Nova Scotia Appeals Court Delivers a Blow to Medical Cannabis

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Medical cannabis advocates suffered a major setback April 12, when the Nova Scotia Court of Appeal overturned a ruling that an injured man’s legally prescribed medical cannabis must be covered by his union’s trust fund.

Because cannabis isn’t a fully approved medicine, it isn’t automatically included in drug formularies and is not regarded as legitimate by many insurers.

The court decided that the Canadian Elevator Industry Welfare Trust Fund’s refusal to cover the medication for Gordon Wayne Skinner was not due to discrimination, as the Nova Scotia Human Rights Board of Inquiry had found.

In a press release, Skinner described the decision as “devastating. My own union is doing everything [it] can to deny coverage of the only medication that works for me, while myself and my family are left to suffer,” he said.

Skinner, a member of the International Union of Elevator Constructors, was driving his employer’s vehicle when he lost consciousness and slammed into a tree in 2010. Since then, he has suffered from chronic pain and other ailments—and hasn’t been able to work.

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Narcotics and antidepressants failed to provide relief but medical cannabis did. His employer covered costs for a while. When that coverage ran out in 2014, Skinner asked his union’s trust fund to cover the cost. It turned him down three times.

Last year, the Nova Scotia Human Rights Board of Inquiry found the denial of coverage amounted to a prima facie case of discrimination.

Skinner took his case to the Nova Scotia Human Rights Board of Inquiry, which ruled in his favour last year. It found that denial of his request for coverage amounted to a prima facie case of discrimination—a violation of the province’s human rights act—and ordered the fund to cover the cost of Skinner’s medicine.

Skinner was elated and a number of medical cannabis advocates hailed the ruling as a bellwether, saying it was only a matter of time until broad-ranging coverage of medical cannabis became a standard part of every health insurance policy.

But the Nova Scotia Court of Appeal dampened their enthusiasm in its recent ruling. In an unanimous decision, it ruled that the fund had refused to cover the costs of Skinner’s medication simply because Health Canada hadn’t given it a Drug Identification Number (DIN), the government’s seal of approval— and that discrimination had nothing to do with it.

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Because cannabis isn’t a fully approved medicine, it isn’t automatically included in drug formularies and is not regarded as legitimate by many insurers.

CFAMM says almost 60% of Canadians who are prescribed medical cannabis can’t afford the recommended dosage.

“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.”

While he appreciates the legal grounds for the ruling, the head of Canadians for Fair Access to Medical Marijuana (CFAMM) sees it as ethically problematic.

“The union not only denied [Skinner’s] request, but they have continued to fight the case and exhaust legal resources instead of caring for the person they are purported to represent,” James O’Hara said in a release.

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“It didn’t have to get to this point,” he told Leafly. “The union could have come up with an alternative arrangement. We hoped there would be another way to accommodate Mr. Skinner without going through the courts.”

O’Hara says almost 60% of Canadians who are prescribed medical cannabis can’t afford the recommended dosage and, as result, must make “unfathomable choices – food and electricity versus medication.

“CFAMM is actively exploring all options to continue supporting Mr. Skinner’s case,” he said. “Affordability of medical cannabis is our priority. We will continue to strongly advocate on all fronts—we will not back down.”