Canadian Lawyer

LEGAL REPORT/LABOUR & EMPLOYMENT Straddling the line the country despite a ruling from the Supreme Court. BY RICHARD FOOT The laws protecting obesity as a disability vary widely across separate human rights complaints from Quebec known collectively as Mercier — described a disability as more than simply a medical condition, but more broadly as someone' workplace. Suddenly, a disability was no longer an item on a reference list of physical problems, but almost any condition where a person might be subjected to discrimina- tion because of a perception, by others, that they were disabled in some way. At the time, Supreme Court justice Claire L'Heureux-Dubé wrote that s experience in a social setting or "'handicap' may exist even without proof of physical limitations or the presence of an ailment. The 'handicap' may be actual or perceived, a an example of such a condition. Jim McDonald, who represents unions " and she labelled obesity as and employees as a lawyer with Sack Gold- blatt Mitchell LLP in Toronto, says Mercier elevated obesity from a lifestyle choice to a potential disability, requiring protection from discrimination. "One of the problems in dealing with obesity as a disability was always the necessity to satisfy [courts and tribunals] that a person' I and she'll maybe." Dockendorff, a London, Ont.-based s obesity a workplace disabil- ity in Canada? Ask three labour lawyers and they'll give you three different answers. Even better, ask Casey Dockendorff tell you this: "Yes, no, and practitioner with Filion Wakely Thorup Angeletti LLP, is only partly joking. Her answer reflects the strange state of flux, and even confusion, surrounding the le- gal status of obesity across the land. That' partly thanks to the relative scarcity of ju- risprudence involving obese people and their employers — a situation that may be about to change. But it' s s also a result of the fact that obesity, once considered outside the scope of human rights law, is now finding its way in. "Human rights law is evolving, ment-side lawyer. "Twenty-five years ago alcoholism wasn't a disability and now it' well accepted. Ten years ago smoking mar- ijuana wasn't a disability and that seems now to be generally accepted. Five years ago gambling addictions weren't consid- ered a disability. It' and medicine evolving." s all a matter of the law fied as physical conditions or limitations imposed by illness, injury, or birth defect. That changed in 2000 when the Supreme Court of Canada — dealing with three Disabilities were traditionally identi- " says Dockendorff, a manage- s ed to an illness, as opposed to a decision to eat more potato chips," he says. "The courts have moved away from that. The courts are looking at obesity not so much as a life- style decision but how an obese person is perceived. What is the perception of the employer with respect to the hiring or pro- motion or treatment of the obese person?" British Columbia' s obesity was relat- Rights actually pre-empted the Supreme Court' s Council of Human In 1989, it found in Hamlyn v. Cominco Ltd., that a worker, who weighed nearly 350 pounds, was unfairly treated by his employer when the company refused to rehire him following a layoff period. The company admitted the man' s view of disabilities by a decade. a factor in its decision, but argued his obesity was not a disability. The council disagreed, saying the man' s weight was s obesity was a www.CANADIAN Lawyermag.com A U GUST 2012 47 DushaN Milic

• Cover