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Focus: Need for genetic discrimination bills questioned

Focus on: Health & Life Sciences Law
Toronto employment lawyer has questioned the need for genetic discrimination protection as two bills on the issue pick up steam at Queen’s Park and Parliament in Ottawa.

In Ontario, bill 30, co-sponsored by Liberal MPP Mike Colle and his Progressive Conservative colleague Sylvia Jones, would add “genetic characteristics” to the list of prohibited grounds of discrimination under the province’s Human Rights Code. The act is currently being studied by the legislature’s justice policy standing committee.

Meanwhile, at the federal level, bill S-201, which is expected to receive Royal assent in the near future, would make similar amendments to the Canadian Human Rights Act and the Canada Labour Code.

But Lisa Cabel, a partner in the Toronto office of Norton Rose Fulbright Canada LLP, says the measures will have little impact on employers, since predisposition to a genetic condition could be considered a form of disability, an already-protected ground under the codes.  

“Therefore, workers are already protected under existing legislation,” she says, adding that employers should already “have policies or procedures in place with respect to employees or potential employees with disabilities.”

“From an employer/employee standpoint, these measures are largely unnecessary. There is very little evidence that this kind of discrimination exists,” Cabel adds.

In the U.S., where the Genetic Information NonDiscrimination Act has been in force since 2008, she says the law generates only a few hundred complaints every year across the nation, generally relating to the denial of basic health coverage.

“Since we have universal public health coverage in Canada, this is less of an issue,” Cabel says.

Until S-201 completes its legislative journey, Canada will remain the only G7 nation not to have taken action on the issue as genetic testing grows in popularity around the world.

“We’ve seen a number of jurisdictions respond to very vocal concerns from some groups about how the information will be used and attempting to protect people from misuse,” says Carole Piovesan, a litigator in the Toronto office of McCarthy Tétrault LLP. “What we have here seems to be a made-in-Canada take on the issue.”

Dara Jospé, a lawyer with a focus on life sciences regulation at Fasken Martineau DuMoulin LLP, says discussion about genetic discrimination in human rights legislation dates all the way back to the late 1990s, when former Supreme Court justice Gérard La Forest conducted a review of Canada’s federal human rights law. His final report recommended the definition of “disability” be expanded to include the predisposition to being disabled.

“Since then, we’ve had bill after bill in various provinces and at the federal level,” Jospé says. “It’s never been the right time or had enough support to go through, but this time it looks as though it will.”

Toronto health lawyer Omar Ha-Redeye says he welcomes the legislation, in the hope it will provide a potential boost to the development of individualized approaches to health care based on a patient’s genetic profile.

“We’re only just beginning to understand the complexity of the human genome, and it’s going to take us a couple of decades for us to fully get there. In the meantime, I would hate to see fallacious assumptions being made about genetic traits,” Ha-Redeye says.  

However, the federal bill has raised the hackles of the insurance industry because of extra provisions that contemplate criminal sanctions in the enforcement of the ban on genetic discrimination.

S-201 outlaws requirements that people undergo genetic testing or disclose the results of previous tests as a condition of employment or service provision. The unauthorized sharing of a person’s genetic results could also be met with criminal penalties under the law.

That prospect prompted Federal Justice Minister Jody Wilson-Raybould and Prime Minister Justin Trudeau to speak out against the bill when it came before the House of Commons.
Government amendments proposed in the lower chamber would have cut the bill back to focus on the addition of genetic characteristics as a prohibited ground in the CHRA, but they were defeated in a free vote, in favour of the tougher version that had earlier passed the Senate.

The federal government has since suggested it will send the legislation to the Supreme Court of Canada for a reference to settle the question of whether it violates the Constitution by using criminal law to regulate insurance companies, an area under provincial jurisdiction.  

The reference could be good news for the Canadian Life and Health Insurance Association Inc., whose membership accounts for 99 per cent of the industry in this country. Spokesman Stephen Frank said in a statement that the group was “extremely disappointed” when the House of Commons passed S-201 virtually unchanged from the version that exited the Senate.

“The industry agrees with the federal government’s position as expressed by the prime minister and the minister of Justice, as well as a number of provinces, that an important element of the bill is unconstitutional,” he said.

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