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Focus: The Law of Service Animals in Ontario

The term “service animal” is often perceived to refer to one particular type of service animal for one particular disability: the service animal being a guide dog and that disability being a vision disability.  However, the scope of what a service animal is and what accommodation it provides to other disability-related needs is much wider.  

Persons with epilepsy, persons with mental health disabilities and persons with other non-evident disabilities may all require the support of a service animal. That service animal may or may not be a guide dog; in fact, miniature horses, birds or even monkeys are sometimes used as service animals by persons with disabilities.

For persons who require the support of a service animal, the handler-animal relationship is an essential tool for independent living and full participation in society.

The Legal Framework 

Several pieces of legislation in Ontario specifically address rights and restrictions for persons who use service animals. These include Ontario’s Human Rights Code(the “Code”), the Accessibility Standards for Customer Service Regulationunder the Accessibility for Ontarians with Disabilities Act (the “AODA”), the Blind Persons’ Rights Act (the “BPRA”), and the Health Promotion and Protection Act (“HPPA”)

Ontario Human Rights Code

The definition of “disability” pursuant to the Code includes any person who has a “physical reliance on a guide dog or other animal” and extends the protection of the Code to persons who require the use of service animals.  

While the Code is silent with respect to what defines a service animal the Human Rights Tribunal of Ontario (the “Tribunal”) has provided some guidance on the matter. For example, in Allarie v Rouble, the Tribunal made it clear that “there is nothing in the Code which limits the definition of a service animal to one which is trained or certified by a recognized disability-related organization.” 

The Tribunal has emphasized that service cannot be denied to persons with disabilities who use service animals. Organizations have a legal obligation under the Code not to refuse a person entry or access to a building, premise, good or service on the basis that the person uses a service animal. If a person is accompanied by a service animal for disability-related reasons, denying entry or access to the person and his or her service animal would consequently be discrimination on the ground of disability. 

It is important to note, however, that the Tribunal has also demonstrated that they are sensitive to the fact that many service providers and organizations are not well-versed in their obligations and duties when it comes to the use of service animals by persons with non-evident disabilities. 

Accessibility Standards for Customer Service

Similar to the Code, the AODA itself is silent with respect to the rights of persons with disabilities and responsibilities or duties of service providers with regards to service animals. However, the Accessibility Standards for Customer Service, which is a Regulation to the AODA, sheds light on the issue in section 4:

4. (2) If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.

Section 4 of the AODA also provides a concrete definition of ‘service animal’:

4. (8) In this section,

“guide dog” means a guide dog as defined in section 1 of the Blind Persons’ Rights Act;

“service animal” means an animal described in subsection (9);

4.(9) For the purposes of this section, an animal is a service animal for a person with a disability,

(a) if it is readily apparent that the animal is used by the person for reasons relating to his or her disability; or

(b) if the person provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.

While the Tribunal does not have the jurisdiction to apply or enforce the AODA or the Standards, the Tribunal has recognized that it is important to consider this legislation alongside the Code provisions. To that end, the Tribunal has incorporated the above definition into the legal framework for adjudicating human rights claims relating to persons who use service animals.

Blind Persons’ Rights Act

The BPRA is very specific in its application as it only applies to persons who have a vision disability and who use a guide dog. This Act therefore provides no protection for people with other types of disabilities who rely on service animals, or for people with a vision disability who use a service animal other than a guide dog. The BPRAhas a very narrow definition of a guide dog: a dog trained as a guide for a blind person and having the qualifications set out in regulations made under the Act. This suggests that in order for the protections of the BPRA to apply, the guide dog must be trained at one of the facilities set out in the Guide Dogs Regulation made under the BPRA.

Health Promotion and Protection Act 

The Food Premises Regulation to the HPPA prohibits live birds and animals from entering rooms where food is manufactured, prepared, processed, handled, served, displayed, stored, sold or offered for sale.  

The HPPA carves out an exception to this prohibition in order to permit service dogs in areas where food is served, sold, or offered for sale. It is important to note that the exception is expressly limited to service dogs. For the purposes of the HPPA, a dog is a service dog if it is readily apparent to an average person that the dog functions as a service dog for a person with a medical disability, or if the person can provide on request a letter from a physician or nurse confirming that the person requires a service dog. This definition also encompasses service dogs for people with invisible, intermittent, and/or chronic disabilities

In simpler words, the HPPA and Regulation permits service dogs to enter places like the dining area restaurants, but prohibit service dogs from being in areas where food is manufactured or prepared for public consumption. 

Does a service animal need to be certified?

The existing provincial legislation and case law from the HRTO suggest that service animals for disabilities other than vision disabilities are not required to be officially certified in order to qualify as service animals for the purposes of human rights or accessibility legislation. In Robdrup v. J. Werner Property Management, the HRTO accepted that a dog that had not received formal training as a service dog was nonetheless a personal support animal because it was clear that the dog supported the applicant with respect to some of his disability-related needs.

Unfortunately, the Ontario Disability Support Program (“ODSP”) and Ontario Works (“OW”) rely on a dated policy directive that requires evidence of formal certification from accredited service animal training facilities in order for persons to receive additional benefits for their service animal. This is especially problematic as accreditation of service animals can be extremely costly and as such for recipients of ODSP and OW, the certification process may be cost-prohibitive. The Social Benefits Tribunal has determined that this policy directive is unreasonable and too restrictive yet it is unclear whether and how these programs will address this discrepancy. 

Even though certification is not required by law, for those persons who have certification or registration for their service animal, it may be prudent to carry that documentation at all times. This documentation may make it easier for persons who use service animals to assert their rights when accessing public spaces and services. 

What questions can legally be asked of people who use service animals?

There is no piece of legislation that clearly sets out what a service provider can and cannot ask a service animal team. The case law from the HRTO provides some guidelines in this regard. 

In Allarie v Rouble, the HRTO found that it is not unreasonable for a service provider to ask for identification or medical documentation to show that the animal is a service animal where it is not immediately obvious that the animal is supporting disability-related needs. However, the HRTO also held that a medical note should be sufficient to establish that the animal is a service animal. Of course, that medical note need not disclose more than what is necessary to explain that the animal is a disability-related need.

The HRTO stated that, once the medical note was provided, it was not for the service provider to look behind the medical evidence and use their own observations to determine whether the animal was a service animal. The HRTO reasoned that this may risk persons with less visible disabilities, including mental health disabilities, to be subject to more onerous standards to access services. 

More recently, in Scott v Siu, the HRTO found that even where the animal was readily identifiable as a service animal, it was not discriminatory in and of itself for the service provider to request further supporting documentation. In that case, the Applicant argued that her service animal was wearing proper service animal attire and that it should have been obvious to the service provider that the animal was a disability-related need. She argued that she was inappropriately singled out and humiliated, on the basis of disability, when the service provider requested that she provide supporting documentation. 

In this case, it is important to note that the Applicant was not refused service – she provided the requested documentation to the service provider and attended her appointment without further incident. Rather, the Applicant’s only allegation was that the request for additional medical documentation was discriminatory. In dismissing her application, the HRTO found that because it is “notorious that service dog vests can be purchased on the internet” and the applicant was not denied service, there was nothing discriminatory in requesting supporting documentation.

Scott v Siu is an example of barriers experienced by persons with less visible disabilities, such as mental health disabilities. Even simple medical notes may disclose stigmatizing information about the person’s disability, such as the specialty of the doctor. Further, for persons with non-evident disabilities who often experience increased stigma, having to prove disability-related needs each time they wish to access a service may amount to a discriminatory barrier.

Are there any circumstances where a person may need to provide more information about their service animal?

Often in the context of housing, employment or education, a person may need specific accommodations for their service animal. In that case, the landlord, employer, or educational institution may be entitled to additional information beyond a brief medical note. In Robdrup v J Werner Property Management , the HRTO found that where a service provider is notified by the person that he or she has disability-related needs, the service provider has a duty to make meaningful inquiries about those needs. 

Similarly, in JF v Waterloo Catholic District School Board, the HRTO found that the duty of the service provider means that they are required to conduct an individualized assessment to understand the disability-related needs and to determine the extent to which accommodation is required. The person need not disclose their diagnosis, but it is important that the person provide further information as necessary for the service provider to understand their needs to support their request for accommodation.

If you have questions about service animal law in Ontario, a lawyer at ARCH may be able to provide you with advice through our Summary Advice and Referral service or Lawyer/Paralegal Consult Service.

July 13, 2018