Canadian Genetic Testing Law to Face Constitutional Review

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By Peter Menyasz

The Canadian government intends to challenge the constitutionality of a new law prohibiting companies from requiring genetic testing or disclosing test results, a government official told Bloomberg BNA May 8.

The Act to Prohibit and Prevent Genetic Discrimination, which took effect May 4 when it received royal assent after passage by the Canadian Parliament, prohibits any person from requiring an individual to undergo genetic testing or disclose the results of a genetic test as a condition of providing goods or services or entering into or continuing a contract or agreement. The law sets top fines of up to C$1 million ($730,000) and/or jail terms of up to five years for the most serious violations.

The law is immediately enforceable. Regardless of the pending constitutional challenge, companies doing business in Canada, particularly insurers, that rely on genetic testing should check their policies and procedures.

The law adds genetic information to the list of protected data under the Privacy Act and the Personal Information Protection and Electronic Documents Act. It amends the Canada Labour Code to protect workers in federally regulated industries, such telecommunications, banking and transportation. The law also amends the Canadian Human Rights Act to add genetic characteristics as a prohibited basis for employment, housing and provision of goods or services discrimination.

The new law technically applies to Canadian employers, prohibiting them from requiring employees to undergo genetic tests or disclose test results, Eloise Gratton, a privacy partner with Borden Ladner Gervais in Montreal and national co-leader of the firm’s Privacy and Data Security Law Group, told Bloomberg BNA May 8. However, it will likely only affect the insurance industry’s relationship with its customers as, to date, no employers have wanted to request such tests or refused to hire or planned to dismiss employees based on genetic information, Gratton said.

The legislation’s broad scope, and the lack of a transition period before taking effect, will increase administrative costs for insurance companies, and the loss of access to genetic testing information means higher costs that will be passed along to consumers, insurance industry officials said.

Government Concerns

Prime Minister Justin Trudeau’s government respects the will of Parliament in adopting the legislation, a spokeswoman for federal Justice Minister Judy Wilson-Raybould said May 8. But the government intends to ask the Supreme Court of Canada to review whether the law’s provisions are constitutional.

In a November 2016 appearance before the House of Commons Justice and Human Rights Committee, Wilson-Raybould raised concerns the prohibitions could go beyond Parliament’s legislative jurisdiction. Regulation of contracts and provision of goods and services normally fall under provincial jurisdiction, she said.

Canada doesn’t generally use criminal law prosecutions and penalties to address cases of discrimination, so the legislation could potentially compromise parallel discrimination complaints filed under federal or provincial human rights laws, Wilson-Raybould said.

Kathleen Davis, the minister’s press secretary, told Bloomberg BNA that “preventing discrimination and other forms of misuse of genetic information is a duty of all governments.” But the government still will refer the “question of the bill’s constitutionality to the Supreme Court of Canada for determination.”

In 2008, the U.S. set limits on the use of genetic testing data in the Genetic Information Nondiscrimination Act.

Insurance Industry Costs

Civil rights groups supported the new law. But the insurance industry opposed the legislation in favor of its self-regulatory approach.

The law will impose a significant burden on insurance companies, as it is much broader than the voluntary code proposed by the industry in January 2017, Brent Mizzen, assistant vice president of underwriting and policy with the Canadian Life and Health Insurance Association, told Bloomberg BNA May 8. The voluntary code would have committed companies to not request or use genetic testing information for new life insurance applications up to C$250,000 ($182,500) after Jan. 1, 2018, Mizzen said.

The law will add compliance costs, though it’s impossible to estimate how much costs will rise due to significant differences in size and scope of the association’s more than 60 member companies, he said.

Estimates by the Canadian Institute of Actuaries suggest the new law could lead to increases in term life insurance premiums of up to 30 percent for men and up to 50 percent for women, he said.

To contact the reporter on this story: Peter Menyasz in Ottawa at correspondents@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

The text of the law is available at http://src.bna.com/oDT.

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