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
By Brian Tabor, QC and Colin Piercey Bill 81 and Bill 15, receiving Royal Assent in 2013 and 2014 respectively, are due to take effect this month. On June 30, 2017, amendments to the Builders’…
Read MoreNew Brunswick continues to be a thought leader in the field of regulation of recreational cannabis and provides us with a first look at what the provincial regulation of recreational cannabis might look like. New…
Read MoreRick Dunlop and Richard Jordan In Stewart v. Elk Valley Coal Corporation, 2017 SCC 30, a six-judge majority of the Supreme Court of Canada (“SCC”) confirmed a Tribunal decision which concluded that the dismissal of an…
Read MoreBy Kevin Landry New Brunswick’s Working Group on the Legalization of Cannabis released an interim report on June 20, 2017. It is a huge step forward in the legalization process and the first official look at how legalization…
Read MoreRick Dunlop and Kevin Landry As we explained in The Cannabis Act- Getting into the Weeds, the Cannabis Act introduces a regulatory regime for recreational marijuana in Canada. The regime promises to be complex. The details of legalization will be…
Read MoreOn April 1, 2017, the New Brunswick Lobbyists’ Registration Act was proclaimed into force (the “Act”), requiring active professional consultant or in-house lobbyists to register and file returns with the Office of the Integrity Commissioner of New…
Read MoreJoe Thorne and Jessica Habet How far can an insurer dig into the Plaintiff’s history to defend a claim? And how much information is an insurer entitled to have in order to do so? In English v.…
Read MoreNeil Jacobs, QC, Joe Thorne and Meaghan McCaw The Newfoundland and Labrador Court of Appeal recently confirmed that accounting/auditing firms may take on several mandates in respect of companies that may or do become insolvent in Wabush Hotel Limited…
Read MoreJoe Thorne and Brandon Gillespie An independent medical examination (“IME”) is a useful tool for insurers. An IME is an objective assessment of the claimant’s condition for the purpose of evaluating coverage and compensation. Where a…
Read MoreOn June 2, 2017 the Supreme Court of Canada released its decision in Saadati v. Moorhead, 2017 SCC 28, clarifying the evidence needed to establish mental injury. Neither expert evidence nor a diagnosed psychiatric illness…
Read More