Medical Marijuana and Human Rights

Written on behalf of Peter McSherry

Power of Human Rights Remedies

Canadians have been allowed to use cannabis for medical purposes for many years. One recent case has considered whether a provider of medical benefits could refuse to allow for this method of treatment by its own policy document. As has been the case with many human rights decisions in recent years, the law has once again refused to allow the written terms of the document to rule the day. Another vivid example is the Ontario case in which the employer’s policy on denying medical benefits to employees over the age of 65 was ruled a violation of human rights law, as reviewed previously.

Precedent Case

In this recent case[1], the employee was provided a medical prescription for the use of cannabis due to chronic pain, anxiety and depression, from which he suffered due to a car accident. He was unable to return to work due to a permanent disability. He was denied coverage for the cost of medical cannabis by the benefits provider. In this case this body was a board of trustees which administered the benefit plan for all unionized employees in the relevant industry. The decision would also likely apply to private insurers as well.

The human rights complaint was based on adverse treatment due to a physical and mental disability. While it is true that a benefits provider need not always provide coverage for all drugs for any disability, it cannot nonetheless determine not to provide specific forms of medical treatment based on an arbitrary decision. Once the complainant showed that the denial of coverage was adverse treatment due to a disability, the benefits provider was then required to rationalize its denial of this coverage to the point of undue hardship. This it could not do. In theory, it could have shown evidence of some dramatic unanticipated medical cost which could have severe impact on the medical plan. This was not done and the complaint succeeded.

Let Legal Advice Guide Your Actions

The lesson from this case is that a medical plan of benefits cannot likely exclude coverage for medical marijuana. If you are an employee in this situation, it is important to take legal advice to understand your rights. Once again, the written policy document may not necessarily define your legal rights. If you have questions about such an issue, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation

[1] Skinner v Board of Trustees