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million employed Canadians, aged 18 to 64, were obese, says the agency. Among working men aged 55 to 64, 21 per cent were obese in 2005 compared to 17 per cent a decade earlier. Among men aged 35 to 54, 19 per cent were obese in 2005 compared to 14 per cent in 1995. Statistics Canada says similar trends exist among employed women. Zabrovsky isn't convinced new litiga- tion will tip the balance so that obesity becomes a stand-alone disability in prov- inces such as Ontario. Instead, he says overweight workers with related medical problems will force employers to accom- modate their obesity not in a legal sense, but a practical one. "You're going to see more employers who are going to have to accommodate more heart and cardio- vascular issues, diabetes, and other issues that are becoming more prevalent because obesity is becoming more prevalent," he says. "They're going to have to accom- modate the entire package, even though obesity doesn't have to be accommodated directly. But until we actually get firm rules [through new case law] nobody's going to know exactly what the playing field is." McDonald says another consider- ation is the impact of rising obesity rates on workplace benefit plans, particularly where those plans pay for a growing menu of diet and other obesity-related drugs. "There have been cases in the U.S. where employers were refusing to hire people because of the benefit plan costs," he says. "Our human rights code does allow em- ployers to discriminate with respect to the delivery of a life or benefit plan if an in- dividual has a pre-existing disability that' going to substantially increase the risk." The Ontario Human Rights Tribunal s is expected to hear a case later this year, Cook v. Stratford (City), involving a mu- nicipal tenant who says his disability (obe- sity) means he should not have to vacate his subsidized housing unit. While it' a workplace dispute, the case could explic- itly clarify whether obesity is a disability in Ontario. "We might get some guidance from the tribunal as to whether or not s not Main 416.603.0700 24 Hour 416.420.0738 www.sherrardkuzz.com Read the Supreme Court's Mercier decisions at: scc.lexum.org/ en/2000/2000scc27/2000scc27.html. www.CANADIAN Lawyermag.com A U GUST 2012 49 they're going to change their position on the causal link requirement, and perhaps give us a bit more analysis on the issue of obesity, Dockendorff says she is telling her man- agement clients in Ontario, and other provinces with similar codes, to take a pragmatic approach to obesity. "I advise clients that the law in this area is evolving, Until these questions get sorted out, " says Dockendorff. Anytime_vF:No Accident 23/07/2012 1:02 PM Page 1 so even though there may not be a strict legal requirement to look at the duty to ac- commodate obesity, is there anything they can do from an employee-relations per- spective?" she says. "If an employee stands at a front desk and has difficulty because of their weight, an employer could say, why can't we give this person a chair? It may be just a straight-up employee-relations issue rather than a human rights issue. " Call us anytime. Really. Our 24 hour line is answered by a Sherrard Kuzz lawyer – 24 hours a day, 7 days a week, even holidays. So when a health and safety inspector is at the door, a picket line is going up or a union organizer is handing out leaflets to the midnight shift (and any other employment or labour matter), there's someone you can call. Our 24 Hour Line means our clients sleep well at night, even if we sometimes don't.

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