The Ontario Government recently put forth two bills to amend the Ontario Human Rights Code (“OHRC”). If enacted, both bills would expand the prohibited grounds of discrimination.

The OHRC’s list of prohibited grounds of discrimination currently includes race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status and disability.

Bill 40 – Human Rights Code Amendment Act (Genetic Characteristics), 2018

This bill’s main amendment adds “genetic characteristics” as a prohibited ground of discrimination with respect to employment and membership in various types of organizations, services, goods and facilities, the occupancy of accommodation and the right to contract.

The proposed definition of ‘genetic characteristics’ is: the genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease.

This new prohibited ground would include the right to equal treatment if a person refuses to undergo or disclose the results of a genetic test. There would be an exception for insurance contracts, wherein the contract could differentiate based on reasonable bona fide grounds due to a genetic characteristic.

Bill 40 has passed second reading and was referred to the Standing Committee on the Legislative Assembly – meaning Bill 40 is close to becoming law.

Bill 35 – Human Rights Code Amendment Act, 2018

Bill 35 is more robust than Bill 40. Bill 35 proposes to add four prohibited grounds of discrimination to the list – genetic characteristics, immigration status, police records and social condition.

Unlike Bill 40, Bill 35 does not include a definition of ‘genetic characteristics’ nor is there an exception for insurance contracts. However, like Bill 40, the right to equal treatment without discrimination because of genetic characteristics would include equal treatment in refusing to undergo or disclose the results of a genetic test.

While Bill 35 has passed first reading, it was not introduced by a member of the majority government (unlike Bill 40). We will continue to monitor the progress of Bill 35.

The Takeaway

Provincially regulated employers should track the status of both bills, and in particular Bill 40, which is likely to require employers to comply with the new prohibited ground of discrimination (‘genetic characteristics’) in their practices and policies.