Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Federal genetic non-discrimination legislation upheld

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

Is an employer in Canada permitted to fire an employee based on a genetic predisposition to develop a disability? Can an employer defend WCB claims based on genetic predispositions? Can an employer require employees to submit to genetic testing?

Can insurance companies deny insurance based on genetic test results?

In 2017, the federal government attempted to address such questions by passing the Genetic Non-Discrimination Act (GNDA). It prohibits forcing individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services or contracts. It also prohibits refusing access to goods, services or contracts because someone has refused to take a genetic test or refused to disclose the results of such a test. Genetic test results cannot be used in connection with providing goods and services without the individual’s written consent.

Doing anything prohibited as described above is an offence.

These prohibitions do not apply to a physician, pharmacist or other health care practitioner, or to a person conducting certain types of research.

The GNDA also amended the Canada Labour Code to protect employees from forced genetic testing or disclosure of test results, and from disciplinary action on the basis of genetic test results.

It also amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination.

A genetic test is defined as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.”

The Government of Quebec asked the courts to decide whether the prohibitions relating to goods, services and contracts were beyond the jurisdiction of Parliament over criminal law under s. 91(27) of the Constitution Act, 1867.

Quebec argued that the GNDA was unconstitutional because it attempted to regulate the use of genetic information by insurance companies and employers, which are areas of provincial jurisdiction.

In a 5:4 decision with two concurring judgments, the Supreme Court of Canada held that Parliament had the power to enact the GNDA under s. 91(27) of the Constitution Act, 1867.

Three judges focused on the importance of protecting autonomy, privacy and equality in public health. Two judges focused on health considerations.

The decision is consistent with numerous other Supreme Court of Canada decisions which reiterate the importance of individual autonomy and privacy. This is particularly so when it comes to information as intimate as our genetic makeup.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

If you would like to reach us, we may be reached through our website, at www.inspirelaw.ca.

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