Getting emotional support from animals vs Emotional Support Animals

“My doctor says my emotional support animal has to be a Rottweiler and he can’t be neutered.” 

I recalled that statement from a client’s tenant when I heard the news reported by CBC on June 2 that Air Canada is limiting oversized onboard dogs to service animals, excluding emotional support animals (ESAs). (you can still have your little dog under your seat) Air Canada’s justification? The comfort and safety of other passengers and staff.

I get it. Dogs provide enormous emotional support. I wouldn’t have gotten through this pandemic as easily without the company of my girls, Bidi and Molly. But nor would I ever want to take them on a flight. Bidi’s a 10 year old 60 pound boxer/bulldog cross who is a lamb to me and to 98% of others but a nasty bitch to the very occasional man and to many other dogs. Am I proud of this? Not particularly. But I manage where she goes to make sure we don’t get into any fracas. Molly, a Lhasa Apso mix, is untrained in another way - she never fully mastered where to pee and poo. Again, not proud, but I manage where we are so it’s not an issue.

Here’s the thing about many ESAs, just like my girls, they are not trained.  

Contrast to service animals, schooled from pups to be unfazed by disturbances as well, of course, as being trained to provide their owners with health-related services. You could fly trans-Pacific with a service animal and people a row away wouldn’t know she was there. I’m sure I’m not alone among pet owners when I say this is awesome for me - awesome in the original sense - it inspires awe. 

So what does Ontario law say about this? Well, it’s murky. The Human Rights Code says people have the right to be accommodated for disability - including mental health disability - in employment, housing, and contractual relations. The employer, housing provider, or service provider is entitled to verify the existence of the disability underlying the request and the link between the disability and the accommodation requested. Typically this is verified in a doctor’s note, which doctors all-too readily provide. The recipient of the note is not necessarily required to provide the exact accommodation requested; the standard is “appropriate accommodation” and only to the point of undue hardship. 

Undue hardship is a slippery concept. There is no bright line defining what qualifies. As with many legal definitions, the facts matter. What we do know is that there are two ways to get to undue hardship:  1. if the cost of the accommodation requested would fundamentally change the nature of the entity its requested of (even when considering available outside sources of funding); and 2. If providing the accommodation requested would result in a health and safety risk for the person making the request or someone else.  

Because undue hardship is such a high bar, and medical notes so easy to get, ESAs are increasingly common. This has difficult consequences not just for airlines. Housing providers - a big chunk of my law practice - struggle with this. Communities are increasingly diverse and include other people who have rights protected under the Code as well: for example, those whose religious teachings say dogs are unclean, those with allergies to dogs, and those who’ve suffered trauma as a result of a dog attack. And then beyond Code-protected groups, there are those who simply don’t want to live with dogs. 

The doctor in my Rottweiler case provided a note that the requester needed a dog for some underlying mental health issue. The doctor did not, thankfully, extend the need to an unneutered Rottweiler and our client was eventually able to force the dog to leave. Not all cases resolve this way though, inevitably causing great community strife. 

So is Air Canada right to impose restrictions? I think so although I fully expect it will be challenged legally. Health care professionals need to better understand the consequences of their medical notes. ESAs should be properly trained and certified. Until these things happen, ESAs are pets. And like Bidi, Molly, and all other pets, they provide enormous emotional support but are delightfully flawed.