Initially, the essential controversy on the subject of obesity as a ground for a human rights complaint centred on whether claimants must prove an underlying disability that in turn has caused their condition.
The answer to this question appeared to turn on the particular wording of the relevant human rights legislation. For example, the B.C. statute doesn’t define the need for such a causal connection of an underlying medical disability, whereas Ontario’s code does.
The 2000 decision of the Supreme Court of Canada in
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) (a case also known as
Mercier) made it clear that the definition of a human rights disability could go beyond a condition showing real and actual limitations to encompass the perception of the employer that the applicant was suffering from a disability.
As a result, we could expect a company’s decision to treat an employee adversely due to obesity would readily fall into the well of perceived disability and not be dependent upon the need to prove an underlying medical cause regardless of the wording of the legislation.
This was the experience in B.C. human rights cases, such as
Hamlyn v. Cominco Ltd. and
Rogal v. Dalgliesh, that embraced the concept of perceived disability prior to the Supreme Court decision in 2000.
The B.C. Human Rights Tribunal once more considered this issue in its 2010 decision in
Johnson v. D & B Traffic Control and another, again on the basis of a perceived disability. But it did offer the view that obesity could be grounds for a complaint given evidence of a functional inability due to the condition. There was no suggestion of the need for an underlying disability that had led to the obesity.
The Canadian Human Rights Tribunal used the same issue of a perceived disability to find liability in
Turner v. Canadian Border Services Agency.
The Ontario code defines disability as something caused by a medical issue and specifically involving “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness.”
The 1991 decision in
Ontario (Human Rights Commission) v. Vogue Shoes concluded there must be a proven disability that has led to the condition of obesity. This has been the subject of some debate in Ontario.
Several cases have repeated the mantra from
Vogue Shoes that obesity unto itself isn’t a ground for a disability complaint; however, they weren’t necessarily dealing with an obesity complaint. The reference to
Vogue Shoes in each instance was oblique and
obiter.
The Human Rights Tribunal in the 2012 decision of
Lombardi v. Walton Enterprises came to the conclusion that obesity unto itself was within the definition of disability under the code. The Divisional Court later set aside
Lombardi on unrelated grounds, making the decision
obiter.
In addition, the provenance of the reasoning is in doubt as it relied primarily on a case interpreting the Ontario disability support program that had accepted under its statute that obesity was a disability.
It also relied upon the decision of the HRTO in
Ketola v. Value Propane Inc. that had nothing to do with an argument related to obesity.
In its 2000 decision, the Supreme Court also noted that the cause and origin of the handicap, to use the term in the Quebec case before it, weren’t relevant. It noted the top court had earlier stated that the particular wording of the relevant human rights code shouldn’t define substantive rights unless it clearly showed a different intent of the legislature in question: “If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.”
The door clearly remains open for an argument to interpret the wording of the Ontario code liberally in order to avoid the need to prove an underlying causal medical issue.
Certain cases have allowed for a remedy based on sexual harassment or adverse treatment due to gender. While this argument may not be a full response to the issue in question, decisions have granted relief in specific cases.
The essential framework of the argument is that the conduct that’s abusive of the obese or overweight employee relates to gender and hence there has been adverse treatment based on that ground or sexual harassment. All of the cases referenced show the complainant as female, which is certainly a limiting feature.
Clearly these cases are filling a gap and don’t represent the real solution to the issue.
Barry Fisher, a Toronto employment law mediator, notes “obesity, to be actionable, must be characterized as a disability rather than simply the fact that some people judge other people who weigh more than the norm differently than others. In other words, treating people differently because of their weight may be an example of lookism, which is not covered by the code.”
Lior Samfiru, an employment lawyer and partner at Samfiru Tumarkin LLP, says: “Perhaps matters are reconciled by operation of subsection 10(3) of the Ontario code which extends the protection of the code to those persons who are ‘believed to have or to have had a disability,’ consistent within the concept of a perceived disability as articulated elsewhere.”
Peter Israel of Israel Foulon LLP notes: “The interpretation of the Ontario code should reflect the current view of human rights remedies as expressed by the Supreme Court in
Mercier.”
Norm Grosman, managing partner of Grosman Grosman & Gale LLP, says the issue is deserving of a legislative revision, failing which a liberal view should prevail.
Further cases will no doubt refine this issue to a level of certainty.
David Harris, a former lawyer, is one of the authors of the new book Disability Issues in Employment Law
as well as Wrongful Dismissal
, published by Carswell.
