Canada: N.S. Appeal Court Puts A Lid On Medical Pot: No Health Plan Coverage & No Workers Compensation Benefits In Canadian Elevator Industry Welfare Trust Fund v. Skinner & Skinner v. Nova Scotia (Workers' Compensation Appeals Tribunal)

Last Updated: July 10 2018
Article by Kiersten Amos and Michael Costello

The N.S. Court of Appeal has reached two decisions ending one employee's quest for coverage of the costs of his medical marijuana – at least for now. On April 12, 2018, the Appeal Court disagreed with the Human Rights Board of Inquiry's decision that denial of coverage for the medical marijuana under his health benefits plan was discriminatory in Canadian Elevator Industry Welfare Trust Fund v. Skinner. This follows the Court's March 9, 2018 decision that upheld the Workers' Compensation Tribunals' decision to deny the employee compensation for medical aid in the form of medical marijuana under Workers Compensation Act in N.S. Workers' Compensation Act in Skinner v. Nova Scotia (Workers' Compensation Appeals Tribunal).

The Appeal Courts' decisions settle two key medical cannabis coverage questions. Whether the employee will apply to the Supreme Court of Canada for permission to appeal both decisions to that Court remains unanswered. And health benefits providers still need to answer the question: what's your medical cannabis coverage strategy?

Key Considerations for a Medical Cannabis Coverage Strategy

For health benefits providers, developing an overall medical cannabis strategy and ensuring plan provisions accord with that strategy is critical to their ability to prudently and fairly process claims, including justifying benefits coverage denials. The strategic question to ask: exclude coverage of medical cannabis altogether – or cover it, but focus on cost control?

Exclude Medical Cannabis Coverage. This strategy entails benefits providers clearly and justifiably expressing any medical cannabis coverage exclusions, and doing so in relation to the plan coverage language as a whole. This includes narrowly defining one or all of "drug", "prescription drug", "medicine", "prescription" and "medically necessary".

Control Medical Cannabis Costs. This strategy entails covering medical cannabis, but controlling the costs. Examples include limiting coverage by:

  • Coverage caps (such as annual or dosage caps).
  • Acquisition methods (such as licensed producers or home-grown).
  • Covered strains or per gram cost caps.
  • Coverage to the equivalent amount of synthetic substitutes.
  • The cost to produce home-grown medical cannabis and of related accessories.
  • Allowing for the possibility of future improvement.
  • Prior use (though this could raise the risk of a human right discrimination claim).

N.S. Court of Appeal Puts a Lid on Medical Pot Coverage

Here's how the N.S Court of Appeal put the lid on medical pot coverage under a health benefits plan and the N.S. Workers' Compensation Act.

No Coverage Under Health Benefits Plan. The Appeal Court's April 12, 2018 decision in Canadian Elevator Industry Welfare Trust Fund v. Skinner answers the question raised by the N.S. Human Rights Board of Inquiry decision: can exclusion of medical cannabis coverage, even if the plan language excludes it, still be discriminatory on the basis of disability under human rights law? The insured's doctor prescribed him medical cannabis that, admittedly, worked when conventional drugs didn't. The insured applied for coverage of the medical cannabis under his health benefits plan. The benefits provider denied coverage because the plan wording excluded drugs Health Canada hasn't approved (which includes medical cannabis). The insured lodged a human rights complaint alleging the denial discriminated against him based on physical disability and the N.S. Human Rights Board of Inquiry agreed. The health and welfare trust appealed to the N.S. Court of Appeal. The high stakes of this appeal were evident by the facts a medical cannabis producer said it would fund the insured's defence of the appeal, and multiple other groups intervened in the appeal. The Court disagreed with the Tribunal and concluded it is not discriminatory for a private drug plan to limit reimbursement for the cost of drugs to only those approved by Health Canada. Acknowledging that "[b]enefit plans are necessarily limited in many ways", the Court concluded:

  • Plan Wording. The Plan wording defined drugs covered under the plan as prescription drugs approved by Health Canada – not "prescription drugs personally beneficial to each claimant". No Plan member, not just the insured, was compensated for drugs Health Canada hadn't approved.
  • Fiduciary Duty. The Trustees had a fiduciary duty to determine what benefits would be (thus would not be) available to members. Exercising the duty by limiting prescription drug benefits to those that are Health Canada-approved inevitably affects some more than others, but this alone doesn't make the decision discriminatory. And none of mere knowledge of a disability, the discretion to change a requirement to meet a particular insured's request, or the adverse effect of a decision, automatically translate a denial into discrimination.
  • No Disability Connection. The mere existence of disability can't alone mean the denial is based on disability because all applicants are disabled. The disadvantage the denial caused the insured wasn't "based on" his disability (a characteristic the Act protects). Refusing an insured coverage based on criteria set by the Plan doesn't differentiate the insured from other members because no members are eligible for the drugs sought.

No Medical Aid Under Workers' Compensation Act. The Appeal Court's March 9, 2018 decision in N.S. Workers' Compensation Act in Skinner v. Nova Scotia (Workers' Compensation Appeals Tribunal) answered the question raised by the N.S. Workers' Compensation Appeals Tribunal (WCAT): is the N.S. Workers' Compensation Board's (WCB) Policy restricting medical aid to health care that (among other things) is "consistent with standards of health care practices in Canada" valid? The employee sustained his original injury in the course of employment so he also applied for medical aid in the form of the prescribed medical marijuana under the N.S. Workers' Compensation Act. The case manager and then the case worker denied the claim for the same reason: per the WCB Policy, medical aid is available only for healthcare that is "consistent with standards of health care practices in Canada", and prescription use of medical marijuana was not consistent with Canadian health care standards. The WCAT agreed and dismissed the worker's appeal. The worker appealed to the N.S. Court of Appeal, which concluded the WCB Policy is valid – and so is the denial of coverage.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
25 Sep 2018, Webinar, Halifax, Canada

Immigration is one of the key solutions to looming (and current) worker shortages in Canada. But an employer that hires a foreign worker must comply with certain immigration laws – or both the employer and the foreign worker could face consequences.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions