The right to an emotional support animal in housing

August 25th, 2022 by Safia Lakhani

Despite the positive impact emotional support animals have on the lives of their humans, keeping them in certain housing situations, like condominiums and no-pet residences, can be an uphill battle.

Dogs make great emotional support animals. Credit: Richard Brutyo / Unsplash

Human rights legislation across the country guarantees freedom from discrimination and harassment in housing. In most provinces, human rights laws are considered “quasi-constitutional” in status; that is to say, they take precedence over most other legislation, and cannot be waived by private contracts. However, the treatment of individuals requiring the assistance of emotional support animals, or ESAs, appears to vary across jurisdictions and, further, may depend on whether the party in question lives in a condominium.

Emotional support animals

Unlike service animals, who are trained to perform specific tasks, the function of emotional support animals is widely acknowledged to be therapeutic; that is, to provide comfort to their owner potentially  alleviating the symptoms of mental health disabilities. While service animals are afforded legislative protection in many jurisdictions, including BC and Ontario, ESAs are not officially recognized in any provincial legislation. This means that an individual’s ability to live with an ESA may be conditional on their ability to demonstrate that the ESA is a necessary accommodation within the meaning of the applicable human rights laws. However, as discussed below, the analysis of accommodation, as it relates to ESAs, is variable depending on jurisdiction and the type of housing.

Human rights accommodations

Some jurisdictions recognize a universal right to live with pets. Under Ontario’s Residential Tenancies Act, for instance, any provision purporting to prevent tenants from living with their pets is void. By contrast, there is no protection for tenants with pets in BC or Alberta, where landlords may include pet clauses in their leases. However, any lease or rental policy prohibiting pets must align with the applicable human rights laws of the province. Most human rights legislation recognizes a duty, on the part of housing providers, to accommodate residents with disabilities to the point of undue hardship. Undue hardship is typically measured exclusively with respect to cost and health and safety. Unless a housing provider can demonstrate that the accommodation is so costly that it will result in significant financial hardship or will pose a threat to the health and safety of others, the accommodation must be granted. Ontario’s Human Rights Commission has established the need to ensure respect for dignity, individualization, and integration and full participation in determining appropriate accommodations. Similar guidance exists in other jurisdictions.

Accommodation analysis

How does this analysis apply to ESAs in the context of housing? First, tenancy laws do not apply in the context of condominiums, which operate according to separate legislation. Regardless, where a resident demonstrates a disability-related need to reside with an ESA, the landlord has a duty to accommodate that need to the point of undue hardship. However, a review of decisions involving ESAs in condominiums suggests that individuals requiring ESAs in that setting may have an uphill battle. In a 2015 decision, the Ontario courts considered whether a condominium resident could continue to reside with her therapy dog, though he exceeded the 25 lb weight restriction contained in the condominium’s rules. Despite evidence that the dog assisted the owner with “stress and past abuse”, including trauma, and was preferable to medication, the court found that that owner had not established that she had a disability, within the meaning of the Human Rights Code, and accordingly, ruled against her (there were additional credibility issues in this case, but the court’s ruling on disability was a separate matter). In a similar case in BC, the Human Rights Tribunal sided with a condominium strata that refused to waive their no pet by-law in favour of a 67-year old adult living with mental and physical disabilities, who had provided medical evidence that his ESA “would greatly improve his chances of fully managing the symptoms of this illness” and, further, a recommendation by his physician that he live with an ESA to “alleviate persistent symptoms of his disorder.” There, the strata stated that “while a legally designated service dog would be exempt from the by-law […] this would not apply in your case.” The court agreed that the evidence provided was insufficient to support the request. In both cases, there appears to have been some question about whether the medical evidence clearly established the existence of a disability requiring treatment, and whether an ESA could, in fact, provide it. Condominium residents face an additional challenge where the ‘no pet’ rule is enshrined in the corporation’s founding documents. In Ontario, condominiums are governed by a declaration which sets out the corporation’s address, the proportionate interests and expenses for each unit, identification of common elements, and identification of unit boundaries. The declaration can also impose additional restrictions on owners with respect to their behaviour within their units and the common elements, including the provision of a no pet clause. Because the Declaration is viewed as “vital to the integrity and title acquired by a unit owner,”  declarations containing a ‘no pet’ clause are difficult to override. In 2003, the Ontario courts considered the case of a ‘no pet’ condominium in which the unit owner gave evidence that losing the dog would adversely affect her mental health. While the court accepted that evidence, it concluded, nonetheless, that the ‘no pet’ provision should stand because the unit owner had not demonstrated she could ‘not live without the ESA’.

Conclusion

Human rights legislation is intended to offer protections to individuals who may require specific accommodations in order to live and work in society. In some cases, this may include the need for assistance by an ESA In this writer’s opinion, the above decisions suggest the need for a broader, more purposive approach to understanding the function of ESAs- one that upholds and recognizes the dignity and participation of participants in the accommodation process- in all housing, including condominiums.

Filed in: Firm News, Housing, Human Rights, Litigation

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