14 LEXPERT MAGAZINE
|
JANUARY 2019
RIVARD V. ESSEX (COUNTY),
2018 HRTO 1535
DECISION DATE: OCTOBER 26, 2018
Norton Rose Fulbright Canada LLP suc-
cessfully represented Green Shield Canada
Inc., which administers and adjudicates
health and dental benefit plans through
contracts with employers, before the Hu-
man Rights Tribunal of Ontario in October.
At issue at the summary hearing was
whether any evidence could tie an appli-
cant's disability to the decision to exclude
medical cannabis coverage from its insur-
ance plan.
e applicant was a dependent of an em-
ployee of the Corporation of the County
of Essex in southwestern Ontario. Green
Shield administers and adjudicates the
plans offered by Essex to its employees.
e applicant filed an application al-
leging that she experienced discrimination
in the provision of services on the basis of
disability contrary to the Human Rights
Code, R.S.O. 1990 c. H. 19, as amended.
She alleged that Green Shield breached
her Code rights when it denied her cover-
age for the cost of medical cannabis that
had been prescribed by her health profes-
sional. Later, the County of Essex, as the
employer, was also named as a respondent.
e Human Rights Tribunal of Ontario
found that a litigant has no reasonable pros-
pect of success in a claim that their employ-
er-sponsored insurance plan discriminates
against their disability by refusing to pay for
medical cannabis.
Rather than being related to the nature of
the employee's disability, the decision said,
the employer denied the medical cannabis
coverage because the applicant's prescribed
treatment of cannabis did not have a Drug
Identification Number: "A DIN is assigned
by Health Canada prior to being marketed
in Canada. Medical cannabis does not have
a DIN. Essex states that it is on that basis
alone that the applicant's claim was denied."
e applicant also submitted that Green
Shield's denial of coverage was due to a
bias against cannabis use. But the Tribunal
found that even if bias did exist it would not
amount to a breach of her Code rights.
"e fact that a person who has been
prescribed medical cannabis also has a dis-
ability does not establish the connection
between the decision to deny the coverage
and that person's disability. e connection
in that instance is between the type of drug
and the decision," Tribunal Vice-Chair Lau-
rie Letheren wrote in her decision.
Letheren noted that in a 2017 Nova Sco-
tia decision, the Human Rights Board of
Inquiry found that a man was discriminat-
ed against because a labour union's welfare
plan did not cover prescription drugs that
were not approved by Health Canada, in-
cluding medical marijuana. at decision,
however, was overturned by the Nova Sco-
tia Court of Appeal in Canadian Elevator
Industry Welfare Trust Fund v. Skinner.
Green Shield Canada Inc. was repre-
sented by Lisa Cabel and Andrew Nicholl
of Norton Rose Fulbright Canada LLP.
LAVENDER V. MILLER
BERNSTEIN LLP, 2018 ONCA 729
DECISION DATE: SEPTEMBER 5, 2018
Miller Bernstein LLP was the auditor of
Buckingham Securities Corp., a securities
dealer whose registration was suspended
by the Ontario Securities Commission in
2001 for failing to segregate client assets
and maintain a minimum level of net cap-
ital. When Buckingham collapsed, its assets
were insufficient to make its clients whole.
One of Buckingham's clients, Barry Lav-
ender, commenced a class action against
Miller Bernstein in 2005 on behalf of all cli-
ents at the time that Buckingham Securities
was suspended. e action was certified on
consent in 2010. e key issue was whether
a duty of care could be established between
Miller Bernstein and the class.
Lavender moved for summary judgment
in 2017. At first instance, Justice Edward
Belobaba of the Ontario Superior Court
of Justice held that Miller Bernstein owed
a duty of care to the class, and that the duty
arose because, in the circumstances, Miller
Bernstein "as a matter of simple justice had
an obligation to be mindful of the plain-
tiff 's interests" when undertakings its audit.
Miller Bernstein appealed. In a unani-
mous decision, the Ontario Court of Ap-
peal overturned Justice Belobaba's decision
in its entirety. Applying the recent Supreme
Court of Canada decision in Deloitte &
Touche v Livent, the Court of Appeal held
that there was a lack of a close and direct
connection between Miller Bernstein and
Buckingham's clients, and therefore the
requisite proximity to establish a duty of
care could not be established. e Court of
Appeal concluded that Miller Bernstein did
not owe a duty of care to the class, granted
summary judgment to Miller Bernstein,
and dismissed the action.
Counsel for the plaintiff has sought leave
from the Supreme Court of Canada to ap-
peal the decision.
e case represents the Ontario Court of
Appeal's first opportunity to apply Livent to
an auditor's negligence claim. In doing so, it
affirmed the high threshold established in
Livent that non-clients must meet when
seeking to establish an auditor's liability.
Miller Bernstein LLP was represented
by Bennett Jones LLP, with a team led by
Robert Staley and including Gavin Finlay-
son, Nathan Shaheen and Preet Bell.
e plaintiff, Barry Lavender, was repre-
sented by Siskinds LLP, with a team led
by Daniel Bach and including Paul Bates,
Serge Kalloghlian and Garett Hunter.
The Human Rights Tribunal of Ontario found a litigant had no prospect of success in a claim
that an employer-sponsored insurance plan was discriminating against her disability by not
paying for her medical cannabis. The former auditor of Buckingham Securities successfully
defended against an auditor negligence class action before the Ontario Court of Appeal
BIG SUITS RECENT LITIGATION OF IMPORTANCE
CANNABIS.
AUDITORS.
