This is page numbers 5679 - 5712 of the Hansard for the 18th Assembly, 3rd Session. The original version can be accessed on the Legislative Assembly's website or by contacting the Legislative Assembly Library. The word of the day was going. View the webstream of the day's session.

Topics

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I appreciate the deputy minister telling me about the concerns of the insurance industry, but there's no evidence, then, that this has caused any market disruption by including genetic characteristics as a prohibited ground in the federal legislation. I just wanted to establish that.

My next question is about, and I did read one of the documents that my honourable colleague from Kam Lake tabled from the Office of the Privacy Commissioner of Canada. It's called the Potential Economic Impact of a Ban on the Use of Genetic Information for Life and Health Insurance. It's a very helpful document, because it helped me understand this a little bit better. There's this concept of adverse selection, where the insurance industry has this concern that, if somebody finds out they have a genetic disorder, they become more likely to buy insurance if they can afford it, I guess, in the first place, which just seems rather bizarre to me. The paper from the Office of the Privacy Commissioner of Canada does say that, in their view, this is not an issue, at least now, because a lot of people have not had genetic testing. This may be something that might require a change or review in the future, once people understand, if they have genetic characteristics, that might lead them to have medical disorders in the future. Has the department reviewed this paper by the Office of the Privacy Commissioner, and do they agree with its findings? Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. Aitken.

Aitken

Thank you, Mr. Chair. Yes, I have reviewed the paper. In fact, I asked the Canadian Life and Health Insurance Association about the paper when we had our first call. They indicated first that they didn't agree with the conclusions about adverse selection. The second thing they said is that their concern is not so much with genetic testing, but is with the much broader area of family medical history. They feel that adverse selection would, in fact, be a factor, though, for both genetic testing and family medical history. They didn't agree with the paper. Thank you.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. The conclusion, as I read it in the report, is we conclude that, for the present or near future, near-term future, a ban on such information would likely have no significant negative implications for insurers or for the efficient operation of markets such as life insurance. That says it all to me, Mr. Chair.

I just have one other sort of general question. This notion of adverse selection, how does something like no-fault insurance work for auto insurance in BC in terms of people's driving records and so on? I know it's a state-run system, but they seem to have overcome that through no-fault insurance, and it hasn't collapsed. Why is this adverse selection something that our government, the department, seems to have adopted and is driving the position that Cabinet is going to take on whether genetic diversity should be included as a prohibited ground in the first place? Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Minister.

Louis Sebert

Louis Sebert Thebacha

Yes. Of course, the insurance situation in British Columbia is a state-run insurance. As I say, the concern of the industry is that someone might find out this genetic component, and then decide to load up on insurance. It's quite different than insurance involving automobiles, I would say, because you don't have your crash first, and then go and get insurance. I think it's a different situation. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I appreciate the Minister's answer on that one, and I don't think I have anything further other than to say I haven't heard any clear evidence that the insurance industry is going to vacate the market here in the Northwest Territories, so I don't know why the Cabinet is so worked up about this and does not want it included in the bill. Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you, Mr. O'Reilly. Further to general comments? Seeing none, does committee agree that we move into a clause-by-clause review of the bill?

Some Hon. Members

Agreed.

The Chair

The Chair R.J. Simpson

Thank you, committee. I will call out each clause, and if committee agrees, please respond accordingly. If any Members wish to move motions, please raise your hands high. I'm not a mind reader, so I don't want to miss any motions if any are to be made. Please turn to page 1 of the bill, and I will begin calling clause. Clause 1.

Some Hon. Members

Agreed.

The Chair

The Chair R.J. Simpson

Thank you, committee. Clause 2. Mr. Testart.

Kieron Testart

Kieron Testart Kam Lake

Thank you, Mr. Chair. I move that clause 2 of Bill 30 be renumbered as subclause 2(1), and the following be added after that renumbered subclause: (2) the second recital of the preamble is amended by adding "genetic characteristics" after "disability". Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you, Mr. Testart. There is a motion on the floor and it is being distributed. Is there an extra copy of the motion? The motion is in order. To the motion. Mr. Testart.

Kieron Testart

Kieron Testart Kam Lake

Thank you, Mr. Chair. This amendment amends the preamble to the act to address genetic characteristics as a prohibited grounds. It is not a substantive clause, as it is a perambulatory clause. However, any subsequent amendments to address this issue are going to require it. I will speak to just the general principles of why banning genetic discrimination is a fundamental concern that has been raised over the course of standing committee's review of the bill and has been discussed and debated closely by Members.

As the Minister noted in his opening comments, the Human Rights Commission undertook a comprehensive review of the NWT's Human Rights Act in 2014 on the 10th anniversary of the act's coming into force. That review, concluded in 2015, recommended that the act be amended to include a prohibition against discrimination on the basis of genetic characteristics.

With the commercialization and sale of home DNA test kits by companies such as 23andme, more and more people are undertaking genetic testing to learn more about their genetic heritage. The Human Rights Commission noted in its 2013-2014 annual report that genetic discrimination is an emerging area of concern regarding the treatment of individuals based on genetic characteristics. They noted that there is a concern that many people may be at risk of having their genetic information used against them. This is causing people to refuse to undertake genetic testing when recommended by their doctors for fear that they may face discrimination from a prospective employer or insurance company.

The Human Rights Commission stated that the NWT was once seen as the forefront of human rights protections, and they would like to see it continue to play a leading role. This was communicated to the honourable Minister of Justice in a letter by the NWT Human Rights Chair, Mr. Charles Dent, dated June 24, 2016. The GNWT opted not to conclude genetic characteristics as a prohibited ground of discrimination in Bill 30.

Since the Human Rights Commission's comprehensive review was completed, Canada became the last G7 nation to prohibit discrimination on the basis of genetic characteristics. Federally, Bill S-201, the Genetic Non-discrimination Act, creates criminal offences, as we have heard, for requiring a person to undergo or disclose the results of a genetic test in order to obtain goods or services or to enter an agreement. It also added genetic characteristics as a prohibited ground in the Human Rights Act.

GINA, the United States' Genetic Information Non-discrimination Act of 2008, is a United States Act of Congress designed to prohibit genetic discrimination in health insurance and employment. It prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future, and it bars employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions. Senator Ted Kennedy called it the first major new civil rights bill of the new century.

As the committee's review of the bill was drawing to a close, as we learned at the top of this committee hearing, the Minister shared a letter with standing committee expressing the concerns of the Canadian Life and Health Insurance Association. What we have gotten through questions with the Minister is that this letter was solicited and perhaps driven by concerns raised by the Supreme Court challenge through the Quebec Court of Appeal.

However, it is concerning to me that the genetic advocacy groups were seen as somewhat of an afterthought in consultation on this bill. Again, this section was not added to the bill that was brought before committee, and this letter that was brought forward was after the bill had already been through the committee review process.

I acknowledge that there is a concern, and when you are treading new ground, there are often people who will have to adapt to those circumstances. However, there has been substantial study done on this issue by both the Senate of Canada, the federal Information and Privacy Commissioner, and other industry and advocacy groups, who have presented no compelling evidence that it will adversely affect the provision of insurance in a jurisdiction, the rates of premiums, or any other substantive matter that would impact the ability for Northerners to obtain health insurance or other forms of insurance.

The hypothetical that was posited by the Minister just recently about an individual who was diagnosed with, let's say, Huntington's Disease, and then decided to buy 30 insurance policies and not be allowed to be knocked of that because of a genetic condition, I think, is a long shot. I think that people who are diagnosed with chronic medical diseases have a lot more to worry about than exploiting the insurance system for personal gain, and I think that that should not be the basis for this concern. I think that the basis for this concern should be relying on what we heard from the public, and when standing committee went on the road and consulted with Northerners directly, the question was put to all of those who attended, whether this bill should ban genetic discrimination, and it was universally thought that that should take place, in a small community like Fort McPherson to our hearings in Yellowknife.

This is something that I believe is strongly supported by the public. This is much talk about pre-existing conditions and how they adversely impact health and wellness and put unnecessary financial strain on citizens, not just American citizens, where it is a much larger concern, but also Canadian citizens and Northerners, as well. I think that, if we can do anything to alleviate those concerns, to ensure that people are not discriminated against for genetics, especially after we have come so far with technology in making genetic testing and genetic information easily discernible and available, this is going to be an increasing resource. Companies are going to use it to understand their consumers; individuals are going to use it to understand their own health and wellness; and governments are going to use it to understand their citizens. The Chinese government is already undertaking a massive genetic cataloguing of its citizens, and of course, they do not have the same kind of human rights protections that we have in this country.

I think that we should, again, return to our leadership role in this country and show that we are progressive, we are ready to lead on this issue, and we will stand up for what our citizens deserve, which is to have their genetic characteristics prohibited from discrimination.

When you look at the fact that the rest of the G7 world has ensured these protections are in place; United States, United Kingdom, Germany, France. These are leading nations, and the fact that Canada is only now just getting on board, and we have provincial governments concerned around it encroaching on constitutional freedoms, well, we don't have to make those arguments, because we are not encroaching on our own freedoms. We can do this, and we can show Canada and the world that the North, again, is leading on public policy and making a difference in the lives of their citizens.

I encourage everyone to support this motion, so that we can get this started and ensure that genetic characteristics are a banned grounds of discrimination in the Human Rights Code. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you, Mr. Testart. To the motion. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I support much of what my colleague, the MLA for Kam Lake, said. He served as chair of the committee. Not a lot of us actually have a copy of the report in front of us. I just want to quote from one paragraph, Mr. Chair. This was to try to capture the views of NWT citizens on this issue.

"In each of the smaller communities to which the committee travelled, committee heard support for the inclusion of genetic characteristics as a prohibited ground of discrimination under the act. Mr. Mike Keizer, a Parks Canada employee from Fort Smith, expressed his support for prohibiting discrimination on the basis of genetic characteristics. So did Ms. Lauraine Armstrong, also of Fort Smith, who noted that the fear of being discriminated against might serve as a deterrent to some people getting genetic testing that could help improve their lives. Mr. Richard Nerysoo, of Fort McPherson, told the committee that prohibiting discrimination on the basis of genetic characteristics 'is a good thing to pursue,' but offered the view that prohibiting discrimination on the basis of an unrelated criminal charge or conviction could be more challenging to implement."

That is the paragraph, Mr. Chair, that I wanted to read. This is not the committee making this stuff up. This is what they heard from our citizens. I think that people have a choice here. Do we want to side with our citizens, or do we want to side with the insurance industry? Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you, Mr. O'Reilly. To the motion. Minister Sebert.

Louis Sebert

Louis Sebert Thebacha

Thank you, Mr. Chair. We completely understand the rationale for adding this new ground. While I will talk about insurance, our main concerns are not related to the interests of the insurance industry, but rather to the interests of our residents.

I have to say that, because this very major decision is being raised by a motion here in Committee of the Whole, there has been no opportunity to engage in meaningful consultation. What this motion proposes affects the interests of our residents and of the small insurance brokers and agents based in several of our communities. They likely know little or nothing about it.

It is an important point, because this is a very significant change to our human rights legislation and is, in no way, routine. You heard from the ADM about the jurisdiction that provinces and territories exercise in the area of insurance, and we note that none of them have enacted genetic characteristics as a prohibited ground.

It is not that there has been any lack of opportunity at the provincial or territorial level. Since 2016, every province and territory in Canada, except Newfoundland and Labrador, has amended their Human Rights Act or Code, and eight of them have dealt with their prohibited grounds. None of them have taken the leap proposed in this motion. There has to be a reason. If we proceed in the absence of others, it makes us vulnerable.

Since we have become aware of the issue, we have been doing what research we can, and we have consulted with both the Canadian Life and Health Insurance Association and with the Coalition for Genetic Fairness, an NGO advocating for the rights of Canadians who face genetic illnesses and conditions. What we have learned leaves us very concerned that adding genetic characteristics as a prohibited ground could dramatically affect the future ability of NWT residents to purchase life, health, or disability insurance. Again, our concern is related to the ability of our residents to obtain the insurance that they need.

Our research has shown that questions about personal health and family history are critical to the process by which insurance companies evaluate the premiums for a policy or decide whether to issue a policy at all. This risk evaluation process is called underwriting. The Northwest Territories is a very small market for insurance providers. We are not Ontario. Given that the questions asked of applicants for life, health, or disability insurance, or the information obtained from their doctors, are intended to ascertain genetic characteristics for the purpose of determining risk, it seems likely to place the insurance provider squarely in violation of the NWT Human Rights Act if it is amended as proposed in this motion. Given that individual insurance companies would either have to develop an entirely new process for underwriting insurance in the NWT market or they could often no longer offer their life, health, or disability insurance products in this jurisdiction.

Insurance companies are, by their nature, risk-adverse. Balancing the value of the business resulting from this very small market against the risks and costs, we fear that insurance companies would make an obvious business decision and perhaps walk away from this market. In the last sitting, I tabled a letter from the president of the Canadian Life and Health Insurance Association dated March 5th, and in carefully guarded language, it suggests this very prospect. The letter states that "if the Northwest Territories were to adopt such an approach, it could put the territory very much offside the prevailing market rules across Canada and could negatively affect accessibility to affordable insurance products to the residents of the Northwest Territories going forward."

If insurance companies do withdraw from the NWT market, it is not open to our residents to purchase life, health, or disability insurance in another jurisdiction. Insurance can only be issued by a company licensed in accordance with the laws of the jurisdiction of the applicant's residence, in this case, the NWT Insurance Act. Our residents would have no option to look elsewhere to buy insurance.

It is worth noting that this concern stretches beyond individual applicants seeking life, health, or disability insurance, but to those participating in group plans, such as employees in our public service. Our research has shown that some of the benefits now made available as supplemental options are based on the provision of individual information that might also be offside the amended Human Rights Act. For that reason, Cabinet will be opposing this motion. Thank you.

The Chair

The Chair Frederick Blake Jr.

Thank you, Minister Sebert. Next on the list, we have Mr. Vanthuyne.

Cory Vanthuyne

Cory Vanthuyne Yellowknife North

Thank you, Mr. Chairman. I think that Members from this side have spoken quite eloquently about this already, but one of the points that I have raised with the committee in the past in deliberations or discussions on this is that we are already very aware that early detection of genetic defects or propensity to illness is a benefit to an individual. Genetic testing, obviously, will enhance one's ability to gather and organize information that may predict a person's future potential or disabilities.

We struggle here in the territory with very challenging and difficult health situations. We have some of the poorest health stats in the country, especially as it relates to our Indigenous population. It is arguable that the Indigenous population in the North has a very limited genetic record versus, say, western or European societies or peoples, and the ability to access insurance, to me, is secondary to one knowing how one might direct their life choices in order to avoid the need to even have insurance in the first place if they are able to make better sound decisions in their life. It would sound better to me that advancing the health of our individuals and, therefore, our society is something that we would want to support. It seems clear to me, as well, Mr. Chair, that, when one knows their genetic makeup and their propensities to potential illnesses or defects, then they can build also a much stronger relationship with their doctor or doctors, therefore leading to better health outcomes. For those reasons, I will be in support. Thank you.

The Chair

The Chair Frederick Blake Jr.

Thank you, Mr. Vanthuyne. Next on the list, we have Mr. Simpson.