Evidence of meeting #36 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was discrimination.
A video is available from Parliament.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
My knowledge of the law is a little limited. I can't even compare with the wealth of knowledge that we have sitting here.
Do provincial human rights codes regulate contracts for goods and services?
Prof. Hugo Cyr
Yes. They all include disability as a prohibited ground for discrimination.
Liberal
The Chair Liberal Anthony Housefather
All right. Now, unfortunately, we have another panel that's coming in. I think we have wanted to hear from this esteemed panel for a very long time. Does anybody have an incredibly short question that could be answered within a minute that they need to ask before we let the panel go?
Mr. Falk.
Conservative
Ted Falk Conservative Provencher, MB
To any of you, you've studied the legislation. Is there any glaring hole that needs to be fixed?
Prof. Hugo Cyr
Let's say that I'm wrong in my analysis. The first part does not prohibit discrimination.
You asked about the future. Instead of requiring information, let's say that you're in Canada in 2016 and you have Pokémon Go. No one is forced to use Pokémon. No one is required to do it, but people do it voluntarily. This does not cover it at all. You create a benefit for exchanging information; it's not covered. Basically, anyone who wants to get that information, if that's valid, will just create a benefit, will offer it to consumers, and they will take it and give away that information. That's why it's not a discrimination bill.
Liberal
The Chair Liberal Anthony Housefather
Thank you.
I have one short question, if it's okay with the committee.
The actuaries' association is coming before us, and they're recommending to reinsert clauses in Bill S-201 that were removed from previous iterations, which would have specifically governed the insurance industry, in order to say that it does not apply to insurance contracts over a specific value.
As I understand it from your testimony, Professor Thibault,
I imagine you believe that, if we do this, it will make certain parts of the law unconstitutional.
Assistant Dean and Counsel, Civil Law Section, University of Ottawa, As an Individual
Exactly. That is what I said before the Standing Senate Committee on Human Rights.
Assistant Dean and Counsel, Civil Law Section, University of Ottawa, As an Individual
That is what was done. I have not changed my opinion since I appeared before the Senate committee.
Liberal
The Chair Liberal Anthony Housefather
I imagine, Professor Cyr, that you agree with what Mr. Thibault said.
Liberal
The Chair Liberal Anthony Housefather
I imagine you gentlemen believe that it still might be constitutional, but it would increase the risk. Is that what you would both look at?
Scholar in Residence, Blake, Cassels & Graydon LLP, As an Individual
That's exactly what I would say. It still might be upheld, but I think it would be unwise, because it would increase the risk of characterizing the laws in relation to insurance.
Liberal
The Chair Liberal Anthony Housefather
That's all I had.
Thank you so much, gentlemen. Your testimony was fascinating and incredibly helpful to the committee. I want to thank you so much.
We'll take a brief recess for the next panel to come set up.
Liberal
The Chair Liberal Anthony Housefather
All right. I would like to call this meeting back into session.
I would like to welcome our next panel. Thank you so much, gentlemen, all of you, for coming.
We are welcoming, from the Canadian Institute of Actuaries, Robert Howard, who is the past president; and Jacques Boudreau, who is the chair of the genetic testing committee. Welcome, gentlemen.
As an individual, we have Dr. Ronald Cohn, who is the pediatrician-in-chief for the Hospital For Sick Children in Toronto. Welcome, Dr. Cohn.
Dr. Ronald Cohn Paediatrician-in-Chief, Hospital For Sick Children, As an Individual
Thank you.
Liberal
The Chair Liberal Anthony Housefather
From the Canadian Life and Health Insurance Association, we have Stephen Frank, who is the senior vice-president of policy. Welcome, Mr. Frank.
Stephen Frank Senior Vice-President, Policy, Canadian Life and Health Insurance Association
Thank you.
Liberal
The Chair Liberal Anthony Housefather
We also have Frank Zinatelli, who is vice-president and general counsel. Welcome, Mr. Zinatelli.
Frank Zinatelli Vice-President and General Counsel, Canadian Life and Health Insurance Association
Thank you.
Liberal
The Chair Liberal Anthony Housefather
We're going to go in the order of the agenda that I presented to you for your statements. You have about eight minutes in terms of each of the groups.
Let's go with the Canadian Institute of Actuaries.
Jacques Boudreau Chair, Genetic Testing Committee, Canadian Institute of Actuaries
Thank you, and thank you for this opportunity.
The Canadian Institute of Actuaries is dedicated to serving the public interest through the provision of actuarial services and advice of the highest quality. The institute specifically holds the duty of the profession to the public above the needs of the profession and its members.
The CIA has applied actuaries' unique skill set to genetic testing and its potential impacts on the Canadian public. I stress that we are not here to speak on behalf of the insurance industry.
The first problem with the bill is that it facilitates anti-selection. There are many components to a robust insurance system and one of them is the ability of the insurer to evaluate an individual's risk based on many inputs, including a variety of medical tests, and placing those with similar risk profiles in a distinct pool. This is a process based on actuarial and medical science that can be best described as differentiation, a foundational insurance concept used for centuries. It insures that for fairness considerations people facing similar risks pay similar premiums. This bill would undermine this time-tested process and introduce the likelihood of pervasive anti-selection, which is the ability of one party to a contract to take advantage of information that is not available to the other party.
The second problem with the bill is that it is discriminatory. When purchasing insurance, Canadians facing a reduced life expectancy discovered through non-genetic medical means such as an EKG or an X-ray must disclose the information they have been asked, and may be declined for insurance. However, under this bill, those with similarly reduced life expectancy discovered through genetic tests may withhold the results and get the insurance they applied for. This distinction is not based on sound actuarial and medical principles. It is completely arbitrary and as such represents the worst form of discrimination.
Let me discuss briefly the experience of the Affordable Care Act in the United States, also known as the ACA or Obamacare, because it's very relevant to this bill. One of its key elements is that insurers are legally required to provide coverage to all applicants regardless of medical history. The premiums basically reflect the age of the insured and the experience within a region, but sex and pre-existing conditions are ignored. This is a textbook condition to encourage anti-selection, which led me and many actuaries and economists to predict the following: one, large spikes in premiums for many people; and two, many people refusing to participate in the ACA and instead paying the fine for doing so, and large losses for insurers. That is exactly what has happened.
Increases of as high at 65% have taken place. An insurance death spiral resulted as the people remaining in the ACA required so much medical care that many insurers lost money no matter how much they raised premiums. Eventually insurers had no choice but to pull out of the program. Aetna and UnitedHealth and many other insurers have done so after massive losses.
The ACA experience is very relevant because its key element is similar to the condition that Bill S-201 would create. In fact, under the bill, the ACA's key element could be rewritten as “insurers are legally required to provide coverage to all applicants regardless of the results of genetic tests, and must set premiums based on age, sex, and smoking status”, rather than “age, sex, smoking status, and relevant genetic information”.
As you can see, the two wordings are close, and it would be remarkable if the bill didn't have similar impacts on the people of Canada who buy individual life insurance. American lawmakers ignored expert advice with the negative results I just mentioned. We can only hope that the proper lesson has been learned so as to avoid a similar debacle in Canada.
Thank you.