Law Times

November 19, 2018

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Law Times • November 19, 2018 Page 3 HRTO claim by medical pot user dismissed BY ANITA BALAKRISHNAN Law Times T he Human Rights Tri- bunal of Ontario has found a litigant had no prospect of success in a claim that her employer- sponsored insurance plan was discriminating against her dis- ability by refusing to pay for her medical cannabis. Lisa Cabel, a lawyer at Norton Rose Fulbright Canada LLP, who represented the insurance com- pany and employer sponsor, says the case shows that while the po- litical 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 interpre- tation. It didn't lead the tribunal to enhance somebody's human rights because they wanted mar- ijuana," says Cabel. "The take- away 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 ad- ministers health and dental care plans through contracts with employers such as Essex. At issue in the summary hearing was whether any evi- dence could tie her disability to the decision to exclude medical cannabis coverage from the plan. Essex, the employer that stip- ulated the benefits covered by the plan, said the decision was not tied to the disability, wrote Laurie Letheren, vice chair- woman of the Human Rights Tribunal of Ontario, who dis- missed the application. Rather than being related to the nature of the employee's dis- ability, the decision said, Essex de- nied the medical cannabis cover- age 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 per- son who has been prescribed medical cannabis also has a disability does not establish the connection between the deci- sion to deny the coverage and that person's disability. The con- nection in that instance is be- tween the type of drug and the decision," Letheren wrote. In the decision, Letheren not- ed that in a 2017 Nova Scotia de- cision, the Human Rights Board of Inquiry found a man was dis- criminated 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, be- cause 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 straight- forward 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 tak- ing 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 re- cently 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 as- sociated with palliative care. Be- cause medical cannabis lacks an identification number, the cover- age would be under medical ser- vices, rather than drug benefits, Sun Life said at that time. "It may be more likely to be ac- cepted now for insurance compa- nies 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 ex- panding their scope of coverage to medical marijuana, which still doesn't have a DIN, it's kind of in- teresting. Because if they are tak- ing a position that it is now cov- ered, then there are implications for that, because we are now mov- ing 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 provid- ers are aware that patients are able to purchase certain forms of rec- reational cannabis now without a prescription, while there remains a separate, simultaneous regime for medical cannabis. "Certainly, cannabis is be- coming more accepted as a treat- ment 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 recre- ational legalization," he says. The bottom line is that a health provider needs "to make an independent determination as to whether cannabis is an ap- propriate 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 prac- titioner 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 some- times it can be confusing for em- ployees to go through the pro- cedure 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 dis- ability 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 deci- sions 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 Sco- tia] would most certainly nega- tively affect my case. I decided to keep my hearing, however, be- cause, as a full-time mature stu- dent [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." LT — with files from Gabrielle Giroday NEWS CORRECTION A column in the Nov. 5 issue of Law Times on A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 said that the lawyers representing the applicant, Kimberly Srivastava and Emily Shepard, were with the Human Rights Legal Support Centre. In fact, at the time the case was before the tribunal, both lawyers were with bakerlaw. Shepard is now with Human Rights Legal Support Centre. Law Times regrets the error. Right-sized Thinking® • 1-800-323-3781 • Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts No Matter the Size or Type of Case, We Can Handle It From the complex to the simple; our range of expertise enables us to handle whatever size or type of legal issue you may have. We are committed to providing forward-thinking and flexible legal counsel while maintaining client service excellence. That's what we like to call Right-sized Thinking®. Untitled-1 1 2018-11-14 10:25 AM Lisa Cabel says the political view of mari- juana doesn't change the contractual interpretation of medical cannabis insur- ance coverage.

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