April 13, 2018

Medical Marijuana Not Required To Be Covered by Health Plan:  Nova Scotia Court of Appeal Overturns Human Rights Board of Inquiry Decision Finding that Denial of Coverage for Medical Marijuana was Discriminatory

Employers and Health plan administrators can rest easier in light of the Nova Scotia Court of Appeal’s decision of April 12, 2018 overturning a Nova Scotia Human Rights Board of Inquiry decision that found denial of coverage of medical marijuana was discriminatory in Canadian Elevator Industry Welfare Trust Fund v Skinner, 2018 NSCA 31.
There was cause for concern across the country from employers when early last year a Human Rights  Board of Inquiry decided that a health and welfare plan’s denial of coverage for medical marijuana was discriminatory in Skinner v Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, 2017 CanLII 3240 (NS HRC).  Mr. Skinner was a unionized elevator mechanic with ThyssenKrupp when he was involved in a motor vehicle accident. As a result of the accident he suffered both physical and mental disabilities, including chronic pain, anxiety and depression. Treatment from narcotics and other conventional drugs was unsuccessful and his doctor prescribed medical marijuana. Initially the medical marijuana was covered by his employer’s motor vehicle insurer until it reached the maximum coverage amount.  Skinner then applied for coverage under both his employee benefits plan, administered by the Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund (the “Trustees”), as well as workers’ compensation. Mr. Skinner’s multiple claims for coverage were all denied on the basis that marijuana wasn’t approved by Health Canada under the Food and Drugs Act, does not have a drug identification number and is therefore not an approved drug under the plan.  Mr. Skinner filed a human rights complaint alleging discrimination in the provision of services on the basis of physical and mental disabilities.
The Human Rights Board of Inquiry (the “Board’) found the Trustees violated the Nova Scotia Human Rights Act (the “Act”) when it denied Mr. Skinner coverage for medical marijuana, finding that while the plan’s exclusion of medical marijuana was not designed to treat certain beneficiaries differently than others, it allowed some to have coverage for medically necessary drugs but not others. This resulted in a disadvantage to  Mr. Skinner which was based on a prohibited ground.
The Trustees appealed the decision to the Nova Scotia Court of Appeal. The Trustees argued there was no prima facie discrimination; the Board applied the wrong test for discrimination; and that there was no connection between the denial of medical marijuana coverage for Mr. Skinner and his disability.
The Court found that the Board described the test for discrimination properly but failed to apply it.  The benefit under the plan was essentially prescription drugs approved by Health Canada, and not the broader benefit of medically necessary prescription drugs.  It was this flaw that led the Board to find that denial of coverage for medical marijuana due to lack of Health Canada approval was a distinction under the Act.  The Board  incorrectly applied the Supreme Court of Canada decision Battlefords and District Co-operative Ltd. v Gibbs, [1996] 3 SCR 566, when it considered both the purpose and the services and in doing so, eliminated the requirement that the distinction be based on disability.
The Court of Appeal agreed that in order to find discrimination, it is necessary to find a connection between the denial of coverage and the disability.  The Board’s conclusion that disability was a factor in the decision to deny coverage for medical marijuana was inconsistent with the evidence and contradicted the Board’s own findings.
The Court of Appeal concluded that the Board’s finding of a distinction based on the particular needs of Mr. Skinner, resulted in an analysis that failed to require a connection between his disability and the adverse effect. The Court of Appeal commented that the disadvantage experienced by Mr. Skinner was not as a result of his disability, but due to the fact that the drugs available to plan members with his condition were not effective for him personally.  The Court further concluded that the existence of a protected characteristic is not sufficient to establish the connection required to prove prima facie discrimination.  Ultimately, the Court of Appeal concluded that  the Board’s decision was unreasonable because it failed to apply the legal requirement that the decision was based on Mr. Skinner’s disability.
As the Court of Appeal noted (at para. 114), the consequence of the Mr. Skinner’s position and the Board’s decision would be that “every request for medication not covered under a benefits plan could be subject to a human rights complaint and require justification for refusal.” Employers and benefits providers can breathe a sigh of relief knowing that such an assessment is not required, nor is coverage for medical marijuana.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer directly for more assistance.