Bill S-201,An Act to prohibit and prevent genetic
discrimination, is currently being reviewed and debated by
the Senate Standing Committee on Human Rights. If passed, this Bill
would impose quasi-criminal sanctions for genetic discrimination in
the workplace, meaning that employers could face significant
penalties in the future, including imprisonment. While the
principle behind this Bill is commendable, two problematic issues
should be considered.
First, the Bill provides for a multiplicity of proceedings by
which an employee can seek both quasi-criminal recourse under the
Genetic Non-Discrimination Act, and civil recourse under
the current Canada Labour Code or the Canadian Human
Right Act. Such a wide array of legal avenues is worrisome, as
it may inadvertently undermine judicial efficiency and promote
duplicate litigation against employers. It should be noted that the
Supreme Court of Canada, in British Columbia v Malik, recently
cautioned against practices that encourage "duplicative
litigation, potential inconsistent results, undue costs and
Second, why should employers found to have committed genetic
discrimination face potential imprisonment when employers found to
have committed discrimination on the basis other prohibited
grounds, such as race, religion or mental illness, are not? Indeed,
imposing quasi-criminal sanctions for genetic discrimination may
unintentionally favour a hierarchy of rights by which one right is
deemed more important than another. This approach may be
problematic, as courts in Canada have historically held that there
should be no hierarchies of human rights. Legislation affording an
unequal protection against discrimination therefore has the
potential of creating serious concerns for both employers and legal
It is unclear whether Bill S-201 will find further support in
Parliament as the Government of Canada has yet to adopt an official
position on the issue. However, if passed, employers who use
genetic testing as a means to evaluate an employee's fitness
for a job and minimize related any health risks should be aware of
the current debate in the Senate, and the potential consequences
that may result.
Finally, employers must be mindful that even under existing
human rights legislation, requiring employees to undergo genetic
testing and/or to provide the results of those tests may be a
violation of the law unless it is a bona fide occupational
Written with the assistance ofStéphane
Erickson, articling student in Ottawa.
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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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