Unnecessarily Uncertain: Roberts Properties and the Case for an Official Service Animal Registry

June 8, 2020

Owen Pennock*

Summary

In the case of Roberts Properties Inc. v. O.S., the Office of Residential Tenancies interpreted Saskatchewan’s Human Rights legislation and found that a woman’s support animal did not meet the requirements to be considered a “service animal,” and thus receive protection under the Act. As such, she was in breach of her tenancy agreement. The reasoning in that case reveals the inadequacies of Saskatchewan’s current approach (or lack thereof) of regulating service animals and shows the need for an official registration scheme for service animals in this province.

Over the last decade, there has been a significant increase in the use of service animals in Canadian society. Surprisingly, this expansion has not been accompanied by significant legislative or regulatory attention regarding the usage of these animals. Saskatchewan legislation, for instance, does not provide any scheme for the regulation of service animals,[1] a situation that has generated significant uncertainty for Saskatchewan residents who rely on them.[2] The recent case of Roberts Properties Inc. v. O.S.[3] from the Saskatchewan Office of Residential Tenancies (“ORT”) perfectly highlights the problems with Saskatchewan’s current hands-off approach to legislating the use of service animals.

In Roberts Properties, the landlord sought the eviction of the tenant, O.S., on the grounds that the tenant had violated the “No Pet Policy” within the tenancy agreement.[4] The tenant claimed she had numerous health problems, including paralysis and anxiety, that necessitated the aid of a service animal.[5] The tenant had trained her dog to “retrieve items” that the tenant was unable to reach and to “run to [O.S.’s] daughter’s unit when [O.S. needed] human assistance.”[6] Therefore, the tenant claimed that she did not violate the “No Pet Policy” because her dog was a service animal and not a “pet.”[7] In the end, the hearing officer found that the definition of “service animal”[8] did not extend to the tenant’s dog.[9] As such, the landlord was given possession of the home and the tenant was evicted.[10]

While the conclusion reached by the hearing officer regarding O.S.’s dog may be somewhat questionable,[11] the reasoning in Roberts Properties reveals a far deeper, more systemic issue regarding the Saskatchewan government’s approach to regulating service animals. In short, Roberts Properties shows how the province’s hands-off approach to legislating service animals has created an unacceptable level of uncertainty for people who rely on service animals by forcing these people to rely on administrative tribunals, rather than clearly defined legislation, to define and protect their basic rights.

As it stands in Saskatchewan, there are no official licensing, training, or information services available to owners of service animals. As a result, anyone who uses a service animal must look to the protections set out in The Saskatchewan Human Rights Code, 2018[12] to enforce their rights.Admittedly, the Saskatchewan Human Rights Commission does have a policy stating that the SHRC “requires the accommodation of persons with disabilities, including persons who use service animals, in housing, employment, education, and access to public services and places.”[13] As such, the SHRC provides protection for individuals with severe physical disabilities who require the aid of service animals. It is entirely uncontroversial, for instance, that a person with impaired vision who relies on a guide dog for travel would receive protection and accommodation.[14]

Where the shortcomings in Saskatchewan’s reliance on the SHRC become apparent is with regard to “invisible disabilities,” where the benefits of having a service animal are not self-evident. These include a range of mental disabilities and conditions, including panic disorder, post-traumatic stress disorder, or as in the case of Roberts Properties, generalized anxiety. Clearly the SHRC is designed to protect some of thesemental or psychological disabilities, with s. 2(1) defining “disability” as including any of the following disabilities:

(i) an intellectual disability or impairment;

(ii) a learning disability, or a dysfunction in one or more of the processes involved in the comprehension or use of symbols or spoken language;

(iii) a mental disorder.[15]

Unfortunately, however, many of the terms used in this section are inadequately defined. “Intellectual disability,” for instance, is not defined anywhere in the SHRC, while “mental disorder” is defined in extremely broad terms, leaving much to interpretation.[16] While we might hope that most judges and hearing officers in the province would interpret the SHRC provisions broadly in order to make accommodations for service animal users, Roberts Properties shows that this will not always be the case.

The combined effect of the lack of specific legislation for the regulation of service animals, and the lack of clarity in the SHRC regarding what constitutes a mental or intellectual disability, is that people like O.S. are left without any means of proving to landlords, business owners, or public services that their service animal is, by law, a “service animal”, other than through a post facto judicial declaration.

This sense of uncertainty is not the only shortcoming of the government’s hands-off approach. Because the government has refused to create a legislative scheme for the regulation of service animals, some individuals who rely on service animals have sought to take matters into their own hands by registering their animals on questionable online websites that, unbeknownst to them, have no legal effect. In Roberts Properties,for instance, the tenant paid to register her dog on “officialservicedogregistry.com,”[17] one of many predatory websites that have emerged in the last decade to take advantage of people seeking greater certainty for their service animals. While one could dismiss such concerns on the basis of “buyer beware”—i.e., by asserting that people should properly educate themselves before making any online purchases—this argument ignores the culpability of the Saskatchewan government in driving people to these questionable schemes in the first place.

At the end of the day, service animals are a medical service: they provide people who have disabilities with aid, comfort, and support as they go about their daily lives. While the SHRC may provide some protection, its generalized and retrospective approach fails to promote the certainty and clarity that people living with disabilities deserve. The creation of a licensing scheme or registry for service animals in the province would enhance the rights of those who use service animals, while simultaneously clarifying when “reasonable accommodations” would be required by businesses, landlords, public services, and others. One can only wonder why the Saskatchewan government still refuses to weigh in on this area of public health law.

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*              J.D. Candidate (Saskatchewan).

[1]           CTV Saskatoon, “More service dog regulations needed, groups say”, CTV News (last modified 1 November 2016), online: <saskatoon.ctvnews.ca/more-service-dog-regulations-needed-groups-say-1.3141961>, archived: <perma.cc/6K32-GZ4U>.

[2]           See e.g. Ashleigh Mattern, “‘He’s my medical equipment’: Woman with service dog says she was turned away by psychiatrist”, CBC News (7 September 2018), online: <www.cbc.ca/news/canada/saskatoon/saskatoon-woman-service-dog-psychiatrist-1.4814274>, archived: <perma.cc/ZEM6-E7AJ>, where a Saskatchewan woman was turned away by her psychiatrist for bringing a service animal to an appointment.

[3]           2018 SKORT 177 [Roberts Properties].

[4]           Ibid at para 5.

[5]           Ibid at para 11.

[6]           Ibid at para 41.

[7]           Ibid at para 13.

[8]           Saskatchewan Human Rights Commission, “Policy on Service Animals”, (6 November 2014), online (pdf): <https://saskatchewanhumanrights.ca/pub/documents/policies_guidelines/SHRC_Policy%20on%20Service%20Animals.pdf>, archived < https://perma.cc/BDT7-XJUF>.

[9]           Roberts Properties, supra note 3 at paras 44–45.

[10]         Ibid at paras 54–55.

[11]         Considering the nature of the service dog’s activities, it seems perfectly reasonable to have concluded that O.S.’s dog was a “service animal”, especially considering the definition of “Assist Dog” provided in the Saskatchewan Human Rights Commission’s “Policy on Service Animals” (supra note 8). The hearing officer in Roberts Properties seems to have placed a great deal of focus on the training and breed of dog, rather than on the actual need for aid, which should be paramount in any assessment of disability services.

[12]         SS 2018, c S-24.2 [SHRC].

[13]         Saskatchewan Human Rights Commission, supra note 8.

[14]         Ibid.

[15]         Supra note 12, s 2(1) “disability” (b).

[16]         Ibid, s 2(1) “mental disorder”.

[17]         Supra note 3 at para 12.