As discussed at our April A.M. Pension webinar, the Nova Scotia Court of Appeal recently released its decision in Canadian Elevator Industry Welfare Trust Fund v. Skinner. In that decision, the Court of Appeal overturned the earlier decision of a Human Rights Board of Inquiry (the “Board”), in which the Board found that the benefit plan administrator’s decision to deny coverage for a plan member’s medical marijuana was discrimination on the basis of disability in violation of the Human Right Act (Nova Scotia)(the “Act”). In this blog post, we review the decision and its potential implications.

Board Decision

Mr. Skinner was an elevator mechanic who was injured while working. As a result of his accident, he developed both a physical and mental disability. For almost two years after his accident, Mr. Skinner was treated with narcotic and non-narcotic pain medication, as well as anti-depressants. After the more conventional drugs he had been taking proved ineffective, he began taking medical marijuana.

Mr. Skinner sought reimbursement for the costs of his medical marijuana under his health and welfare plan, which was administered by a Board of Trustees (the “Trustees”), but his request for reimbursement under the plan was denied. He subsequently filed a claim under the Act alleging that the Trustees had discriminated against him on the grounds of physical and mental disability by refusing coverage for his medical marijuana. The Board agreed.

Court of Appeal Decision

In a decision released in April, the Nova Scotia Court of Appeal overturned the Board’s decision. It found that the Board had applied the wrong test for discrimination. Specifically, the Court found that the Board had erred in finding that non-coverage of medical marijuana discriminated against Mr. Skinner “based on” his disability. According to the Court:

• The plan did not cover medical marijuana because it was not approved by Health Canada.
• All such plans necessarily have limited benefits for those with a disability.
• It could not be automatically discriminatory for the Trustees to impose reasonable limits on reimbursable benefits.
• Skinner has access to all of the medications available to any other eligible plan member.
• Skinner experienced an adverse impact because those medications were not effective for him personally, not because he fell within a protected group under the Act.

In confirming the Trustees’ decision, the Court also noted that to rule otherwise would mean that every under-inclusive benefit plan is prima face discriminatory, requiring human rights boards to become “arbiters of private benefit plans.”

Key Takeaways

According to Health Canada, at the end of 2017, there were approximately 270,000 registered medical marijuana users in Canada. A number of Canadian insurance companies have also recently added medical marijuana as an option under group benefit plans. Employers who sponsor group benefit plans in Canada are, as a result, increasingly faced with claims for coverage of medical marijuana.

Although the Skinner decision confirms the discretion of benefit plans to set limits on plan coverage, in light of the potentially significant cost of medical marijuana and the increasing demand, it will almost certainly not be the last case to come before the courts on the issue. In turn, benefit plan sponsors who do not currently provide coverage for medical marijuana may face increasing demand to do so.