The Genetic Non-Discrimination Act and What an Insurer May Ask

An application for life insurance is a set of questions about health, and since 2017 one federal statute has drawn a line through the middle of that set. This page covers that line: what the Genetic Non-Discrimination Act forbids an insurer to require, what it leaves untouched, and what a Canadian applicant is still asked. It does not cover how an underwriter weighs what is disclosed, which is set out separately, and it does not cover what happens when an answer is false, which is also set out separately.

Everything below is general information written by a licensed insurance professional. Whether the Act reaches a particular question on a particular form, or whether a particular answer was owed, is a legal question, and legal questions belong to a lawyer or, in Quebec, to a notary with the file in front of them. Canadian Wealth Creation Centre Inc., trading as IBC Financial, is not authorized to give legal, tax or notarial advice and gives none here.

Can a life insurer ask for a genetic test in Canada?

No. Since 2017 the Genetic Non-Discrimination Act has made it an offence for any person, an insurer included, to require an individual to undergo a genetic test, or to disclose its results, as a condition of a contract. What the Act does not do is remove health from the application, and that is the part most often misstated.

The Act is federal, short, and written as criminal law rather than as insurance regulation. Sections 1 to 7 are the whole of its operative text; the remainder amends other statutes. It does not name insurers anywhere. It speaks of any person providing goods or services or entering a contract, and a life insurance contract is a contract, so an insurer is caught by the same words that catch an employer or a landlord.

Because it is criminal law, nothing about it depends on the province. Quebec's Civil Code governs the insurance contract itself, and the common law provinces govern theirs through their own Insurance Acts, but the prohibition on demanding a genetic test sits above all of them and applies in the same words from one end of the country to the other. How the Quebec contract otherwise behaves is on the Civil Code page.

The dishonest version of this page is the claim that an insurer is now blind to an applicant's health. That claim is false. The Act removes one category of information from what may be demanded. Everything else that an application has always asked, it still asks, and the sections below take the two halves in turn.

What does the Act count as a genetic test?

Section 2 of the Genetic Non-Discrimination Act defines a genetic test as a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis. The definition turns on what is analyzed, not on who ordered the test or why it was ordered.

That has two consequences worth reading slowly. The first is that the protection is not limited to predictive tests taken in good health. A test ordered by a physician to diagnose or monitor a condition that has already appeared is still a test that analyzes DNA, RNA or chromosomes, and its results are still the results of a genetic test within the definition.

The second is that the definition stops where the analysis stops. A blood pressure reading, a cholesterol panel, a scan, a biopsy read for cell shape, a family doctor's diagnosis reached from symptoms: none of these analyzes DNA, RNA or chromosomes, and none of them is a genetic test under section 2. The line is drawn around a laboratory method, not around the subject of heredity.

Section 2 also defines the word disclose to include authorizing disclosure. So an insurer that cannot require the results directly cannot get around section 4 by requiring the applicant to sign a form that authorizes a laboratory or a physician to send them instead. The two routes are closed by the same definition.

What exactly do sections 3, 4 and 5 prohibit?

Three things, in three sections. Section 3 prohibits requiring a genetic test as a condition of a contract. Section 4 prohibits requiring disclosure of the results of one. Section 5 prohibits collecting, using or disclosing results without written consent. Each is drafted around the same list of activities, and a life insurance application falls inside that list.

Subsection 3(1) provides that it is prohibited for any person to require an individual to undergo a genetic test as a condition of providing goods or services to that individual, entering into or continuing a contract or agreement with that individual, or offering or continuing specific terms or conditions in a contract or agreement with that individual. Subsection 3(2) closes the obvious side door: it is prohibited to refuse to engage in any of those activities on the grounds that the individual has refused to undergo a genetic test.

Section 4 does the same work for results already in existence. Subsection 4(1) prohibits requiring an individual to disclose the results of a genetic test as a condition of any activity described in paragraphs 3(1)(a) to (c), and subsection 4(2) prohibits refusing to engage in those activities because the individual refused to disclose. Read against an application form, the practical meaning is that a question demanding a genetic result may not be asked as a condition of coverage, and a blank answer may not be held against the applicant.

Section 5 is the one that reaches an insurer holding a result it did not demand. It provides that it is prohibited for any person engaged in one of those activities in respect of an individual to collect, use or disclose the results of a genetic test of the individual without the individual's written consent. A result that arrives inside a physician's file, obtained with consent for another purpose, is therefore not free for the insurer to use. Consent under section 5 is written, and it is the individual's.

Notice the phrase about offering or continuing specific terms or conditions in paragraph 3(1)(c). It means the prohibition is not only about whether coverage is issued. A rating, an exclusion or a premium set on condition of a test is caught in the same way as a refusal, because the terms of the contract are named in the section alongside the contract itself.

Who is exempt, and what does a breach cost?

Section 6 exempts two groups: a physician, a pharmacist or any other health care practitioner in respect of an individual to whom they are providing health services, and a person conducting medical, pharmaceutical or scientific research in respect of a participant. Section 7 makes a breach by anyone else an offence, with fines that reach one million dollars.

The exemptions are narrow and they are about health care, not about contracts. A physician can require a genetic test as part of treating a patient, because treatment is what section 6 protects. That physician's file may later be requested by an insurer with the applicant's consent, and this is where sections 5 and 6 meet: the physician was free to order the test, and the insurer is still not free to use the result without the applicant's written consent to that use.

Section 7 provides that every person who contravenes any of sections 3 to 5 is guilty of an offence and liable, on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years, or to both, and on summary conviction, to a fine not exceeding $300,000 or to imprisonment for a term not exceeding twelve months, or to both. Those are the amounts the statute prints, read on the review date at the foot of the page.

The size of those penalties is the reason the question of whether Parliament could enact the Act reached the courts at all. A federal statute that creates an offence carrying five years of imprisonment is criminal law or it is nothing, and whether Parliament could legislate this way over contracts, which are ordinarily provincial ground, is the question the next section records.

What did the Supreme Court of Canada decide?

The Court upheld the Act. In Reference re Genetic Non-Discrimination Act, 2020 SCC 17, decided on 10 July 2020, a majority of the Supreme Court of Canada held that sections 1 to 7 of the Act are a valid exercise of Parliament's criminal law power, reversing the Quebec Court of Appeal, which had found them unconstitutional.

The matter began as a reference by the Government of Quebec to that province's Court of Appeal, asking whether the operative sections were within federal jurisdiction. The Court of Appeal answered that they were not. The appeal to the Supreme Court of Canada was allowed by a majority of five judges to four, and the reasons of the majority arrived in two sets. They are not summarized here beyond the outcome, because a page about an application form is not the place to read a division of powers judgment, and the judgment is public.

What the outcome means for an applicant is simple and it does not depend on the reasons. Since 10 July 2020 there has been no live question about whether the prohibitions bind an insurer doing business in Quebec or anywhere else in Canada. They do. A reader in Quebec who was told, between 2017 and 2020, that the Act had been struck down in that province was told something that was true of the Court of Appeal's answer and is no longer true of the law.

The citation is given because it can be checked, and nothing on this page should be taken on the strength of this page. The Court publishes its judgments and a case in brief on its own site, and the file number is 38478.

What may an insurer still ask on an application?

Almost everything it asked before 2017. An application may ask about diagnosed conditions, symptoms, medications, treatment, hospital stays, height, weight, tobacco and alcohol, driving record, occupation, travel, and the health and causes of death of parents and siblings. None of these is a genetic test under section 2, and the Act does not touch them.

Family history deserves its own sentence because it is the question people expect the Act to have removed, and it has not. A question about whether a parent or sibling was diagnosed with heart disease, cancer, diabetes or a hereditary condition, and at what age, asks about a diagnosis in another person's medical history. It does not require anyone to undergo a test that analyzes DNA, RNA or chromosomes, and it does not require the applicant to disclose the results of such a test. It remains an ordinary underwriting question, and how it is weighed is on the underwriting page.

Medical records may still be requested with the applicant's consent, and an attending physician's statement remains a normal part of a larger application. The Act changes one thing about that file: a genetic result inside it may not be collected, used or disclosed by the insurer without written consent to that use, under section 5. An insurer's authorization form is drafted with that section in view, and an applicant who wants to know what the consent covers reads the form rather than this page.

The paramedical examination, where one is required, is unchanged in kind. Blood and urine are collected and analyzed for markers such as glucose, cholesterol, liver and kidney function, nicotine and certain infections. Those analyses are not analyses of DNA, RNA or chromosomes. What an examiner may not do is add a genetic test to the panel as a condition of the application, because that is exactly what section 3 prohibits.

What does the Act not change?

It does not stop underwriting on family history or on a diagnosis, and a person with a known condition is still rated or declined on that condition. The Act removes a demand for one kind of evidence. It does not remove the risk the evidence would have described, and an insurer may still price that risk from everything else.

The first limit is the one already stated: family history stays on the form. A person whose parent died young of a hereditary cardiac condition is asked about it, answers it, and is underwritten on it, with or without any genetic test in existence. The Act gives that person the right not to be tested and the right not to hand over a result. It gives no right to be treated as though the family history were absent.

The second limit is a diagnosis. A condition that has been diagnosed, whatever method produced the diagnosis, is a fact about the applicant's health, and it is asked about and answered. The Act does not convert a diagnosed condition into protected information because a laboratory somewhere confirmed it with a DNA test. The condition is disclosed as a condition; what is protected is the test result as a test result. Where that boundary falls on a particular file is a question for the insurer's counsel and for a lawyer, not for a page.

The third limit is the duty of disclosure, which the Act does not suspend. In Quebec the Civil Code requires an applicant to declare the facts known to them that are likely to influence an insurer materially in setting the premium, appraising the risk or deciding whether to cover it, and the common law provinces impose a comparable duty through their Insurance Acts. An applicant who answers a question about symptoms or a diagnosis falsely, on the theory that the underlying cause is genetic, has answered falsely. What follows from a false answer is on the misrepresentation page.

The fourth limit is that the Act is a shield and not a sword. It forbids a demand. It does not oblige an insurer to issue coverage, to issue it at any particular class, or to accept a favourable genetic result as a reason to improve an offer. Whether a result volunteered under section 5 changes anything is the insurer's decision under its own rules.

Can I volunteer a favourable result, and does it change the medical?

Yes, an applicant may volunteer a result, because section 5 permits collection and use with the individual's written consent, and the consent is the applicant's to give. Nothing in the Act requires an insurer to act on it. The application and the medical otherwise proceed as they always have, with the genetic question simply absent.

The mechanics of volunteering are the mechanics of section 5. The applicant provides the result and signs a consent to its collection and use for underwriting. The insurer may then consider it. Whether it does, and whether a negative result for a condition present in the family history improves the class offered, is not something the statute governs and is not something this page can promise. An applicant considering it asks the insurer in writing what it will do with the result before providing it.

For the application itself, the change is a removal rather than an addition. There is no question asking whether the applicant has had a genetic test, no question asking what it showed, and no consequence for leaving such a question blank if one appears on an older form. The health questions, the family history questions and the consent to obtain records are all still there. An applicant who arrives expecting a shorter conversation about health will find it the same length, minus one subject.

This applies to every individually underwritten contract, including a participating whole life insurance contract used under the strategy described on this site. The strategy is the Canadian application of the approach known as The Infinite Banking Concept®, originated by R. Nelson Nash; the mark belongs to Infinite Banking Concepts, LLC, with which this practice has no affiliation. A contract used for the strategy is underwritten like any other, its dividends are not guaranteed, and the Act governs its application in exactly the same words as it governs a term life insurance application.

What the strategy aims at, in this practice's own vocabulary, is Infinite Financial Sovereignty®, the state of holding the highest practical level of control over the capital-flow function in one's own affairs; underwriting is the door to that contract, and the Act decides one thing about the door, which is that a genetic test is not the key to it. How the contract is taxed once issued is a separate subject, set out here.

Who this suits, and who it does not

It suits a person who has been tested, or is considering testing, and assumes a life insurance application will demand the result. It suits a person with a family history of a hereditary condition who wants to know exactly which questions remain. It suits anybody in Quebec who heard, between 2017 and 2020, that the Act did not apply there.

It does not suit a person hoping the Act lets them leave a diagnosis or a symptom off an application, because it does not, and the misrepresentation page explains the cost. It does not suit a person expecting a favourable genetic result to entitle them to a better class, because the statute creates no such entitlement. And it does not suit anybody who needs to know whether a particular question on a particular form is lawful, because that is a lawyer's reading, not a page's.

Everything here is written by a person paid by commission from an insurer when a contract is issued, which is stated at the foot of every page. Insurance is insurance, it is not an investment, and a statutory limit on what may be asked is a rule about the application rather than a reason to make one. The mechanics of the application sit under underwriting, and every legal question raised here belongs to a lawyer or, in Quebec, to a notary.