How do you prove your client’s dog is a service animal?
Kelly Doctor
Animals on planes are back in the news after Air Canada recently changed its policy to ban emotional support animals in airplane cabins.
The law around service animals can be difficult to navigate because there is no single definition of what a service animal is — it varies from jurisdiction to jurisdiction, and even between the laws and regulations within a jurisdiction. In addition, what a person needs to show to prove that their animal qualifies differs as well.
Some provinces, such as Alberta and British Columbia, issue ID cards for service animal teams. In Ontario, guide dogs for people who are blind or have visual impairments have specific training and government-issued ID cards, but there is no certification for other types of service animals (like seizure response or autism assistance dogs).
Where there is no government certification, how can you help your client prove that their animal is a “service animal?” The first step is to check if there is any relevant legislation in your jurisdiction that applies — not just to service animals but to the particular place that your client intends to go with their animal.
In Ontario, the Accessibility for Ontarians with Disabilities Act gives people the right to go to places where goods, services or facilities are provided to members of the public (such as a store, on public transit, or to a restaurant), and allows them to enter the premises with a service animal and keep the animal with them. The animal must be readily identified as being used for reasons relating to a disability, with visual indicators such as a vest or harness worn by the animal, or the person must provide a note from certain regulated health professionals.
In addition to specific legislation governing service animals, human rights legislation may apply. When invoking the protection of human rights legislation, your client will need to prove that they have a disability, and that they need the animal to accompany them in order to properly accommodate their disability.
The person or organization considering this request will then need to balance your client’s need for an assistive animal against any competing rights of other users of the space. Accommodation can involve a process of exchanging information and working to address the needs of the assistive animal team as well as others.
As a starting point, you should advise your client to find out if there is a policy about service animals. These policies might set out what information the organization is prepared to accept. This said, not all policies comply with human rights legislation and they can be challenged.
The client will likely be required to provide a note from their doctor. This note may need to give some information about the nature of the medical condition (although not necessarily the diagnosis) and why the animal is needed to assist them with that condition. In some circumstances, your client may need to ask their doctor to fill out a more detailed questionnaire.
Your client may also need to provide some proof about their animal’s training. A big challenge for people who need service dogs is that there are very few organizations that train them in Canada, and that there are often long waiting lists. So people self-train the dog (with or without a professional dog trainer) or purchase the animal from the United States.
Absent specific legislation, employers, service providers and others do not have the right to insist that service animals have a specific type of certification or training. However, they may be entitled to know that the dog is trained to assist with a disability or that it has obedience training so that it will not cause a risk to other people.
In some cases, your client might have to provide some information about the duties the animal performs (although not necessarily why the animal is performing those duties). If the dog is trained to alert others, for example, then it may be appropriate for a school or workplace to inform the students or staff about what they should do if the dog is barking. However, if the dog is performing a task directed at the handler (like nudging the handler), other people may not need to know why this is being done.
Be wary of any paperwork that does not come from the government or a recognized organization that trains service animals. There are a lot of companies that will sell what looks like “official” paperwork, but that don’t require the person to provide any proof that the animal is a service animal. These documents have absolutely no legal effect.
One last thing to keep in mind — there is often a misconception that “emotional support animals” are not service animals. Human rights codes are given a broad and purposive interpretation that protects people with disabilities. Where the legislation does not specify that the animal must be government certified, trained by a specific organization, or trained to assist with a disability, then it is open for courts and tribunals to find that the animal and the person who relies on it are protected by human rights legislation.
It remains to be seen if Air Canada’s new policy will be challenged under the Canadian Human Rights Act — although it is probably just a matter of time.
Published by The Lawyer’s Daily, June 30, 2021