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LEGAL REPORT/LABOUR & EMPLOYMENT disability because the company perceived it to be one. In at least four more cases since then, the B.C. Human Rights Tribunal has confirmed that obesity is a disability in the workplace. In one of the most recent examples, Johnson v. D & B Traffic Con- trol in 2010, the tribunal said a highway construction flagger was not in fact disabled by his weight — "there must be some limitation on the ability to perform the activities of daily living or work in order to constitute a disability, said the overweight flagger was indeed discriminated against by an employer denying him work, because of its perception that he was disabled. Such rulings are the result of a human rights code in B.C. that doesn't explicitly define "disability," or require a medical cause for " it said. However, the tribunal also such a condition. Similar codes exist in Manitoba, Saskatchewan, Quebec, and Nova Scotia, whose statutes fall closely in line with the Supreme Court' berta, New Brunswick, Prince Edward Island, and Newfoundland and Labrador, however, human rights codes require a medical link, stating that a disability must "be caused by" bodily injury, birth defect, or illness — obviously a conflict with Mercier. So far the Ontario Human Rights Tribunal has stuck with the s interpretation of disability. In Ontario, Al- qualify as a disability, and therefore employers are not required to accommodate obese workers. Jim McDonald says such a strict interpretation would not deter him from fighting a claim of workplace discrimination in Ontario for an obese client, even if the obesity was not directly linked to medical causes. For one thing, he says he has the Supreme Court' tion," he says. "We would certainly feel comfortable going forward with litigation on that." Andrew Zabrovsky, a management-side labour lawyer with s adverse to you because of your condi- and other legislatures across Canada have been very clear in saying obesity isn't a disability in and of itself. Hicks Morley LLP in Toronto, takes a different view. "I would tell any of my clients facing a disability complaint that obesity is not a protected ground under the human rights code, " he says. "Ontario because of the rising number of obese people — which is bound to bring new litigation forward. "It' limits prescribed by its code rather than the view dictated by the Supreme Court. The most recent Ontario case to deal with obe- sity, Hinze v. Great Blue Heron Casino in 2011, confirmed that un- less obesity is caused by illness, injury, or birth defect, it does not Let us open right door for you the We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of eleven lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 48 A U GUST 2012 www.CANADIAN Lawyermag.com uretzky_CL_May_11.indd 1 4/14/11 10:32:23 AM more jurisprudence on this, but I think we are definitely going to see more as obesity becomes more of a problem." As Statistics Canada noted in a 2009 report: "Obesity in the workplace is a growing phenomenon, with repercussions for both workers and their employers." In 2005 more than two EXPERT GUIDANCE TO HELP YOU ANALYZE FEDERAL LABOUR AND EMPLOYMENT LAW THE 2012 ANNOTATED CANADA LABOUR CODE, 20TH ANNIVERSARY EDITION RONALD M. SNYDER Stay up to date with legal developments applicable to Federal union and non-union employees with The 2012 Annotated Canada Labour Code. You'll gain a better understanding of the Canada Labour Code and jurisprudence with an extensive collection of case law annotations and the expert analysis of a leading lawyer to guide you. 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Price subject to change without notice and subject to applicable taxes. • The latest interpretations on health and safety laws governing federal undertakings, and the requirements which are necessary to invoke a refusal to work for dangerous reasons AVAILABLE SOON ON THOMSON REUTERS PROVIEW™ AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Still, Zabrovsky acknowledges the ground is shiſting in part s baffling that there hasn't been " interpretation on his side. "We would say to our client, you have every right not to be discriminated against, not to be treated in a differential manner that' s

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