Application of the Standard of Correctness

Purpose: Consistency in interpreting HR legislation

In applying the standard of correctness, one must look to the text, context and purpose of the provision
in dispute. It is taken for granted that a broad and liberal interpretation should be given to human rights
legislation1. Narrow restrictive determinations or strictly grammatical approaches tending to defeat the
legislations purpose are to be avoided2. As well, case law has emphasized the value of consistency between
human rights statutes across the country3. Therefore, the Evergreen Human Rights Act (hereinafter Evergreen
Act) should be interpreted according to the Nova Scotia Human Rights Act (hereinafter Nova Scotia Act) as
well as other provincial human rights statutes.
Firstly, the definition of physical and mental disability in the Nova Scotia Act is much broader in scope
than the relatively short and concise definition in the Evergreen Act. The Nova Scotia Act includes within the
definition at (l)(ii), the restriction or lack of ability to perform an activity, which is an accurate description of
Monicas condition of being impaired in executing her physically-demanding job. This supports the finding that
disability should encompass obesity.
Secondly, dignity is included in the purposes sections of the human rights statutes of Manitoba,
Nunavut, British Columbia, Alberta (twice), Yukon (twice), Newfoundland and Labrador (twice), Prince
Edward Island (twice), Saskatchewan (twice), Ontario (thrice) and in Nova Scotia (twice). It is recognized in
case law that there is a legislative presumption against tautology4. Therefore, it is not an accident that dignity is
consistently found in the human rights legislation of the provinces, and the word dignity is repeated in more
than half of them. By implicating Monicas tubbiness in her termination, her manager insulted her dignity and
thereby infringed on her human rights. It would be going against the spirit of the human rights statutes across
Canada to not protect her against this infringement.
Text: Word Structure Of The Provision
The definition of disability includes both previous physical disability (or mental disability) as well as
existing physical disability (or mental disability) in its definition of disability.
1 Mossop v. Canada, [1993] 1 SCR 554, 1993 CarswellNat 1365
2 Canada (Attorney General) v. Mowat, 2009 FCA 309, [2010] 4 F.C.R. 579 at para 53
3 Canada (Attorney General) v Johnstone, 2014 FCA 110 at para 51
4 Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471

disability means any previous or existing mental or physical disability.previous or existing

dependence on alcohol or a drug (emphasis added)
The law presumes that the legislature avoids superfluous words and that every word in a statute is presumed
have a specific role to play in advancing the legislative purpose5. The textual structure of the provision was
found to be paramount for purposes of statutory interpretation in CHRC v Canada6 (hereinafter CHRC). In
the case, the court concluded that because the phrase that the person compensate the victim . . . for any
expenses incurred by the victim as a result of the discriminatory practice appeared twice, yet in two different
contexts, that the first occurrence of the phrase took on a different meaning to the meaning of the second
occurrence of the phrase.
Drawing from this logical foundation, the Evergreen legislature (hereinafter Evergreen) intended to
prohibit not only discrimination based on obvious impediments but impediments which might be found on ones
record. This is to combat discrimination based on the belief that a past condition will predispose one to the very
same condition in the future. One can conclude that the legislature intended to provide a broad protective scope
to individuals performing their functions in society, and especially so when it comes to labor relations, the most
fertile ground for dispute relation in the context of human rights discrimination.
The fact that Evergreen had a specific context in mind can be gleaned from its explicit omission of
including body size and image in the definition of disability. This merely indicates that it was not the intent of
Evergreen to protect obesity discriminated on an aesthetic basis. It does not mean that Evergreen intended to
preclude human rights protection for cases of obesity that result in impaired mobility. On the contrary, the Nova
Scotia Act as well as the three cases cited in the dissent point towards obesity resulting in impaired mobility as a
concrete ground for human rights protection.
Text: Constructive Immutability
Courts often look to the French version of legislation for interpretative guidance. In Canada v
Johnstone7 (hereinafter Johnstone), the court found that Parliaments choice in using two different phrases in
the French version of the word status (one of which had a broader scope than the other phrase) meant that the
broader phrase was capable of supporting a much broader interpretation of family status.
In Service Employees International Union8, the French version of the provision at issue is:
5 Supra at para 38
6 Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471
7 Canada (Attorney General) v Johnstone, 2014 FCA 110 at para 66
8 Service Employees International Union, Local 75 v Chowdown Corp, 2015 LAD 2

Deficience physique ou mentale, quelle soit presente ou passee, y compris le de- figurement ainsi que
la dependance, presente ou passee, envers lalcool ou la drogue.
Alcohol addiction in French can be phrased in a simpler way: dpendance l'alcool. Yet the legislature
chose to parse it within the longer phrase la dependance, presente ou passee, envers lalcool ou la drogue
(translation: dependency, past or present, towards alcohol or drugs). This splitting of the phrase suggests that
the legislature intended to construe a general predisposition towards the abuse of alcohol or drugs (substance
abuse) instead of merely the discrete states of past addiction and present addiction. This is in support of the
fact that human rights legislation seeks to protect characteristics that are immutable or constructively
immutable. Monica was obese in her youth and that obesity was triggered again when her friends relocated.
This suggests that Monica has a predisposition towards overeating, and that it is constructively immutable.
Constructive Immutability In Case Law
In Johnstone, the childcare obligations in question were found to be constructively immutable. The court
held that only childcare obligations that were legally mandated were constructively immutable. Although they
did not fall under family status under the terms traditional context, they were held to fall under it due to
Parliaments implied intention that people (and parents) should not be impeded from fully living and by
necessary implication, participating in the workforce9.
Thus, Johnstone divided childcare obligations into two categories: those that triggered legal liability if
neglected (and were thus grounds for discrimination) and those that did not trigger a legal liability if neglected
(and were not grounds for discrimination). Similarly, obesity too may be divided into two categories: obesity
that impairs physical mobility in job performance and obesity that does not impair physical mobility in job
performance (and has merely aesthetic impact). In this case, Monicas obesity impaired her physical mobility, in
her physically demanding job, to the point of her being fired. Johnstone holds that a narrow interpretation that
would defeat the purpose of eliminating discrimination should be avoided.

9 Canada (Attorney General) v Johnstone, 2014 FCA 110 at para 66

Discretion
One should not conclude that because the Evergreen legislature did not explicitly include obesity in the
definition of disability, that it had the positive intention to exclude from the definition of disability the type of
obesity that causes work-threatening mobility impairment. In Mossop v Canada10 (hereinafter Mossop), it was
found that Parliament's decision to leave "family status" undefined was evidence of legislative intent that the
term should be left for the Commission and tribunals to define.
The definition of disability in the Evergreen Act does not include an exhaustive list of grounds of
disability: the only concrete grounds given under it are disfigurement, alcohol and drug addiction. This suggests
an open-ended list (such as in Mossop) rather than an exhaustive list. Thus, Evergreen here accords the
decision-maker a certain amount of discretion in determining the scope of disability.
When it comes to interpreting human rights legislation, it is difficult not to create policy: when faced
with an issue of statutory interpretation in a human rights context, rarely does the court find an interpretation of
a provision that is without controversy. This is because in judicial review, a superior court normally answers
questions of law of general importance. As the purpose of the legal system as a whole is to bestow and protect
rights to individuals, questions of general law often overlap with the rights of individuals (whether it is adding
to or subtracting from those rights).
Therefore, a superior court in deciding a human rights issue has to choose between restricting or
expanding a human right. Judicial precedent has found time and time again that the way to approach human
rights legislation is to give it a broad and purposive interpretation, especially one that accords with Charter
values. In this case, the broader and more purposive interpretation is that a level of obesity that impairs mobility
and hinders job performance should be grounds for discrimination.
If policy dictates that a restrictive approach towards allowing obesity as grounds for a disability is best,
the courts can give it a restrictive interpretation as was done in a recent case decided by the European Court of
Justice11. When one has a certain characteristic that makes it more difficult to perform ones course of
employment, and one is undisputedly terminated due to that characteristic (and would not have been terminated
had the characteristic not been there), it would violate the spirit of human rights legislation to count that
characteristic as one not deserving of human rights protection.

Context: Looking to the Charter, the Living Tree and International Law
10 Mossop v. Canada, [1993] 1 SCR 554, 1993 CarswellNat 1365
11 Fag og Arbejde v Kommunernes Landsforening, (2014), C-354/13 (ECJ)

In interpreting a statute, Charter values must not be ignored12. In fact, if more than one reasonable
interpretation consistent with the statutes purpose is available, that which is more in conformity with the
Charter should prevail13. There are two interpretations to disability in this case: the first holds that it doesnt
encompass obesity in any form while the second holds that it does encompass obesity in some form. The second
is more aligned to Charter values.
In Quebec v Boisbriand14, the Supreme Court held that handicap as it is used in the Charter may exist
even without proof of physical limitations or the presence of an ailment: it may simply be a matter of
perception. Because the emphasis is on the effects of the discrimination rather than the precise nature of the
handicap, the cause and origin of the handicap are immaterial.
In order to gain a better grasp of the meaning of handicap for the purposes of the Charter, the Supreme
Court in Quebec v Boisbriand canvassed law from countries such as Australia and the United States, as well as
looked to international instruments including the International Classification of Impairments. This accords with
the living tree doctrine, which holds that the Constitutional should evolve organically. This is because the
Constitution is legislation that is much harder to amend than others: therefore the unwritten Constitution exists
to fill in the gaps that Parliament could not foresee when it drafted the Constitution. The Canadian Human
Rights Act is quasi-constitutional15 and should therefore be interpreted in the same light. As the values of society
evolve, so too should the protections that the law bestows upon it16.
A recent case in the United States held that a severely obese employee was disabled, even though the
employee in the case was able to perform his job functions without any accommodations17. This is supported by
a separate finding in 2013 by the American Medical Association (Americas largest association of physicians)
that obesity is a disease.
The European Court of Justice held that obesity does not in itself constitute a disability18, however when
the obesity entails a long-term limitation which results from physical or mental impairments that hinder the full
participation of that person in professional life on an equal basis, obesity is considered a disability19.
A textual, contextual and purposive approach to interpreting disability thus indicates that obesity
should be grounds for human rights protection if it impairs the ability of an individual to perform their
physically-demanding job.
12 Mossop v. Canada, [1993) 1 SCR 554, 1993 CarswellNat 1365
13 Supra
14 Quebec (Commission des droits de la personne et des droits de la jeunesse) v Boisbriand (City of), 2000 SCC 27, [2000] 1 S.C.R.
665

15 Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471
16 Mossop v. Canada, [1993] 1 SCR 554, 1993 CarswellNat 1365
17 Whittaker v America's Car Mart, Inc, 2014 WL 1648816 (ED Mo)
18 Fag og Arbejde v Kommunernes Landsforening, (2014), C-354/13 at para 58 (ECJ)
19 Supra