Benefit plans can discriminate against marijuana: Canadian Elevator Industry Welfare Trust Fund v Skinner, 2018 NSCA 31
April 24, 2018
In Canadian Elevator Industry Welfare Trust Fund v Skinner, the Nova Scotia Court of Appeal considered what constituted discrimination in the denial of access to coverage for medicinal marijuana, emphasizing the deference that courts and tribunals will give to the administrator of a benefit plan in choosing what drugs the plan will cover. The case denied a human rights claim by an elevator mechanic for discrimination, overturning a Human Rights Board of Inquiry. Mr. Skinner, the elevator mechanic, needed medical marijuana to treat a disability. The Court held that the fact that his Welfare Trust Plan did not reimburse him for the costs of medical marijuana did not amount to discrimination.
Mr. Skinner was a member of the International Union of Elevator Constructors and had access to a health and welfare plan (the “Plan”). Mr. Skinner got into a car accident in 2010. His accident caused a chronic pain condition, along with anxiety and depression. He tried taking narcotics and anti-depressants to deal with these conditions, but the medications did not work, and caused adverse side effects. As a result, in 2012, his psychologist suggested that he start using medical marijuana. His medical marijuana was initially paid for by medical benefits under his no-fault car insurance policy. However, these benefits only lasted for two years. In May of 2014, he requested coverage for his medical marijuana from the Board of Trustees who administered the Plan.
The Board of Trustees, despite acknowledging that marijuana was the most effective medication for Mr. Skinner, denied him coverage. The reason they denied him coverage was that the Plan dictated that, for a drug to be covered, it had to be approved by Health Canada and assigned a “Drug Identification Number” or “DIN”. Marijuana did not fall into this category, and so he was denied coverage. The Human Rights Board of Inquiry then found that Mr. Skinner had been discriminated against on this basis.
The Court of Appeal, in reviewing the Human Rights Board of Inquiry’s decision, asserted that the issue in the case was not about whether it is legal to prescribe medical marijuana, or about whether Mr. Skinner needs it. Rather, the Court of Appeal believed that the case was only about whether the Welfare Plan had to reimburse Mr. Skinner for his costs because to refrain from doing so would violate the Human Rights Act.
The Court of Appeal came to the conclusion that there was no connection between Mr. Skinner’s disability and the decision to deny him coverage, and that as a result there was no violation of the Human Rights Act. According to the Court of Appeal, refusing Mr. Skinner a drug not approved by Health Canada did not amount to discrimination because no one in the Plan received medical marijuana, and furthermore no one in the plan received drugs that were not approved by Health Canada. The Plan did not exclude these drugs because of Mr. Skinner’s disability. If it had, then he would have grounds for a complaint. Because the Plan did not exclude marijuana on this basis, Mr. Skinner had no claim.
The Court went on to say that, if they had come to the opposite conclusion, this would have meant that human rights tribunals and courts would be policing the choices made by private benefit plans to include or exclude certain kinds of coverage. While the Human Rights Board of Inquiry thought this was acceptable, the Court of Appeal clearly believed it was a bad outcome.
It was held by the Court that Mr. Skinner was not discriminated against by virtue of the fact that the Plan did not cover the use of medical marijuana. Because the Plan did not exclude the drug simply to discriminate against Mr. Skinner, but rather on other bases, he lost on appeal.
The main takeaway from the case is that courts are hesitant to utilize human rights legislation to dictate what benefit plans will cover and what they will not. The conclusion that the Court arrives at is that, were courts and tribunals to adopt this role, private benefit plans would be prevented from excluding any drug from the ambit of their coverage. This decision is welcome news for the many multi-employer health and welfare plans that must deliver benefits within the context of expanding health costs and limited employer contributions.
Pension and Benefits