Non-Coverage of Medical Cannabis in Benefit Plan not Discriminatory

In Canadian Elevator Industry Welfare Trust Fund v Skinner, 2018 NSCA 31,[1] the Nova Scotia Court of Appeal ruled that the non-coverage of medical cannabis in a private benefit plan was not discriminatory. The decision makes clear that benefit plans may lawfully limit reimbursement for the cost of drugs to only those approved by Health Canada.

The respondent, Mr. Skinner, was a member of the International Union of Elevator Constructors, which made him eligible for a benefit plan (Plan) administered by appellant Trustees. While driving his employer’s vehicle, Mr. Skinner had an accident that caused him to experience chronic pain, anxiety and depression. His chronic pain was unresponsive to conventional treatment, but was effectively managed by medical cannabis which has been prescribed by his physician.

Mr. Skinner requested that his medical cannabis expenses be reimbursed under the Plan, but his request was denied by the Trustees on the basis that the Plan did not cover drugs that were not approved by Health Canada and which have not been assigned a Drug Identification Number.

Mr. Skinner filed a human rights complaint alleging that the Trustees had discriminated against him because of his disability. The Human Rights Board of Inquiry found that the Trustees violated the Nova Scotia Human Rights Act, and the Trustees appealed the decision.

The Court of Appeal allowed the appeal, stating that the Board erred in finding that a prima facie case of discrimination had been established. The Court held that the non-coverage of medical cannabis in the Plan was based not on Mr. Skinner’s disability, but rather, on the fact that medical cannabis was not approved by Health Canada. In other words, there was no connection between the denial of coverage and Mr. Skinner’s disability. Mr. Skinner had access to all the medications available to other eligible plan members and no plan member received medical cannabis. The Court elaborated that the disadvantage experienced by Mr. Skinner was not a result of his disability, but of the fact that the drugs available to plan members with his condition were not effective for him personally.

The Court also noted the practical implications of Mr. Skinner’s position, namely, “Every request for medication not covered under a plan could be subject to a human rights complaint and require justification for refusal.” According to the Court, this would result in human rights boards becoming arbiters of private benefit plans.

As a result of this decision, employers and benefit providers can rest assured, at least for the time being, that benefit plans can exclude certain drugs from the scope of their coverage so long as they do so in a non-discriminatory manner.  This has significant implications for the burgeoning costs of health and drug benefits.

We will discuss these and related issues in our upcoming webinar, “Accommodation and Insurance in the Age of Addiction: Legal Developments and Best Practices for Employers” (register here). Stay tuned.