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
Burtley Francis Recently, the Government published for public comment draft legislation referred to as the Time Limits and Other Periods Act (COVID-19). The underlying purpose of the draft legislation, which was published on May 20,…
Read MoreMark Tector and Katharine Mack The province of Nova Scotia announced today that most sectors of the economy may begin to reopen. Provincial grant funding was also announced to help businesses open safely, as well as…
Read MoreBrian Tabor, QC, Ryan Baker, and Madeleine Coats On April 16, 2020, Prime Minister Justin Trudeau announced the beginning of a new piece to the COVID-19 federal economic response package – this time, in the…
Read MoreChad Sullivan and Clarence Bennett As many employers resume operations during the ongoing pandemic, we have prepared a list of FAQs and a reopening checklist for businesses operating in Atlantic Canada. Do employers need to…
Read MoreDaniela Bassan, QC Using its COVID-19 Protocol, the English Technology and Construction Court (TCC) handed down remotely a decision about the role of experts in international arbitration and how multiple retainers by a global firm…
Read MoreRuth Trask On a typical, “normal” day in many Canadian households, adults leave home to go to work, and kids attend school or perhaps daycare. As we keep hearing, though, these are far from “normal”…
Read MoreMaurice Chiasson, QC The Federal Court of Appeal released its decision in The Toronto-Dominion Bank v. Her Majesty the Queen on Apr. 29, 20201. This decision confirms the earlier ruling of the Federal Court in…
Read MoreClarence Bennett and Chad Sullivan The May 8, 2020 announcement On Friday, May 8, 2020, the New Brunswick Government made a significant announcement that the province was moving into the second phase of NB’s four…
Read MoreTo our clients who have been innovating to protect our communities, from all of us here at Stewart McKelvey, we thank you and are proud of your efforts. As we grapple with the profound impact…
Read MoreNancy Rubin, QC and Sam Ward Background Wiseau Studio, LLC et al. v. Harper et al.1, a recent decision authored by Justice Schabas of the Ontario Superior Court of Justice, is not just a terrifically…
Read More