Court of Appeal

Judge:

The Honourable Justice Peter M.S. Bryson

Appeal Heard:

October 2, 2017, in Halifax, Nova Scotia

Subject:

Human rights.  Nova Scotia Human Rights Act.  Pension Plans.  Administrative law.

Summary:

Mr. Skinner was a member of the International Union of Elevator Constructors which made him eligible for health benefits under a Welfare Plan administered by the appellant Trustees.  Mr. Skinner experienced chronic pain following a motor vehicle accident.  Narcotic and anti-depressants were not effective for him and had negative side effects.  His physician prescribed medical marijuana which was effective in managing Mr. Skinner’s pain.  His request for reimbursement of medical marijuana expenses was rejected by the Trustees because the Welfare Plan did not cover prescription drugs not approved by Health Canada.  Medical marijuana had not been approved.  Mr. Skinner brought a human rights complaint based on his disability.  The Human Rights Board of Inquiry found Mr. Skinner had been discriminated against.  The Trustees appealed.

Issues:

(1)         Did the Board err in law in the test it applied for prima facie discrimination?

(2)         Did the Board err in law when finding that the alleged discrimination was “based on” Mr. Skinner’s disability?

Result:

Appeal allowed.  The Board erred in its application of the three-part prima facie discrimination test described by the Supreme Court in Moore v. British Columbia (Education), 2012 SCC 61.  Specifically, the Board erred in finding that non-coverage of medical marijuana discriminated against Mr. Skinner “based on” his disability.  The Welfare Plan did not cover medical marijuana because it was not approved by Health Canada.  All such Plans necessarily have limited benefits for those with a disability.  It could not be automatically discriminatory for the Trustees to impose reasonable limits on reimbursable benefits.  Mr. Skinner has access to all the medications available to any other eligible plan member.  Mr. Skinner experienced an adverse impact because those medications were not effective for him personally—not because he fell within a protected group described in the Human Rights Act.