Canadian HR Reporter

CANADIAN HR REPORTER May 4, 2015 FEATURES 17 In the 2010 Johnson v. D & B Traffic Control, Kevin Johnson alleged discrimination on the basis of physical disability when he was not called into work as a flagger due to his weight. He did not present any medical informa- tion stating he had a disability or indicating any limitations on his ability to perform his work due to a disability. Nor did he provide any medical reports to support any physical restrictions. In relation to being overweight as a disability, B.C. tribunal mem- ber Enid Marion noted: "In my view, simply being over- weight is not sufficient to consti- tute a disability for the purposes of the code. ere must be some limitation on the ability to per- form the activities of daily living or work in order to constitute a disability. While I accept that obesity may, dependent on the circumstances, constitute a dis- ability, based on the evidence presented in this case, I am not persuaded that Mr. Johnson has an actual disability." Nonetheless, the B.C. tribunal concluded that since the respon- dents "perceived" Johnson to have a disability and this perception was a factor in the decision not to offer him work, the complaint was upheld. Ontario's experience e Human Rights Code in On- tario also protects employees who have a disability from discrimina- tion. However, the code contains a very specific definition of dis- ability: "Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, in- cludes diabetes mellitus, epilepsy, a brain injury, any degree of paral- ysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device." e requirement that the physi- cal disability be caused by a bodily injury, birth defect or illness is what has caused the most con- troversy with respect to whether obesity is a disability in Ontario. This is particularly so because obesity is not necessarily caused by any of these factors and may be genetic or environmental, as seen in 1991's Ontario Human Rights Commission v. Vogue Shoes. As a result, the Ontario Human Rights Tribunal has been more reluctant to conclude obesity is a disability. In the 2011 Hinze v. Great Blue Heron Casino, the applicant al- leged he had been terminated in part because of a disability. While the issue in the case was not whether obesity constituted a disability, the tribunal held that "there must be some inability to do something others can normally do and substantial limits on one's activities" before a disability can be found to exist. It went on to acknowledge "obesity, unless otherwise caused by bodily injury, birth defect or illness" does not constitute a dis- ability under the code. In the 2013 Smit v. Diageo Can- ada Incorporated, the applicant had gained considerable weight and could not fit into the table and chair units at his workplace. He asserted his employer's duty to accommodate was engaged because his weight gain allegedly resulted from a physical and psy- chological injury. The Ontario tribunal noted there was no substantial medical evidence of a psychological injury and no evidence other than the applicant's belief that his weight gain resulted from his other in- juries. Given the lack of evidence, the tribunal was not prepared to find that the applicant's weight gain was a disability within the meaning of the code. e appli- cation was dismissed. Despite the tribunal's findings in Hinze and Smit, its comments in a recent decision suggest obe- sity may constitute a disability in Ontario even if it is not caused by bodily injury, birth defect or ill- ness. In the 2012 Lombardi v. Wal- ton Enterprises, the applicant al- leged he was discriminated against on the ground of disability when his supervisor harassed him by making inappropriate comments and sending him text messages. There was no evidence Paul Lombardi was in fact obese at the time of the alleged harassment; however, he alleged he was ha- rassed because he was perceived to be obese. e tribunal noted that while adjudicators had formerly found that obesity was a handicap only when the obesity was caused by bodily injury, birth defect or ill- ness, it also considered more re- cent case law and noted obesity has recently been included under the definition of "disability." e Ontario tribunal also found that Lombardi was harassed, in part, because he was incorrectly perceived to be obese and, there- fore, incorrectly perceived to be suffering from a disability, and the respondents had violated his right to freedom from harassment in employment on the ground of disability. Whether obesity will con- stitute a disability will be fact- specific and may vary from juris- diction to jurisdiction. If there is evidence the obesity is caused by an injury, illness or birth defect or the obesity is perceived to be a disability, it will likely be deemed as such, regardless of what juris- diction an employer finds itself in. erefore, employers are well- advised to carefully examine any obesity-related accommodation requests. Casey Dockendorff is a partner at Fil- ion Wakely orup Angeletti in Lon- don, Ont. For more information, visit www.filion.on.ca. DIVERSITY < pg. 16 If the obesity is caused by an injury, illness or birth defect or perceived to be a disability, it will likely be deemed as such, regardless of the jurisdiction.

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