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There seems to be a fair amount of confusion about the what guide dog, service animal, emotional support animal. There terms are quite often used interchangeably. However, the differences are significant. Not knowing the differences can get an employer, a landlord, or a restaurant owner into legal trouble.

Those of us who have deep attachments to animals know that having a pet improves our lives in numerous, sometimes immeasurable ways. They get us off the couch and outdoors. They provide us with reasons to get exercise and to socialize. They return our affection. Animals may even lower our stress levels and boost our self-esteem.1Benefits (and some surprising science) about owning a pet, Sandee LaMotte, https://www.ctvnews.ca/lifestyle/benefits-and-some-surprising-science-about-owning-a-pet-1.4819888?cache=<a+href%3D%3FclipId%3D104066 

Personally, I have always had a dog for as long as I can remember. A house doesn’t feel like home to me without a canine companion somewhere underfoot. I have a son with Autism and our family is privileged to share in the love of his service dog. The dog provides specific supports to my son, but when he is “out of jacket” (not working) he’s very much like any other dog.

I am going focus the discussion on dogs and not other animals as I have experience with dogs. This isn’t to say that we will talk about can’t be applied to other animals. All this information can be used for any animal.

Dogs have a long history of working side-by-side with people and easily fit into all three categories: guide dogs, service animals, and emotional support animals.2Types of Working Dogs, AZ Animals, https://a-z-animals.com/blog/types-of-working-dogs</mfn>

What is a Guide Dog?

A “guide dog” is defined in section 1(1) of Ontario’s Blind Persons’ Rights Act 3 (“the Act”) as a “dog trained as a guide for a blind person and having the qualifications prescribed by the regulations.”2Blind Persons’ Rights Act, R.S.O. 1990, c. B.7; https://www.ontario.ca/laws/statute/90b07    The Act applies despite any other statute, bylaw, or rule and it unequivocally states that guide dogs are permitted to enter any place where members of the public are admitted.

The Act prohibits discrimination against a blind person who is accompanied by a guide dog in terms of access to businesses, services, and accommodation. Guide dogs receive government-issued identification cards.

The provisions of the Blind Persons’ Rights Act only applies to people who have a vision-related disability and use a guide dog. The guide dog must have been trained at a facility listed in the regulation.3 R.R.O. 1990, Reg. 58: GUIDE DOGS; https://www.ontario.ca/laws/regulation/900058 It is an offence under the Act to discriminate against a person who is supported by a guide dog, and anyone who does so may be fined up to $5,000.00.

How Do Service Animals Differ from Guide Dogs?

Service animals are defined in the regulation under the Accessibility for Ontarians with Disabilities Act (“AODA”). 4 Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11; https://www.ontario.ca/laws/statute/05a11 Section 80.45 (1) of the regulation states that an animal is a service animal for a person with a disability if:5 O. Reg. 191/11: INTEGRATED ACCESSIBILITY STANDARDS; https://www.ontario.ca/laws/regulation/110191#BK149

“(a) the animal can be readily identified as one that is being used by the person for reasons relating to the person’s disability, as a result of visual indicators such as the vest or harness worn by the animal; or

 

(b) the person provides documentation from one of the following regulated health professionals confirming that the person requires the animal for reasons relating to the disability:

 

(i) A member of the College of Audiologists and Speech-Language Pathologists of Ontario.

(ii) A member of the College of Chiropractors of Ontario.

(iii) A member of the College of Nurses of Ontario.

(iv) A member of the College of Occupational Therapists of Ontario.

(v) A member of the College of Optometrists of Ontario.

(vi) A member of the College of Physicians and Surgeons of Ontario.

(vii) A member of the College of Physiotherapists of Ontario.

(viii) A member of the College of Psychologists of Ontario.

(ix) A member of the College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario. O. Reg. 165/16, s. 16. 6

In plain language, this means the service animal must either be wearing something that identifies them as a service animal; or, if the animal is not wearing a jacket, the person with the disability must be carrying a letter from one of the above healthcare professionals. Currently, there is no central registry or government identification issued for service animals. I’m told by the organization that provided my son’s dog there is a registry program for service dogs in the works.

It’s important to note that not all disabilities are visible. There are service animals providing support to persons with various invisible challenges to their independence, such as mental health issues, autism, developmental disabilities, diabetes, epilepsy, and seizure orders.6Service Dogs for Invisible Disabilities. Anything Pawsable, MacPherson, Devon (2019, June 2),
https://anythingpawsable.com/service-dogs-invisible-disabilities/

As with guide dogs, service dogs are permitted to go into places animals are normally unwelcome including privately owned facilities like restaurants and government buildings.

However, the regulations under the AODA make a distinction between guide dogs and service dogs when it comes to access. The AODA regulations contemplate that there may be situations in which service animals (but not guide dogs) are specifically banned by law.

In these cases where a person may not attend with their service animal, the provider of services is required to make sure they provide an alternative means for the person with a disability to use the service or obtain the goods being offered.

It’s important for business owners to be familiar with the AODA and its regulations. There is a requirement that staff be trained how to interact with people who have guide dogs and service animals.

Locally, there was a highly-publicized and distressing case of a man with Autism who was forcibly removed from a restaurant after two employees approached him to demand he show documentation for his service dog.

The man tried to explain that he didn’t have any such documentation, but that the dog (which was wearing its reflective jacket) is a trained service dog. The employees were charged with assault.

The video of the altercation went viral on social media and was reported on national news. The restaurant received a lot of negative attention.7 Breaking down Ontario’s service animal laws after violent dispute at Kitchener restaurant, CityNews Westoll, Nick (2021, November 12), https://globalnews.ca/news/8367216/video-man-service-dog-removed-kitchener-restaurant/

Guide Dogs and Service Animals in Housing

Guide dogs and service animals are not specifically permitted or protected by the Residential Tenancies Act. Instead, it is the individual whose disability-related needs are protected by the Human Rights Code (the “Code”). A landlord has a duty to accommodate their tenant with a disability up to the point of undue hardship. This includes situations where the tenant is reliant on a service animal.

Consider the following Ontario Landlord and Tenant Board decision from 2019.8EL-92935-18 (Re), 2019 CanLII 86868 (ON LTB), <https://canlii.ca/t/j2gl6>, retrieved on 2022-08-15The Landlord at a mobile home park applied for an order terminating a tenancy and requiring the tenant to remove a fence that contravened the mobile home park rules. Fences constructed on sites within the park were to be no more than 48 inches high. The Tenant, however, argued that their extra high fence (60 inches) was necessary to accommodate the disability-related needs of the occupant. Forcing the tenant to remove the fence would breach his and the occupant’s rights under the Code.

The Occupant suffered from anxiety and had a service dog that was being trained to support her physically by preventing falls and keeping her from being jostled. The extra height in the fence was necessary to allay her fears about the dog being attacked by coyotes while in the backyard. Coyotes were known to be in the area and capable of jumping over six feet.

The Landlord argued that the occupant’s dog was not legally a service dog and that it should be accredited in some way, which it wasn’t because there is no such program for anything other than guide dogs. The Occupant did provide documentation proving her disability related need for a service animal.

The Board found that the Occupant had a disability as defined by the Code and that the accommodation of an extra-high fence was reasonably related to her disability. This means that the Landlord had an obligation under the Code to accommodate her disability-related need to the point of undue hardship. The Board ordered the landlord’s application be dismissed and stated that, for as long as the Occupant continued to live in the rental unit and needed the fence for a reason related to her disability, the fence must remain.

What about Emotional Support Animals?

Therapy and emotional support animals may or may not be trained. It’s generally accepted that they provide a psychological benefit to their owners and people they visit in care homes. However, unlike guide dogs and service animals, they are not trained to perform specific tasks. There is no legislation in Ontario that specifically permits these wonderful helpers to go into places animals are otherwise prohibited.

Emotional support animals (and pets for that matter) may be allowed at the discretion of the owner or service provider. For example, airlines used to allow emotional support animals to travel in plane cabins with their owners, but Air Canada recently changed its policy and no longer permits this.9Canadian Animal Law (Toronto: LexisNexis Canada, 2021), Victoria Shroff, pp. 114-115

If you are claiming an accommodation for your emotional support animal, you will need to establish that not accommodating you is a form of discrimination based on a disability. This would have to be based on your specific set of facts.

Under the Residential Tenancies Act, no-pet provisions in leases are generally unenforceable in most situations, but nothing stops a landlord from refusing to rent to a prospective tenant who has pets. A tenant may still be evicted because their animal caused damage or there is a concern about safety due to severe allergies or aggressive behaviours. Condominium corporations can make their own rules about pets so long as the rules are not arbitrarily enforced.

In short, if you are a renter or member of a condominium corporation, you may be able to challenge enforcement or rules related to pets, but this will be specific to your unique situation. You should consult with a legal professional.

Post Author: Rachel Stojni