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

Insurance Coverage Considerations on Covid-19

As of March 30, 2020 the Saskatchewan government signed an order pursuant to the provincial State of Emergency directing that all orders of the government and Chief Medical Health Officer must be followed and that law enforcement agencies in Saskatchewan have the full authority to enforce those orders. As a result, gatherings of more than 10 people in one room are prohibited; and nightclubs, bars, lounges and similar facilities are closed.  As other businesses respond to COVID-19 their bottom lines are facing significant impact.

In this uncertain climate, businesses are attempting to manage this crisis and limit their continuing financial losses. One potential avenue for relief is insurance. All businesses should be seeking guidance as to whether their existing insurance coverage can respond to COVID-19 related financial losses.

This article outlines some key insurance coverage considerations to determine whether initiating an insurance claim may be a viable relief option for your business.

COMMERCIAL PROPERTY POLICIES

 

Most businesses’ first party property insurance policies include coverage not only for property damage but also for lost profits resulting from that damage.  The coverage for lost income often covers loss resulting from:

  1. Damage to the policyholder’s own property (business interruption);
  2. Damage to the property of a customer or supplier or a supplier’s supplier (contingent business interruption); or
  3. Government action (order of civil authority)

The event that triggers any of these coverages is property damage — without which there will be no coverage for lost profits under a first party property policy.

When purchasing your property policy for your business, it may have been referred to as “All Risk.” All risk doesn’t necessarily mean that you are entitled to coverage for all risks. These policies can sometimes exclude coverage for virus, contagious disease or bacteria. In that case, any COVID-19-related claims will likely be denied.

Business Interruption

With respect to your commercial property policy, the definition of physical damage found within the policy becomes crucial to determining whether coverage applies.

Contingent Business Interruption

Contingent business interruption is a coverage that allows a claim for lost income resulting from a covered loss to an insured’s customer or supplier (Indirect Loss). This type if coverage is typically triggered as a result of a physical damage to the customer or supplier listed as a reliant party, critical to the insured’s operations.

Government action/civil authority

Some property policies will responds to Interruption by Civil Authority, which is often defined as “actual loss as insured hereunder during the period of time, not exceeding two to four weeks, while access to the “premises” is prohibited by order of civil authority”

Given that the definition of this coverage may vary by policy, there is a possibility that if operations of a business are restricted due to an Order prohibiting access, then coverage may apply. The opposite would be true if the policy wording specifies the requirement for Physical Damage. Once again, the applicability of this coverage and length would be case specific.

NEXT STEPS

 

A determination of whether your business is entitled to coverage is wholly depends on your policy wording. Businesses should be evaluating their policies including any extensions and exclusions, with their insurance brokers and legal counsel to better understand terms and conditions. To get started request a complete copy of your insurance policy and review to determine whether coverage might apply to your business.

For more information, please contact:

 

Jennifer D. Pereira, QC

306.933.1320

Email: j.pereira@rslaw.com

Considerations for Non-Profit Board Members in the times of COVID-19

Introduction

The novel coronavirus (COVID-19) continues to impact the lives of millions of Canadians and millions more around the world. Many nonprofits and their boards are facing difficult questions and decisions. As matters rapidly evolve, boards needs to provide steady and flexible leadership in partnership with and in support of the CEO and organization in the areas of strategy, communication, finances, and human resources.

Strategy

Amongst its many responsibilities, boards must actively participate in an overall planning process for an organization and support the implementation and monitoring  of the plan’s goals. While the CEO is responsible executing these plans, the board should be reviewing and responding to the organization’s strategy, and providing feedback. It is crucial that the board and CEO consider the impact of COVID-19 on the organization. As the board reviews plans, it should consider:

  • How does COVID-19 impact the organization’s operations?
  • What mitigation planning is in place?
  • Is additional expertise required to manage any potential impact?

A variety of perspectives should be considered in developing a response including from a human resources specialist, a financial officer, and a lawyer. A response should be guided by the board but implemented by the CEO.  As stewards of the organization, the board must be sensitive to the existence of risk, set the tone for dealing with it, and ensure that proper processes and tools are in place to keep the organization safe and ready to act if a situation demands it.

Communication

As organizations try to plan for the future, the board, in partnership with the CEO, should be continuously monitoring the situation and assessing any potential risks that might arise as the COVID-19 issue evolves. These are challenging times, and it is important for the board and staff to come together and develop a plan that will help the organization survive. A crisis response plan might include a strategy to communicate with stakeholders, staff and the public and logistics for convening meetings.

Finances

Boards must be cognizant to impacts to the organization’s finances or investments. COVID-19’s impact on the economy remains uncertain, and the board and CEO must think about the organization’s ability to secure future grants or donations, what resources are required to adapt to recommendations for  social distancing, and how cancelled programs or fundraisers will influence the budget. This conversation should consider the short-term and long -term viability of the organization’s assets and whether the organization should run a deficit.

Human Resources

Every organization should have a plan in place if someone in the organization or a stakeholder accessing the organization’s services is diagnosed with COVID-19. The board should be updated on any decisions or policies made such as cancelling events or services or directing staff to work at home. As leaders, it is the role of the CEO and board to make sure that staff, stakeholders, and volunteers know how to protect themselves and the community.

The CEO and board may face a difficult decision in relation to maintaining levels of staffing during the crisis. AN understanding of the organization’s legal obligations to staff is critical in assessing whether changes are required.

Conclusion

Crisis response and communication planning is never done. Once a communication plan has been established, it is the board’s role to continue to support the CEO and organization. This means maintaining communication that is consistent with the organization’s response and supporting the CEO to manage the organization’s finances, relationship with stakeholders and staff.

For more information, please contact:

 

Jennifer D. Pereira, QC

306.933.1320

Email: j.pereira@rslaw.com

Robertson Stromberg Well-Represented as Best Lawyers

Best Lawyers™ recognizes extraordinary lawyers in private practice through an exhaustive peer-review process. Today, Best Lawyers™, published the 14th Edition of The Best Lawyers in Canada and we are pleased to announce that twelve lawyers from the firm have been honoured by their peers with the designation of Best Lawyer.

Lawyers named to The Best Lawyers in Canada publication were recognized for their professional excellence in their practice areas. In addition, elite individuals are recognized as “Lawyer of the Year” recipients. “Lawyer of the Year” honorees receive this award based on their extremely high overall feedback within specific practice areas and regions. We are particularly pleased to announce that Melvin Gerspacher Q.C. has been recognized as Lawyer of the Year in Tax Law.

Congratulations to the following RS Best Lawyers:

Misty Alexandre in Construction Law

M. Kim Anderson Q.C. in Banking and Finance Law as well as Insolvency and Financial Restructuring Law

Chris Donald Q.C. in Corporate Law

Melvin Gerspacher Q.C. in Tax Law.

Al Haubrich Q.C. in Trusts and Estates

Tiffany Paulsen Q.C. in Family Law

Jennifer Pereira Q.C. in Insurance Law

Les Prosser Q.C. in Corporate Law, Mining Law as well as Natural Resources Law

Reynold Robertson, Q.C. in Education Law

Scott Waters in Banking and Finance Law as well as Corporate Governance Law

Gary Young Q.C. in Corporation and Commercial Litigation as well as Insurance Law

Ken Ziegler Q.C. in Immigration Law

 

 

Jenn Pereira Appointed Chair of TCU Place Board of Directors

Jenn Pereira continues to share her time and talents with the community.  On April 25th, 2019 she was appointed Chair of the Board of Directors for TCU Place.

TCU Place is Saskatoon’s premier convention centre specializing in conferences, gala banquets and tradeshows.  Within the convention centre, the Sid Buckwold Theatre is home to the Saskatoon Symphony and has hosted many Broadway productions and major arts performances.

 

Benchmark Litigation Canada Lists RS as Recommended Firm in Saskatchewan

Benchmark Litigation Canada has published its guide to the leading litigation teams in the country.

The guide’s results are the culmination of a four-month research period during which time extensive interviews are conducted with litigators and their clients.  The researchers examine casework handled by the firms and seek opinions on litigators practicing within their province or practice area. Using this client and peer-review methodology, Benchmark strives to provide the most accurate and comprehensive coverage of the Canadian litigation market.

Robertson Stromberg is pleased to see that the firm is ranked as a Recommended Firm for the province of Saskatchewan. Lawyers singled out as “local litigation stars” include M. Kim Anderson in the area of Insolvency Law and Gary Young in the areas of Class Action, Commercial, Insurance, and Intellectual Property.   This designation reflects individuals who were recommended consistently as reputable and effective litigators by clients and peers.

Benchmark also lists Jennifer Pereira and Sean Sinclair as “future stars”.  This designation is given to “ones to watch”, lawyers who are rapidly building their reputations in the market.

 

 

Lawyers Jennifer D Pereira