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
Killian McParland With the federal election coming up next week on October 21, 2019, it is a good time for a reminder of the employer obligations under the Canada Elections Act. Employees who are eligible…
Read MoreJohn Samms The upcoming federal election is drawing near. You may be thinking about exercising your democratic and constitutional right to vote – you may not be. You may never even consider participating in the…
Read MoreTwila Reid and Kara Harrington On January 1, 2020, changes to the Newfoundland and Labrador Occupational Health and Safety Regulations, 2012 (“Regulations”) will take effect. These changes impact employers in a variety of ways, most…
Read MorePeter McLellan, QC In the January 18, 2019 article, Change is the only constant – Bill C-86 changes in federal labour and employment regulation, we outlined in detail massive changes to how federal labour and…
Read MoreRick Dunlop and Madeleine Coats The proposed Workplace Harassment and Violence Prevention Regulations (“Regulations”) will replace the current workplace violence obligations in the Canada Occupational Health and Safety Regulations. Although the Regulations will likely not…
Read MoreHilary Newman Earlier this year, the Prince Edward Island Labour Relations Board (“Board”) issued a decision¹ wherein it certified the Charlottetown Professional Firefighters Association (“Association”) as bargaining agent for: All employees of the City of…
Read MoreBryan Mills and John Morse On May 21, 2019, the New Brunswick Labour and Employment Board (”Board”) dismissed an application by the New Brunswick Union of Public and Private Employees (“Union”) seeking certification as bargaining…
Read MoreJonathan Coady and Justin Milne The Ontario Court of Appeal has found that the Greenhouse Gas Pollution Pricing Act¹ is valid federal legislation.² The Act implements national minimum pricing standards to reduce greenhouse gas (“GHG”) emissions.…
Read MoreRichard Niedermayer, TEP, Jennifer Taylor and Bhreagh Ross, summer student There is a right to testamentary freedom under section 7 of the Charter, according to a recent decision of the Nova Scotia Supreme Court. In…
Read MoreJohn Samms Introduction Much ink has been spilled on the controversial 1969 power contract between Hydro-Quebec and CFLCo (the contract) and last week the Quebec Court of Appeal added to the pile with its decision…
Read More