Laura Track, Human Rights Lawyer July 13, 2020
This blog post has been adapted and updated from an article originally published in the Fall, 2018 edition of Landlord BC’s magazine The Key.
Landlords play an important role in protecting human rights by providing discrimination-free housing and fulfilling their duty to accommodate. Accommodating tenants with a disability-related need for a service or therapy animal is a key part of providing discrimination-free housing and complying with the BC Human Rights Code.
Some jurisdictions, notably the United States and France, have taken steps to recognize having a companion animal as a basic civil right.[1] However, Canadian law does not presently recognize the right to have a pet as a human right. While no-pet clauses are specifically banned in Ontario, landlords in BC are within their rights under the Residential Tenancy Act to prohibit pets in their rental units.
However, the BC Human Rights Code provides an important caution. A person with a disability who relies on an animal in connection with their disability has a right to have their needs accommodated. Complainants are not required to prove that they “cannot live” without the animal. They are however required to prove that, due to their disabilities, not having the animal would result in an adverse impact.[2] No-pet clauses may be discriminatory in these circumstances.
Some organizations argue that preventing people from having pets is discriminatory in any circumstance. In particular, they note the special importance pets have for many seniors, people transitioning from homelessness into housing, and people with mental health challenges.[3] They also note that allowing pets can be a good business decision for landlords, as people with pets tend to stay in their units longer than people without pets, reducing turnover rates and related costs.
These arguments have not been tested by BC’s Human Rights Tribunal. However, the Tribunal has stated in numerous cases that evicting or refusing to rent to someone with a disability because they have a service dog, or requiring them to get rid of their animals, may be discrimination and a violation of the Code.
Does it matter that the dog is not registered as a certified guide dog or service dog?
For human rights purposes, no, it does not.
Guide dogs (to assist people who are visually impaired) and service dogs (to assist people with other disabilities) can be certified under BC’s Guide Dog and Service Dog Act. Strata bylaws and rental terms prohibiting or restricting pets do not apply to BC-certified guide and service dogs. However, therapy and emotional support dogs are not eligible for certification.[4]
However, as the Tribunal stated in a 2016 case, “that is not the end of the matter. If [the Complainant] has a disability and is suffering from an adverse impact related to his disability because of the [rule restricting pets], then he may be entitled to reasonable accommodation.”[5] In another case, the Tribunal stated in even stronger terms:
The parties made much of whether Max was a certified assistance dog. I do not find this question relevant to the circumstances of this case. Ms. Devine is Deaf. I have found, based on the medical evidence, that a dog was of assistance to her because of her Deafness, for instance in alerting her to someone knocking at her door, or peering in her window or the ringing of her phone, in addition to indicating when she dropped things.
In these circumstances, the respondents were required to reasonably accommodate Ms. Devine’s disability, that is, to allow her to have a dog even though the [strata] had a bylaw prohibiting dogs unless to do so would create undue hardship.[6]
In sum, the fact that the animal is not certified is not relevant to whether a landlord or strata has a duty to accommodate. The duty arises whenever a resident has a disability, and depriving the resident of their support animal would have a negative, disability-related impact on them.[7]
What must a landlord do?
A landlord’s duty to accommodate a disability-related need is not without limit. Landlords have a duty to accommodate tenants with disabilities to the point of undue hardship. If there is a bona fide and reasonable justification for a landlord’s inability or unwillingness to accommodate the tenant’s animal, they will not be found to have discriminated. An unsupported claim by a landlord that allowing a service animal will “open the floodgates” and encourage others to move in with pets and call them service animals is unlikely to meet this test – and could result in a costly human rights complaint.[8]
The Tribunal has held that it would be an undue hardship to require a landlord to accommodate a tenant’s service dog where there was a good chance that it and the landlord’s own dog would interact and get into a fight.[9] A landlord was also found not to have discriminated when they evicted a tenant whose service dog barked, lunged, and frightened other tenants.[10] Landlords may also be within their rights to restrict the number and size of the dogs someone may own.[11] However, if there is evidence that a person’s mental illness could be significantly affected by the loss of one of their dogs,[12] or if the second dog has been brought in for training in order to replace an existing elderly dog,[13] the strata’s or landlord’s rules may have to be adjusted to accommodate the resident’s needs.
In every situation, the duty to accommodate requires landlords to consider and respond to the individual circumstances before them. While there is no one-size-fits-all approach that will work in every case, listening to the tenant’s needs and working with them to create an accommodation plan is always best practice.
[1] Celine Icard-Stoll, “Companion animals and affordable housing: An injustice” (June 25, 2018) Faunalytics, online: https://faunalytics.org/companion-animals-and-affordable-housing-an-injustice/.
[2] Judd v. Strata Plan LMS737, 2010 BCHRT 276
[3] Pets OK BC, “Pet friendly housing considerations – Policy Report” (July 5, 2018), online: http://petsok.ca/policyreport2018/.
[4] Government of BC, “Guide dog and service dog certification”, online: https://www2.gov.bc.ca/gov/content/justice/human-rights/guide-and-service-dog.
[5] BH obo CH v. Creekside Estates Strata, 2016 BCHRT 100 at para 88 [Creekside].
[6] Devine v david burr Ltd. (No. 2), 2010 BCHRT 37 at paras 107-8 [Devine].
[7] Daughter by Parent v. The Owners, A Strata, 2020 BCHRT 105.
[8] Jones v. The Owners Strata Plan 1571, 2008 BCHRT 200.
[9] Mann and Hutchison v. Rufer and Simituk, 2009 BCHRT 322.
[10] Devine, note 6.
[11] Creekside, note 5.
[12] Kallstrom v. Strata Plan BCS1437 and others, 2019 BCHRT 215.
[13] Tenant X v. Rosegate Strata Corporation NW 2403 and another, 2015 BCHRT 161.