Canadian HR Reporter

CANADIAN HR REPORTER May 4, 2015 16 FEATURES Labour law research just got faster, easier and more comprehensive. LabourSource™ on WestlawNext® Canada combines the most robust collection of grievance arbitrations with court and board decisions, expert commentary, legislation and collective bargaining-related content – with Canada's most advanced search engine. A single search delivers the content you're looking for, whether it's case law, legislation, commentary, or legal memos. You can then filter your results to get exactly what you need. With LabourSource, you'll always be confident that your research is complete and that you haven't missed anything. Experience the benefits • Prepare winning grievance arbitrations and labour board applications • Successfully negotiate favourable collective agreements • Stay up to date on the latest labour-related decisions, industrial relations and economic news Legal content that is labour focused, not labour intensive Introducing LabourSource™ on WestlawNext® Canada See the LabourSource advantage View a demo at westlawnextcanada.com/laboursource 00224EP-A47770 DIVERSITY Is obesity considered a disability? A look at cases in B.C., Ontario shows challenges of definitions, accommodations By Casey Dockendorff I n 2013, 18.8 per cent of Ca- nadians aged 18 and older — roughly 4.9 million adults — reported height and weight that classified them as obese, according to Statistics Canada. erefore, the issue of whether obesity is a disability is an im- portant one. Some jurisdictions in Canada have expressly recognized obesity as a disability, whereas others have not. ese distinctions are based largely on the applicable human rights legislation in each jurisdic- tion and, in particular, how "dis- ability" is defined. An examination of the case law in British Columbia (where hu- man rights legislation does not define disability) in contrast with that of Ontario (which specifically defines disability) highlights the different approaches. B.C.'s experience British Columbia's Human Rights Code protects employees from discrimination on the basis of dis- ability. However, it does not define the term "disability." As a result, the B.C. Human Rights Tribunal has tended to take a broader approach to protecting obesity as a disability. In 1989's Hamlyn v. Cominco Ltd., the complainant was laid off by his employer and was not re- called when the employer needed several employees to work on a shutdown crew. e complainant, who weighed between 325 and 350 pounds, alleged he had been discriminated against on the basis of his weight. e employer agreed it had not hired the complainant because of his weight, but asserted his obe- sity was not a disability because it was a correctable condition. e employer also contended the complainant's weight prevented him from entering parts of the plant and using certain types of equipment that were vital to the performance of his duties. e British Columbia Council of Human Rights (as it was then known) allowed the complaint. It found that the complainant's obesity was a disability because the employer perceived it as such. It cited the employer's evidence as to the complainant's inability to access certain parts of the plant and equipment. In Rogal v. Dalgliesh (2000), the complainant was denied employ- ment with a carnival operator. West Coast Amusements told Bert Dalgliesh he was "too big and heavy" for the carnival's "fast- paced lifestyle" and it did not have a uniform large enough for him. e complainant alleged the deci- sion not to hire him on the basis of his weight constituted discrimi- nation on the basis of a disability. e employer contended obesity was not a disability. But the B.C. tribunal held that obesity is a disability when it im- pacts the employer's decision not to hire a person. In 2004's Sheppard v. RFCOP Restaurant Holdings Ltd., the complainant alleged discrimina- tion on the basis of disability due to her weight and health prob- lems. Specifically, she alleged her employer had told her she should lose weight, she would be a drain on the employer's ex- tended benefits plan, and RFCOP made other comments related to her mental health. e employer argued the com- plainant's condition was not a physical disability and it did not stop her from performing her job in any way. e B.C. tribunal disagreed and confirmed that obesity had been found to be a disability, relying on the Cominco decision. DIVERSITY > pg. 17 Credit: Suzanne Tucker (Shutterstock) The employer argued the worker's condition was not a physical disability and it did not stop her from performing her job. The tribunal disagreed.

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