Quebec Court Of Appeal Finds The Genetic Non-Discrimination Act Ultra Vires

In a recent decision, the Quebec Court of Appeal declared the Genetic Non-Discrimination Act (the "Act"), adopted by the federal Parliament and which came into force on May 4, 2017, to be ultra vires because of its encroachment on the jurisdiction of provincial legislatures.

The Court was of the opinion that the main purpose of the Act was to promote the health of Canadians by encouraging access to genetic tests for medical purposes. Consequently, the Act sought to regulate matters falling under the province's jurisdiction, namely genetic discrimination in employment and insurance contracts (civil and property rights), rather than criminal law, which would fall under federal jurisdiction.

Given the appeal by the Canadian Coalition for Genetic Fairness, the Supreme Court of Canada will once again have the opportunity to determine the constitutional validity of a law under the Constitution's division of powers.

Introduction / History of the Act

Prior to the introduction of the Act, there was no legislation in force in Canada that specifically addressed the issue of genetic discrimination and the protection of the particular characteristics of the human genome. The purpose of the introduction of the Act to prohibit and prevent genetic discrimination (the "Bill S-201") was to prohibit any person in requiring an individual from undergoing genetic testing or disclosing genetic test results as a condition of: (a) providing goods and services; (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 Bill would also amend the Canada Labour Code and the Canadian Human Rights Act to address discrimination, particularly in the areas of insurance and labour relations, by adding the terms "genetic characteristics".

The Bill S-201 was first introduced to encourage the use of genetic tests in order to improve the health of Canadians by supressing the fear of some that this information could eventually serve discriminatory purposes in the entering of agreements of in the provision of goods and services.

This was legitimate purpose to legislate on since many Canadians and certain interveners have raised concerns about the fact the risk of discrimination could outweigh the benefits of information that could lead to more personalized and efficient health care. In that respect, the Bill then seemed to address a genuine problem...