Ontario’s Human Rights Tribunal has recently ruled that a 9-year-old boy with autism does not have the right to bring his service dog with him to class. This ruling marks the first legal disposition of a dispute between parents and their regional school board that began back in 2014. Their son has a certified service dog, and they wanted him to have the animal in the classroom. The parents argued that the dog was essential to their son’s education as the dog is able to control their son’s outbursts and prevents them from happening, enabling their son to suffer less distractions in the classroom.
The school board, Waterloo Catholic, has rejected this argument and refused to permit the dog in the classroom. At the hearing, the school board suggested that the child was performing fine without the service animal and that its presence would not address the issues that the child was experiencing in the classroom.
This is not the first time the Waterloo Catholic School Board has been challenged on its policy with respect to service dogs. In April of 2016 it was reported that a nine year old boy was prohibited from having his service animal accompany him to school.
The School Board has not commented on why it has implemented a policy that restricts service dogs from coming into the classroom. The decision as to whether service dogs have the right to enter the classroom is determined by each individual school board’s own policy.
Under the Guide Dog Act, guide dogs which are certified have the same rights and responsibilities as a person without a dog. This means they are allowed access where the general public is allowed access.
However, while schools certainly deliver a public service, under the Education Act, schools are not considered public spaces; they lock their doors when school is in session. This means that school boards are not required under the Guide Dog Act to permit guide dogs on school property.
Instead, parents look to the Human Rights Code to have the legality of the school board policy on service dogs determined. Under the Code, the school board is required to accommodate disabilities to the point of undue hardship. What constitutes accommodation to the point of undue hardship depends on the particularities of the situation, with the Code prescribing three considerations when assessing whether an accommodation would cause undue hardship: cost, outside sources of funding and health and safety requirements. No other considerations can be properly considered. To claim the undue hardship defence the organization responsible for making the accommodation has the onus of proof. The nature of the evidence required to prove undue hardship must be objective, real, direct, and if cost is a factor, quantifiable.
What this means is that, as recipient of a successful ruling, the school board was able to demonstrate that its legal duty to accommodate students with disabilities does not extend to requiring the school to permit service dogs in the classroom. However, given the individuality of determinations from the Tribunal, it is still open for other situations regarding service dogs in elementary schools to receive an alternate ruling, permitting service dogs in the classroom.
Devry Smith Frank LLP is a full service law firm with experienced lawyers in the areas of Education law and Human Rights litigation. If you require representation for either of these areas, please contact the education law group and human rights group today. If you require representation for any other matter, you may contact our lawyers or call our office directly at 416-449-1400 today.
By: Samantha Hamilton, Student-at-Law