December 19, 2018

The Genetic Non-Discrimination Act: one year later, uncertainty prevails

Will the prohibition against consulting genetic tests prove to be a parenthesis in Canadian legislative history, or grounds for establishing similar provincial regimes?

Following its adoption, the Quebec government challenged the constitutionality of the Act.

The Genetic Non-Discrimination Act has never received universal support in Canada. It owes its existence to certain members of the governing party and all members of the opposition in Ottawa, who were able to get it passed last year. Another complication lies in the fact that certain Canadian provinces, including Quebec and Alberta, fought against its adoption, seeing it as an encroachment by the federal Parliament into the jurisdiction of the provincial legislatures over matters of private law.

Disagreement between the provincial and federal governments

As result of the Act, insurers are now prohibited from requesting the results of genetic tests when entering into contracts for the provision of insurance products. Following its adoption, the Quebec government challenged the constitutionality of the Act, except for the provisions clearly falling under federal jurisdiction, such as the provisions amending the Canadian Human Rights Act and the Canada Labour Code. Exceptionally, the federal government, which already considered the Act unconstitutional before its enactment, will not oppose the provinces in this dispute. In fact, Ottawa had promised to seek a ruling from the courts in this regard before Quebec filed its action in the Court of Appeal.

It appears that the provincial legislatures do not take issue with the provisions of the Act themselves, so much as with their encroachment into matters of exclusive provincial jurisdiction. Last June, Quebec announced upcoming measures to modernize the protection of genetic information.

Impact on the insurance industry

The issue remains unresolved for the insurance industry. Rates and underwriting are based on the pooling of risk among members of predefined groups. Given the impossibility of using information resulting from genetic tests to categorize insurance applicants, the entire group will be forced to bear such risk.

In early 2018, the industry undertook not to request or use information from genetic tests regarding applications for life insurance of $250,000 or less.

Questions from researchers

Meanwhile, Quebec researchers are now wondering whether there is widespread genetic discrimination, and whether the Act enacted to counter it is an effective solution. These same researchers are also pessimistic as to the effects the legislation has on those who wish to take out insurance.

In view of the federal government’s consent, the outcome of the legal challenge to the Act remains uncertain. Will the prohibition against consulting genetic tests prove to be a parenthesis in Canadian legislative history, or grounds for establishing similar provincial regimes? In the latter case, the impact on the insurance of persons will require re-examination.