Falling Between the Jurisdictions: Genetic Discrimination & the Law

Contributed by Alanna Crouse

Genetic testing is becoming an every-day reality for many Canadians. Between the rise of personalized medicine in clinics, to the trendiness of at-home DNA tests like 23andMe, there appears to be a growing acceptance and comfort with genetic testing. Yet despite this normalization, not everyone is ready to embrace the idea of scientists or companies having access to some of their most innate and intimate information.

This trepidation is understandable and well-founded. Each of our genomes (the collection of an individual’s genetic material) is unique and offers a wealth of information into our past, present and future. Our genomes can reveal our ancestral origins, who we are biologically related to, and predispositions to diseases that may manifest later in life. Thus, one cheek swab has the potential to uncover stories and vulnerabilities we may not know about ourselves.

The ability to uncover such information brings with it the potential for genetic discrimination. Genetic discrimination occurs when people or organizations treat others differently because they have a gene mutation that causes or increases their risk of disease. Genetic discrimination has so far impacted the ability of Canadians to gain and retain employment, and obtain insurance coverage. Fear of these life-altering ramifications has led some to decline genetic tests that would otherwise generate beneficial information including diagnoses, appropriate treatment options, and disease prevention plans. Thus, the inability to guarantee the safeguarding of genetic information has been holding Canadians back from safer and healthier lives. Continue reading “Falling Between the Jurisdictions: Genetic Discrimination & the Law”

Liability for Brain Injuries in Sports

Contributed by Darena Muça


This past January, the McGill Research Group on Health and Law hosted its annual lecture, “Brain Injuries in Sports: from Awareness to Action,” delivered by Ken Dryden.  Dryden was a goal tender for the Montreal Canadiens hockey team during the 1970s. In 1973, he graduated from the McGill Faculty of Law; however, he never practised law. Besides being a renowned hockey star, appearing in the Hockey Hall of Fame and winning 6 Stanley Cups, he is an educator, politician and philanthropist dedicated to educating youths about the importance of higher education and raising awareness about sport-related brain injuries. In his presentation, Dryden shared his perspective that more steps ought to be taken to prevent brain injuries in the sport.  In consideration of Dryden’s lecture, this article sheds light on the difficulties of holding sports organizations liable for brain injuries in sports.

Looking into brain injuries

Contact sports can have dramatic impacts on the structure and function of the brain due to repeated body contact. Nathan Churchill, a post-doctoral fellow in the neuroscience research program at St. Michael’s Hospital in Toronto, emphasizes that “there is growing concern about the risk of collisions in sports.” He notes that the effects of contact sports are not only seen in retired professional athletes, but also in young, healthy athletes in amateur and professional sports. Athletes with a repetitive history of blows to the head can suffer from traumatic brain injury (TBI) and chronic traumatic encephalopathy (CTE), a progressive neurodegenerative disease, which is also found in the brains of people who suffer from Alzheimer’s disease. CTE causes several cognitive, mood and behavioural symptoms, such as memory loss, confusion, depression and dementia. The term TBI was first introduced analyzing professional and amateur boxing, while CTE encompasses the “potential long-term neurological consequence of repetitive TBI” which can occur in numerous contact sports, such as football, wrestling, rugby, hockey and basketball. Continue reading “Liability for Brain Injuries in Sports”

Popping the Cap

Contributed by Phil Lord

Over 40 years ago, our Supreme Court set an “upper limit” on the amounts which can be awarded as compensation for the non-pecuniary component of a bodily injury.1 Pecuniary damages are those which can easily be quantified, such as lost wages. In contrast, non-pecuniary damages, such as pain and suffering, are not financial in nature. The upper limit on non-pecuniary damages is now an effective cap. While the interpretation of the principles first set out by the Court has evolved, the cap has enjoyed a surprising and unusual stability, even as our society has changed. The cap devalues the suffering of personal injury victims and has no theoretical underpinning. I want to preliminarily set out here my thoughts on the cap, how it is understood by our courts, and the arguments which could lead to its abolition. I look forward to further elaborating on these thoughts in a future article.

In the late 1970s, the Supreme Court heard three cases involving very serious bodily injuries: Arnold v Teno, Thornton v School Dist No 57 (Prince George) et al and Andrews v Grand & Toy Alberta Ltd. The judgments were rendered on the same day.2 In Andrews, a unanimous Court states that “the appropriate award in the case of a young adult quadriplegic like Andrews [is] the amount of $100,000” and that “[s]ave in exceptional cir­cumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.”3 Considering the seriousness of the victims’ injuries, the intimation was that few, if any, injuries would justify a higher award. Continue reading “Popping the Cap”

Mental Health and Anti-Discrimination Law at Work

Contributed by Annelise Harnanan


In 2015, the government of Canada released its “Report from the Canadian Chronic Disease Surveillance System: Mental Illness in Canada.” The report used data from provincial and territorial administrative health databases to identify cases of mental illness in Canada. The report’s findings indicated that “one in three Canadians will experience a mood disorder, generalized anxiety disorder or substance abuse dependence in their lifetime”. Many people with mental health conditions, however, can and do remain in the Canadian workforce. Based on data from 2011, the Mental Health Commission of Canada stated that “21.4% of the working population in Canada currently experience mental health problems and illnesses.” Considering this, the question arises: what protections does the Canadian legal system offer to persons who face discrimination at work in relation to a mental health condition? This article briefly examines the protections that anti-discrimination law can offer to these individuals.

The Anti-Discrimination Law Framework

Federal and provincial human rights acts endeavor to prevent discrimination in the workplace based on various enumerated grounds such as age, religion, disability and sex. Under the legislation, mental illness typically falls under the ground “disability.” For example, the Nova Scotia Human Rights Act explicitly prohibits discrimination based on “physical and mental disability.” If an individual with a mental illness feels that they have been discriminated against because of their condition by an employer, they can file a complaint with their provincial human rights commission or tribunal. Continue reading “Mental Health and Anti-Discrimination Law at Work”