Disability, Assistive Animals and the Law

By Brittni Tee

In July, I participated in public symposium hosted by the Yukon Human Rights Commission relating to disability, assistive animals and the law. The event provided a forum for participants to learn the basics of human rights law relating to this topic, and to partake in a facilitated discussion about how to improve inclusion for people using assistive animals in the Yukon.  Participants included assistive animal users, as well as various stakeholders representing business, government and transit in Whitehorse.

The Commission handles a high-volume of disability-related work, so prior to attending the conference I had already spent a significant amount of time learning about different elements of disability law. After a working for a number of weeks, I was beginning to feel as though I had a decent understanding of the leading cases and important “tests” that had been laid out by the courts relating to discrimination on the basis of disability. Yet, despite my academic understanding of the law in this area, hearing people speak about their own experiences with discrimination really brought these issues into focus in a different way.  As someone who has always been passionate about inclusive policy-making, the experience inspired me to think more critically about the existing laws on this topic and to consider the practical and legal aspects of improving accessibility across Canada.

Canoeing the Yukon River

Most people have some degree of familiarity with guide dogs, which have been specifically trained to assist blind and visually impaired persons navigate obstacles. However, there are actually a wide variety of tasks performed by service animals which may be less familiar to the public. Individuals with epilepsy may use a service animal to pre-emptively warn them about an oncoming seizure, or to respond in the event that a seizure occurs. Animals can be trained to calm children with autism in high anxiety situations, or to respond to nightmares and flashbacks experienced by people with PTSD.  Some service animals can even be trained to smell when a diabetic person’s blood sugar is too low, prompting their owners to take insulin. In addition to the wide variety of tasks performed by service animals, “emotional support animals” have also been increasing in prevalence.  Unlike service animals, these animals are generally not trained to complete specific assistive tasks, but rather provide comfort and support to people with disabilities.

Prior to working at the Commission, I had assumed that there was a clear legal regime governing the certification and regulation of assistive animals. Consequently, I was rather surprised to learn that there is actually no unified legal definition of a “service animal” in Canada. Instead, there are a variety of different provincial and federal regulatory regimes which address this topic in a rather patchwork fashion.  In the Yukon specifically, there is currently no legislation which explicitly regulates the certification or use of assistive animals. Unsurprisingly, the lack of clarity surrounding these issues has been a source of confusion and frustration for many people.

Under provincial human rights legislation across Canada, it is prohibited to discriminate on the basis of disability in employment, housing or the provision of services to the public. In order to prevent or reduce such discrimination, employers, landlords and service providers have a “duty to accommodate” any special needs arising from a disability (or from any other characteristics protected under human rights legislation). The duty to accommodate is not absolute, but rather extends to the point where additional accommodation would cause “undue hardship”.  Jurisprudence has held that while “undue hardship” should be interpreted to include more than mere inconvenience, it is permissible to consider issues such as cost, health and safety requirements, and employee morale.

In the context of disability, this generally means that employers, landlords and service providers are obliged to accommodate the use of assistive animals on their premise, unless they can prove that doing so would cause them undue hardship. Nonetheless, many people remain unsure about the extent of their obligations relating to assistive animals under provincial human rights legislation, particularly in situations where different regulations may appear to contradict each other. For example, in many jurisdictions, businesses which prepare food are not permitted to allow animals on the premise for health and safety reasons. Yet, under provincial human rights legislation, people with disabilities cannot be turned away from a business for using an assistive animal.  Since human rights legislation generally supersedes other legislation, conflicting regulations should normally give way to the duty to accommodate. Nonetheless, it is perhaps unsurprising that confusion on this topic seems to persist, particularly for small business owners who don’t necessarily have access to sophisticated legal resources.

Unfortunately, these difficulties have been compounded by the perception of an increase in “fake” assistive animals. Since service animal vests and fraudulent “certifications” are readily available online, it is relatively simple to give the appearance of legitimacy to any animal. Given the lack of regulation on this topic, this practice has been able to continue with relatively few repercussions. Sadly, the proliferation of fake service animals has serious negative consequences for persons who genuinely require the use of such animals to assist with their disability. Since fraudulent assistive animals are usually not properly trained, they often exhibit behavioural issues which can cause real problems for businesses and other service providers. This has led to an increase in scrutiny (and sometimes hostility) for those using assistive animals for legitimate purposes.

One potential solution to this problem is to require the certification and identification of all service animals. This approach is currently in use in British Columbia and Albert, but the rollout of these regulations has been met with mixed reviews. Many advocates have noted that certification actually has the potential to create roadblocks for people who depend on the use of service animals. Since there are already incredibly long wait-lists to receive an animal from recognized training organizations, the certification process could further restrict and delay the ability to access an assistive animal. This would have the undesirable effect of decreasing the autonomy of disabled people to choose and self-train the best animal for their needs.

Hiking in Tombstone Territorial Park

At the symposium hosted by the Commission, one of the speakers presented the story of his experience trying to find a guide dog in the Yukon to assist him with his visual impairment. At the time, there were no guide dog trainers available in the Yukon, and the waitlists to receive a dog from out of province were incredibly high. Faced with these options, the speaker decided to train his own service dog, using resources that he had found at the library. This approach was highly successful and allowed the speaker to bypass the prohibitive costs and wait times normally required to access a guide dog. After listening to this story, it became clear to me that excessively regulating this area without first improving access to properly trained animals has the potential to cause more harm than good.

Attending this conference has certainly given me a new appreciation for the numerous ways in which assistive animals often change the lives of the people they have been trained to help. Unfortunately, it was clear from listening to the various presenters that long wait lists, high costs, unclear regulations and a lack of public understanding continue to pose significant barriers to people attempting to gain access to the valuable services provided by assistive animals. In order to make meaningful accessibility a reality, we need to come up with better solutions to these problems to ensure that people with disabilities have the resources they need to fully participate in our society with dignity and autonomy.

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