Is Excluding Medical Marijuana Coverage From Benefits Discriminatory Under Human Rights Law

Is Excluding Medical Marijuana Coverage From Benefits Discriminatory Under Human Rights Law?

Individuals receiving services are protected from discrimination on the basis of illness and/or disability under human rights law. In Ontario, this is covered under the Ontario Human Rights Code. As it relates to drug coverage, a recent case in Nova Scotia highlights a key distinction in drugs approved by Health Canada under the federal Food and Drug and those that are not.
In the case of the Canadian Elevator Industry Welfare Trust Fund v. Skinner, Skinner argued that he was adversely discriminated against due to the fact that his claim for medical marijuana coverage was denied. In this case, Skinner tried various narcotic drugs to treat the chronic pain he was suffering from, but these conventional treatments were ineffective, and in fact, caused skinner debilitating side-effects. Skinner’s doctor then prescribed him medical marijuana, which improved Skinner’s pain management and well being, while also eliminated the need for the various narcotic drugs Skinner had taken prior.
Using a Supreme Court two-step analysis (Gibbs, 1996), the Nova Scotia Court of Appeal ruled that the benefits provider here was not acting discriminatory on the basis of disability. Since the plan only provided coverage for drugs approved by Health Canada (ie. which are identifiable by a Drug Identification Number (DIN)), it treated all members equally. This, for the purpose of marijuana drug coverage, was ruled to be non-discriminatory.
The Skinner ruing is likely to bare influence on other provinces’ Human Rights Tribunals as well. Benefits providers must be consistent in the application of their drug coverage, not to create an effect of 2 or more sub-groups being treated differently. For instance, in the case above, the Canadian Elevator Industry Welfare Trust Fund chose to deny all drug claims for drugs not issued a DIN (ie. not approved by Health Canada). This is acceptable. What would not be acceptable, and in essence discriminatory, is if some drugs without a DIN were covered. Therefore, if medical marijuana drug coverage was targeted specifically, doing so would likely be considered discriminatory. If you are an employee that has been denied coverage for medically prescribed marijuana by your benefits provider, you may be entitled to compensation.