Exclusion of Medical Marijuana From Benefits Plan Contrary to Human Rights Act

By Cynthia Lazar on 2017/09/25

In Skinner v Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, 2017 CanLII 3240, the Nova Scotia Human Rights Board of Inquiry had to determine whether the Board of Trustees of his employee benefits fund violated Mr. Skinner’s rights under Nova Scotia’s Human Rights Act when it denied coverage for medical marijuana.

Gordon Skinner was an elevator mechanic who was involved in a motor vehicle accident while at work. As a result of the accident, Skinner developed chronic pain and depressive and anxiety disorders. He attempted treatment of these conditions by use of conventional drugs for almost two years, which proved ineffective. Skinner then obtained a prescription and licence and began using medical marijuana. Marijuana provided significantly more relief than conventional drugs.

Initially, Skinner’s medical marijuana was covered by the employer’s motor vehicle insurer, but when Skinner reached the maximum limit for coverage, he was cut off. As his claim to the Workers’ Compensation Board was denied and under appeal, Skinner sought coverage from the Board of Trustees which managed the Canadian Elevator Industry Welfare Trust Plan. The plan provides health and related benefits for employees and former employees in the unionized sector of the elevator industry in Canada.

The trustees denied Skinner’s claim three times on the same two bases:

  1. Medical marijuana had not been approved by Health Canada, did not have a drug identification number, and therefore was not an “approved drug” under the terms of the plan
  2. As Skinner’s injuries were caused by a workplace accident, related medical expenses should be covered by a provincial medicare plan, and were therefore excluded from coverage under the plan

Skinner filed a complaint with the Nova Scotia Human Rights Commission alleging discrimination in the provision of services on account of his physical and mental disabilities.

The Board of Inquiry noted that the exemption for bona fide employee benefits plans under the NSHRA only applies to age-based distinctions, which did not apply in this case. The Board applied the test from Battlefords and District Co-operative Ltd. v GibbsFootnote1 to decide whether there was a prima facie case of discrimination by a) determining the purpose of the plan; and b) comparing the benefits allocated to other employees for the same purpose.

The Board found that the purpose of the plan was to “provide benefits to beneficiaries, but to do so in a way that is efficient, economical, and sustainable.” While the purpose of the plan was “not to cover everything,” it was to maximize benefits available without compromising financial viability. The Board noted that the plan covered other special requests for medically necessary drugs prescribed by physicians for other beneficiaries. The trustees had the ability to grant Skinner’s request and did not. The Board found that the trustees’ denial of Skinner’s request for coverage amounted to a prima facie case of discrimination, although non-direct and unintentional.

The onus, therefore, shifted to the trustees to justify their decision. The Board found that the trustees had failed to do so, noting that:

  1. There was no evidence that coverage of medical marijuana would result in undue hardship to the plan, that premiums would have to be increased or that the financial viability of the plan would be threatened if coverage was approved
  2. The evidence established that the marijuana was medically necessary and beneficial for Skinner

With respect to the trustees’ first ground for denial, the Board referred to Hamilton (City) v Hamilton Professional Fire Fighters’ Association (Robillard),Footnote2 in which the Association grieved the denial of benefits coverage for prescribed medical marijuana. In that case, the collective agreement explicitly required drugs to have a DIN to be eligible for reimbursement. As marijuana does not have a DIN, there was no right to coverage under the collective agreement. The plan in Skinner did not have this explicit exclusion.

The Board also reviewed University of Western Ontario v University of Western Ontario Faculty AssociationFootnote3 in which a grievance was filed against the denial of coverage for a prescribed medication (not marijuana) which lacked a DIN. The arbitrator noted that the benefits plan covered both drugs and medications and even if this particular substance could not be viewed as a “drug” due to lack of the DIN, it was a “medication” and therefore eligible for reimbursement. That language was similar to the language of the plan in Skinner which covered “medically necessary drugs and medicines” which could only be obtained by prescription. The Board found that the plan did not restrict coverage to “medically necessary” drugs. In any event, it decided that medical marijuana was medically necessary for Skinner.

With respect to the trustees’ second ground of denial, the Board found that the trustees could not rely on the possibility of workers’ compensation coverage. There was no evidence that coverage would be provided. Even if provided, that would only reduce the amount the plan would be required to cover and would not affect the trustees’ non-discrimination obligations.

The trustees were ordered to begin providing coverage for medical marijuana for Skinner up to and including the full amount of his most recent prescription and to continue the coverage until such time as a final remedy was determined.

CONCLUSIONS

The application of human rights legislation to an employee benefits plan will depend on the applicable legislation and the terms of the plan. The Skinner case suggests that where the prohibition against discrimination applies to a benefits plan:

  1. To exclude substances not approved by Health Canada from coverage, the exclusion ought to be specifically set out in the text of the benefits plan and, to the extent that details of coverage are set out therein, in any relevant collective agreement;
  2. Grounds for denial of benefits should be justifiable and consistent with the purpose of the benefits plan, and convincing evidence should be put forward in terms of the financial and medical reasons for the denial and for any differential treatment accorded to the substance compared to other prescribed drugs without a DIN.

Note – The Board’s decision has been appealed to the Nova Scotia Court of Appeal.

This article was originally published on www.cba.org on August 22, 2017. 

Footnotes
1 – [1996] 3 SCR 566
2 – 2016 CANLII 16885
3 – (2008), 95 CLAS 145

 

 

 

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