A recent private member's bill introduced by a Liberal MPP in
the Ontario legislature would add "genetic
characteristics" as a prohibited ground of discrimination to
the Ontario Human Rights Code (the Code). As
currently drafted, "genetic characteristics" would be
defined as "genetic traits of an individual, including
traits that may cause or increase the risk to develop a disorder or
The definition is extremely broad and could lead to
some odd and frivolous human rights complaints. For
example, an applicant for employment could conceivably claim
that he/she was denied a job because his/her curly hair was a
genetic trait. Or an employee could claim harassment based on
a co-worker's alleged "vexatious comment or conduct"
about the employee's hair colour.
To avoid this type of result, the bill will have to be
studied and, hopefully, amended in committee so that its
application is narrowed. One suggestion may very well
be that the definition of "genetic characteristics"
should be limited to genetic traits known to increase the risk of
developing a disease (i.e., the second part of the current
The bill also protects individuals from discrimination if they
refuse to undergo or disclose the results of a genetic
test. It seems that a much stronger case can be made for this
type of provision to be included in the Code instead of a
blanket prohibition on discrimination in employment based on
"genetic characteristics" (or, at least, how it is
currently defined). Indeed, this seems to be the real intent
of the bill, given the MPP's statement during first
In essence, this bill would prevent employers and insurance
companies from discriminating against Ontarians on the basis of
This will be an interesting development to watch. I expect
that, because it is not a government bill, it will either gain
little traction or be altered in the committee process.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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