Rights Vs Responsibilities: A Balancing Act For Service Dogs

Carol Millman B.Sc, CPDT-KA, CTDI

I dream of a world where dogs are welcome everywhere and where the companionship of our animals - be they dogs, cats, parrots, or ponies - is celebrated and accepted.

I believe that everyone benefits from the companionship of animals and that we evolved to live with and amongst our fellow animals. Their companionship and proximity has been proven over and over again to be vital to human health, longevity, and happiness.

Plus, they're REALLY cute.

I also believe that all types of disabilities, from physical incapacities like blindness or the inability to walk, to medical ones such as heart problems or diabetes, to psychiatric ones like PTSD and Schizophrenia can benefit from the aid of a service dog.

I firmly believe that disabled people have the right to the help, comfort, companionship, and invaluable aid that service dogs can bring us.

I also believe that disabled people should have the right to walk into a public space with their service dog without being accosted or questioned about their dog, just as they have the right to enter without being questioned about a wheelchair or an oxygen tank.

...And yet, I am constantly forced into arguing the contrary position, because I understand the difference between what I'd like the law to be, and what it actually is. 

Is Service Dog Certification A Violation of Our Rights?

The argument I keep hearing over and over online is that the Human Rights Tribunal already protects against discrimination due to disability, so there is no need to certify your dog.

In fact, I've even had people insist to me that getting one's dog certified is a betrayal of the disability community because it encourages the myth that businesses have the right to turn away those who do not have government ID.  

People also claim that the BC Guide and Service Dog Act does not grant extra protection above what the Human Rights Code already provides.

And so, here I am, arguing with People Who Are Wrong On The Internet, because in fact, yes, BC Certification gives you a lot more protection and is certainly not a violation of disability rights!

Allow me to explain. Let's start with the elephant in the room, shall we?

Disability Does Not Grant The Privilege of Bringing Our Pets Into Pet-Free Places.

This is a hard pill for some folks in the disability community to swallow.

The fact is, though, that pet dogs are not welcome in nearly enough spaces, and being disabled doesn't grant us the privilege of being able to ignore this unpleasant truth. We have the right to disability aids, including animal assistants, but we do not have the right to bring our pet into pet-free places.

Not everyone seems to thoroughly understand this, which means that stores are constantly having to deal with pets masqueraded as service dogs. After a bad incident or two, they may demand proof that a "service dog" is really and truly needed, and this then bleeds into disability discrimination. Disabled people should be able to go shopping without being asked for credentials. 

The BC Human Rights Tribunal is very clear that disabled people have the rights to bring their service dogs into public, and that the store does NOT have the right to demand identification.

They have an excellent and informative document which I encourage everyone to read and distribute. Denying a service dog is disability discrimination, plain and simple. They do not have the right to make you prove that you need your disability aid, or that your disability aid is "real". 

"Service providers should not refuse service to someone who identifies that they have a disability merely because the person's guide or service dog is not certified under the Guide Dog and Service Dog Act or is not wearing a vest or other visible identifier."

- Protections for people with disabilities who require a guide or service dog: What you need to know  

That puts stores into a bit of a pickle - they aren't supposed to ask for ID, but they don't allow dogs, and there's a dog in the store...

While a wheelchair is always a wheelchair, and an oxygen tank is always an oxygen tank, a dog is not always a service dog. The more often a store has had to deal with a supposed "service dog" getting under people's feet, defecating on their floors, or barking in the mall, the more suspicious and unwelcome they will behave when one passes through their doors. 

And what can you do if they decide your disability aid is more of a bicycle than a wheelchair? No much in the moment, whether or not your dog is certified. That's why people say certification doesn't give you any additional protection. You could still be turned out. 

In fact, in certain circumstances, even if your dog IS certified, the store has the RIGHT to turn you out. 

You're now involved in an argument that only a human rights judge can arbitrate - and THIS is where certification matters because it takes more than a disability and a dog to win your case.   

Rights vs Responsibilities

Everyone has rights - but everyone also has the responsibility of upholding the rights of others as well.

I have the right to public education for my children, but I am also expected to pay my taxes which help fund that education. Even if I had no children, I would still be expected to contribute to public education, because I am responsible for helping uphold the rights of Canadian children to education. 

I have the right to make decisions about my own body, to take medicine or not take it, to smoke and drink if I want to (I don't, particularly, but I could). But I don't have the right to endanger others by, say, driving drunk or blowing cigarette smoke in baby's faces.

Therefore, my right to a service dog to help me navigating the world with autism should not impede the right of other people to go about their daily life without it. I can't "blow smoke" in people's faces.

That's why businesses are not obligated to put up with "undue hardship" - in other words, if the service dog or their handler is causing them problems, they can kick the team out. 

It makes sense. I can bring a wheelchair into a store, but if I start running over toddlers and smashing shelves, they have the right to escort me out. My right to go shopping does not negate my responsibility to treat the store and the people around me with respect and consideration. 

In a "no pets" establishment, that means that a service dog must not act like a pet. They must act as a disability aid. 

If a business refuses you access, the human rights tribunal is going to need to see some serious evidence that you NEEDED that dog, and that the dog was acting like a service dog, not a pet. 

Tribunal Decisions Regarding Misbehaving Dogs

I've spent a lot of time looking through tribunal decisions regarding dogs. All the human rights tribunal decisions are made public, although sometimes they do not disclose names or locations for privacy reasons.

They're quite interesting.

Do you what I've found? That only about half of people seem to win their cases against the businesses or organizations who denied their dogs. 

In 2016, for example, the Human Rights Tribunal found that Coast Mountain Bus Company was right to deny access to a hard-of-hearing woman and her dog (Arlin v. Coast Mountain Bus, 2016 BCHRT 71). 

The operators observed that the dog did not act like a service animal because it was not disciplined but rather highly active, paced around smelling things, and on occasion, barked and growled. [...] 

The Complainant does not dispute that, on one occasion, when she attempted to board the bus, Charlie barked and growled at other passengers in the presence of an operator.

In these circumstances, denying service on the grounds of legitimate public safety concerns, and a legal and statutory duty of care, is sufficient to prove bona fide justification.

The dog was being aggressive, and the woman had no proof that the dog was trained to alert her to sounds, or indeed, was trained at all. Coast Mountain Bus had every reason to deny her "hearing dog".

Not all cases are quite so clear-cut, but it always seems to come down to a few basic things. 

1. Is the person disabled?

2. Is the dog actually performing a service for the person related to their disability?

3. Did the dog behave itself?

The Importance of Prima Facie

Before any of us can claim disability discrimination due to our dog being turned away, we first have to prove that it is, in fact, disability discrimination. That means we need to establish a "prima facie" case - in other words, we need to prove that yes, we are disabled, and yes we needed that dog in that location, even though pets were not permitted.

In 2010, the Human Rights Tribunal established that in order for a complaint regarding a service dog to be upheld, the person must be able to demonstrate that they have a disability which is assisted by a dog.

in Judd v. Strata Plan LMS 737, 2010 BCHRT 276, an elderly couple tried to get an exemption from their strata's no-pet policy on the basis of heart disease and depression. They had a doctor's note saying they would "benefit" from the companionship of a pet.

That wasn't good enough for the judge. Their case was dismissed as having no reasonable prospect of success. 

While most cases like this seem to fail - cases where people have (or want) a dog and a disability and therefore argue they deserve an exemption from no-pet policies - not all of them do. If the person can prove the dog really is useful related to the disability, they can win. 

In an excellent example of this, Daughter by Parent v. The Owners, A Strata, 2020 BCHRT 105, a 14 year old diabetic struggling with suicidal ideation improved dramatically after her family got her a dog.

They brought evidence in the form of medical records, witness reports, etc that since getting the dog she had improved glucose levels, was leaving the house more frequently and willingly, and had returned to school. 

 I am satisfied that prohibiting the Daughter from having, or keeping, the dog would have a significant adverse effect on her disabilities. Before she got the dog, her diabetes was not being properly managed, resulting in calls to 911 and the emergency room. This was connected to her mental health, which was also interfering with her ability to attend and succeed in school and manifesting in serious symptoms including suicidal ideation.

With the dog's help, many of these adverse health consequences have improved or significantly subsided. - Daughter by Parent v. The Owners, A Strata, 2020

Certification IS Prima Facie

The diabetic girl above is an exception, not the norm. Most cases involving non-professionally trained and certified dogs fail to pass prima facie, especially in cases of invisible or mental health disabilities.

But if the dog is a certified dog, then prima facie is considered established. In cases where the disability is indisputable and the dog is from an accredited school or is BC certified the cases are straightforward. The judge spends virtually no time on the legitimacy of the disability or the dog - even when the person is able bodied with PTSD or similar - and instead spends all their time on making the business (often a taxi company or restaurant) explain why they turned the team away.

The onus is now on the business to prove that they had a bona fide reason to turn away the certified team, and they almost always lose. 

In fact, I only found one case featuring a certified dog where the person lost their case: Cluff v. Village Food Markets and others (No. 2), 2014 BCHRT 99

In that case, the dog was off leash, unvested, and nearly tripped a staff member. 

In the circumstances of this case, Mr. Cluff did not suffer adverse treatment [...] because of his disabilities; he experienced that treatment, exactly as would any other member of the public without disabilities accompanied by an unleashed dog, because the dog presented an immediate safety hazard, and was in any case legally required to be on a leash. - Cluff v. Village Markets 2014

So, Does Certification Matter?

I would say heck yeah, it does.

All you have to do is look through the decisions related to service dog access complaints to see the difference. In cases where the dog was from an accredited training school or was certified through the BC Guide Dog Act, the pressure is all on the business to prove they had a good reason for denying access.

In cases where the dog is owner-trained (or not trained at all), the pressure is all on the disabled person to prove that they REALLY needed to bring that dog into that business, and unless you have a string of doctors lined up to say that this dog literally saved your life, you don't have much hope of convincing the judge. 

But does any of this make a difference, day-to-day? After all, if disabled people lodged complaints about every instance of discrimination, we'd never get anything done. 

I say, yes.

Businesses Recognize Certification

If you have a visible disability and a well-behaved service dog, you rarely get questioned about your right to bring your dog into an establishment. 

But if you are ambulatory, your dog is an unusual breed, or (worse) both, then you are going to be questioned over and over and over again. Is it right? No. But what can you do about it? With an uncertified, owner-trained dog, your chance of winning at the Human Rights Tribunal is not great. 

Or... you could get certified. When you flash that government ID, 9 times out of 10 your troubles go away. (But not always - there are plenty of cases of people in wheelchairs or blind people with dogs from well respected charities getting stiffed by cab companies and such - but at least they win when they take it to the Tribunal).

And you aren't leaving other disabled people in the dirt. You can still take the opportunity to educate the staff and let them know that they really shouldn't be asking for that ID unless your dog is causing a problem. They'll listen to you more because you do have that certification, so you're actually in a better place to educate and be listened to. 

So get your dog certified... and start advocating for more pets to be allowed in more places. Because that is something everyone can benefit from.