Service Dogs Not an Automatic Right in Schools

September 7, 2017 | Kennedy MacDonald, Nadya Tymochenko

In a recent decision, J.F. v. Waterloo Catholic District School Board, the Human Rights Tribunal of Ontario (Tribunal) denied an application of discrimination based on a decision by the Waterloo Catholic District School Board (Board) denying the applicant’s request to attend school with a service dog.

The applicant, a student in grade three diagnosed with Autism Spectrum Disorder (ASD), sought to attend school with an Autism Service Dog. The applicant argued that, pursuant to the Accessibility for Ontarians with Disabilities Act (AODA), the Board was obligated to allow him to attend school with his service dog. The Tribunal, however, found that schools are not public spaces, pursuant to the Education Act (Act) and its regulations, and that the AODA therefore did not apply to give the applicant an unfettered right to attend school with his service dog.

The Tribunal then proceeded to consider the Board’s procedural and substantive duties to accommodate the student’s disability-related educational needs to enable him to profit from Ontario’s publicly funded education system.

The applicant argued that the Board failed to accommodate him both procedurally and substantively because i) he had an uncontested disability; ii) a service dog had been recommended by a medical professional; and iii) the dog was properly certified and trained as an Autism Service Dog by the Lion’s Foundation.

The Board argued that it considered the applicant’s educational needs and determined that his existing accommodations enabled him to benefit from instruction and succeed in school. The Board further argued that there was no evidence-based research to support the use of an Autism Service Dog in schools and that the applicant’s increasing independence would be negatively impacted because he could not be the dog’s handler and would therefore require greater Educational Assistant support.

The Tribunal held that the Board met its procedural duties to the applicant when it made inquiries and considered the following information in determining the applicant’s accommodation needs: the applicant’s existing accommodations; his academic performance; professional assessments; the results of an observation and report by the Board’s behavioural team; and consultation with the applicant’s parents, their lawyer and a dog trainer from the Lion’s Foundation.

The Tribunal also found that the Board met the student’s substantive accommodation needs by implementing a variety of environmental, instructional and assessment accommodations, which were frequently evaluated and updated, and by demonstrating that the applicant was meeting with success. Although the applicant led evidence that the service dog functioned to help him feel calm, refrain from bolting, and sleep, the applicant failed to provide sufficient evidence to demonstrate how his service dog would meet his educational needs. The Tribunal therefore accepted that the service dog would not assist to identify the underlying reasons why the applicant might become agitated or have anxiety when asked to perform certain academic tasks. The applicant was unable to establish that the dog’s absence from the classroom had an adverse impact on his ability to access education.

The Education Act requires that all students be accommodated to the point of undue hardship to enable them to realize their educational potential. This Tribunal decision supports the rights of school boards to enforce policies that allow for meaningful investigation on a case-by-case basis to determine a student’s accommodation needs, including whether the student’s educational needs require attendance at school with a service dog or can be met with alternative accommodations.

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