I have found a good article describing Genetic Discrimination. This information is going to be very important to anyone who is experiencing a loss of employment in Canada due to any request from their employer into their vaccination passport.
Employers should be mindful of a newly recognized form of discrimination that has captured the attention of legislators and the Canadian public: genetic discrimination.
With companies like 23andMe, genetic testing has become increasingly popular in recent years. Genetic tests may confirm a diagnosis, indicate that a person is a carrier of a particular genetic mutation, or identify an increased risk of developing a certain disease. While this genetic information can help individuals make informed decisions about their health and take preventative action, there is some concern that this information may be used by employers to the disadvantage of individuals. Might it be used to refuse to hire someone, deny a promotion, or terminate an employee?
This seems like a practical approach, to have a privacy standard for genetic testing data in the big data world we live in. Just as social media is not used as a reliable source of information on potential employees, neither should their medical history be considered a factor in their employment application. There is always a question during the application if you have a medical condition that would prevent you from performing at your job, and that would be sufficient as a yes or no answer to hire someone if they didn't feel their condition would prevent them from performing at their job.
The federal government was the first to enact legislation in response to such concerns. And a bill is now before the Ontario Legislature that would prohibit employers from discriminating against employees on the basis of their genetic characteristics. The courts have also started to weigh in on the issue, in the context of the subjective component of discrimination, or "perceived disability".
Prohibitions on Genetic Discrimination for Federal Employers
In May 2017, the Canadian Human Rights Act was amended to prohibit discrimination based on genetic characteristics. Similarly, under the Canada Labor Code, employees cannot be forced to undergo a genetic test or to disclose the results of a genetic test.
The above information is going right to the core of the issues experienced by unvaccinated people. The PCR test was already in violation of this, the vaccine passport would be the most extreme example of this form of crime against human that I could imagine.
Proposed Amendments to the Ontario Human Rights Code
On October 3, 2018, Bill 40, Human Rights Code Amendment Act (Genetic Characteristics), 2018 was introduced in the Ontario Legislature. The private member's bill passed second reading and was referred to a Standing Committee of the Legislative Assembly on October 18, 2018. Bill 40 would amend the Ontario Human Rights Code to include genetic characteristics as a prohibited ground of discrimination and to provide that every person has a right to equal treatment without discrimination in employment because of genetic characteristics. It includes the right to equal treatment if a person refuses to undergo a genetic test or to disclose the results of a genetic test.
These amendments have been written into law as Bill 40 in the Legislative Assembly of Ontario.
Under Bill 40, "genetic characteristics" is defined broadly as the "genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease." The Bill contains an exemption for insurance contracts, which are permitted to make distinctions, exclusions, or preferences on reasonable and bona fide grounds because of genetic characteristics.
This is not the first time Ontario has introduced legislation to prohibit genetic discrimination. Bill 164 would have amended the Human Rights Code to include four new grounds of discrimination, including genetic characteristics. However, it never became law before the previous Legislature dissolved. Bill 164 was reintroduced on September 26, 2018 as Bill 35. However, Bill 35 is a private member's bill, not introduced by a member of the majority government; as a result, it is unlikely to become law. While Bill 40 is also a private member's bill, it was introduced by a member of the governing party, the Progressive Conservatives, meaning it may have a greater chance of being enacted.
Now that Bill 40 is Law in Ontario, it would also mean that its illegal for the Canadian House of Commons to Enforce or mandate this policy to the rest of Canadians. This large scale legal struggle goes far beyond the everyday person, so remember that the most significant information as an individual to pull from all this, is your right to be free from discrimination in the workplace.
Customers and patrons of businesses can also enact this claim if they are being discriminated against. If you are making a claim, you can also notify the Better Business Bureau. The Better Business Bureau has an extensive policy on Vaccine Mandates that are non-partisan and very strict for employers. I will link that in the resources at the bottom.
Relevant Case Law
Even without express prohibitions, human rights laws might already be interpreted to include protection against genetic discrimination, under existing grounds of discrimination. This is because many Canadian provinces recognize perceived disability in their human rights statutes. Certain genetic characteristics could be understood as a form of perceived disability.
Human rights tribunals and Canadian courts have also clearly recognized the subjective component of disability. For example, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, three individuals were either denied employment or dismissed as a result of having been tested for medical conditions that had not actually developed into any concrete physical limitation that impeded their ability to perform their jobs. Two of these individuals had spinal anomalies, while the other had asymptomatic Crohn's disease. The Supreme Court of Canada found that these anomalies could be considered a "handicap" within the meaning of Quebec's Charter of Human Rights and Freedoms because of the subjective component of disability. Notably, the Court commented that an overly narrow definition of "handicap" would not serve the purpose of the Charter "[g]iven both the rapid advances in biomedical technology, and more specifically in genetics." This decision may provide a precedent for future tribunals considering claims of genetic discrimination.
Why Should Employers Take Note?
While it may not yet arise often in the workplace, genetic testing is likely to become increasingly relevant to employers as it becomes more common. There are two main reasons. First, given that the Canadian Human Rights Act has already been amended to prohibit discrimination based on genetic characteristics, we expect that some provinces and territories may follow and table similar legislation. Second, this is likely to be an area that is ripe for further development in human rights case law.
Employers should be aware of the emerging concept of genetic discrimination. We will be keeping a close eye on further developments, including Ontario's Bill 40.
Resources
Canadian Human Rights Act: https://laws-lois.justice.gc.ca/eng/acts/h-6/fulltext.html
Genetic Characteristics: A Developing Ground Of Discrimination
Labor, Employment and Human Rights Bulletin (Rachel Devon): https://www.mondaq.com/canada/discrimination-disability-sexual-harassment/787154/genetic-characteristics-a-developing-ground-of-discrimination
Legislative Assembly of Ontario Bill 40: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-40
BBB Tips for Business Owners with a Vax Pass: https://www.nbc15.com/2021/09/03/considering-vaccine-passports-bbb-has-tips-business-owners/