Case Summary and Analysis: Denial of Service Animal Benefit for self-trained service animal is not discriminatory

A case summary of Leach v Ontario (Community and Social Services), 2019 HRTO 204

Introduction

Ontario Works (OW) and Ontario Disability Support Program (ODSP) offer a monthly Guide Dog Benefit for guide dogs and service animals to recipients of OW and ODSP for routine care of the animal. To be eligible for this benefit, the animals must meet the specified training criteria set out in the policy directives. For persons with service animals who do not have this training, this benefit is routinely denied.

Some applicants have had success appealing these decisions to the Social Benefits Tribunal (SBT) (see, for example, SBT File No. 1601-00259 and SBT File No. 1601-00259), where some denials have been overturned based on a statutory interpretation of the Ontario Works Act or Ontario Disability Support Program Act. Essentially, the SBT has held that the policy directives are an unduly narrow and improper interpretation of the respective Acts.

Recently, in Leach v Ontario (Community and Social Services) the Human Rights Tribunal of Ontario (HRTO) had the opportunity to analyze this issue from the perspective of the Human Rights Code (Code). In this case, the applicant chose to challenge the denial at the HRTO rather than the SBT. She alleged that the denial was discriminatory on the ground of disability. The HRTO dismissed the case on the basis that there was no reasonable prospect of success that the applicant could prove a connection between the denial of the Guide Dog Benefit and her disability.

Facts of the Case

The applicant, Ms. Leach, is a person who identifies as having multiple disabilities, including post-traumatic stress disorder, dyslexia, and a physical disability that affects her mobility. The applicant has a service animal named Tundra, who accompanies her when she is in public and helps her manage her disabilities. Ms. Leach trained Tundra herself.

She received social assistance first from OW and then from ODSP from the Ministry of Community and Social Services (MCSS). In 2016, Ms. Leach applied for the Guide Dog Benefit. The policy directive setting out eligibility for this benefit is the same for both OW and ODSP. It states that the Guide Dog Benefit is for recipients whose service animal or guide dog was trained by an “accredited training facility.” For a service animal, the policy directive requires that the facility meets the “minimum standards established by Assistance Dogs International and that is a member of Assistance Dogs International.”

The Minister of MCSS denied Ms. Leach’s application on the basis that Tundra did not have this specified training. After one internal appeal was denied, Ms. Leach filed a human rights application at the HRTO alleging, in part, that the Ministry discriminated against her on the basis of disability when it denied her the Guide Dog Benefit.

Decision of the HRTO

Ms. Leach argued that the policy directive was discriminatory towards persons with self-trained animals because the specified training is not easily accessible geographically and because the training is cost prohibitive for persons who are relying on income assistance. She argued that it adversely impacts people based on disability, is an overly narrow interpretation of the legislation, and prevents an individualized assessment of the applicant’s disability. In this way, she submitted, the policy directive violates the Code because it does not ensure substantive equality.

The HRTO conducted a summary hearing and found that even if all of Ms. Leach’s submissions were taken to be true, her application should be dismissed because there was no reasonable prospect of success. The HRTO accepted that Ms. Leach has a medically required service animal and that Ms. Leach put considerable time into training the animal (para 26). However, the HRTO found that Ms. Leach could not establish a link between her disability and the denial of the benefit:

In this case, the applicant has been denied a benefit because she has not verified that her service animal is a specially trained dog certified by an accredited facility, as required by the OW policy. While she points to evidence about her disability, there is nothing to suggest that her disability was a factor in the denial of the benefit. As such, there is no reasonable prospect of success that the applicant’s allegation that she was denied the Guide Dog Benefit on the basis of her disability, and that [the policy directive] is discriminatory can succeed under the Code. (para 18)

The HRTO found that there was no evidence to suggest that it was impossible to certify self-trained animals as required by the policy directives. Moreover, the HRTO found that even if it accepted that the costs and geographic locations make certification onerous, it is not discrimination on a Code ground (para 22).

The HRTO found that it was not inherently discriminatory to require training verification to prove eligibility for the benefit. Indeed, the HRTO held that, “[g]iven the general public health and safety concerns, the requirements for training and verification of specially trained guide, hearing or service animals seems entirely appropriate.” (para 21)

Implications

The issue of whether or not service animals should be required to be accredited and certified is a contentious one, even among different disability communities.

Even so, the HRTO’s decision in Leach provides several interesting takeaways.

First, it is clear why the HRTO could not find any reasonable prospect of success on the ground of disability – the denial of the benefit was not based on the disability for which she requires a service animal, but rather the fact that her animal did not meet the training criteria. The fact that her animal did not meet the training criteria was also not related to her disability, but rather cost and geographical location of the training facilities, neither of which are Code protected grounds.

For many persons with disabilities receiving OW and ODSP, the cost of accrediting or certifying an animal is burdensome and may even be impossible. The HRTO’s decision may have differed if income status was a Code-protected ground on which persons like Ms. Leach can plead.

On this point, ‘social condition’ was proposed as a prohibited ground in Bill 164, Human Rights Code Amendment Act, 2017, which was introduced under the previous provincial government but did not pass before the changeover.  In the Bill, ‘Social condition’ included 5 sub-grounds, one of which was source or level of income. Had this ground been available to Ms. Leach, the decision may have been very different. At the very least, Ms. Leach may have been able to establish a prima facie case of discrimination.

Second, it is clear that persons looking to appeal a denied Guide Dog Benefit would be wise to pursue remedies at the SBT, which examines the benefit from a statutory interpretation perspective. In pursuing this avenue, applicants may be more likely to achieve individual remedies, such as overturning the Minster’s decision, than at the HRTO where the applicant must establish a link between the adverse impact of the policy to the Code ground.

Third, for those who are of the mind that some form of training standards are necessary for service animals, this decision demonstrates a principled example of how the Code can be used to analyze whether the training standards are discriminatory – had Ms. Leach been able to demonstrate that she was not able to access the specified training certification because of her disability, both the analysis and the ultimate outcome may have been different.

ARCH will continue to monitor this issue. For ARCH’s blog post about the law of service animals in Ontario, go here.