Supreme Court Of Canada Upholds Constitutionality Of Challenged Provisions Of Federal Genetic Non-discrimination Act

Published date28 July 2020
Subject MatterEmployment and HR, Government, Public Sector, Criminal Law, Discrimination, Disability & Sexual Harassment, Constitutional & Administrative Law, Crime
Law FirmLittler - Canada
AuthorMs Rhonda B. Levy and Sari Springer

On May 4, 2017, the federal government enacted the Genetic Non-Discrimination Act (GNDA).1 On July 10, 2020 in Reference re Genetic Non-Discrimination Act (Reference),2 the Supreme Court of Canada (SCC) rendered a split decision (5-4) holding that specific sections of the GNDA were constitutional because they were within the jurisdiction of Parliament over criminal law. Therefore, federally-regulated employers should note that the disputed sections of the GNDA continue to apply to them; employers will be committing a criminal offence and subject to the GNDA's criminal sanctions if they use or demand genetic testing, or the results of genetic testing as a condition of employment, or discriminate based on a refusal to provide consent.

Background

The purpose of the GNDA is to eliminate discrimination based on genetic characteristics. The statute attempts to achieve this in three distinct ways:

1. It establishes a prohibition against requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to that individual entering into or continuing a contract or agreement with that individual, or offering specific conditions in a contract or agreement with that individual.3 Violation of this prohibition is a criminal offence punishable by a maximum fine of $1,000,000, or imprisonment of up to five years.4

2. It adds new provisions relating to genetic testing to the Canada Labour Code (CLC).5 They include:

  • A provision that prohibits employers from requiring employees to undergo or disclose a "genetic test." It defines a "genetic test" as "a test that analyzes the employee's DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis."
  • A provision that prohibits employers from taking any disciplinary action against an employee because the employee refused to undergo a genetic test, disclose the results of a genetic test, or on the basis of the results of a genetic test.
  • A provision that prohibits employers from collecting or using the results of a genetic test without the written consent of the employee.
  • A provision that prohibits third parties from disclosing the results or existence of a genetic test to an employer without the employee's written consent.

3. It adds a new ground of discrimination, "genetic characteristics," to the Canadian Human Rights Act (CHRA).6 The CHRA does not define "genetic...

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