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DISCRIMINATION - Prohibited grounds - Mental or physical disability

Friday, May 18, 2018 @ 8:33 AM  


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Appeal by the Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund from a decision by the Nova Scotia Human Rights Commission Board of Inquiry in favour of the respondent, Skinner. The appellant managed a Plan that provided health and related benefits for employees and former employees working in the unionized sector of the Canadian elevator industry. The respondent was an elevator mechanic eligible for coverage under the Plan. In 2010, the respondent was involved in a serious automobile accident that rendered him unable to work. He suffered from chronic pain disorder, anxiety and depression. In 2012, the respondent began using medical marijuana on the advice of his treating psychologist. In 2014, the respondent sought coverage of the associated expense following expiration of automobile insurance medical benefits and refusal of coverage by the WCB. The appellant denied coverage on the basis medical marijuana was not an approved expense under the Plan, as it was not approved by Health Canada and was therefore not recognized by the Plan's benefits management service provider. The respondent challenged the denial via a human rights claim. The Board of Inquiry determined that the refusal of coverage constituted prima facie discrimination on the basis of disability. The Plan's Board of Trustees appealed.

HELD: Appeal allowed. The Board unreasonably and arbitrarily concluded that the respondent's disability was a factor in the appellant's decision to deny him medical marijuana, as there was no evidence that the respondent's disability was a factor in the Board's decision. In addition, in characterizing the denial of medical marijuana as a denial of a benefit under the Plan, the Board unreasonably equated physician-prescribed medications with Health Canada with those without approval. The refusal of coverage for a non-approved drug did not differentiate the respondent from others disabled by chronic pain. No beneficiary received medical marijuana. No beneficiary received drugs not approved by Health Canada. The Plan’s exclusion of such drugs was not based on the respondent's disability. The Board’s test for discrimination was legally unreasonable, as it failed to require a connection between the adverse effect and membership in an enumerated group. The Board's finding of discrimination was set aside.

Canadian Elevator Industry Welfare Trust Fund v. Skinner, [2018] N.S.J. No. 126, Nova Scotia Court of Appeal, D.R. Beveridge, D.P.S. Farrar and P. Bryson JJ.A., April 12, 2018. Digest No. TLD-May142018009