The Generative Brain

Genetic Non-Discrimination Act of Canada (2017)

The Genetic Non-Discrimination Act (S.C. 2017, c. 3), assented on 4 May 2017, makes it a federal offence to require a genetic test or disclosure of results as a condition of goods, services or contracts, or to collect, use or disclose results without written consent in those settings. It is not limited by its terms to insurers or to any sum insured. It also amended the Canada Labour Code and the Canadian Human Rights Act. Quebec challenged it, and on 10 July 2020 the Supreme Court of Canada upheld it 5 to 4 as valid criminal law. Description of the text only; not legal or insurance advice.

Key facts

  • A genetic test means a test analysing DNA, RNA or chromosomes for purposes such as predicting disease or vertical transmission risk, or for monitoring, diagnosis or prognosis.
  • Section 3 bars requiring a genetic test as a condition of providing goods or services, entering or continuing a contract, or offering or keeping particular terms, and bars refusing these because someone declined a test.
  • Section 4 applies the same bar to requiring disclosure of results, and to refusing because someone declined to disclose.
  • Section 5 bars collecting, using or disclosing a person's results without written consent when doing those things.
  • Exclusion: sections 3 to 5 do not apply to physicians, pharmacists and other health care practitioners for people they are serving, or to researchers for research participants.
  • Penalties: on indictment a fine up to 1,000,000 dollars, up to five years in prison, or both; on summary conviction up to 300,000 dollars, up to twelve months, or both.
  • The Canada Labour Code amendment gives employees the right to refuse a test or disclosure, bars penalties for refusing or based on results, and allows a complaint within 90 days.
  • The Canadian Human Rights Act lists genetic characteristics as a prohibited ground and deems discrimination for refusing a test or disclosure to be on that ground.
  • The Supreme Court majority held Parliament could make the rules as criminal law, though its five judges split on the main purpose; the four dissenters saw them as concerning contracts.
  • The Court's summary gives life insurance as an example of what the rules touch: an insurer could not require a test to obtain cover.
  • Before the Act, the CLHIA code of 2014 ruled out required testing and results of anyone other than the person insured, and a 2017 change, effective 1 January 2018, stopped requests for new applications up to 250,000 dollars.
  • Commentary says applicants must still disclose material facts such as medical history, and that reports relying on genetic tests may be hard for underwriters. This is law firm opinion.
  • A 2024 FACETS study excerpt says family history questions remain on life insurance forms; the study was not opened.

Timeline

  1. 2014CLHIA adopts its industry code on genetic testing.
  2. 2016Bill S-201 passes the Senate.
  3. 2017CLHIA announces the 250,000 dollar commitment, effective 1 January 2018.
  4. 2017Act receives assent.
  5. 2020Supreme Court upholds the Act, 2020 SCC 17.
  6. 2020Commentary on implications for insurers published.
  7. 2026Consolidated text current to this date.
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