Human Rights: Obesity

Need for a Disability Statute Specific

The controversy on this subject has centred on whether an underlying disability is required to be proven to support a ground of discrimination, one which in turn has caused the applicant’s obesity.

The answer to this question then appears to turn on the wording of the relevant human rights code. For example, the B.C. statute, as does that of Manitoba, does not define the need for such a causal connection of the condition to a disability whereas that of Ontario does.

The Canadian Act states a disability means a previous or existing physical disability, which requires the need for an underlying disability. Saskatchewan does the same.

Most statutes in Canada use the same definition as that of Ontario, namely, that the disability be shown to be due to an injury, birth defect or illness. This is the case for also Alberta, Newfoundland, the Yukon, N.W.T and Nunavut.

Nova Scotia states that a disability may include a restriction or lack of ability to perform an activity which could encompass this issue.

For this reason, Ontario cases have dealt with the issue as to whether the condition of obesity requires an underpinning of a causal medical disability. The issue appears to be in debate presently. B.C.’s statute does not contain such a definition, nor has the case law incorporated such a requirement.

Perception of a Disability

The Supreme Court has made it clear that the definition of a human rights disability was not one which was limited to a condition showing real and actual limitations but rather encompassed the perception of the employer that the applicant was suffering from a disability. ¹

One would expect that an employer’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, no matter the wording of the legislation.

B.C. human rights cases embraced the concept of “perceived disability” well prior to the Supreme Court decision in 2000.

This issue was considered by B.C. tribunal in a case ²in which the applicant weighed between 325 and 350 pounds. He was laid off from his position and was not recalled when other employees were requested to return to work.

The complaint alleged that he was not called upon due to his weight and the employer’s perception that he was disabled. The employer denied the assertion and also led evidence, which was not accepted, showing what was attempted to be a bona fide reason for not calling the applicant back to work. It asserted that due to his weight he was not allowed access to certain parts of the plant and not allowed to work on a particular piece of workplace equipment, a Bobcat machine.

Ironically, this alternative plea showed the employer perceived the applicant to have a disability, which became the grounds for the successful complaint. The applicant was reinstated.

A similar case came from the same tribunal in which the complainant’s application for employment with the respondent carnival was admittedly denied because he was “too big and heavy” and that it did not have a uniform which would fit him.

The Tribunal concluded that the condition of obesity was a disability if the employer, as in this case, perceived it to be so. ³

The Tribunal did parenthetically note that a finding of obesity as an actual disability will be dependent on the medical evidence in each instance.

The BC Human Rights Tribunal ⁴ again considered this issue in its 2010 decision which was also determined by the perception of a disability.

The complainant did not assert that he was obese. He described himself as overweight. He offered no evidence that this condition prevented him from doing any particular tasks. The Board dismissed the complaint on the basis that there was no actual disability but found in his favour that there was a perceived disability.

In its reasons, the Tribunal did offer this view of the proof required for a finding of a disability, based on obesity. The applicant, it stated, was required to show a functional restriction upon his ability to perform the tasks of work or day to day life.

There was no suggestion of an underlying disability being a requirement of the test.

An early decision to consider this issue was that of the Saskatchewan Court of Appeal which concluded that obesity in itself is not a recognized disability. What must be proven, the court found, was an underpinning to a medical disability which led to the obesity.⁵

As noted, the Ontario statute defines disability as one caused by “bodily injury, birth defect or illness”. A 1991 Board decision is reflective of this wording. ⁶

Several cases have referenced this view expressed in Vogue Shoes that obesity unto itself is not a grounds for a disability complaint; ⁷however, such cases were not decisions dealing with an obesity complaint. The reference to Vogue Shoes in each instance was oblique and obiter.

This issue was directly considered ⁸ as to whether obesity unto itself was within the definition of disability under the Ontario Code.

The decision was later set aside by the Divisional Court on unrelated grounds, which makes the statements which follow obiter. This decision stated that there was no need to prove a fundamental medical disability which has in turn led to the condition of obesity.

With respect, the provenance of the reasoning is in doubt. While it may be arguable that modern case law will support the conclusion, the road to the end in this case is in doubt.  Apart from the parallel sentiment seem in Mercier, two authorities were given for this proposition.

The first was a case ⁹involving a claim for a special dietary allowance under the Ontario Disability Support Program. The complaint, “S”, had asserted adverse treatment in the assessment of his dietary allowance due to a condition of extreme obesity and symptoms of Preder-Willi syndrome. These submissions were not successful.

The Tribunal did agree that the dietary allowance which had been set for his condition of obesity, was the subject to discriminatory treatment for which a remedy was ordered.

The respondent did not dispute that the claimant suffered from a disability and indeed he had qualified under the relevant legislation for support which required a finding of a substantial physical impairment, which impacted his personal living circumstance, or function in the community or workplace.

In the context of the legislation in question, it was clear that the applicant had proven a disability.

The proposition that this decision may stand for the conclusion that no medical disability is required for employment related issues under the Code and hence overrules Vogue Shoes, a case which was not mentioned in the decision, is highly debatable.

The second decision referenced had nothing to do with an argument of obesity. ¹⁰It was a case alleging adverse treatment due to ALS. The sole relevance of the Ketola decision was that it quoted the same passage from the Supreme Court of Canada in Mercier, which decision is discussed momentarily.

The Ketola decision did not reference the cases cited by the Supreme Court of Canada in support of this proposition of law. The full quote reads as follows, adding the cases referenced for the preceding statement. This is important as none of the cited cases lead to the decision that no medical underpinning is required for a conclusion that obesity is unto itself a disability:

Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination: (citations omitted)

The only decision cited above for the authority that obesity “may” be a disability is the Davison case of the Saskatchewan Court of Appeal, which held to the exact opposite, namely, that such a conclusion requires an underlying medical disability.

A further reference in the closing words of the paragraph in Lombardi was made to Hinze, a case which, as noted above, did not deal with the substantive issue of obesity as a disability.

The reasoning in Lombardi does not support the conclusion reached.

As noted above, the B.C. cases ¹¹were all decided on the basis that it was the employer’s perception that the applicant was disabled, not on the basis that the condition of obesity was unto itself a disability.

The Supreme Court of Canada ¹²agreed with the submission that a perception of disability can be used to make a liability finding.

The unanimous decision of Justice L’Heureux-Dube spoke to the need in employment cases to “eliminate exclusion which is arbitrary” and based on preconceived ideas relating to personal characteristics.

A handicap, the Court concluded, will include ailments which do not demonstrate real life functional limitations and will hence include perceived disabilities.

The Canadian Human Rights Tribunal considered this issue ¹³ in its 2014 decision. The Tribunal had initially dismissed the complaint, a decision which was set aside by the Federal Court of Appeal based on the successful submission that the Tribunal had failed to deal with the argument of perceived disability.

It is not only a perceived disability which may lead to a human rights violation but also an erroneously perceived one. Even if the actual disability does not lead to a real functional limitation, if the employer acts on that mistaken belief, it will lead to a human rights claim. ¹⁴

Upon the subsequent return of this matter to the Tribunal, it was then determined that the perception of obesity as a disability is a violation of the federal code, even if that which is feared may not in fact be a condition which has led to real limitations. 

The complaint was successful on the grounds of perceived disability, in addition to age and race. A remedy decision remains to be determined, although the Tribunal did not then define the parameters of the wage loss which would run, in concept, from mid-1993 to the date of the remedy decision, likely to be in the range of eleven years.

The Supreme Court also noted that, apart from the above conclusion, the cause and origin of the handicap, to use the term in the Quebec Charter case before it, were not relevant.

While it is so that the wording of the Ontario Code on its face requires that there be an underlying and causal disability proven, the words of the Supreme Court would appear to give every opportunity to argue that such semantics are not defining of the substantive rights, unless such wording clearly showed a different intent of the relevant legislature: ¹⁵

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 is clearly open for such an argument to be made in Ontario.

Gender Based Discrimination

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 addressing the issue, in specific cases, relief has been granted.

The essential framework of the argument is that the conduct, which is abusive of the obese or overweight employee, is gender biased and hence there has been adverse treatment proven based on gender or conduct which is sexually harassing. All cases referenced show the complainant as female, which is certainly a limiting feature.

Clearly these cases are inventively filling a vacuum and do not directly answer the fundamental question.

The Ontario Board of Inquiry in found that the female employee was the subject of comments from her co-workers such as “waddle waddle” and “swish swish”, apparently referring to the sounds made by her nylons as she walked by them. ¹⁶Such adverse words in reference to her body size were determined to be a form of sexual harassment.

Parallel reasoning was used to find liability in a 1995 case from B.C. The complainant was described as a female wrestler and a Sumo wrestler due to her physical size. ¹⁷

The same ratio appeared in a fact situation in which the female employee was called a bitch, slut, whore and behemoth. Comments which are intended to refer to women only have been seen as sufficient to be sexually harassing under the Canadian Human Rights Act.  The phrase “get off your fat ass” was seen as gender specific and hence actionable under the Act.¹⁸

Canadian Transportation Act

The Federal Court of Appeal ¹⁹considered the issue of disability under the Canadian Transportation Act. The complainant had asserted her weight had presented obstacles to her ability to occupy the space designated to her as a passenger on an Air Canada flight.

The preliminary issue was whether this condition qualified as a disability, a term which was undefined in the legislation. The secondary questions as to whether this presented (1) an obstacle and (2) one which was “undue” were not dealt with in this decision. The Federal Court of Appeal agreed with the complainant that her obesity was a disability under the Act:

Nevertheless, there can be no doubt when regard is had to the scope and purpose of the accessibility provisions of the CTA that Parliament had in mind “persons with disabilities” in the context of the federal transportation network who are confronted with “an undue obstacle to [their] mobility” (subsection 172(3)). Whether a person comes within the class of persons contemplated by Parliament must be determined by reference to his or her impairment and the particular limitation encountered by reason of this impairment in the course of transport.

In light of the concession that the appellant suffers from an impairment and the fact that she has encountered an activity limitation on account of this impairment, the only conclusion open to the Agency was that the appellant is a person with a disability under the CTA.

This particular case was statute specific.

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1. 2000 decision of the Supreme Court of Canada in “Mercier”
2. B.C. Human Rights Tribunal (then Council of Human Rights) in its 1989 decision of Hamlyn v Cominco
3. B.C. Human Rights Tribunal in Rogal v Dalgliesh
4. Johnson v D & B Traffic Control. 
5. 1993 decision of Saskatchewan Human Rights Commission and Davison v St. Paul Lutheran Home of Melville
6. The 1991 decision of the Ontario Human Rights Commission v Vogue Shoes 
7. Hinze v Great Blue Heron Casino (Shannon) and Kalam v Brick Warehouse (Muir)
8. The Human Rights Tribunal in the 2012 decision of Lombardi v Walton (Keene)
9. Ball v Ontario
10.   Ketola
11. cited above of Hamlyn, Rogal and Johnson
12. in Canada in its May 2000 decision of Quebec v Montreal
13. Turner v Canadian Border Services Agency
14. Quebec v Montreal; UBC v. Berg, S.C.C., Lamer C.J., speaking for the majority.
15. Referencing University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, at p. 373, Lamer C.J., speaking for the majority.
16. Shaw v Levac
17. Egolf v Watson 
18. in Fornwald v Astrographic
19. in the 2006 decision of McKay-Panos v Air Canada