Ministry ordered to review on service dog certification policies after failure to accommodate.

Ministry ordered to review on service dog certification policies after failure to accommodate.

Disability/Services, Goods and Facilities

The case of Robinson-Cooke v. Ontario (Community and Social Services), 2023 HRTO 1133 considered the alleged discrimination against the applicant on the prohibited ground of disability. The applicant argued that the respondent, the Ministry of Children, Community, and Social Services has discriminated against her by requiring a service dog with specific certification, which due to her disabilities, she was unable to get.

Applicant’s disability required a service dog:

The applicant is an Ontario Disability Support Program (ODSP) recipient who has a number of physical and mental disabilities. She requires the support of a service dog in order to live independently, particularly with respect to managing her Post-Traumatic Stress Disorder symptoms.

Inability to get certified service dog leads to denial of benefit:

After obtaining and training a dog to meet her specific needs, the applicant applied for the Guide Dog Benefit. ODSP provides this funding as an additional benefit is intended to cover the costs of feeding and maintaining a service dog. The applicants was denied this funding because her dog was not trained by a facility accredited by Assistance Dogs International (ADI). The applicant challenged this denial of funding, providing medical documentation from her physician establishing her need for the dog, and information related to the training and certification her dog had received. The respondent refused to reconsider the denial.

The HRTO hears about barriers to certified service dog:

The HRLSC assisted the applicant in filing an application with the Human Rights Tribunal of Ontario (HRTO), arguing that requiring a dog to be trained by an ADI-accredited facility was discrimination on the basis of disability. At the hearing, evidence was provided by the applicant to establish that it was not possible for her to obtain a service dog trained by an ADI-accredited facility that met her particular disability-related needs, and noted that:

• Individuals in Ontario can only obtain ADI-trained dogs for certain disabilities. 
• There are no ADI-accredited facilities that train dogs to assist with multiple disabilities. 
• ADI-trained dogs for mental health disabilities such as PTSD are only available for veterans and first responders.

There are no ADI-accredited facilities that will certify self-trained dogs.

The respondent argued the denial was not discriminatory as it was due to the lack of specialized training for the dog and not based on the applicant’s disability. The respondent also argued that the benefit was exempt under section 14 as a special program. 

In Robinson-Cooke v. Ontario (Community and Social Services), 2023 HRTO 1133, the HRTO found the denial of the benefit was discrimination based on the ground of disability. The applicant’s disabilities were a factor in the denial of the benefit, as it was not possible for her to obtain a dog trained by an ADI-accredited facility because of her particular disability-relatedneeds. 

The HRTO’s decision:

The HRTO found the respondent could not rely on section 14 as the applicant was an individual for whom the program was designed: she was an ODSP recipient that had disability-related needs for which a service dog could provide support. The HRTOalso held that the respondent could not rely on the defence of undue hardship set out in section 11, as there was no evidence led to support that changing or amending the GDB Policy to allow for the accommodation of persons with certain disabilities, particularly mental health disabilities, would amount to undue hardship. The applicant was awarded $20,000 in general damages plus $5,040 to compensate for the lost benefits. The HRTO also ordered the respondent to complete the following before the end of the calendar year:

• Review the process for training and certifying service dogs in other Provinces where there is an alternative to the existing ADI related limitation and work towards adopting a similar process.
• Consult with relevant disability support organizations, mental health agencies and persons with disabilities to ensure the review process is inclusive;
• research an appropriate process for identifying a way to provide service dogs to persons whose primary or sole disability need is a mental health disability and who are not veterans or first responders.
• determine what alternative arrangements can be implemented as soon as possible to assure access to the GDB for individuals who cannot currently obtain such accommodation.
• advertise the new policy to all current ODSP recipients and the general public once it is adopted. 

The respondent has filed a Notice of Application for Judicial Review and it is anticipated that this matter will be considered by the Divisional Court in the near future.