Lisa Cabel, a lawyer at Norton Rose Fulbright Canada LLP, who represented the insurance company and employer sponsor, says the case shows that while the political climate around recreational marijuana has shifted, the terms of medical marijuana insurance contracts remain in effect.
“The climate change in the political view of marijuana didn’t change the contractual interpretation. It didn’t lead the tribunal to enhance somebody’s human rights because they wanted marijuana,” says Cabel. “The takeaway would be that the law still remains the same. . . . It wasn’t a surprise to me that the decision came down the way that it did.”
The Oct. 26 decision, R. R. v. Essex (County), 2018 HRTO 1535, involved a self-represented applicant against Corporation of the County of Essex and Green Shield Canada Inc., which administers health and dental care plans through contracts with employers such as Essex.
At issue in the summary hearing was whether any evidence could tie her disability to the decision to exclude medical cannabis coverage from the plan.
Essex, the employer that stipulated the benefits covered by the plan, said the decision was not tied to the disability, wrote Laurie Letheren, vice chairwoman of the Human Rights Tribunal of Ontario, who dismissed the application.
Rather than being related to the nature of the employee’s disability, the decision said, Essex denied the medical cannabis coverage because the treatment lacked a Drug Identification Number assigned by Health Canada.
“[The applicant] submits that the respondent also denies coverage because it has a bias against cannabis use. Even if I accept that to be true, it would not amount to a breach of her Code rights. The fact that a person who has been prescribed medical cannabis also has a disability does not establish the connection between the decision to deny the coverage and that person’s disability. The connection in that instance is between the type of drug and the decision,” Letheren wrote.
In the decision, Letheren noted that in a 2017 Nova Scotia decision, the Human Rights Board of Inquiry found a man was discriminated against because the union welfare plan did not cover prescription drugs not approved by Health Canada — including medical marijuana.
That decision, however, was overturned by the Nova Scotia Court of Appeal in the April decision, Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31.
In that case, the Court of Appeal said “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.”
“I think the lines have blurred with medical marijuana, because marijuana is now accepted and coming as an accepted form of substance that can be used,” says Cabel, adding that litigants can confuse the legal issue with their contractual issues.
“And rightfully so, there were some cases that we relied on from the Ontario Human Rights Tribunal that had a very similar analysis, so from my perspective, the legal issue was quite straightforward and had already been dealt with. However, there was the case out of Nova Scotia and [it] went a different way. . . . [The applicant] felt that they were taking a political view of marijuana and not a medical view. And by virtue of the political view, they were rejecting it. But that wasn’t the case. They were just relying on the contract.”
Cabel notes that despite the lack of identification number from Health Canada, some insurance companies have recently started covering medical cannabis.
Beginning in March 2018, Sun Life Assurance Co. allowed plan sponsors to request optional extended health-care coverage of medical cannabis up to $6,000 per year for patients with specific symptoms of cancer, multiple sclerosis, rheumatoid arthritis, HIV/AIDS and conditions associated with palliative care. Because medical cannabis lacks an identification number, the coverage would be under medical services, rather than drug benefits, Sun Life said at that time.
“It may be more likely to be accepted now for insurance companies to cover medical marijuana, where maybe in the past there wasn’t, because they are getting a little bit of pressure,” says Cabel. “If insurance companies are expanding their scope of coverage to medical marijuana, which still doesn’t have a DIN, it’s kind of interesting. Because if they are taking a position that it is now covered, then there are implications for that, because we are now moving away from that argument that we were able to make in this case, so it muddies the waters a bit.”
Josh Koziebrocki, founder and principal of Koziebrocki Law in Toronto, says that health providers are aware that patients are able to purchase certain forms of recreational cannabis now without a prescription, while there remains a separate, simultaneous regime for medical cannabis.
“Certainly, cannabis is becoming more accepted as a treatment by health providers where they are seeing health benefits, and there has been legalized medical cannabis for some time in Canada. The reality is that that doesn’t change by recreational legalization,” he says.
The bottom line is that a health provider needs “to make an independent determination as to whether cannabis is an appropriate medical treatment,” says Koziebrocki.
“That’s what they will be judged by their regulators at all times. That is independent of what any insurance company decides,” he says. “A health practitioner shouldn’t be making a determination based on what an insurance company is deciding.”
Patrizia Piccolo, a partner and co-founder at Piccolo Heath LLP in Toronto, says that sometimes it can be confusing for employees to go through the procedure of establishing a logical link between a disability and the refusal or failure to cover a drug.
In this case, she says, she thinks the tribunal made the right call in concluding there wasn’t a link between the disability and the coverage.
“The good news for employers is that the tribunal is careful about these things,” says Piccolo. “That also means that as an employer you’ve got to be really careful about ensuring that your decisions are not in any way tainted — meaning, in any way related to protected grounds [under the Ontario Human Rights Code.]”
The litigant said in a written statement that the ruling, while unfortunate, was not a surprise, since the decision to file the Ontario human rights case was based on the since-overturned ruling out of the Nova Scotia Human Rights Board of Inquiry.
“HRTO did warn me that the successful appeal [in Nova Scotia] would most certainly negatively affect my case. I decided to keep my hearing, however, because, as a full-time mature student [at the time], affording $400 [per] month for my prescription was very difficult,” the litigant wrote. “I also knew I wasn’t alone, and thousands are suffering in Ontario because they can’t afford their prescriptions either.”
— with files from Gabrielle Giroday