Canada: One Toke Over The Line

Last Updated: March 15 2017
Article by David K. Law

Most Read Contributor in Canada, October 2018

Canada's human rights laws offer vital protection for individuals whose personal characteristics historically pose barriers to employment and full participation in society. They are a great outgrowth of Anglo-American principles of equity. 

Yet their very success has induced claimants (and decision-makers) to stretch equality principles so thin as to achieve almost any desired result — far beyond correcting the kinds of wrongs Canadians recognize as improper discrimination.  A recent decision under the Nova Scotia Human Rights Act is a classic example of how human rights laws are misinterpreted and applied in situations where no unlawful discrimination has occurred.

Wayne Skinner of Nova Scotia suffers from work-related chronic pain disorder ("CPD") arising from an injury when he was a unionized employee of ThyssenKrupp.  His benefits are handled by an industry fund, the "Canadian Elevator Industry Welfare Trust." Skinner's condition causes a panoply of symptoms, for which he has been prescribed medical marijuana. The Trust denied coverage for the treatment, on the basis that it was not a "drug" approved by Health Canada; Mr. Skinner filed a human rights complaint.

Although neither party challenged the Board of Inquiry's jurisdiction, issues which arise from the operation of collective agreement (as benefit coverage did here) ordinarily are the subject of grievances. The Board addressed that concern simply by noting that the issues were whether the plan was discriminatory, or whether the Trustees had discretion they applied discriminatorily.

Noting that "no benefits plan can cover the sun, moon, and the stars and expect to also be financially sustainable. The whole purpose of insurance is to allow beneficiaries to contract for a known loss (in the form of insurance premiums) in exchange for coverage in the event of an unknown future loss" the Board nonetheless chose to impose the cost on the Welfare Plan.

The logic of the Skinner case is illustrative of how Canadian human rights law is being applied nowadays: loosely. Very loosely.

To find a human rights violation contrary to the Nova Scotia law, a decision-maker must find that a person sufferers disadvantageous circumstances "based on" a protected personal characteristic.  In the Skinner case, the Board of Inquiry found that the characteristic in question was a disability - the medical condition afflicting the man claiming benefits. Having found that, the Board then determined that there was no "undue hardship" limiting the Welfare Plan Trustees from choosing to pay for the medical marijuana.

The difficulty we see with this logic, is that any claim for a medication or other such benefit, will presumably be rooted in the claimant's disability. The only function of drug plans, after all, is to cover an individual's medication costs. Coverage denials occur for many reasons - including and typically for those admitted by the Board of Inquiry: they can't afford everything and so ration spending based on particular criteria.

In the case at hand, there was no evidence to suggest the Trustees chose to refuse coverage because the claimant was disabled, but rather because the plan rules (as written) didn't allow for a particular drug expense to be reimbursed. The decision being challenged - the refusal of coverage - not only was not "based on" the fact that the person was disabled, it actually had nothing at all to do with the disability.

The reader might wonder whether the Skinner logic might be used to enable an individual to demand, on human rights grounds, that his or her insurance plan cover a new drug no matter what the cost. The answer would appear to be "yes" and that bodes ill for the viability of drug plans.

Indeed, the implications of the decision are dire: any person can demand coverage for any prescribed drug, regardless of the finely calibrated rules of the insurance plan or fair-minded rules of its trustees.  Any plan administrator currently declining specific drug requests because a plan simply does not allow for it, faces with Skinner a ruling which says that any such decision is inherently a human rights violation.

To be frank and with the greatest respect to the decision-maker, this logic neither makes sense nor does it serve the cause of human rights. It simply reduces every medical condition to something which must be accommodated by whatever means the individual or her physician demands.

Inevitably, the Skinner precedent will be cited and the issue re-litigated. When adjudicated again (as it must be) we can only hope more clear-headed thinking is applied to the issue. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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