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Brief on Assistance Animal Legislation in British Columbia

Editor's Note: Editor's Note: NFB:AE has participated in consultations with the British Columbia government on the drafting of a new Assistance Animal Act. Since this brief was submitted, the Ministry of the Attorney-General has submitted a proposal to cabinet regarding the items to be included in this legislation. We will provide updates to the readers of this publication when the text of the Assistance Animal Act is released to the public.

PART I: Introduction

The National Federation of the Blind: Advocates for Equality, ("NFB:AE"), is grateful for the opportunity to provide further input into the preparation and drafting of the Assistance Animal Act. NFB:AE repeats and relies upon all of the comments it made in its initial brief on this subject submitted on March 31, 1999. The content of any legislation in this area is of profound importance to all guide dog handlers who reside in or who may visit British Columbia. On reading the second consultation paper prepared by the Ministry of the Attorney-General on such an important piece of legislation, it appears that very little attention was paid to the views of guide dog handlers, guide dog schools and others who raised very serious concerns with the substance of the initial consultation document circulated in March of this year. Furthermore, guide dog handlers have been given very little time indeed to comment on this consultation paper.

NFB:AE has not been given any opportunity whatsoever to comment on the views provided to the Ministry of the Attorney-General by business groups, service providers and other groups who were consulted throughout this process. No attempt was made to circulate the consultation paper that was provided to business groups to other stakeholders. NFB:AE, like all other stakeholders, was only able to review a very brief summary containing a list of general concerns that were raised. The consultation document which NFB:AE received did not provide the context in which the concerns mentioned by business owners and others were raised with the Ministry. This kind of closed consultation process will only serve to undermine the legitimacy of the consultation process and could also jeopardise the acceptance of this legislation by the blind and vision-impaired community. This point is further amplified since the Ministry has already submitted its report to legislative council and had done so very shortly after NFB:AE presented some of its concerns orally in Vancouver on October 28, 1999.

In spite of these difficulties with the consultation process, NFB:AE will work constructively with the Ministry to ensure that Assistance Animal legislation is strong enough to protect and enhance the independence of guide dog handlers who reside in or visit British Columbia.

PART II: Scope of the Legislation NFB:AE

NFB:AE commends the Ministry of the Attorney-General for its comments in the consultation paper that people with invisible disabilities who use assistance animals should be covered by the legislation. The decision to take this step is in keeping with human rights jurisprudence and represents a positive step forward that has not been taken in other provinces. It will provide immeasurable benefit to those vision-impaired individuals who have some guiding vision who happen to be accompanied by a guide dog.

NFB:AE also supports a general power to allow cabinet to pass regulations to set out procedures for laying complaints and to address other procedural matters not dealt with in the legislation. The regulations could also define what does and what does not constitute a service or facility which members of the public can normally access. However, provisions dealing with the responsibilities of assistance animal owners and the like should be clearly specified in the legislation itself. NFB:AE requests the opportunity to review any regulations before they are finalised by cabinet.

PART III: Definitions

  1. Assistance Animal

Generally it is accepted by the NFB:AE that an "Assistance Animal" is an animal that can assist a person with a disability. However, when it comes to specifics around recognised animals such as a Guide Dog, NFB:AE does not support the broadening of the definition to call them Guide Animals. Dogs are most commonly used by blind and vision-impaired people as guides in this context. The definition must be changed to take this fact into account.

  1. Definitions of Types of Assistance Animals

NFB:AE supports the following changes to the definitions as proposed by the government.

A. Guide Dog: a dog which is specially trained to assist a person who is blind or vision impaired;

B. Hearing Dog: A dog which is specially trained to assist a person who is deaf or hard of hearing;

C. Seizure Alert/Response Dog: A dog which has acquired the ability to alert its master that a seizure is about to occur and/or one which is specially trained to get help or stay with its master, as required, during a seizure;

D. Diabetic Alert Dog: A dog which has acquired the ability to alert its master that a diabetic event is about to occur;

E. Wheelchair Assist or Service Dog: a dog which is specially trained to assist a physically disabled person.

F. Emotional Disability Assistance Animal: a working animal trained to compensate an individual for mental or emotional disability where there is a compelling need to lessen the effects of the disability.

PART IV: Assistance Animal In Training

The second consultation paper establishes that a framework should be in place for training assistance animals. However, the Ministry of the Attorney-General has provided very little information on the types and kinds of accommodations it is prepared to consider for assistance animals in training. NFB:AE submits that any dog being trained by a recognised training school in this province to assist a person who is blind or vision impaired is a guide dog in training. Additional language should also be included to permit blind and vision-impaired people to train their own guide dogs for their own use.

PART V: Certification

A. General Comments

The NFB:AE generally accepts the fact that the Attorney

General should have the ability to issue identification cards. However, this should not be the only acceptable form of identification since it would discriminate against non-residents of BC who may be visiting the province with their guide dogs for any number of reasons. The British Columbia government could follow the same certification procedure that is in place in the province of Ontario when dealing with assistance animals that are trained by recognised schools as identified in any regulations passed under the proposed act. In this regard, each of the schools can be provided with the appropriate application forms. As each student graduates, photographs can be taken of the individual with their dog. The signed application and the photographs could be sent to the Attorney-General directly by the training school. Once the application is processed, the certification card can be sent along to the assistance animal user. Also, the government as part of an education process after the new act has been passed can inform recognised schools that people travelling to this province may be requested to show their school's ID card to verify the training of the dog or animal. The notion that the Attorney-General should have the power to test a guide dog handler or the guide dog itself on matters of training, competence or temperament is offensive. No budget has been allotted as part of this process to train and hire employees in the Ministry to perform these functions. The Canadian and American Kennel Clubs have no experience in such matters. If the dog is trained at a recognised guide dog training school, it should be presumed that the assistance animal and the owner are appropriately trained. Anyone disputing this proposition should have to persuade a court or administrative tribunal that the guide dog is not appropriately trained. As a fundamental principle, NFB:AE submits that all guide dogs should be presumed to be safe, competent and appropriately trained. If this is not the case, it is up to the individual and not the government to resolve the issue.

The notion that guide dogs should have to wear counterfeit proof identification emblems supplied by the BC government is equally offensive. All guide dogs who are trained at recognised guide dog schools already wear harnesses and collars containing the registered trademarks of the schools where they were trained. The individual's identification card already contains a photograph of the animal. There is therefore no need for any further identification requirements in this area. Other procedures should be developed to deal with assistance animals that are trained directly by their owners. The NFB:AE recommends that a testing mechanism be developed to ensure that those assistance animals that are not trained by recognised schools meet minimum competency and behavioural standards.

The NFB:AE is concerned with the suggestion that individuals must present their identification cards to anyone who requests them to obtain the benefits under the Act. This provision would disentitle any tourists from outside of British Columbia who are accompanied by assistance animals from receiving any of the rights and benefits that are provided for in assistance animal legislation. In addition, this kind of a provision may violate the requirements of the BC Human Rights Code since the owner is being forced to self-identify that they have a physical or mental disability.

Another difficulty that arises is the evidentiary significance of the identification card in proceedings before the courts and administrative tribunals. In Ontario, the Blind Persons Rights Act provides that the identification card constitutes prima facie evidence that the animal in question is in fact an assistance dog who has been certified to work with the assistance dog owner who is in possession of the card. If the individual is unable to present a certification card, they are subject to the same rules of proof regarding the identity and certification of their assistance animal that would apply to the introduction of any other forms of evidence before a court or administrative tribunal.

When cancelling a certification card, the NFB:AE strongly recommends that the ministry consult with recognised schools to determine the best process for this to occur. It should be clearly identified who is involved in this process and how the assistance animal user in question is notified. The assistance animal owner should also have an opportunity to make submissions to support their assertion that they should not lose their assistance animal identification card.

B. Certification of Assistance Dogs in Training

Employees or representatives working for recognised training schools should carry identification showing proof that the animal in their care is an assistance animal in training. The NFB:AE recommends that these particular identification cards expire two years after the card is issued. Temporary certification cards should be issued and provided to individuals training their own dogs after the applicant demonstrates that they have a disability and that the animal in question is being trained as an assistance animal for their own use. Regulations should be prepared to ensure uniform standards and testing procedures in this area. These regulations should be circulated broadly for consultation before they are proclaimed in force.

PART VI: Access Rights

The NFB:AE submits that an exemption should not be given to operators of public accommodations where there may be availability of 5 rooms or less. This exemption should not be in place for those assistance dog users who do not require renovations to access accommodations in historic buildings or other structures. If a person is operating a facility that offers accommodations to the public, then assistance animal users should be generally entitled to enter these premises especially if renovations are not required. Also, if an accommodation is owner-occupied, no exemption should be granted. If such an exemption was granted an argument could be made that a motel where the owner's residence is at one end of the building would make this an owner-occupied accommodation.

BC has a number of wild life parks and zoos. Therefore, any new assistance animal act should include language dealing with the responsibility of zoo managers on how they should provide access to people who use assistance animals.

The NFB:AE submits that the zoo or wild life park is a public place. Therefore, a person accompanied with an assistance animal should be given full access to all areas where the public is customarily invited. However, if such access cannot occur, then the operator of the zoo should ensure that the animal is housed in a secure place and that the person is provided with a guide at no extra charge.

PART VII: Removal of Assistance Animals from Public Facilities

While the NFB:AE does not have an objection to having animals removed from public facilities if they exhibit severe aggression or other dangerous behaviour, the legislation must be very specific in terms of what behaviours can and cannot be taken into account when a proprietor is given the right to exclude an animal from their premises. Vague references to the animal's behaviour causing a threat to public health or safety or disruption to the operation of a particular business are much too broad and are open to abuse by individuals who wish to exclude all guide dogs from their premises. For example, a Muslim store owner could use this language to exclude a guide dog from his store since it violated his religion to have the dog on the premises. He could further argue that by having the dog in the store, he would have to close the premises for cleaning, thereby losing business revenue. Similar arguments have been made by taxi drivers and store owners in various court proceedings in at least two Canadian provinces. While religious freedom needs to be respected, it should not be used to deny access to public facilities solely because the individual is accompanied by a guide dog.

The notion that there should be standards of care for cleanliness of assistance animals, feeding of assistance animals and regular veterinary check-ups for assistance animals is extremely paternalistic. Those who attend recognised schools for the training of guide dogs already receive instruction in these areas. If an individual mistreats his/her assistance animal, the public and the government can report that individual to the Humane Society or other animal protection agencies, just like they would report anyone else for animal abuse or neglect.

PART VIII: Employment

As a general rule, employees who use assistance animals should be able to be accompanied by their assistance animal to their place of employment. Their assistance animal should accompany them anywhere within the premises as well. If other employees are allergic to animal hair, the employer has a duty to accommodate both the assistance animal owner and the employee with an allergy. The text of the Assistance Animal Act should not be weakened to take into account the allergies of other employees. The reasonableness of the employers' obligations to accommodate one or both employees should be left to the Human Rights Commission to decide after hearing all of the evidence presented with regard to the specific facts of a specific case. The legislature can only resolve this problem in the abstract and it would be inappropriate for the BC government to modify the duty to accommodate provisions in the BC Human Rights Act by enacting an Assistance Animal Act with any restrictions being imposed on an employer's duty to accommodate their disabled employees. The legislation could become the subject of a challenge under Section 15(1) of the Canadian Charter of Rights and Freedoms if it attempts to weaken any of the duty to accommodate provisions that are contained within human rights legislation.

PART IX: Transportation

The BC government has no jurisdiction whatsoever to regulate any forms of interprovincial or international transportation works or undertakings. It therefore has no business including provisions in the Assistance Animal Act that may affect the operation of these works or undertakings.

Insofar as municipal and intra-provincial transportation works or undertakings are concerned, the accommodation of a person with a guide dog must be guaranteed. If people with other disabilities such as animal allergies are using the transportation service at the same time as a guide dog handler, the transportation carrier has a legal duty to accommodate both passengers. What does and what does not constitute a reasonable accommodation should be left to the BC Human Rights Commission to decide. NFB:AE submits that it would be inappropriate for the legislature to restrict individual rights by legislating in this area.

PART X: Override Provisions

Any override provision should be broad enough to ensure that this statute trumps any existing regulations, strata council and municipal bylaws.

PART XI: Offences

The NFB:AE notes the range of the maximum and minimum fines that the government has proposed in the discussion paper. While these minimum and maximum fines may be appropriate for individuals, the NFB:AE recommends that they should be somewhat higher for corporate violators of the Assistance Animal Act. The provincial offences legislation in most provinces contains separate fining provisions for individuals and corporations. The minimum and maximum fines for each of these entities are different. Whereas a $15,000 fine could pose a significant hardship to an individual, the same fine would be a drop in the bucket for a large company.

In addition, there is nothing in the framework to deal with the situation where the individual cannot or does not pay their fine. Perhaps some link to the Provincial Offences Act which contains such provisions could be provided.

PART XII: Conclusion

The NFB:AE is pleased that the second consultation paper takes some much needed necessary steps to address the inadequacy of the current "Guide Animal Act". Along with a new act, the government has to ensure that the public is educated about the rights and responsibilities of those who use guide dogs or other assistance animals.

The NFB:AE strongly encourages the British Columbia government to circulate the content of any proposed legislation to stakeholders before it is read for the first time in the legislature. In addition, the NFB:AE would welcome the opportunity to participate in public hearings concerning the bill to ensure that the concerns of guide dog owners are adequately addressed by this legislation. To date, these sorts of consultations have not been approved by the government.

On a different topic, the NFB:AE would encourage the ministry to find an appropriate place for the existing white cane provisions. These provisions are crucial to ensure that blind people are the only people entitled to use the long white cane. It would be very disappointing for blind and vision-impaired people in British Columbia if this new enactment resulted in the white cane provisions being struck from the statute books as a result of a repeal of existing legislation.