The Human Rights Tribunal of Ontario (HRTO) recently found that a School Board did not breach its duty to accommodate when it denied a student’s request to have his autism assistance guide dog accompany him in school. The Tribunal confirmed the prima facie test for discrimination in the context of providing educational services, its relation to service animals, and its interaction with the Accessibility for Ontarians with Disabilities Act (AODA) and its Integrated Accessibility Standards (Standards).
In J.F. v. Waterloo Catholic District School Board, J.F. (Applicant) was a student diagnosed with Autism Spectrum Disorder. In an effort to control his outbursts and “bolting” tendencies, the Applicant’s parents applied for an autism assistance guide dog (guide dog). After some training, the guide dog was able to calm the Applicant by sitting on his lap. As well, the Applicant could moderate his emotions by speaking with the dog about what frustrated him. Over time, the Applicant became more confident and sociable around the guide dog. He also stopped wandering off because he was “tethered” to the guide dog who, in turn, only obeyed the commands of whomever held her leash. Being too small, the Applicant was unable to control the guide dog—an adult had to do this.
The Applicant’s parents applied to the School Board for permission to have the guide dog on school grounds, claiming that the Applicant needed to be with his guide dog on a daily basis to properly bond with her. After several months of discussions and a lengthy investigation into the Applicant’s needs, the School Board decided that the guide dog would not be helpful in delivering educational services to him and denied his request.
The Applicant’s litigation guardian filed a human rights complaint on his behalf. He argued that under the AODA and its Standards, the School Board had an obligation to make its services (i.e. education) accessible. He submitted that the student’s guide dog met the definition of a service animal under section 80.47 of the Standards and therefore the student had a legal right to be accompanied by his dog when accessing services open to the public. Moreover, he argued that the School Board’s requirement that the student demonstrate the guide dog was needed for him to access the curriculum was an additional burden imposed on the student by virtue of his disability and therefore discriminatory and contrary to the Human Rights Code (Code).
In response, the School Board argued that the Tribunal did not have jurisdiction over the AODA. In any event, it submitted that schools are not open to the public because public access to schools is restricted under the Education Act (Act) and its regulations. Therefore, the Standards as they related to service animals were inapplicable. The School Board also submitted that the Act and regulations required it to provide measures to ensure the Applicant had access to its educational services, an obligation it said it had met through various other accommodations, including Educational Assistant (EA) support and modified programming.
The Tribunal stated it had no jurisdiction to apply the AODA and its Standards. In any event, it accepted the School Board’s reasoning that, while the Act and its regulations allow “pupils” access to school premises, school premises are not open to the public. Therefore, the Standards were inapplicable.
However, the Tribunal confirmed that its jurisdiction over the Code obligated it to consider the Code together with the AODA and the Standards. Generally, the combined effect of these provisions and the provisions of the Code is that if a person requires a service animal for a disability, the person is entitled to access premises with that service animal, provided either that it is readily apparent that the animal is used by the person for reasons relating to the person’s disability, or the person provides a letter from a physician or nurse confirming the need for the animal.
The Tribunal then turned to the question of whether the School Board was required to allow the guide dog as part of its duty to accommodate under the Code.
Referencing the Supreme Court’s decision in Moore, the Tribunal affirmed that to demonstrate discrimination in the provision of education services, applicants must show:
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they have a characteristic protected from discrimination
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they have experienced an adverse impact with respect to their education; and
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the protected characteristic was a factor in the adverse impact.
Only after making out a prima facie case of discrimination does the burden shift to the respondent to justify the conduct within the framework of the exemptions available under the Code. The Tribunal emphasized that this assessment involves a consideration of whether the school board provided meaningful access to education on the basis that it has delivered the mandate and objectives of public education to that particular student.
The Tribunal dismissed the allegation that the School Board first failed to meet its procedural duty to accommodate. The School Board had responded to the Applicant’s requests in a timely manner and the lengthy investigation process was due in part to the School Board’s behavioural team conducting a fulsome assessment of the Applicant’s needs and behaviours in the classroom, and whether the guide dog was needed for him to meaningfully access his public education. The Tribunal held that this investigation process was, in fact, a proper and important part of the School Board’s procedural duty. The same was true of the meetings held to discuss the findings with the Applicant’s parents and their legal counsel.
With respect to the substantive duty to accommodate, the Tribunal found that the Applicant failed to establish that he was adversely affected by the School Board’s decision not to allow him to access school with his dog and there was no prima facie case of discrimination.
In reaching this conclusion, the Tribunal relied on the fact that no evidence was presented to demonstrate how the guide dog’s presence would specifically benefit the Applicant’s education or address his needs in the classroom. The view of School Board staff was that the Applicant was a good student with the ability to manage his emotions without the guide dog and had the ability to become independent through the supports already being provided to the Applicant.
It is important to emphasize that the Tribunal’s ruling in this case was arrived at based on the very specific evidence of the case, which involved an assessment of the particular student’s exceptionalities and the accommodations being provided to him at school and the lack of evidence regarding the necessity of the guide dog in school. This serves as a caution as the decision does not stand for the general principle that at no time may service animals be permitted in schools. To the contrary, each case involving service animals must be assessed on a case-by-case basis, having regard to the student’s particular needs and the services already being provided by the school board.
About the author
Dianne E. Jozefacki is a labour and employment lawyer with Hicks Morley LLP.