The Canadian Parliament now has the power to apply federal Bill S-201 on genetic non-discrimination, the Supreme Court of Canada ruled in a judgment handed down on July 22, 2020. This law stipulates that a person cannot be required to undergo a genetic test or to share the test results as a necessary condition for obtaining a good or service.

The law also prohibits insurers from collecting, using, or disclosing results without written informed consent from the insured.

Insurers that violate this law could face a maximum fine of $1 million or imprisonment for up to five years, the law firm McMillan states in an article that appeared on the information consolidation platform Mondaq.

Reversing a decision by the Québec Court of Appeal

This ruling overturns the Québec Court of Appeal decision that caps a saga that began on May 4, 2017 when the draft bill proposed by the Liberal Party of Canada obtained Royal assent. Former Justice Minister Jody Wilson-Raybould said the government wanted to ask the Supreme Court to determine the constitutionality of the legislation.

Even before the approval of S-201, the industry had begun preparing. In January 2017, the Canadian Life and Health Insurance Association (CLHIA) made a commitment on its members behalf not to request or use information issuing from genetic tests for life insurance applications up to $250,000.

In January 2019, the Québec Court of Appeal found seven articles of this law unconstitutional. Its stance was backed by CLHIA-Québec.

The Québec Court of Appeal maintained that the choice of risk assessment factors and of types of information that an insurer may require in order to evaluate insured’s risk have always fallen under inclusive provincial jurisdiction. Further, the Court of Appeal found that S-201 represented an attempt by the Parliament of Canada to use criminal law to meddle in the areas of jurisdiction of the Québec government, the law firm explains.

Insurance premium hikes

The Supreme Court rejected the arguments of the Québec Court of Appeal on the preponderance of provincial jurisdiction. McMillan points out that the highest court in the country recognizes that its decision may effectively increase insurance premiums for all. .

Because insurers cannot tailor premiums based on the results of genetic tests, they may end up insuring higher risk individuals than they would otherwise, the article explains. “This may in turn result in accessibility concerns for those with limited financial means, no matter how healthy,” the authors point out.

Fear of taking tests

However, not applying the law would have other perverse effects. Writing for the majority, judge Andromache Karakatsanis noted that the law notably aims to prevent cases where Canadians would avoid taking a genetic test out of fear of discrimination following an unfavourable result. This includes a finding by an insurer that an individual or a family member is uninsurable, McMillan continues.

The article adds that testimony before the Standing Committee on Justice and Human Rights revealed that more than a third families with severely ill children asked to participate in a genetic test declined due to fear of discrimination.