Is a Canadian employer permitted to fire an employee based on a genetic predisposition to develop a disability? Can it defend WCB claims based on genetic predispositions? Can an employer require employees to submit to genetic testing?
Can insurance companies deny insurance based on genetic test results?
In 2017, the federal government attempted to address such questions by passing the Genetic Non-Discrimination Act (GNDA). It prohibits forcing individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services or contracts. It also prohibits refusing access to goods, services or contracts because someone has refused to take a genetic test or refused to disclose the results of such a test. Genetic test results cannot be used in connection with providing goods and services without the individual’s written consent.
Doing anything prohibited as described above is an offence.
These prohibitions do not apply to a physician, pharmacist or other health care practitioner, or to a person conducting certain types of research.
The GNDA also amended the Canada Labour Code to protect employees from forced genetic testing or disclosure of test results, and from disciplinary action on the basis of genetic test results.
It also amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination and to create a deeming provision relating to refusal to undergo genetic testing or disclose test results.
A genetic test is defined as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.”
The Government of Quebec asked the courts to decide whether the prohibitions relating to goods, services and contracts were beyond the jurisdiction of Parliament over criminal law under s. 91(27) of the Constitution Act, 1867.
Quebec argued that the GNDA was unconstitutional because it attempted to regulate the use of genetic information by insurance companies and employers, which are areas of provincial jurisdiction.
In a 5:4 decision with two concurring judgments, the Supreme Court of Canada held that Parliament had the power to enact the GNDA under s. 91(27) of the Constitution Act, 1867.
Three judges focused on the importance of protecting autonomy, privacy and equality in public health. Two judges focused on health considerations.
The decision is consistent with numerous other Supreme Court of Canada decisions which reiterate the importance of individual autonomy and privacy. This is particularly so when it comes to information as intimate as our genetic makeup.
This is a slightly modified version of an article that appeared in the Kelowna Capital News and other online publications on or about August 16, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.
