HRTO Finds Denial Of Coverage For Medical Cannabis Under Employer's Benefit Plan Non-Discriminatory

In a case before the Human Rights Tribunal of Ontario (HRTO), an applicant alleged that an employee benefits administrator's decision to deny her coverage for medically-prescribed cannabis was discriminatory. The Tribunal found that such a denial does not constitute discrimination under the Ontario Human Rights Code (Code) when the decision to deny coverage is unrelated to an applicant's disability or another enumerated protected ground.

Background

In the October 2018 decision,1 the self-represented applicant was a dependant of an employee of the Corporation of the County of Essex (Essex), who relied on medically-prescribed cannabis treatments to control the symptoms of her disability. The Applicant named Green Shield Canada Inc. (Green Shield), a company who contracts with employers such as Essex to administer health and dental care plans for employees, as the respondent.

At issue in the summary hearing was whether the decision to deny the Applicant coverage for her medically-prescribed cannabis was discriminatory, or whether this application had no reasonable prospect of success.

The Applicant believed that her employer (and its benefits plan administrator) had refused to reimburse the costs of her cannabis-related treatment due to an inherent "bias against cannabis use", which resulted in an alleged discrimination in the provision of services on the basis of her disability.2

Essex denied any discriminatory action, responding that its decision to deny coverage to the applicant was a technical one that was in no way connected to the applicant's disability. The company explained that its employee benefits plan stipulated that, in order for a drug to be covered, it must have a Drug Identification Number (DIN) assigned by Health Canada. At this point in time, medical cannabis does not have a DIN, and Essex stated that, on this basis alone, it denied coverage. In support of this point, counsel for Essex relied on the Tribunal's decision in Kueber v. Ontario (Attorney General),3 in which it was held that a decision to deny coverage for the cost of medical marijuana under the Ontario Drug Benefit program because it was not approved by Health Canada was not a breach of the applicant's Code rights, since the decision was not based on any Code-related reason.

The Tribunal's Decision

The HRTO held that Essex's denial of coverage was not discriminatory in nature. In fact, the Tribunal stated that, even if Essex had denied coverage because of a bias...