Nova Scotia Court of Appeal upholds WCAT decision to deny medical cannabis coverage

The Nova Scotia Court of Appeal recently considered the issue of medical cannabis in the context of workers’ compensation in Skinner v Nova Scotia (Workers’ Compensation Appeals Tribunal), 2018 NSCA 23. The Court upheld the decision to deny this form of assistance under the Workers’ Compensation Board Policy.

Gordon Skinner suffered a workplace injury which left him with chronic pain and applied to the Workers’ Compensation Board for medical assistance in the form of medical cannabis. Under WCB Policy 2.3.1R, requests for assistance with medical services may be approved where they are both appropriate for the type of compensable injury and consistent with the standards of health care practices in Canada. The WCB Case Manager denied Mr. Skinner’s request on the grounds that the use of medical cannabis is not consistent with the standards of health care practices in Canada.

This decision was upheld on internal appeal, and subsequently also upheld by the Workers’ Compensation Appeals Tribunal (WCAT). The WCAT noted that although use of medical cannabis is increasing in Canada, it has not yet become a generally acceptable medical practice and there are no standards in place governing its therapeutic or medicinal use.

In appealing to the Nova Scotia Court of Appeal, Mr. Skinner made two arguments:

1)     The Policy was inconsistent with the Workers’ Compensation Act because the limitation under the Policy denied him a benefit to which he was entitled under the Act; and

2)     The Policy unlawfully fettered Board discretion.

The Court did not find either argument persuasive. Ultimately, it determined that the language of the Act gave the Board the authority to make determinations about the necessity, character, and sufficiency of a request for medical assistance, and in this respect the Policy was in keeping with the Act. The Court also concluded that the Act authorized the Board to make policies which fettered its decision-making in some respects, but that this was not unlawful.

In addition, the Court commented on the fact that the Policy had not always been applied consistently in other cases involving requests for medical cannabis. The Court dismissed this inconsistency as a potential argument, citing the Alberta Court of Appeal in Thompson Brothers (Construction) Ltd. v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 78 at paragraph 39 of that decision:

[39] There is, however, no rule of law that an administrative tribunal can never change its policies, nor change its interpretation of a particular policy, nor change the way that the policy will be applied to particular fact situations.

It is worth noting that the WCB Policy in question came into effect in 2004. In the 14 years since then, there have been significant changes in societal attitudes toward cannabis, the most significant development being that it will be legalized on July 1, 2018. The real impact of this NSCA decision is in re-confirming the Nova Scotia Workers’ Compensation Board’s authority to approve cannabis requests on a case by case basis.

However, this is not the end of the road for Mr. Skinner. Last year the Nova Scotia Human Rights Commission found that his insurer had discriminated in denying him coverage for medical cannabis.  That decision has been appealed to the Nova Scotia Court of Appeal as well. Clearly, his saga before the courts is not yet over.


Do you have questions about cannabis in the workplace or the Workers’ Compensation process?

Barteaux Durnford regularly assists employers with day-to-day advice on managing workers’ compensation issues, drafting workplace policies, and representing employers at the Workers’ Compensation Board, the Workers’ Compensation Appeals Tribunal, and the Nova Scotia Court of Appeal. To learn more, contact our firm today.