The Times They Are A Changing – The Evolution Of Insurance Coverage For Medical Marijuana

As we celebrate the 50th Anniversary of the Summer of Love (1967-2017), listening to vinyl/download versions of Jefferson Airplane, Janis Joplin and the Grateful Dead, it is clear some aspects of counter-culture have become mainstream.

With the advent of new Health Canada Regulations in 2015, following the Supreme Court's ruling that users of medical marijuana should be permitted to consume the product in more varied forms than smoking dried buds, the demand for insurers to cover medical marijuana under benefit plans has increased exponentially. At the same time, the current retreat from opioid prescription has left a gap in products available to treat chronic pain. These factors are shifting the landscape and mindset of employers, insurers and adjudicators towards coverage extension. Most recently, the food giant Loblaws extended coverage for medical marijuana to its approximately 45,000 employees under policies managed by Manulife and Great-West Life.

It is possible that Loblaws' extension of coverage is simply a supply chain support to the Shoppers Drug Mart application to Health Canada for the license required to sell medical marijuana. (Loblaws attributes the extension to evolving clinical evidence for use as treatment for specific medical conditions). Setting supply chain innovation aside, extension of coverage under insurance plans and by statutory tribunals has been well underway for years. Adjudicators, employers and insurers are tuning in, turning on (the benefits coverage) and dropping out (of coverage denials).

Background - Regulatory Scheme for Medical Marijuana

In R. v. Parker, 2000 CanLII 5762 (ONCA), the Ontario Court of Appeal considered the impact of medical marijuana in the context of a criminal proceeding under the Controlled Drugs and Substances Act (CDSA). The accused Parker was suffering from epilepsy and found smoking marijuana substantially reduced instances of seizure. Since he had no legal source of marijuana, he cultivated it for himself, which led to him being charged under the CDSA. The Court of Appeal held the lack of a viable medical exemption from the enforcement provisions under CDSA violated the accused's constitutional right to life, liberty and security of the person pursuant to section 7 of the Charter of Rights and Freedoms, as it would force individuals to choose between their liberty and their health.

Parker eventually led the federal government to establish the Marihuana Medical Access Regulations (MMAR) which set out a framework for an individual, with appropriate authorization from a medical practitioner, to access marijuana for medical purposes. Pursuant to the MMAR, an individual with appropriate authorization could purchase marijuana from Health Canada sources of supply or, upon approval from Health Canada, was permitted to cultivate marijuana for his or her own use. (Note that the federal statutes and regulations all use the spelling "Marihuana" instead of the more common "Marijuana").

In 2013, the federal government revised the guidelines for access to medical marijuana through the Marihuana for Medical Purposes Regulations (or MMPR), which made some changes to the MMAR and sought to restrict possession limits and licences for the providers of medical marijuana.

Originally, only dried marijuana was permissible for use under the regulations. In June 2015, in R. v. Smith, 2015 SCC 34, the Supreme Court of Canada broadened the available forms of marijuana to be used for medical purposes to include cannabis oil and fresh marijuana buds and leaves, in addition to dried marijuana.

The MMPR stipulated that the MMAR would phase out and be fully repealed by March 31, 2014. As a result of the prohibition on issuing licences and lowering possession amounts under the MMPR, an injunction was sought in the Federal Court (in Canada v. Allard, 2014 FC 280), to preserve the MMAR and to limit the provisions of the MMPR. Injunctive relief was granted and was upheld by the Federal Court of Appeal (2014 FCA 298). The full case on the merits was heard in 2016, with the Federal Court declaring that the entire MMPR was unconstitutional and leaving a period of time for Parliament to pass appropriate remedial regulations (2016 FC 236 & 237).

As a result, the Access to Cannabis for Medical Purposes Regulations (ACMPR) came into force in February 2017. This regulation replaces the MMPR and MMAR and is the central mechanism for controlling medical marijuana in Canada. The Narcotic Control Regulations, CRC c. 1041, allows medical practitioners to prescribe marijuana despite the provisions of the CDSA, while the ACMPR (and previous MMAR and MMPR) dictates the circumstances under which the exemption could be exercised.

Under the ACMPR, consumers of medical marijuana can access cannabis from a licenced producer by first becoming a client of the producer, which requires filing an application with the client's information and...