Chris Richter speaks on risk-based underwriting

November 01, 2019

Montreal-based litigation partner Chris Richter has been quoted in insurance industry media after his appearance at the Supreme Court of Canada.

Chris represents the Canadian Life and Health Insurance Association, which has intervener status in Canadian Coalition for Genetic Fairness v. Attorney General of Quebec, et al. The question being considered – in a life insurance context – is whether the federal government has the power to prohibit insurers from asking consumers questions that carriers say are material to their risk.

Chris challenged the appellant’s submission that the Genetic Non-Discrimination Act is constitutional legislation under the federal criminal law power, saying that the Act does not address a valid criminal law purpose because “risk-based underwriting is not bad for you.”

The Act prohibits an insurer from requiring someone to undergo a genetic test as a condition of providing goods and services to that individual, entering into or continuing a contract, or offering or continuing specific terms or conditions in a contract.

Excerpts from the article are below.

Opponents of the law say that by restricting the underwriting questions an insurer may ask, the federal government is trying to regulate civil and property rights, which was made an exclusive power of the provinces by the 1867 Constitution Act.

The Quebec Court of Appeal ruled in 2017 that the federal Genetic Non-Discrimination Act is unconstitutional. The court found that the “pith and substance” of the law is property and civil rights, which is an exclusive power of the provinces.

“The pith and substance is about the regulation of risk-based underwriting by providing preferential treatment to persons who have received genetic test results indicating they have a genetic disease or a heightened risk,” Chris said during the hearing.

“[The law] creates a one-sided exception to the principle of equality of information.” Chris said, because it prohibits insurers from requiring applicants for insurance to disclose the results of genetic tests, but it also lets people applying for insurance disclose the same information if it is to the applicants’ advantage.

You can read the full story on Canadian Underwriter.


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