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The Court of Appeal's decision does not invalidate the
impugned provisions, but is rather a legal opinion on their
interpretation, and the basis for a potential challenge. The
disputed sections are still in force and remain applicable.
Individuals and entities therefore remain subject to the
Act and the sanctions set out therein.
The origins of the contestation
Recall that in 2017, the Government of Quebec, by Order in
Council, asked the Quebec Court of Appeal to rule on the
constitutional validity of sections 1 to 7 of the Act, by
way of referral. Unusually, the federal government announced that
it would support the Quebec government on this issue.
In the field of insurance, the issue is specifically focused on
section 3 of the Act, which prohibits requiring an
individual to undergo a genetic test as a condition of entering
into a contract. This provision also prohibits refusing to enter
into a contract with an individual on the grounds that the
individual has refused to undergo a genetic test. Contravening this
provision is a criminal offence punishable by a maximum fine of
$1,000,000 and a maximum term of imprisonment of five years.
This provision therefore has the potential to affect the policy
underwriting model in insurance of persons, particularly life
insurance, where underwriting standards may require genetic testing
in order to properly assess the risk.
Insurance contracts are based on the assessment of risk by the
insurer
The Court of Appeal reiterated and reaffirmed the principle that
insurance contracts are based on the assessment of risk by the
insurer. Indeed, the Civil Code of Québec provides
that insureds are generally bound to represent the information
likely to materially influence an insurer in the appraisal of the
risk, the decision to cover it and the setting of the premium
(arts. 2408 and 2409). Insurers are authorized to take into account certain factors
specific to the insured person, including medical information, when
such information provides a comprehensive risk assessment in
accordance with accepted actuarial methods. The prerogative to
legislate in this area falls exclusively to the provinces as a
result of their jurisdiction over private law.
Moreover, the Court of Appeal noted that impugned sections 1 to
7 of the Act do not have the effect of prohibiting genetic
discrimination, but rather prohibit requiring an individual to
undergo or disclose the results of a genetic test as a condition of
entering into a contract. Such a prohibition, enacted to promote
the health of individuals, is not a criminal law object under
federal jurisdiction. The Court therefore found that Parliament
exceeded its jurisdiction and encroached upon the exclusive
provincial jurisdiction over private law. It should also be noted
that by this judgment, the Court of Appeal reaffirmed the principle
that an insurer is entitled to a level of knowledge similar to that
of the insured in regard to information relevant to the appraisal
of the risk that it is planning to underwrite.
When it referred the issue to the Court of Appeal, the former
Quebec government announced that it wanted to present its own law
governing genetic discrimination. No bill has been introduced to
date, and the new government has not yet taken a position on the
issue.
Meanwhile, the Canadian Coalition for Genetic Fairness has
brought an appeal as of right of the decision rendered
in the reference. It will be up to the highest court in the land to
decide.
Until then, we will have to monitor how the Genetic
Non-Discrimination Act will be applied. So far, no case
applying the Act has been identified before the Canadian
courts, and no challenge based on the reference has been
announced.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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