Law Times

Page 8 September 10, 2018 • Law timeS www.lawtimesnews.com Genetic discrimination unclear in provincial law BY MEAGAN GILLMORE For Law Times C anadians continue to need greater protection against discrimination on the basis of genetic characteristics, lawyers say. Bill 164, which would have added discrimination on the basis of genetic characteristics to the list of prohibited grounds in Ontario's Human Rights Code, passed second reading last fall. But it never became law before the Liberal government dis- solved. "I think it's unfortunate," says Peter Engelmann, a partner at Goldblatt Partners LLP in Ot- tawa, who practises labour and human rights law. "The purpose of the bill was to explicitly recog- nize the possibility of discrimi- nation based on genetic testing." The bill said people could not be discriminated against because they refuse to undergo a genetic test, disclose the results of their genetic tests or authorize someone else to disclose these results. If passed, the bill would have had a large impact on the insur- ance industry, says Nicole Simes, an employment lawyer at Mac- Leod Law Firm in Toronto. Simes says she hasn't seen many instances of discrimina- tion on the basis of genetic char- acteristics in employment, but the proposed changes "would have really changed the human rights landscape when it comes to insurance." Bill 164 did not change the section of the Ontario Human Rights Code that allows insur- ance companies to provide dif- ferent rates to applicants because of someone's age, sex, marital status, family status or disabil- ity. This means, says Simes, that insurance companies would not be able to offer different rates to applicants because the results of a genetic test show they may de- velop a particular illness or dis- ability. "I don't see it being a big issue for workplace law," says Simes. "I think it's a much broader human rights issue and how it applies to insurance." The bill would have made Ontario's Human Rights Code more similar to the federal Hu- man Rights Act. Genetic dis- crimination was added as a pro- hibited grounds in the Canadian Human Rights Act when the Genetic Non-Discrimination Act was passed in May 2017. The law says it is a criminal offence to ask someone to undergo a genetic test as a condition of pro- viding them goods or services, entering into a contract with them or continuing a contract with them. The law says people cannot be required to disclose the results of a genetic test so they can receive goods, services or a contract. They also can't be refused goods, services or a con- tract because they decide not to have a genetic test or to disclose the results of that test. The act also changed the Canada Labour Code to protect federal employees and employ- ees in federally regulated indus- tries from discrimination on the basis of genetic characteristics. People can be fined up to $1 million and face up to five years in prison for disobeying the law, the act says. It's important to change more than just human rights codes, says Engelmann, who has heard doctors and researchers tell about how people have refused genetic testing because they're scared of being discriminated against on the basis of their test results. "It's woefully inadequate to simply have this in human rights legislation," he says. "That's not going to encourage people who are fearful about getting genetic testing and having to disclose it from getting that testing. It does provide some ability to get a remedy after the fact, but you've got to prosecute that on their own." The Genetic Non-Discrimi- nation Act is "innovative," says Bruce Ryder, a professor at Os- goode Hall Law School in To- ronto, who specializes in human rights law. The criminal prohibitions can result in more systemic changes, he says. "We're used to dealing with a complaints-driven human rights process where people who have experienced discrimina- tion can file a complaint with the human rights commission or tribunal after they've experi- enced discrimination and they can ask for civil remedy," he says. "It's a case-by-case complaints- driven model that doesn't nec- essarily accomplish systemic results." A complaints-based system "doesn't really change the world more broadly," he says. "It pun- ishes individual wrongdoing. It seeks to redress the consequenc- es of individual wrongdoing." The act has its critics, how- ever. It has been referred to Quebec's Court of Appeal, says Ryder. Quebec, he says, is con- cerned that the federal, criminal prohibitions in the bill infringe on provincial jurisdiction. The bill largely applies to employ- ment and insurance, and these are mainly provincial areas, he says. "It's true that it can be ad- dressed by the provinces, but it doesn't have to be addressed only by the provinces," says Ry- der. It's unclear yet if legislation will again be introduced in On- tario to add genetic characteris- tics to provincial human rights law. Stephanie Lewis, an employ- ment lawyer at Nelligan O'Brien Payne LLP in Ottawa, says dis- crimination in human rights cases can be difficult to prove. Lewis says she hopes the con- versations started by bill 164 will encourage broader discussions about human rights. "Often, it's a situation where things were fine, somebody finds out something related to a prohibited ground and things aren't fine," she says. "The causal link isn't necessarily stated out- right." LT Peter Engelmann says it's unfortunate that bill 164 never became law before the provincial Liberal gov- ernment dissolved. FOCUS FOCUS ON Human Rights Law This is more than a phone book. 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