Canada: Accommodating The Use Of A Seeing-Eye Dog: A Precedent-Setting Decision

In a ruling handed down by Quebec's Human Rights Tribunal late last month, an employer who had refused to allow a blind employee to use a seeing-eye dog in the workplace was ordered to pay the now-former employee $7,605 in damages.¹

Facts

The plaintiff, a massage therapist who has suffered from a degenerative sight condition since the age of 17, was working at a care centre offering a massage therapy service. When she was interviewed for the job, she said she would soon be getting a seeing-eye dog, and the employer told her they would figure out a solution at that time. In the months after she was hired, she told her employer she had to temporarily suspend her availability so she could attend training given by the Mira Foundation for the purpose of getting her seeing-eye dog.

Upon completing her training, the plaintiff advised her employer that her seeing-eye dog would have to accompany her at work. Citing reasons that included another employee's fur allergy, odours and a lack of available space, the employer refused to allow the seeing-eye dog in the establishment. The plaintiff proposed a solution: she would work in blocks of no more than four hours while leaving her seeing-eye dog at home. The employer accepted the solution, but when the plaintiff contacted the Mira Foundation, she was told that her seeing-eye dog could not be left alone and could only be separated from its master in exceptional circumstances. She notified her employer that the solution she had proposed was unfeasible. At that point, the employer stopped giving her any work hours. The plaintiff understood this to mean that the employer was not going to let her come to work with her seeing-eye dog. She consequently filed a complaint with Quebec's Human Rights Commission (Commission).

During the hearing before the Human Rights Tribunal (Tribunal), the plaintiff said she would have wanted her seeing-eye dog with her at work, in a suitably located cage. In its defence, the employer contended, among other things, that it had never refused to allow the plaintiff to come to work with her seeing-eye dog and that, on the contrary, the service agreement had been terminated by the employee before there was an opportunity to find a workable solution.

Decision

The Tribunal rejected the employer's argument, among others, that section 16 of the Charter of Human Rights and Freedoms² (Charter) did not apply to the plaintiff because she was a self-employed worker. That section reads as follows:

16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.

The Tribunal maintained that the Charter had to be given a broad, generous and liberal interpretation to provide ongoing protection of individual rights and freedoms. It also pointed out that section 16 covers more than the situation of employees within the meaning of labour law. Moreover, in analyzing the terms of the contract between the parties, the Tribunal concluded that the plaintiff appeared to have very limited autonomy in performing her job: the work relationship was therefore more akin to an employment relationship.

The Tribunal then had to determine whether the employer had violated the plaintiff's rights, dignity and right to full and equal treatment by not allowing her to be accompanied by a seeing-eye dog in the workplace. The Tribunal found that the Commission had demonstrated, on a balance of probabilities, that the employer had failed to accommodate the plaintiff, who had wanted to be accompanied at work by her seeing-eye dog. The Tribunal also found that requiring a visually impaired person to leave her seeing-eye dog at home for a four-hour period could not be considered reasonable accommodation.

As for the employer's concerns that the seeing-eye dog might misbehave and that some people were allergic or afraid of the dog, the Tribunal argued that the Mira Foundation was available to reassure staff and help integrate the seeing-eye dog, but had not been contacted by the employer. The Tribunal also concluded that the employer had violated the plaintiff's right to dignity by contravening section 4 of the Charter—the plaintiff had testified that she had felt rejected, betrayed and abused.

Orders

The Tribunal ordered the employer to pay the plaintiff $1,105 in compensation for lost pay and $6,500 in moral damages. This is the first time the Tribunal has ruled in a matter of job discrimination based on the use of a seeing-eye dog. In case law, moral damages awarded to individuals who are blind range, on average, from $1,000 to $3,000. However, those decisions are different in that they concern refusals of access to public places and, consequently, time-limited, one-time events, whereas, in this instance, the situation took place over a period of two months. Also, in the case at issue, the person was not accommodated and was deprived of the right to earn her living honourably—an element essential to her autonomy and dignity. The Tribunal therefore awarded a larger amount.

As for punitive damages, the Tribunal ruled that they were not warranted in this situation as there was nothing to show that the employer had intended to discriminate or had been negligent within the meaning of the applicable case law.

Footnotes

¹ Commission des droits de la personne et des droits de la jeunesse c Spa Bromont inc. (July 25, 2013), 2013 QCTDP 26, Michèle Pauzé.

² RSQ, c. C-12, s. 16, Charter of Human Rights and Freedoms.

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