Denying access to medical marijuana can be discriminatory

March 24, 2017

In Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund (2017 CanLII 3240 (NS HRC)), the Nova Scotia Human Rights Commission has confirmed that denying access to medical marijuana can be discriminatory in certain contexts.

Mr. Skinner was involved in a motor vehicle accident while working at ThyssenKrupp Elevator Canada in August, 2010. Afterwards he developed chronic pain, anxiety, and depression disorders and was unable to work. After seeking to manage his medical conditions by way of more conventional drugs, he was prescribed medical marijuana. The marijuana was initially covered by his motor vehicle insurance, but when that was depleted he sought coverage for the drug under the Canadian Elevator Industry Welfare Trust Plan (“the “Welfare Plan”), which was administered by the Board of Trustees for the Canadian Elevator Industry Welfare Trust Fund (the “Trustees”). The Trustees considered Mr. Skinner’s request twice, and both times denied it based on the fact that 1) medical marijuana was not an approved drug under the Welfare Plan terms as it did not have a drug identification number, and 2) that his medical expenses should be covered by a provincial medicare plan rather than by the Welfare Plan.

Mr. Skinner then appealed under the Human Rights Act (the “Act”) to the Human Rights Commission, who referred the complaint to a board of inquiry.

The board of Inquiry recognized the current complexity of the legal regime presently covering marijuana in Canada, citing numerous cases and legislation and acknowledging that none were “directly applicable” to the human rights arena. Previous cases had all concerned the interpretation of the particular statutory or contractual obligations at issue. In this case, the issue was focused on the reasonableness of the complainant’s request for coverage and prior cases on medical marijuana were of limited guidance.

In this context, the board of inquiry took the time to analyse the importance of marijuana to the complainant. It had “significantly improved” the complainant’s functioning as well as reducing the other medications he had been taking beforehand. In the board of inquiry’s interpretation, all but one of the many medical and expert opinions presented to the board supported Mr. Skinner’s use of medical marijuana and agreed that it improved his functionality.

In Nova Scotia, much like the rest of the country, a complainant alleging discrimination under the Human Rights Act must first establish that there is a prima facie case of discrimination. In Nova Scotia, this requires 1) a distinction 2) based on a statutorily-listed characteristic 3) that imposed a burden, obligation, or disadvantage to the complainant compared with other individuals. The board of inquiry found no direct discrimination in the Welfare Plan, but concluded that Mr. Skinner had been discriminated against as a result of the adverse impact that denying access to marijuana would have on him specifically.

The board of inquiry identified the purpose of the Welfare Plan as the economic, efficient and sustainable management of the health and welfare benefits available to the beneficiaries of the plan. Relying on this purpose, the substantive treatment of beneficiaries was scrutinized: not on the basis of whether other beneficiaries had received coverage for medical marijuana, but rather on the basis of whether other beneficiaries had received coverage of specially-requested, medically-necessary prescription drugs. This denial of coverage was a disadvantage which, coupled with the fact that the Trustees had considered the complainant’s disability, was sufficient to amount to a prima facie finding of discrimination.

The respondents had little evidence to refute this finding and the board of inquiry determined that the Trustees were required to accommodate the complainant’s request for coverage of his medical marijuana prescription.

This thorough decision is a useful roadmap for dealing with the complex intersection of human rights complaints, private benefit plan analysis, and the status of medical marijuana coverage. The board of inquiry was careful to clarify that this decision did not imply that other benefit plans must cover medical marijuana or other prescriptions, as well as reiterating that this decision was based on the specific lack of statutory or other limitations. Nevertheless, this case adds to the growing list of court and arbitrator decisions concerning an employee claiming a right to medical marijuana usage and may lead to additional human rights complaints by employees who wish to have their medical marijuana prescription covered by their occupational benefit plan.

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