The Nova Scotia Court of Appeal has overturned a provincial human rights board decision that said an injured man’s legally prescribed medical marijuana must be covered by his union insurance plan, marking a significant setback for cannabis advocates.
Gordon Wayne Skinner of Head of Chezzetcook, N.S., a unionized elevator mechanic who suffers from chronic pain caused by an on-the-job vehicle accident, had argued he faced discrimination when he was denied coverage under the Canadian Elevator Industry Welfare Trust Plan.
Representatives for the plan argued there was simply no coverage for prescription drugs not approved by Health Canada, which is the case for medical marijuana. They said discrimination, as defined under the Human Rights Act, had little to do with this case.
In February 2017, a human rights board of inquiry agreed with Skinner, saying he faced unintentional discrimination because the exclusion of coverage was inconsistent with the purpose of the insurance plan.
“It had the adverse effect of depriving him of the medically necessary drug prescribed by his physician, even though the ... plan covered other special requests for medically necessary drugs prescribed by physicians for other beneficiaries,” the board said in its decision.
Nova Scotia’s highest court, in a unanimous decision released Thursday, rejected that position, saying the board erred in finding the lack of coverage discriminated against Skinner based on his disability.
The court concluded that the board applied the wrong test for discrimination.
As well, the court’s decision said the plan did not cover medical marijuana because it was not approved by Health Canada, which the court said was a reasonable limit on benefits.
“It could not be automatically discriminatory for the trustees (of the plan) to impose reasonable limits on reimbursable benefits,” the three-judge panel said.
“Mr. Skinner has access to all the medications available to any other eligible plan member. Mr. Skinner experienced an adverse impact because those medications were not effective for him personally – not because he fell within a protected group described in the Human Rights Act.”
Skinner issued a statement saying the decision will have a devastating impact on his health and his family.
“My own union is doing everything they can to deny coverage to the only medication that works for me, while myself and my family are left to suffer,” he said.
The ruling marks a step backward for medical marijuana advocates.
Canadians for Fair Access to Medical Marijuana, a non-profit lobby group, issued a statement saying about 60 per cent of Canadians who are prescribed medical cannabis cannot afford the dose their doctor recommends.
“Families like Mr. Skinner’s are being forced to make unfathomable choices – food and electricity versus medication,” the group said.
James O’Hara, the group’s CEO, said he is not giving up on Skinner’s case.
“Affordability of medical cannabis is our priority,” he said in a statement. “We will continue to strongly advocate on all fronts. We will not back down.”
Skinner, a member of the International Union of Elevator Constructors, was driving his employer’s vehicle in August 2010 when he lost consciousness, veered off the road and hit a tree. He now suffers from chronic pain disorder, which includes anxiety and depression. He has not worked since the crash.
He was prescribed narcotics and anti-depressants, but they didn’t work and caused serious side effects.
Skinner started using medical marijuana in 2012, on the advice of his psychologist. All parties in the case agreed that the drug was working for him.
In its decision released Thursday, the appeal court noted that the human rights board began its 2017 decision by saying private insurance plans need not cover “the sun, the moon and the stars.”
The court said that’s exactly what the board’s ruling implies.
“The logical consequence of (Skinner’s) 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,” the court’s decision says.
“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.”
The court said Skinner may have had greater success with an arbitration board.