Sizing Up Obesity as a Disability Under the Ontario Human Rights Code

  • December 13, 2017
  • Richa Sandill

This is an exciting time in Ontario human rights law. Damages are increasing at the Tribunal and in the courts, and boundaries are being pushed across the spectrum of protected grounds enumerated in the Ontario Human Rights Code (the “Code”). Disability, in particular, is one such area that has witnessed a significant amount of development and expansion.  

In today’s world, obesity as a health issue receives considerable continual mention, yet has not yet definitively been included under the Code’s disability definition. For reference, obesity refers to any individual with a Body Mass Index (BMI) over 30. Per a recent National Post article, obesity has quadrupled over the last three decades, and currently, an estimated 1.2 million Canadians have a BMI of 35 or more.

The above article argued that obesity should be a protected ground under human rights legislation – with one approach to include it under this expanding definition of disability. This is a difficult classification to make: past case law has concluded that obesity is not a “disability” or “handicap” unless it was caused by bodily injury, birth defect, or illness.[1] Medically, disability can be caused by a wide variety of factors, some of which, arguably, may not be a pre-existing or scientifically medical health condition. Moreover, as outlined in this article, terming obesity as a “disability” may create an unfair perception/distinction for those with this condition.

Nonetheless, there are reasons why classifying obesity as a disability purely for human rights purposes could be beneficial.   

Case Law Shift  

In recent years, case law appears to have shifted towards inclusion of at least more serious forms of obesity. This was, for example, the finding in Ball v. Ontario (Community and Social Services)[2] “extreme obesity” was found to fall under the definition of “disability”.

Ball aligns with recent federal and international views on the topic. In 2008, the Supreme Court of Canada upheld a decision by the Canadian Transportation Agency which found that an airline’s one-person, one fare rule discriminated against individuals who were “disabled by obesity”, i.e. those with BMIs over 40 of over.[3] Similarly, the European Court of Justice ruled in December 2014 that a municipality’s decision to dismiss a childminder on the basis of that employee’s extremely obese weight (his BMI was 50) could be discriminatory on the grounds of disability, in the event that his disability limited his ability to take part fully and effectively in his profession.[4]

 

Perceived Disabilities

An interesting feature of the European Court of Justice case referenced above was that the complainant, who had been morbidly obese throughout his 15 year career, was singled out for layoff. His termination letter did not specifically reference his obesity, but this did occur after he was unable to bend over and tie his shoes on one occasion. This in turn perhaps led the employer to assume this employee could not perform his job.

The perceptions that come with obesity are probably more limiting than the condition itself. One needs to simply search the term “fat shaming” to understand the stigmatization that is accompanied with being overweight and/or obese. The Supreme Court of Canada in Granovsky v. Canada[5] has stipulated that this kind of “social handicapping”, i.e. society’s response to a real perceived disability, should be the focus of discrimination analysis.[6] If that is, in fact, the case, then there is more reason than not to classify obesity as a disability if the perceptions that are associated with it are preventing an individual’s meaningful participation in society.

 

Broad Definition of Disability

Finally, if an obese person experiences discriminatory barriers to their meaningful participation in society, the definition of disability under the Code is broad enough to allow protection for those individuals.

The Code’s main purpose is to confer rights upon individuals to protect themselves from discrimination on the basis of the grounds it enumerates. While these rights are not unlimited, they should be interpreted broadly, purposively, and contextually.

The Tribunal has consistently ruled that disability under the Code itself should be interpreted in “broad terms”.[7] Recent years have seen mental health issues, addictions, and even the effects of miscarriage being recognized as disabilities. It will be unsurprising if obesity follows suit in the years to come – if nothing else, then to afford protection under the Code to those that seek it in the right circumstances. 

 

About the author

Richa Sandill is an employment and human-rights lawyer at MacDonald & Associates, and Secretary on the OBA Constitutional, Civil Liberties and Human Rights Section Executive.


[1] Ontario (Human Rights Commission) v. Vogue Shoes (1991), 14. C.H.R.R. D/425

[2] Ball v. Ontario (Community and Social Services) 2010 HRTO 360

[3] Norman Estate v. Air Canada 2008 CarswellNat 1633

[4] Case C-354/13, Fag og Arbejde v. Kommunernes Landsforening, ECLI:EU:C:2014:2463 (2014) 

[5] Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 SCR 703

[6] Ontario Human Rights Commission, “What is disability?” Policy on ableism and discrimination based on disability, accessible at: http://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/2-what-disability#_edn25

[7] McLean v. DY 4 Systems, 2010 HRTO 1107

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