Opposing COVID-19 Policy and Genetic Testing: How the Genetic Non-Discrimination Act Has Been Used Since 2020

Introduction

In 2020, the Supreme Court of Canada, to the surprise of many experts and scholars, confirmed the validity of the Genetic Non-Discrimination Act, 2017 (GNDA or “the Act”) in Reference re Genetic Non-Discrimination Act (Reference). Prior to this decision, the Act had received criticism which questioned its role or purpose. Specifically, critics questioned whether genetic discrimination existed (and if so, whether it would help prevent it) and whether the Act was redundant.

As the Act’s preamble outlines, its purpose is to prohibit and prevent genetic discrimination. Bill S-201, the Bill that established the Act, discussed prohibiting “any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual.” The Act allows individuals to control their personal genetic information through the requirement that their consent (s 5 GNDA) be obtained before any other person can collect, use, or disclose their genetic test results, including the presence or absence of a genetic disease. The Act also prevents forced genetic testing. Importantly, the Act prohibits companies and employers from requiring genetic testing or sharing the results of genetic tests (ss 3, 4 GNDA).

I reviewed all cases available on CanLII from the Reference decision (July 10, 2020) until the present that invoke the GNDA. I found five cases. Two cases, D’Amico v R, 2019 QCCA (D’Amico) and Klinck v Dorsay, 2021 ONSC (Klinck), use the GNDA in the way that might be expected: the GNDA is referred to when defining genetic testing. However, in the remaining  three decisions it has been used in applications to the Ontario Labour Relations Board (OLRB), where the applicant is contesting workplace COVID-19 vaccination and testing policies: Esther Klein-Brown v Elementary Teachers’ Federation of Ontario, 2022 (OLRB) (Klein-Brown); Judy Griffiths v CUPE, 2022 (OLRB) (Griffiths); and Rachel Blake v Ontario Nurses’ Association, 2022 (OLRB) (Blakes). In this piece, I explore these cases where applicants have used the GNDA and discuss how they have used the Act in their applications and arguments.

Varied uses of the GNDA

Contesting employer COVID-19 policies at the OLRB

The OLRB has heard only four applications that mention the GNDA, two of which were by the same applicant: Blake. Ms. Blake was given an opportunity to state why her first application should not be dismissed, and thus submitted to the OLRB a second time.  

In Klein-Brown, an elementary school imposed mandatory COVID-19 vaccinations, or regular COVID-19 testing for those who were not vaccinated, for their employees, including teachers. The school’s policy had to be followed for the employees to get paid. The same situation was seen in Griffiths, where employees (teachers) had to either submit full proof of vaccination or demonstrate that they had medical reasons for not being able to get vaccinated, in which case they had to get regular COVID-19 tests and submit the results to their employer: the school board.

In Blake, a nurse contested the hospital’s mandatory COVID-19 testing and vaccination policy and contested the Ontario Nursing Association (their trade union)’s refusal to challenge the policy. In all three cases, the applicants were employees who were subject to workplace COVID-19 policies. And, in all three cases, the employee’s applications to the OLRB contested the policies. They argued that the policies violated the GNDA because the Act prohibits employers from forcing employees to undergo genetic tests (i.e., COVID-19 antigen test), and prohibits employers from forcing employees to divulge the results from these tests to them.

The determination by the OLRB

All four applications were dismissed. In these instances, the applicants used the GNDA in their claim that their workplace COVID-19 policies were generally a violation of the Act. In both Klein-Brown and Griffiths, the applicants claimed that the Toronto District School Board and the Durham Catholic District School Board’s COVID-19 policies were in violation of the GNDA in general. In both cases, the applicants seem to claim that rapid antigen COVID-19 tests are genetic tests as defined in the GNDA (s 2).

In Blake, the applicant nurse pointed to the Act in a similar fashion, but specified that pursuant to the GNDA, “it was prohibited for any person to require individuals to undergo a genetic test as a condition of entering into or continuing a contract or agreement or continuing specific terms or conditions in a contract or agreement with that individual.”

The OLRB, in all cases, determined that the GNDA was inapplicable, though they did not need to go so far as to explain why. In Blake, the Board stated that they do not “intend to weigh in on whether such policies are a violation of the [GNDA].”  In Klein-Brown and Griffiths, the Board acknowledged the applicants’ use of the GNDA in their application, however, it did not go into further detail to disprove the use of the Act in the applicants’ claim.

Defining genetic testing with the Act

Outside of these OLRB applications, there have been two other uses of the GNDA. The Act was used in a criminal law context in Quebec in the D’Amico decision to define a genetic test. The court’s definition relies on the GNDA’s definition of “genetic test” in section 2.  In D’Amico, the defendant, who was being accused of multiple counts of sexual assault of sex workers, contested the warrant for DNA samples that were taken at the moment of his arrest. The defendant, in arguing a violation of his section 8 Charter right, used the GNDA to define genetic testing in his explanation of the appeal.

Another use of the GNDA is one that is more in line with what seems to be the purpose of the Act than in the aforementioned cases. In Klinck, the 7-year-old plaintiff, who was diagnosed with medical diseases at birth (hypoxic ischemic encephalopathy and meconium aspiration syndrome), pointed to sections 3, 4, 5, and 6 of the GNDA. It had been recommended that Klinck undergo genetic testing to determine whether he was born with his medical conditions and diseases or whether a later treatment caused them. Klinck opposed the genetic testing and used the Act to make his arguments. Interestingly, the provisions of the GNDA discussed in the case are not applicable to informing the scope of medical examinations that may be ordered in a private civil action.

What is interesting in this case is that even though the court concluded that the request for genetic testing was reasonable (i.e., dismissing the plaintiff’s claim), this is another use of the GNDA that seems to be in line with its purpose of protecting the genetic materials and personal information of individuals.

Key takeaways from these cases

An analysis of recent cases invoking the GNDA reveals that the Act is being used in a way that seems to directly contradict its purpose of protecting and promoting the health of vulnerable individuals with genetic disorders. In the first set of cases, the GNDA was used to avoid COVID-19 vaccination and testing. However, individuals with genetic disorders – the target protected group of the GNDA – may have a greater likelihood of contracting COVID-19. Thus, the attempt to use the GNDA to avoid the vaccine may indicate that the Act is being used in the exact opposite way than intended.

A second finding from this analysis is that courts have accepted the GNDA’s definition of genetic tests. This was evident both where the OLRB rejected applications and where the QCCA dismissed an appeal.

Finally, it is worth stating that despite several unsuccessful uses of the GNDA, there have been two strong uses of it in D’Amico and Klinck. In both cases, the Act was used in a relevant fashion to its purpose of protecting genetic information. This may be an exciting area moving forward, with the hopes that it is used as intended in future cases.

The common theme through all the discussed cases is that the court has not yet declared a policy or activity to be contrary to the GNDA. However, we are still in the early days of this Act, thus there has not yet been immense opportunity for individuals to use it in court. It seems likely that we will see more instances of people protecting the privacy of their genetic information and their right not to undergo a genetic test, and more analyses of whether what is being alleged to be a genetic test is in fact a genetic test. In the coming years, and with greater use, its value may be assessed further.