has the animal been individually trained to do work or perform a task for a person with a disability that relates to the person’s disability?

While dogs are the most common form of service animal, other animals trained to perform assistance to someone with a disability can also fall within the meaning of service animal.

“No pet” policies should not be broadly applied so as to include service animals. Hotel or motel operators should also carefully consider the situations in which they require an additional damage deposit or charge an additional cleaning fee to patrons. It is contrary to human rights law to require a person accompanied by a service animal to pay extra for the animal to accompany them.

An employer, service provider, or landlord claiming that it would be an undue hardship to accommodate the needs of a service animal user, as set out above, must be able to demonstrate the undue hardship through actual evidence.

Which Animals are considered service animals?

The Service Animal Act provides the following definition for service animals:

“service animal” means an animal trained to provide assistance to a person with a disability and having the qualifications prescribed by the regulations and used by a person with a disability

(i) where it is readily apparent that the service animal is used by the person for reasons relating to his or her disability, or

(ii) where the person provides a letter from a physician, a nurse or those persons or categories of persons prescribed in the regulations confirming that the person requires the service animal for reasons relating to the disability.[7]

Therefore, an animal will be considered to be a “service animal” under the Service Animal Act if it is trained to provide assistance to a person with a disability, either physical or mental, and it is readily apparent that the person requires the use of the service animal or such a use is prescribed by a physician or nurse.

What proof is required for service animal training?

At present there are no training and qualifications prescribed by law for service animals in this province. In the absence of such regulations, there is no obligation to ensure that the animal has any specific qualifications. If the animal is described by its owner as trained as a service animal and it behaves like a service animal, this is sufficient proof at present or until such time as specific qualifications is prescribed in the regulations.

Typical behaviours of trained service animals are that they are under control of their handler at all times. The animal is harnessed, leashed, or tethered, unless these devices interfere with the work or task that they perform, or the individual’s disability prevents using these devices. In those instances, the individual relying on the animal must maintain control of the animal through voice, signal or other means.

What are some examples of service animals?

A Seizure Response Dog is trained to assist a person with a seizure disorder. How the dog serves the person depends on the person’s needs.
A Psychiatric Service Animal is trained to assist a person with a psychiatric disability and provide specific services including, but not limited to: reminding the handler to take medication, or distracting the handler from repetitive and obsessive behaviour.
A Social Signal Dog is trained to assist a person with autism. The dog may recognize familiar persons in a crowd, or respond to other people or social signals.
A Guide dog may be trained to assist the blind or visually impaired person or assist a deaf or hard of hearing person by alerting them of alarms and other important sounds.

**Which animals are protected under the Human Rights Act?**

The accompaniment of a service animal is protected under the Human Rights Act. However, animals which have not been trained or certified as service animals may still provide support for disability-related needs, and therefore gain protection under the Human Rights Act.

In a complaint submitted before the Ontario Human Rights Tribunal, a Complainant contended that he was asked to leave his apartment because of his dog, who he claimed was needed to assist with his deafness. The Tribunal found that while the Complainant’s dog was neither trained nor certified as an official service dog, the dog was a personal support animal that assisted the Complainant with his disability-related needs. As a result, the Tribunal held that the accompaniment of the personal support animal was protected under their human rights legislation.[8]

Therefore, in addition to service animals, the accompaniment of personal support animals that provide assistance with disability-related needs may also be protected under the Human Rights Act.

The accompaniment of a pet, which provides no support for disability-related needs, is not protected by the Human Rights Act.

Discrimination in the workplace

The Code prohibits discrimination in all aspects of full-time, part-time, permanent, casual or probationary employment and applies to paid and unpaid or volunteer employment.

Employers should not treat a person differently because they use a service animal, unless it is reasonable to do so.

Employers may have bona fide or reasonable occupational requirements or qualifications for a job that result in treating people differently; however they must be carefully considered and able to be justified. An employer must be able to show that the requirement has been established in good faith and is reasonably necessary for the safe or efficient performance of the job.

Discrimination in the workplace against persons with disabilities who use service animals typically looks like denying a person with a service animal opportunities such as a job or promotion in part, because they are a person with a disability who uses a service animal, or restricting access in the workplace to a person who uses a service animal.

For example:

an employee may believe that they were not hired or promoted, in part because they use a service animal

An employer is entitled to ask whether or not the animal is trained to provide assistance to the person with a disability and to ask for information to identify or clarify the disability-related need. An employer should be cautious not to ask for information or require a person to substantiate the need to rely on the animal if it is obvious.

While it may be appropriate to ask for more information to substantiate that the animal is required because of a disability, which may include information from medical or paramedical providers or evidence of the animal’s participation in a training or certification program, it is not appropriate to ask for information about the person’s diagnosis. It is not appropriate to ask that the animal demonstrate its ability to perform the tasks for which it is trained. Questions should always be asked with respect and understanding.

Employers also have a duty to reasonably accommodate the special needs of a person based on their disability, or any other protected characteristic. These requests must be assessed on a case-by-case basis. An employer has a responsibility to consider the specific request, ask for more information to substantiate it if necessary and assess how to offer an accommodation that is reasonable and does not cause undue hardship.

For example:

a person who uses a service animal may request breaks at specific times to enable them to feed or walk the animal or enable them to toilet outside

Employers must ensure a harassment-free work environment, which includes taking reasonable steps to terminate harassment if it is brought to the employer’s attention, or the employer ought reasonably be aware of it.

For example:

an employee who uses a service animal may complain that her co-workers have been making inappropriate jokes or isolating her based on their alleged allergies. The employer must take steps to investigate the situation and determine if there is harassment in the workplace and then take reasonable steps to address it and ensure it ceases

Discrimination in housing

The Code prohibits discrimination with respect to leasing, renting or purchasing residential or commercial premises.

Landlords must not treat a person differently because they have a disability and use a service animal, unless it is reasonable to do so.

Landlords may have bona fide or reasonable cause to treat people differently; however those situations must be carefully considered and able to be justified. A landlord must be able to show that the seemingly discriminatory policy or practice has been established in good faith and is reasonably necessary for the safe or efficient operation of the premises.

Discrimination in housing against persons with disabilities who use service animals typically involves not renting to a person wholly or in part, because they use a service animal or in the case of a condominium complex, not permitting the person to live in their unit with their service animal.

For example:

a person is able to establish that their animal clearly provides assistance to them with certain disability-related needs and is not merely a pet, but the landlord refuses to allow them to rent

A landlord is entitled to ask whether or not the animal is trained to provide assistance to the person with a disability and to ask for information to identify or clarify the disability-related need. A landlord should be cautious not to ask for information or require a person to substantiate the need to rely on the animal if it is obvious.

Landlords and condominium corporations also have a duty to reasonably accommodate the special needs of a person based on their disability, or any other protected characteristic. These requests must be assessed on a case-by-case basis. A landlord or condominium corporation has a responsibility to consider the specific request, ask for more information to substantiate it if necessary and assess how to offer an accommodation that is reasonable and does not cause undue hardship.

For example:

a tenant with a service animal requests to occupy a main floor unit to allow them easy

and frequent access to the garden area. The landlord must consider whether or not it would cause an undue hardship to do so.

Landlords must not harass a tenant or potential tenant because they use a service animal and condominium corporations must ensure that their buildings are harassment-free.

For example:

a person with a service animal complains that every time they access the building the security guard asks them to demonstrate that the animal can follow basic commands like “sit”, “stand” and “lie down”. This may be harassment.

Discrimination in services

The Code prohibits discrimination with respect to any service, accommodation, facility, benefit or program available or accessible to the public or to a section of the public. Examples of services include stores, theatres, restaurants, police services, sports associations, healthcare services, government services, food banks, schools, rehabilitation programs and insurance services.

Service providers must not treat a person differently because they use a service animal unless it is reasonable to do so.

Service providers may have bona fide or reasonable cause to treat people differently; however those situations must be carefully considered and able to be substantiated. A service provider must be able to show that a seemingly discriminatory policy or practice has been established in good faith and is reasonably necessary for the safe or efficient operation of the service being provided.

Discrimination in services against persons with disabilities who use service animals typically involves denying access to a person wholly or in part, because they use a service animal.

For example:

a fine dining restaurant refuses to allow a person with a service animal access
a convenience store requires a person who uses a service animal to leave the animal tethered outside the store

A service provider is entitled to ask whether or not the animal is trained to provide assistance to the person with a disability and to ask for information to identify or clarify the disability- related need. A service provider should be cautious not to ask for information or require a person to substantiate the need to rely on the animal if it is obvious.

Service providers also have a duty to reasonably accommodate the special needs of a person based on their disability, or any other protected characteristic. These requests must be assessed on a case-by-case basis. A service provider has a responsibility to consider the specific request, ask for more information to substantiate it if necessary and assess how to offer an accommodation that is reasonable and does not cause undue hardship.

For example:

a student with a service animal requests permission to leave school grounds at recess to take the animal for a lengthier walk. The school must consider whether or not it would be an undue hardship to do so, which would include considering its obligations regarding care of the student and safety.

Service providers must ensure that they maintain harassment-free environments and have a process to deal with harassment complaints.

What about the rights of others?

Restaurants, stores, schools, taxi companies, hospitals and other establishments that provide services to the public have a duty to accommodate individuals with disabilities who rely on service animals, unless it would be an undue hardship for them to do so.

A service animal user should be permitted into a restaurant, grocery store, cafeteria, or hospital clinic or facility, despite public health or other legislation that as a general rule excludes animals from these premises. There may be exceptional circumstances where it would be unreasonable or an undue hardship to allow a service animal to be present in a hospital operating room or other sterile environment. There may be rare exceptions where it would be an undue hardship for a taxi driver with a severe allergy to dogs to transport a service animal, but even in those circumstances, the taxi driver or company would be expected to have considered, in advance, policies and procedures that would enable the person and their service animal to obtain alternate transportation. Similarly, landlords cannot refuse to rent premises to persons with service animals unless they can demonstrate that is undue hardship for them to do so. It should be noted that customer preference is not usually a factor considered in the evaluation of whether it is undue hardship to accommodate the person and their service animal.

Examples of Cases involving Service Animals

Discrimination was found against a restaurant owner who declined to serve a patron who was accompanied by her animal clearly identified by several patches on his vest saying “do not pet”, “hearing animal” and “do not distract”, who had a number of medical issues including hearing impairment for which she wore a visible hearing aid and provided medical documentation to prove it.[8]
A landlord who provided a Notice of Eviction to a hearing impaired tenant was found to have discriminated against him by failing to make adequate inquiry about the excessive barking by the tenant’s dog as complained about by other tenant’s. The barking was a part of the service being provided by the animal to alert its owner.[9]
A restaurant owner was found to have violated Human rights legislation when it insisted that a patron who suffered from epilepsy and was accompanied by her service dog at the buffet table be seated and have another person serve her food.[10]
A grocery store was found to be in violation of human rights when it asked a sight impaired customer accompanied by her guide dog to leave the store because the animal was “scaring my customers”. The animal was not misbehaving in any way.[11]
A cab company was found to be in violation of human rights when multiple cab drivers were requested to drive a woman and her service dog. There was no “good faith” reasoning for the drivers not to allow the service dog in the cab.[12]

**Relevant Provisions under the Service Animal Act Definitions**

(b) “person with a disability” means a person who has a degree of disability and is dependent upon a service animal;(c) “service animal” means an animal trained to provide assistance to a person with a disability and having the qualifications prescribed by the regulations and used by a person with a disability(i) where it is readily apparent that the service animal is used by the person for
reasons relating to his or her disability, or(ii) where the person provides a letter from a physician, a nurse or those persons or categories of persons prescribed in the regulations confirming that the person requires the service animal for reasons relating to the disability

Right to facilities, etc.

A person shall not(a) deny a person with a disability the accommodation, services or facilities available in a place to which the public is customarily admitted; or(b) discriminate against a person with a disability with respect to the accommodation, services or facilities available in a place to which the public is customarily admitted, or the charges for the use of the place,
for the reason only that the person is a person with a disability accompanied by a service animal.

Right to housing

(1) A person shall not(a) deny to a person occupancy of a commercial unit or a self-contained dwelling unit;or(b) discriminate against a person with respect to a term or condition of occupancy of a commercial unit or a self-contained dwelling unit,
by reason only that the person is a person with a disability and keeps or is customarily accompanied by a service animal.(2) A prohibition in a lease against the keeping of dogs or animals does not apply to a service animal owned or used by a person with a disability.

Prohibited fee

A person shall not charge a fee to a person with a disability for his or her service animal in respect of a right of admission to or enjoyment of accommodation, services or facilities under section 4 or in respect of a right of occupation under section

1 Press Release –Department of Advanced Education and Skills, Government of Newfoundland and Labrador ( May 31, 2012)

2 Service Animal Act, SNL 2012, c. S-13.02, s. 2(b)

3 Supra., note 1

4 Human Rights Act, 2010, SNL 2010,c. H- 13.1, s. 2(c )

5 Supra, note 2, s. 2( c)

6 Allarie v. Rouble, 2010 HRTO 61

7 Service Animal Act, s.2(c).

8 Robdrup v J Werner Property Management Inc, 2009 HRTO 1372.

9 C.C. v. J.L. o/a[…]Restaurant , 2014 HRTO 1625

10 Robdrup v. J. Werner Property Management, 2009 HRTO 1372

11 Schussler v. 1709043 Ontario, 2009 HRTO 2194

12 Bourdeau v. Kingston Bazar, 2012 HRTO 393

13 Malone v Dave Gulliver’s Cabs Limited (o/a City Wide Taxi), 2016 CHRR