Insurance Companies Cannot Compel Customers to Undergo Genetic Testing

In a recent Reference re Genetic Non-Discrimination Act, 2020 SCC 17, the Supreme Court of Canada upheld a federal law that forbids companies from making people undergo genetic testing before buying insurance or other services.

The Genetic Non-Discrimination Act (the Act) also outlaws the practice of requiring the disclosure of existing genetic test results as a condition for obtaining such services or entering into a contract.

The act is intended to ensure Canadians can take genetic tests to help identify health risks without fear that the results will pose a disadvantage when seeking life or health insurance.

In a 5-4 decision, the Supreme Court held that the measures are a valid exercise of Parliament’s power over criminal law set out in the Constitution.

Penalties for violating the provisions of the Act include a fine of up to $1 million and five years in prison.

This case came to the Supreme Court as an appeal from a provincial “reference.” References are questions that governments ask courts for their opinion on. Reference re Genetic Non-Discrimination Act began as a reference to the Quebec Court of Appeal by the Quebec government.

For more information, contact Jennifer D. Pereira, Q.C. at j.pereira@rslaw.com

Am I entitled to be notified that my family member has made a new Will?

When a loved one passes away unexpectedly, the shock can be made worse by finding out that the deceased also had made a new will totally contrary to their former will.

Sometimes clients will ask me if it is legal for their loved one to make a new will, cutting out family members, or naming a new executor, all without notifying the prior executor or beneficiaries?

The answer is that yes, a person is entitled to make as many wills as they want, provided they have capacity. Moreover, there is no law requiring a will-maker to notify their prior executor, or their affected beneficiaries.

However, if you are making a new will, it is good advice to notify all of your affected beneficiaries or prior executor. Explaining what your wishes are during your lifetime, can better avoid the chance that they are later surprised by your new will, or suspicious of what motivated it.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Income Splitting With a One Percent Prescribed Rate

For every calendar quarter, the Canada Revenue Agency (the CRA) announces prescribed interest rates for different purposes under the Income Tax Act (Canada). The Income Tax Regulations state that the basic prescribed interest rate is calculated as the average of the yields on 90 day Government of Canada Treasury Bills auctioned in the first month of the preceding calendar quarter, rounded up to the nearest whole percentage. April was the first month of the second calendar quarter of 2020.  Not surprisingly (given the COVID-19 pandemic), the average yield in April on such treasury bills declined greatly, by more than one-half, so that it went down to 0.27 percent. By virtue of rounding upward, the basic prescribed interest rate for the third calendar quarter of 2020 (July 1, 2020 to September 30, 2020) is set at 1 percent. The basic prescribed interest rate plus 2 percent (for a total of 3 percent during the third calendar quarter of 2020) is the rate of interest paid by the CRA on tax refunds owed to individuals. The basic prescribed interest rate plus 4 percent (for a total of 5 percent during the third calendar quarter of 2020) is the rate of interest that accrues on income tax arears.

The basic prescribed interest rate is relevant to the concept of income splitting under the Income Tax Act. Each individual resident in Canada files a separate income tax return and is subject to tax on his or her income at increasing marginal federal and provincial tax rates as the individual’s income increases. An individual resident in Saskatchewan earning more than $214,368 must pay a combined tax rate of 47.50% on each dollar of additional interest, business or salary income. If that individual has a spouse or other family member with much lower income, that family member would pay a much lower combined tax rate (or even no tax) if he or she reported the same additional income. The most obvious way in which the lower income family member could earn additional investment income in place of the higher income family member would be for the higher income family member to make a gift or interest-free loan of the capital (that he or she would otherwise invest) to the lower income family member. However, the Income Tax Act has “attribution rules” which generally deem the investment income which the lower income family member earns from the capital that he or she received or borrowed from the higher income family member to be income of that higher income family member. There are a few exceptions to the attribution rules.  The most helpful exception to the attribution rules applies if the lower income family member borrows the capital pursuant to a loan agreement under which the borrower is required to pay interest on the borrowed capital at a rate not less than the basic prescribed rate in effect at the time that the capital is borrowed and the borrower pays such interest that accrues during each calendar not later than January 30th following each calendar year.

If a loan agreement is entered into specifying an interest rate of 1 percent, the loan is advanced during the third calendar quarter of 2020 and the borrower pays the resulting interest that accrues during 2020 not later than January 30, 2021, the borrower would report any income that he or she earned during 2020 from the investment of the borrowed funds. The lender would report the interest that he or she received from the borrower in January, 2021 on his or her 2021 income tax return (assuming that the lender follows the cash basis). The borrower is entitled to deduct the interest that he or she pays to the lender in the year in which the interest is paid (assuming that the borrower also follows the cash basis). The above income tax reporting can go on indefinitely, from year to year, even if the basic prescribed interest rate in effect in future calendar quarters increases from 1 percent.

A trust of which lower income family members are beneficiaries could be the borrower from the higher income family member.

There are subtle aspects of the Income Tax Act, the interpretation of which requires expert knowledge. Therefore, anyone that is considering implementing an income splitting strategy should seek advice from a tax accountant or a tax lawyer. Melvin Gerspacher is a tax lawyer.  You can contact him at m.gerspacher@rslaw or at 306-380-5753.

Sinclair lifts publication ban on name of teen

Sean Sinclair successfully brought an application to lift a publication ban for the CBC in a sexual assault and drug trafficking case.  The victim, Tonya Pahtayken, a 15-year old leukemia survivor, died shortly after testifying in the criminal trial.  There had been a publication ban on Tonya’s name and any information that might identify her. The CBC, at the request of Tonya’s family who wanted to tell her story, was able to lift that ban and has published an account of Tonya’s struggles here: https://www.cbc.ca/news/canada/saskatoon/judge-lifts-pub-ban-on-name-of-teen-1.5609368.

Government legislative authority to direct measures during COVID-19

Saskatchewan has declared a state of emergency over the COVID-19 pandemic. The province’s legislative authority to declare this state of emergency can be found under The Emergency Planning Act (the “Act”). Measures taken by the provincial government under the Act can include the introduction of an emergency plan, the control or prohibition of travel within the province and acquiring a resident’s property which is deemed necessary to prevent, combat or alleviate the effects of the emergency (with compensation). A provincial declaration of emergency and any subsequent orders will take precedence over municipal declarations and orders.

The Government of Saskatchewan has introduced amendments to The Saskatchewan Employment Act (“SEA”) and multiple Public Health Orders to combat COVID-19. First, the government has made sick leave under the SEA available to all employees, regardless of how long they have been employed. The government also introduced a new “public health emergency leave”, where employees may go on unpaid leave for the duration of the public health orders (click here for a summary of the public health emergency leave). Second, the Minister of Health and Chief Medical Health Officer has the authority to introduce Public Health Orders, according to s. 38 and s. 45(2) of The Public Health Act, 1994, to combat the transmission of COVID-19. If a Saskatchewan resident or corporation contravenes one of the orders made pursuant to the Act, the provincial government has the power to fine that individual or business $2,000 or $10,000, respectively (see s. 16 of the Act).

The Government of Saskatchewan has released Re-Open Saskatchewan, a five-phase plan to reopen the province’s economy as the COVID-19 curve continues to be flattened. Re-Open Saskatchewan is mandated under the authority of the Public Health Orders and the Act. As of June 2, 2020, Saskatchewan is in Phase Two with a target date for Phase Three being June 8, 2020. For information on the phases of Re-Open Saskatchewan and a full list of Public Health Orders, please click here.

Federally, the Government of Canada has legislative power under the Quarantine Act and Emergencies Act to respond to the COVID-19 pandemic. The purpose of the Quarantine Act is to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases. The Quarantine Act grants the power to direct and control international travellers or others at entry or departure points of the country who might have an infectious disease. On March 26, 2020, the federal government declared mandatory 14-day isolation for any traveller returning to Canada under the Quarantine Act, whether you have symptoms of COVID-19 or not. Contravention of these restrictions may lead to fines of up to $1,000,000 and jail time up to three years. For more information on the federal restrictions, please click here.

The Emergencies Act, previously known as the War Measures Act, grants the Government of Canada the power to declare four types of emergencies: public welfare, public order, international and war emergencies. Section 8 of the Emergencies Act outlines the exceptional powers granted to the federal government in a public welfare emergency, which the COVID-19 pandemic would classify as. Such powers can include the prohibition of travel to, from or within the country, the evacuation of people, the requisition, use or disposition of a citizen’s property and the establishment of emergency shelters or hospitals. As of June 2, Prime Minister Justin Trudeau has not declared a public welfare emergency.

For more information, please contact:

Brett J. Maerz

306.933.1358

Email: b.maerz@rslaw.com

Donald, Gerspacher, Prosser, Waters and Young, recognized as a Lexpert-ranked lawyers in the 2020 Canadian Legal Lexpert Directory

Congratulations to Chris Donald, QC, Melvin Gerspacher, QC, Les Prosser, QC, Scott Waters, QC and Gary Young QC for being voted as 2020 Leading Legal Practitioners across Canada based on an extensive peer survey process.

The identification of leading practitioners and firms is based upon a comprehensive annual survey, ongoing since 1994. They are acknowledged as leaders in their respective fields, lawyers prominent in their practice areas and professional organizations, and professionals worthy of significant recognition from their colleagues.

Learn more at:

https://www.lexpert.ca/directory/

Christopher J. H. Donald, Q.C.

Direct: (306) 933-1366
Main: (306) 652-7575
Fax: (306) 652-2445
Email: c.donald@rslaw.com

Melvin A. Gerspacher, Q.C., FCPA, FCA

Direct: (306) 933-1324
Main: (306) 652-7575
Cell: (306) 380-5753
Fax: (306) 652-2445
Email: m.gerspacher@rslaw.com

LESLIE W. PROSSER, Q.C.

Direct: (306) 933-1302
Main: (306) 652-7575
Cell: (306) 229-9911
Fax: (306) 652-2445
Email: l.prosser@rslaw.com

SCOTT D. WATERS, Q.C.

Direct: (306) 933-1387
Main: (306) 652-7575
Fax: (306) 652-2445
Email: s.waters@rslaw.com

GARY D. YOUNG, Q.C.

Direct: (306) 933-1307
Main: (306) 652-7575
Fax: (306) 652-2445
Email: g.young@rslaw.com

Lawyers