Genetic Non-Discrimination Act Upheld By The Supreme Court: Implications For Insurers

• Published date: 26 August 2020
• Subject Matter: Corporate/Commercial Law, Insurance, Privacy, Corporate and Company Law, Insurance Laws and Products, Privacy Protection
• Law Firm: Cassels
• Author: Ms Bernice Karn, Gordon Goodman and Katie-May O'Donnell

On July 10, 2020, the Supreme Court of Canada (the Supreme Court) upheld a federal law preventing third parties, such as employers and insurance companies, from demanding genetic information from individuals. The ruling has implications for insurance companies and employers as both may face prosecution if convicted of using information from genetic tests for insurance or employment purposes.

In 2017, the Parliament of Canada (Parliament) passed the Genetic Non-Discrimination Act (the Act) which established various prohibitions on genetic testing related to diseases. Sections 1 to 7 of the Act (the Provisions) provide for certain prohibitions in respect of genetic testing, including making it a crime to: (i) force an individual to get genetic testing; and (ii) collect, use or disclose the results of genetic testing without the individual's written consent. Under the Act, "genetic test" is defined as "a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risk, or monitoring, diagnosis or prognosis." Anyone that is found to have contravened the Act can be fined up to $1 million, put in jail for up to five years, or both. As a result, it may be prudent for insurance companies and employers to update their internal policies and procedures to ensure that they do not violate the Act.

Decision

In Reference re Genetic Non-Discrimination Act¹ (the Decision), the Supreme Court was asked to determine whether Parliament had the power to criminalize compulsory genetic tests and the mandatory disclosure of test results where the tests were taken voluntarily. The Constitution Act, 1897 (the Constitution) delineates powers that fall within the scope of the provinces and those granted to the federal government. For example section 91(27) of the Constitution, gives Parliament the exclusive authority to make laws in relation to criminal law while section 92(13) of the Constitution gives provincial legislatures the exclusive authority to make laws in relation to property and civil rights. In the Decision, the government of Quebec argued that the Provisions were unconstitutional as they fell under the province's jurisdiction over property and civil rights.

In 2018, the Court of Appeal of Quebec (the Court of Appeal) unanimously held that the Provisions were unconstitutional as they lacked a valid criminal law purpose. The Decision was appealed to the Supreme Court which reversed the Court of Appeal's Decision in a 5-4 spilt decision. The Supreme Court held that the Act was constitutional, finding that it was a valid exercise of Parliament's criminal law power. The Decision also...