Canada

The right to have an emotional support animal in your home

National human rights laws guarantee freedom from discrimination and harassment in housing. In most states, human rights law is considered to have “quasi-constitutional” status. That is, they take precedence over most other laws and cannot be waived by private contract. However, the treatment of individuals requiring emotional support animal (ESA) assistance appears to vary by jurisdiction and may also vary depending on whether the party in question lives in a condominium.

emotional support animal

Unlike service animals, which are trained to perform specific tasks, it is widely accepted that the functions of emotional support animals are therapeutic. That means it provides comfort to its owner and may alleviate symptoms of mental health disorders. Service animals are legally protected in many jurisdictions, including British Columbia and Ontario, but ESAs are not recognized under any state law. This means that an individual’s ability to live with an ESA may depend on their ability to demonstrate that an ESA is a necessary accommodation within the meaning of applicable human rights law. However, as discussed below, ESA-related accommodation analysis varies by jurisdiction and type of housing.

consideration for human rights

Some jurisdictions recognize the universal right to live with pets.under ontario Residential Tenancies ActFor example, a provision that claims to prevent tenants from living with pets is invalid. In contrast, British Columbia and Alberta have no protection for tenants with pets, and landlords can include a pet clause in their leases. However, any lease or rental policy that prohibits pets must comply with applicable state human rights laws. Most human rights laws recognize obligations on the part of housing providers to accommodate residents with disabilities with undue hardship. Excessive hardship is usually measured exclusively in terms of cost and health and safety. Accommodation must be permitted unless the housing provider can demonstrate that the accommodation is very expensive, causes serious financial hardship, or poses a threat to the health and safety of others. M. Ontario’s Human Rights Commission has established the need to ensure respect for dignity, individualization, and integration, as well as full participation in due diligence decisions. 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 to condominiums operated under different laws. In any event, if a resident indicates a disability-related need to live with her ESA, the landlord is obligated to accommodate that need until undue hardship arises. However, a review of ESA decisions in condominiums suggests that individuals requiring an ESA in that environment may struggle. In a 2015 ruling, an Ontario court ruled whether a condo resident could continue to live with a therapy dog ​​despite exceeding the 25-pound weight limit included in the condo’s rules. Considered. Despite evidence that the dog helped its owner with “stress and past abuse,” including trauma, and was preferred to medication, the court ruled that the owner had a disability within the meaning of human rights law. and therefore ruled against her (in this case there was an additional question of credibility, but the court’s ruling on disability was a different matter). In a similar case in British Columbia, a human rights court upheld a condominium class that refused to waive its pet ban in favor of a 67-year-old adult living with mental and physical disabilities. did. Doctors advised him to live with an ESA to “alleviate the persistent symptoms of his disorder,” adding that “it would greatly improve his chances of fully managing the symptoms of the disease.” was given. There, Strata states: […] This is not the case in your case. The court agreed that the evidence provided was insufficient to support the claims. In both cases, there seems to have been some doubt as to whether the medical evidence definitively demonstrated the existence of a disorder requiring treatment, and whether ESAs could actually provide it. Condo residents face another challenge as the company’s founding documents state a “no pets” rule. In Ontario, condominiums are governed by a proclamation setting forth the company’s address, the proportional interest and cost of each unit, the identification of common elements, and the identification of the unit’s boundaries. Declarations can also impose additional restrictions on owners regarding behavior within units and common elements, including provision of no pet clauses. It is difficult to invalidate a declaration containing a “no pets” clause, as the declaration is considered “essential to the integrity and ownership acquired by the owner of the unit.” In 2003, an Ontario court reviewed a case in which the owner of a “no pets” condominium presented evidence that losing a dog would adversely affect her mental health. The court accepted the evidence, but concluded that the “no pets” clause was valid because the unit’s owner had not proven that they “cannot live without an ESA.”

Conclusion

Human rights law is intended to protect individuals who may need particular consideration in order to live and work in society. In some cases this may include the need for ESA assistance. In this author’s opinion, the above decisions suggest the need for a broader and more purposeful approach to understanding ESA functionality. In all residential lodging processes, including condominiums.

The right to have an emotional support animal in your home

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