Skip to content

Client Update: Benefits plans really do not have to cover the sun, the moon and the stars (and medical cannabis)

Rick Dunlop and Richard Jordan

Employers, and benefit providers on their behalf, make policy decisions as to what drugs or benefits (including monetary limits) will be covered by benefit plans. The Board of Trustees in Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31 made the policy decision not to cover medical cannabis. The Nova Scotia Court of Appeal found that this policy decision was not discriminatory and set aside a Nova Scotia Human Rights Board of Inquiry (“BOI”) decision (discussed here), which found that the decision was discriminatory.

Benefit plans are limited and that’s OK  

Stewart McKelvey represented the intervenor, Nova Scotia Private Sector Employers Roundtable (“Employers Roundtable”), in support of the Trustees. The Court recognized the Employers Roundtable’s fundamental concern that the BOI decision meant that “every denial of health benefits could trigger a human rights review with attendant obligations to justify or accommodate”. The Court accepted the Employers Roundtable’s submission that a benefit limitation is not prima facie discriminatory. The Court eloquently explains:

Benefit plans are necessarily limited in many ways. In this case, Mr. Skinner invokes one of those limits to claim prima facie discrimination. The logical consequence of his argument is that every under-inclusive benefits plan results in prima facie discrimination which the plan administrators must justify if a physician prescribes the medication because approved drugs are ineffective. Every request for medication not covered under a plan could be subject to a human rights complaint and require justification for refusal. Human rights boards would become arbiters of private benefit plans. Scarce plan resources would be consumed with justification hearings because justification would usually turn on the particular circumstances of each case.

* * *

Whether to provide a particular benefit, in this case a particular drug, could be based on many factors. Disability would be common to all applicants, because it is a prerequisite to any beneficial entitlement. That alone cannot make it a factor in the decision. As the Employers Roundtable argues, the Board’s recognition that Welfare Plans need not cover the ‘sun, the moon and the stars’ is an implicit admission that non-coverage decisions – and their effects – do not necessarily make disability a factor in those non-coverage decisions. But the Board’s decision side-steps the third Moore criterion so that the existence of a disability by default makes disability a factor.

A prima facie case for discrimination must be a connection between the disability and denial of medical cannabis coverage

The Court appropriately recognized Mr. Skinner’s sympathetic circumstances, but faulted the BOI for its legal analysis relating to the third part of the prima facie case for discrimination. This part of the test required Mr. Skinner to show that there was a connection between his disability and the Trustees’ decision not to cover medical cannabis.

The mere existence of a disability does not establish a connection. The BOI’s conclusion that “because Mr. Skinner was denied coverage, his disability was a factor in the decision” was flawed. The Court reasoned that it “is not enough to conclude that Mr. Skinner experienced an adverse effect arising from non-coverage of medical marijuana…It is necessary to link that exclusion with Mr. Skinner’s membership in an enumerated group…”

Sympathetic personal circumstances do not override statutory criteria

The Court agreed with the BOI’s declaration that benefit plans “need not cover ‘the sun, the moon and the stars…”, but that the BOI based its decision “on Mr. Skinner’s personal needs rather than the statutory criteria.” The statutory criteria required Mr. Skinner to establish a connection between his disability and the Trustees’ decision not to cover medical cannabis. The Court concluded that no such connection could reasonably be made.

Workers’ Compensation Appeal

This decision comes a month after the Court of Appeal’s decision in Skinner v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2018 NSCA 23. In that case, the Court of Appeal upheld a Workers’ Compensation Appeals Tribunal decision which found that Workers’ Compensation Board (“WCB”) did not have to pay Mr. Skinner’s medical cannabis expenses under the Board’s medical aid assistance program.


Peter McLellan, QC, Rick Dunlop and Richard Jordan successfully represented the Employers Roundtable

Rory Rogers, QC, successfully represented the WCB

SHARE

Archive

Search Archive


Search
Generic filters

 
 

Update: New trust reporting and disclosure requirements under the Income Tax Act

November 29, 2022

Note: this is an update to a previously posted Thought Leadership piece from November 2020 to reflect the delayed coming into force of these proposed changes, as well as additional information that has become available. …

Read More

think: international talent

November 29, 2022

As part of our presenting sponsorship of the 2022 Halifax Chamber of Commerce Annual Fall Dinner, lawyers in our Immigration group compiled a series of Thought Leadership articles drawing on the themes of population retention…

Read More

Changes to job classifications and immigration impacts

November 23, 2022

By Brittany Trafford and Michiko Gartshore On November 16th, 2022 the Federal Government switched to the 2021 National Occupational Classification (NOC) structure from the prior 2016 version. The NOC is Canada’s national system used to…

Read More

Nova Scotia: Canada’s emerging immigration hub

November 17, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

Bill C-27 – Canada’s proposed Artificial Intelligence and Data Act

November 16, 2022

Kevin Landry, Charlotte Henderson, and James Pinchak The governance of Artificial Intelligence (AI) is entering a new era since the Canadian Government first announced a digital charter in 2019 as part of a larger-scale overhaul…

Read More

Discovery: Atlantic Education & the Law – Issue 11

November 14, 2022

We are pleased to present the eleventh issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. With a new academic year well underway, the Atlantic Region is finally seeing…

Read More

The Winds of Change (Part 5): Atlantic Canada poised to benefit from clean energy tax credits

November 10, 2022

By Jim Cruikshank, Graham Haynes, and Dave Randell On November 3, 2022, the Honourable Chrystia Freeland delivered the Federal Government’s Fall Economic Statement (“FES”).  The FES included a number of tax related announcements, including further…

Read More

“Constructive Taking”: Consequences for municipalities from the Supreme Court of Canada decision in Annapolis Group Inc. v. Halifax Regional Municipality

November 10, 2022

By Stephen Penney, Joe Thorne, and Giles Ayers A new decision from the Supreme Court of Canada, Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (“Annapolis”), has changed the law of constructive expropriation across the…

Read More

Attract & Retain: Nova Scotia taps foreign healthcare workers to fill labour shortages

November 10, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The rise of remote work and Canadian immigration considerations

November 3, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

Search Archive


Search
Generic filters

Scroll To Top