Rivard v. Essex (County)

Rivard v. Essex (County)

Decision date: October 26, 2018

Norton Rose Fulbright Canada LLP successfully represented Green Shield Canada Inc., which administers and adjudicates health and dental benefit plans through contracts with employers, before the Human Rights Tribunal of Ontario in October.

At issue at the summary hearing was whether any evidence could tie an applicant’s disability to the decision to exclude medical cannabis coverage from its insurance plan.

The applicant was a dependent of an employee of the Corporation of the County of Essex in southwestern Ontario. Green Shield enters into contracts with employers for health and dental benefit plans, and administers and adjudicates the plans offered by Essex to its employees. 

The applicant filed an application alleging that she experienced discrimination in the provision of services on the basis of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended. She alleged that Green Shield breached her Code rights when it denied her coverage for the cost of medical cannabis that had been prescribed by her health professional. Later, the County of Essex, as the employer, was also named as a respondent.

The Human Rights Tribunal of Ontario found that a litigant has no reasonable prospect of success in a claim that their employer-sponsored insurance plan discriminates against their disability by refusing to pay for medical cannabis.

Rather than being related to the nature of the employee’s disability, the decision said, the employer denied the medical cannabis coverage because the applicant’s prescribed treatment of cannabis did not have a Drug Identification Number: “A DIN is assigned by Health Canada prior to being marketed in Canada. Medical cannabis does not have a DIN. Essex states that it is on that basis alone that the applicant’s claim was denied.”

The applicant also submitted that Green Shield’s denial of coverage was due to a bias against cannabis use. But the Tribunal found that even if bias did exist it would not amount to a breach of her Code rights.

“The fact that a person who has been prescribed medical cannabis also has a disability does not establish the connection between the decision to deny the coverage and that person’s disability. The connection in that instance is between the type of drug and the decision,” Tribunal Vice-Chair Laurie Letheren wrote in her decision.

Letheren noted that in a 2017 Nova Scotia decision, the Human Rights Board of Inquiry found that a man was discriminated against because a labour union’s welfare plan did not cover prescription drugs that were not approved by Health Canada, including medical marijuana. That decision, however, was overturned by the Nova Scotia Court of Appeal in Canadian Elevator Industry Welfare Trust Fund v. Skinner.

Green Shield Canada Inc. was represented by Lisa Cabel and Andrew Nicholl of Norton Rose Fulbright Canada LLP.