Future Care Costs For Cannabis In Personal Injury Claims

Authored also by Miranda Jacqueline Ramjattan1

Introduction

This article will examine how courts have responded to claims for cannabis, as an element of future care costs, in personal injury cases. These claims have occurred against a background of significant change with regards to the acceptance of cannabis, both medically and recreationally.

Background

As a result of the Cannabis Act,2 cannabis was legalized on October 17, 2018. Prior to that, cannabis was regulated under the Controlled Drugs and Substances Act.3 There was, however, a legal exemption for the medical use of cannabis. Despite the recent legalization of cannabis, a framework for access to cannabis for medical purposes still exists, but under new regulations passed under the authority of the Cannabis Act.

The use of cannabis for medical purposes, while gaining acceptance, remains controversial. This controversy is evident in the case law reviewed.

Awards for Cannabis as a Future Care Cost

Generally speaking, there must be a medical justification for the item claimed as a future care cost in personal injury cases, and any award must be reasonable and fair to both parties. Given the controversy over the efficacy and safety of cannabis for therapeutic purposes, a key question in these cases, is whether cannabis meets the requirement of medical justification.

We review, in chronological order, a number of cases in an effort to identify how the courts have responded to these claims, and the principles that govern their decisions.

Poirier v. Robichaud4

Poirier sued following a surgical procedure that left her with chronic pain and limitations affecting her lifestyle and career. Following the incident, Poirier was prescribed numerous medications, but at the time of trial, she was only taking a muscle relaxant and cannabis. According to Poirier, she found cannabis to be an efficient pain reliever which, contrary to the muscle relaxant, did not make her drowsy, allowing her to function better. She did not have permission to possess the drug, which she purchased on the black market at a cost of $40/week. Poirier's family physician did not advise against the use of cannabis but did testify that, in the past, excessive use of the drug had resulted in adverse effects, including hospitalization at a psychiatric facility and problems with digestion. In the circumstances, the court was not satisfied that an award for cannabis was reasonable.

Joinson v. Heran5

An award for marijuana was allowed in this case, which involved a negligence claim against a surgeon. As part of his claim, Joinson sought $822,000 for a lifetime supply of medical marijuana apparently based on a supply of 15 grams/day. At trial, Joinson testified that he smoked about 10 grams/day of marijuana, took one capsule of Canacaps (marijuana in an oral suspension), and consumed marijuana in baked goods. Joinson had obtained an exemption from Health Canada for medical marijuana but, according to the court, it had been obtained based on incorrect information. Furthermore, Joinson had obtained some of his supply from unauthorized dispensaries.

In determining whether to allow the claim, the court described the test as follows:

... the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary: ... . 6

In this case, there was "no bright line distinguishing mere benefit and reasonable necessity".7 Nevertheless, the court was convinced that Joinson met the test. According to Joinson, smoking dry cannabis reduced his pain levels, allowing him to reduce his use of morphine, a drug that negatively affected his functioning. Although other physicians disagreed, marijuana was an option that was endorsed by Joinson's treating physicians. The court acknowledged that the issue was controversial, even stating that the College of Physicians and Surgeons of British Columbia did not support the use of marijuana for medical purposes. Nevertheless, the court concluded as follows: "the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case".8

As for the award itself, the court noted that it "must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries".9 While Joinson had received an exemption for 20 grams/day, the court noted the caution by Health Canada with regards to dosages of more than 5 grams/day. In the end, the court made an award based on 5 grams/day of smoked marijuana, 1 Canacaps/day, and 1 gram/day for baked goods. The court awarded $30,000, based on a 50% reduction to account for amounts that Joinson would have consumed even in the absence of the injury, and to account for possible improvement over time.

Datoc v. Raj10

Datoc alleged that he suffered from persistent and debilitating pain caused by a motor vehicle accident. The court questioned Datoc's credibility and concluded that his injuries were far less severe than asserted. Datoc sought $20,000 for the cost of medical marijuana, based on $200/month. Datoc, who had obtained a prescription from a naturopath, testified that the marijuana helped him sleep, and stopped his panic attacks and chest pains. But he introduced no medical report to support his contention with respect to the effect of the drug. The court was unconvinced by Datoc's evidence as to the dramatic and persisting effect of the drug. Despite Datoc's denial, there was evidence to suggest a pre-accident interest in recreational marijuana. The court concluded as follows: "Given my concerns about the reliability of the plaintiff's evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries".11 The claim for medical marijuana was denied.

Amini v...