Canadian Employment Law Today

8 | May 24, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends/Ask an Expert for two years, but these proved to not be ef- fective. In mid-2012, he obtained a prescrip- tion and licence for medical marijuana and began using the drug, leading to a noticeable improvement over the conventional pain medication he had been taking previously. Skinner's medical marijuana was initially covered by yssenKrupp's motor vehicle insurer. However, by May 2014 he reached the maximum coverage offered. As a result, he approached the Canadian Elevator In- dustry Welfare Trust Fund — the provider of health and other benefits for employees and former employees in the unionized sector of the Canadian elevator industry — for cover- age of his medical marijuana costs. e welfare plan offered coverage for "medically necessary drugs and medicines" that were "obtained only by prescription from a person entitled by law to prescribe them and dispensed by a licensed pharma- cist, physician or other health care practitio- ner authorized by provincial legislation to dispense them." e plan excluded over-the- counter medications and "drugs which are not considered medically necessary." e fund's board of trustees considered Skinner's request at a board meeting, but de- cided to deny it. Its reasoning included the fact that medical marijuana had not been approved by Health Canada under the Food and Drugs Act and therefore wasn't an ap- proved drug under the terms of the welfare plan. In addition, the board determined that because Skinner's injuries were from a com- pensable workplace accident, his related medical expenses were eligible for coverage from a provincial medicare plan and exempt from the welfare plan. Claim supported by medical evidence Skinner sent a second request for coverage along with medical documentation about his prescription and doctor's approval for the medical marijuana. However, the board of trustees again denied coverage. In October 2014, Skinner filed a human rights complaint claiming discrimination in the provision of services based on physical and mental disability. e commission noted that the welfare plan was not intended to cover everything, or else it wouldn't be financially sustainable. e purpose of it was to allow beneficiaries to receive coverage in the event of an un- known or unforeseen future illness or loss, but with limits to keep it running. e board of trustees was empowered to create the conditions and rules of eligibility to ensure the fund remained sustainable. e commission also pointed out that the welfare plan didn't define what a drug was and didn't limit it to drugs approved by Health Canada. Just because the plan's claims form had a field to enter a Health Canada drug identification number didn't mean it overrode the plan's text, the com- mission said. In addition, the plan covered drugs and medicines, so it could be reason- ably determined that medical marijuana was a medicine, and it also limited coverage to medically necessary drugs but didn't define what "medically necessary" meant. e commission also found that the plan specifically excluded over-the-counter med- ications that don't require a prescription, but "since medical marijuana requires a pre- scription by law, this suggests that it does not fall within this particular exclusion." Skinner's documentation showed that his doctor believed medical marijuana could help — as evidenced by the fact he prescribed it — and it was clear the drug improved his pain management and ability to function both physically and mentally. By the time Skinner applied for coverage from the wel- fare plan, it was the only medication he was taking. is — along with the supporting opinions of Skinner's treating physician and psychologist — definitively demonstrated that medical marijuana was medically nec- essary to treat Skinner's ongoing physical and mental injuries, said the commission. e commission also noted that the previ- ous medications were not only less effective, but Skinner testified on the negative side ef- fects they had. is further supported the argument that medical marijuana was medi- cally necessary for Skinner to improve his physical and mental well-being. As far as the discrimination claim, the commission noted that there was no distinc- tion being made between Skinner and other beneficiaries of the plan — it didn't cover medical marijuana for anyone. e welfare plan's purpose as a private benefits plan was to "provide the maximum level of benefits to employees that is possible while maintaining economic efficiency and sustainability." However, the commission found that while the exclusion of medical marijuana wasn't meant to treat beneficiaries differ- ently, the "substantive result" was that it treated Skinner differently because his spe- cial request for a medically-necessary, pre- scribed drug wasn't formally approved by Health Canada. Evidence showed that some beneficiaries received coverage for medical- ly-necessary, prescribed drugs, so there was a distinction that created a burden or disad- vantage to Skinner because of his physical and mental disability that needed treatment with marijuana, said the commission. e commission also found that the wel- fare plan's board of trustees became aware of the differential impact on Skinner when he brought it to their attention with his second request for coverage and accommodation, with the accompanying medical documents. Once the board was aware, Skinner's disabil- ity became at least a partial factor in its deci- sion to continue refusing coverage. e commission determined the board of trustees discriminated against Skinner by denying him coverage for a medically-nec- essary, prescription drug and the decision to continue denying it after his request for accommodation was based on his disability. e welfare plan was ordered to begin providing coverage for medical marijuana for Skinner up to and including his most re- cent prescription. Reimbursement was only required for marijuana purchased from a producer licensed by Health Canada or le- gally authorized to produce it for Skinner, and supported by an official receipt. See Skinner and Canadian Elevator Industry Welfare Trust Fund, Re, 2017 CarswellNS 203 (N.S. Human Rights Comm.). « from WORKER on page 1 Disadvantage because of disability employee may not continue under the ex- isting employment terms at the end of the notice period) for a duration that is equal to or greater than the employee's termination entitlements. • Draft variation clauses – variation claus- es in an employment agreement will sup- port an employer's claim that the proposed amendment was permitted by the employ- ment contract. Finally, if the employment contract con- tains a valid termination clause — meeting the statutory minimum entitlements in the applicable jurisdiction's employment stan- dards legislation — it may not be necessary for an employer to implement a probation- ary period at all. For more information see: • Potter v. New Brunswick (Legal Aid Ser- vices Commission), 2015 CarswellNB 87 (S.C.C.). • Singh v. Valley Forge Automotive of Canada Ltd (1989 CarswellOnt 764 (Ont. Dist. Ct.). • Stott v. Merit Investment Corp., 1988 Car- swellOnt 887 (Ont. C.A.). • Francis v. Canadian Imperial Bank Com- merce, 1994 CarswellOnt 995 (Ont. C.A.). Tim Mitchell practices management-side la- bour and employment law with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrose- fulbright.com. Changing employment contract difficult « from ASK AN EXPERT on page 2

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