Guide dog: some comparative decisions

Discrimination related to the refusal of access to a guide dog or companion dog in a hotel is sanctioned differently depending on whether the French judge, the Canadian judge or an arbitrator assessing a situation in the United States sanctions it: IRVING/UBER - decision of 18 March 2021.

In the light of a decision of the public prosecutor at the Court of Appeal of NANCY of May 19, 2020, the question arises as to the best legal course of action to adopt with regard to a hotelier who refused access to his establishment because his client was accompanied by a guide dog.

In fact, Mrs. X is blind and has a dog to lead her and was refused possession of her room... because of the presence of her faithful companion...

She then went to the Gendarmerie of GUYANCOURT to file a complaint on the basis of article R. 241-23 of the Social Action and Family Code.

Now, this text expressly provides that "The prohibition of places open to the public to guide dogs and assistance dogs mentioned in 5° of Article L. 245-3, which accompany persons holding the inclusion mobility card bearing the mentions: "disability" or "priority for disabled persons" mentioned in Article L. 241-3, the disability card mentioned in Article L. 241-3 and the priority card mentioned in Article L. 241-3-1 in their wording prior to January 1, 2017, is punishable by the fine provided for contraventions of the 3rd class. "

It must therefore be inferred that a third class contravention can only be established if a guide dog or assistance dog is refused access to a place open to the public.

What about the case of Mrs. X when the Public Prosecutor closed the case and the Public Prosecutor confirmed his decision in France?

As is often the case, facts may fall under more than one criminal qualification, for example.

This is the case when a blind dog or an assistance dog is refused access to a hotel room.

a) Article R. 241-23 of the Code de l'Action Sociale et des Familles:

It so happens that the Court of Cassation, the supreme court in France, in a judgment dated January 14, 2010 (pourvoi 08-16.022) assessed the private nature of the rooms of a hotel establishment in the context of a request for payment of royalties to SACEM for broadcasting musical works in its repertoire.

This is the only decision that qualifies a hotel room as a private space when by definition a hotel is of course a place open to the public.

b) L 121-11 of the Consumer Code:

It is obvious that this refusal of access to which Mrs. X was exposed can be likened to a refusal to sell.

The blind disabled person is indeed discriminated against.

- Brief historical review:

Article 30 of the ordinance of December 1, 1986, now repealed, provided that "it is forbidden to refuse a consumer the sale of a product or the provision of a service, unless there is a legitimate reason, and to subordinate the sale of a product to the purchase of an imposed quantity or to the concomitant purchase of another product of another service, as well as to subordinate the provision of a service to the provision of another service or to the purchase of a product"

It is now substituted by Article L 121-11 of the Consumer Code, which prohibits:"the refusal of sale by a professional to a consumer except in the case of a legitimate reason and applies to all sales, services or distribution activities. "

As for the definition of legitimate reason, you will have noticed that the text remains silent.

It is therefore necessary to refer to the reasons provided for in the former provision, which are: the availability of the product, the possibility of performing the service or the abnormal demand or bad faith of the buyer.

The case law (set of decisions rendered on the same basis) has, for its part, also in a decision of the Court of Cassation of October 21, 1998 (Appeal 97-80. 981) specified the legitimate reason as being the unavailability of the product or service.

Still, the penalty for discrimination is provided for in articles 225-1 to 225-1-2 of the Penal Code, which distinguishes according to whether the discrimination is committed against a natural person or a legal entity, punishable by three years' imprisonment and a fine of 45,000.00 €.

But Ms. X's case is not unique, as similar cases have been tried in Canada and the United States.

However, a distinction must be made between the Latin-Roman law applicable in France, which is a state of written law based mainly on its codes.

At the opposite end of the spectrum is Anglo-Saxon law, which is based on case law, a body of decisions rendered on related subjects.

What about the case of Mrs. X who would have been tried in Canada?

In a decision of the Quebec Human Rights Tribunal of April 16, 2021, Mr. HUARD and Ms. CHAMPAGNE were awarded the sum of CAD$ 6,000 as moral damages and CAD$ 500 as punitive damages, in addition to CAD$ 132 as compensation for material damages, precisely because they were refused to stay in a hotel while Mr. HUARD was also accompanied by a guide dog.

In fact, the judge considered that his right to the recognition and exercise in full equality of his right to access to a public place and to available services was compromised.

Moreover, the judge found that the hotel owner had also violated her right to dignity in a discriminatory manner.

It should also be noted here that the Canadian judge in Quebec, like the French judge, gives priority to the applicable legal text.

At this stage, it is clear that the NANCY hotelier would have been unquestionably sanctioned.

It is also certain that the Canadian judge appreciates the legal provisions in an extensive manner, whereas the French criminal judge appreciates them in a restrictive manner.

It is the guarantee of the justiciable one says in these states of written law.

What about the case of Mrs. X judged by an arbitrator and that the facts were located in the United States?

In an arbitration decision rendered by Rudy GERBER on March 18, 2021 (IRVING/UBER TECHNOLOGIES INC AAA CASE N0011800027614), Ms. IRVING was denied access to a cab by the UBER platform on fourteen (14) occasions because of the presence of her guide dog.

He was awarded US$ 1,100,000 for the violation of the AMERICAN WITH DISABILITIES ACT (ADA).

His damages break down as follows:

- US$ 324,000 for his personal injury,
- US$ 805,313 for his lawyers' fees and court costs.

However, the relationship with the case of Mrs. X is obvious since she is also accompanied by a guide dog or service dog.

It will not have escaped you, however, that it was an arbitrator who made this decision, and not a state court.

So here UBER has tried to get rid of the publicity of the proceedings proper to the state courts, unless an arbitration clause is included in its general terms and conditions of sale... to be tried before an arbitrator.

However, the choice of the American law has exposed UBER to the application of very rigorous texts.

The ADA prohibits discrimination against persons with disabilities in all areas of public life, including transportation.

Moreover, the arbitrator will then reason by equivalence of situations assessed and judged by other judges.

It is thus by definition not the same way of appreciating the text, nor the damage and consequently of sanctioning.

The future does not tell, but it is likely that the case of Ms. X would have been judged much differently by this arbitrator than it was by the French judge...

The first question to ask is therefore that of the applicable law in the first place and also, to foresee the number of applicable texts in France at least...!