On January 30, 2017, a Board of Inquiry, formed as part of the Provincial Court of Nova Scotia, issued its decision in Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, which found that the denial of an employee’s request for coverage of medical marijuana under a health benefit plan amounted to discrimination under the Nova Scotia Human Rights Act.

On August 13, 2010, the employee was in a vehicle accident while working. As a result of the accident, the employee suffered chronic pain and was diagnosed with anxiety and depression. Conventional drugs proved ineffective to treat his disabilities. Because of this, the employee obtained the appropriate prescription and license to consume medical marijuana. Initially, the medical marijuana was covered by the employer’s motor vehicle insurer. However, by May 2014, the employee reached the maximum limit of $25,000 of coverage under the insurance policy. After which, the employee submitted a request to the Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund (the “Trustees”) for his medical marijuana to be covered under his benefit plan which provides health and related benefits to persons working in the unionized sector of the Canadian elevator industry. The Trustees denied the request on the grounds that medical marijuana had not been approved by Health Canada under the federal Food and Drugs Act, and because the employee’s disabilities were a result of a compensable workplace accident covered under provincial medicare plan.

The Board of Inquiry considered whether the denial of coverage satisfied the test for prima facie discrimination. It found that it did, stating that the exclusion of coverage of medical marijuana was “inconsistent with the purpose of the benefit plan and had the adverse effect of depriving [the employee] of the medically necessary drug prescribed by a physician, even though the [benefit plan] covered other special requests for medically-necessary drugs prescribed by physicians for other beneficiaries.” The Board of Inquiry concluded that, as there was no evidence to suggest undue hardship, the Trustees had not discharged the legal onus of responding to the prima facie case of discrimination.  Accordingly, the Trustees contravened the Nova Scotia Human Rights Act by denying the employee coverage for medical marijuana.

While this opens the door for employees to obtain coverage for medical marijuana under their health benefit plans, the Board of Inquiry’s decision was specific to the facts of this case. Not all denials of medical marijuana coverage under public or private benefit plans will be considered discriminatory.  It is important to look at the wording of the benefit plan to see if it excludes such coverage, and to consider requests for medical marijuana coverage on a case by case basis.

Written with the assistance of Michael Brown, articling student.