On Tuesday, I wrote about the use of evidence of genetic predisposition in Canadian disability law. In this post, I examine where Canada stands on genetic discrimination.
Federal and provincial governments in Canada have slowly expanded the list of characteristics that cannot be used to differentiate between individuals in a way that causes harm to the individual with that characteristic. However, only the federal government has expressly included “genetic characteristics” as a prohibited ground in human rights legislation. In 2017, Parliament passed the Genetic Non-Discrimination Act. The Act prohibits a person from requiring an individual to have a genetic test or to disclose the results of a genetic test as a condition of (a) providing goods or services to that individual, (b) entering into or continuing a contract or agreement with that individual, or (c) offering or continuing specific terms or conditions in a contract or agreement with that individual.
The real kicker for the insurance industry was (c). Essentially, that provision prohibits insurers from reflecting genetic predisposition risks – even those that are known to the individual because the individual has had genetic testing – in the premiums or terms (exclusions) offered to the individual.
After the bill was passed, Quebec took umbrage. It quickly moved to challenge these provisions of the Genetic Non-Discrimination Act as unconstitutional because it intruded on its jurisdiction to regulate the practices of provincially-regulated insurers and other affected businesses. The case is still pending before the courts. I personally wouldn’t place a bet on its outcome. The federal government has not fared well when trying to legislate in the area of private contracts. It seems the government has resorted to trying to criminalize asking for genetic testing to bolster its assertion of jurisdiction.
So where does that leave ordinary Canadians? The Genetic Non-Discrimination Act also amended the Canadian Human Rights Act to prevent discrimination based on genetic characteristics. The provision in the Canadian Human Rights Act protects individuals who voluntarily submit to genetic tests or disclose their genetic characteristics or submit to tests or make disclosure under duress. Discrimination because of a refusal to submit to or provide the results of a genetic test is deemed to be discrimination based on genetic characteristics.
The Canadian Human Rights Act provides protection when individuals deal with federal government bodies and federally regulated companies, such as banks and airlines. However, the vast majority of Canadian businesses are not federally-regulated. Moreover, provincial governments are not subject to this legislation.
Ontario Liberal MPP Natalie Des Rosiers introduced a private members’ bill (Bill 164) to amend the Ontario Human Rights Act to prohibit discrimination based on genetic characteristics (as well as immigration status, police records and social condition). However, the Liberal government suffered a humiliating defeat and it seems unlikely that the new Conservative government under Rob Ford will take up the cause of genetic discrimination. In Manitoba, an NDP private members’ bill (Bill 225) was brought before the legislature in May. Its fate is uncertain. So, the issue of genetic discrimination seems, at least for the time-being, to be one that is largely within the concern of private members rather than governments in Canada.
Does this matter? It is unclear. The evidence supporting a need for a broad law to protect individuals from discrimination on the basis of genetic characteristics is sparse. If the federal legislation stands, then the issue will be largely settled, except, perhaps, in the case of voluntary non-coerced disclosure. Those instances could possibly still fall into a grey zone unless provinces enacted amendments to human rights legislation similar to those in the Canadian Human Rights Act.