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
Archive
Included in Discovery: Atlantic Education & the Law – Issue 07 Nicholas Russon and Kathleen Nash In December 2018, the Ontario Cabinet approved a direction for the Minister of Training, Colleges and Universities (“Minister”) to…
Read MoreWe are pleased to present the fourth installment of Beyond the border, a publication aimed at providing the latest information to clients about new programs and other immigration-related information that may be pertinent to employers of…
Read MoreIncluded in Discovery: Atlantic Education & the Law – Issue 07 Stephen Penney and Tyler Callahan Universities continue to work creatively to meet market demands despite consistent declines in public funding. Consequently, untenured term appointments…
Read MoreIncluded in Discovery: Atlantic Education & the Law – Issue 07 Sacha Morisset Confidentiality regarding the terms of the settlement of a legal dispute is a key consideration for many parties. Most accept that the…
Read MoreChad Sullivan and Kathleen Nash In June 2020, the Federal Government released the new Work Place Harassment and Violence Prevention Regulations (“Regulations”) along with Bill C-65, An Act to amend the Canada Labour Code (“Code”).…
Read MoreRob Aske As we wrote about earlier, Canada’s federal government has proposed a replacement to our national privacy law for commercial transactions known as the Personal Information Protection and Electronic Documents Act (“PIPEDA”). The new…
Read MoreKatharine Mack After a relatively carefree Atlantic summer, the bubble has officially burst: as COVID-19 cases begin to rise, New Brunswick, Prince Edward Island and Newfoundland and Labrador have all announced that they will be…
Read MoreWe are pleased to present the seventh issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. While ‘back to school’ may look a little different this year, Stewart McKelvey is…
Read More2021: The Year of the Overshare Richard Niedermayer, TEP, Sarah Almon and Madeleine Coats Governments around the world are taking steps to increase transparency at the expense of privacy. In Canada, federal government strategies to…
Read MoreKoren Thomson and Sarah Byrne On November 17, 2020, the Digital Charter Implementation Act, 2020 (“Act”) was introduced as Bill C-11. This is the first major update to the federal private sector privacy regime in…
Read More