By Stéphanie Hazan, law intern
After an industrial accident or a car accident, it is possible that a therapeutic marijuana prescription is necessary considering the beneficial effects of this medication compared to other therapeutic methods that are considered more “classic” or “traditional”. The following question then comes to mind: are these fees reimbursable by the CNESST or the SAAQ if this medication is used to treat chronic pains after an industrial accident or a car accident? Surprisingly, a study of jurisprudence on this topic allows concluding that you can claim these fees to the CNESST, but not to the SAAQ.
As a matter of fact, as for the CNESST, it is well established that marijuana is considered medication according to the section 189 paragraph 3 of the Act respecting industrial accidents and occupational diseases if it is prescribed by a physician and if an authorization is delivered by Santé Canada.
In different decisions rendered by the Commission des lésions professionnelles and the Tribunal administratif du travail, judges declared that workers were entitled to the reimbursement of the fees related to the use of marijuana for medical purposes (dried, in leaves or other). The workers had obtained a valid possession card delivered by Santé Canada and detained a prescription from their physicians for this purpose. Obviously, a preponderant medical proof is required to demonstrate that the recourse to marijuana has positive effects to relieve from the pain related to the accident and to demonstrate that other medications, such as Cesamet, Lyrica, Sativex or Celebrex, have been tried, but without any success.
Be careful, you will not be entitled to the reimbursement of fees for the purchase of marijuana obtained from another source than Santé Canada, no matter their quality or their efficiency. It has been decided that Club Compassion, for instance, is not an allowed provision source. As a matter of fact, jurisprudence has established that a worker must obtain marijuana legally and according to the three possible ways described in the Marijuana Medical Access Regulations. Thus, you can obtain dried marijuana produced by Santé Canada through the organism Prairie Plant Systems Inc., obtain a production licence through Santé Canada or obtain a licence from Santé Canada to designate someone who produces marijuana for a user. Any other source must be qualified as illegal and cannot be reimbursed.
On the other hand, that Tribunal administratif du Québec takes care of SAAQ files and refuses the reimbursement of the purchase fees of medical cannabis. The victim can demonstrate in a preponderant way that medical cannabis is the only remedy of the consequences resulting from the accident. In other words, he must prove that it is a treatment related to the accident that is medically required. However, considering that these fees are not in the Regulation respecting the reimbursement of certain expenses, that medical cannabis is not considered like a reimbursable medication according to the Automobile Insurance Act and that Santé Canada does not consider cannabis like medication because cannabis has no drug identification number, cannabis expenses are not covered by the SAAQ. In a decision, it is even mentioned that :
« Le Tribunal administratif du Québec fait partie de l’ordre dit exécutif et ne fait pas partie de l’ordre judiciaire […] La LAA est d’ordre public et doit s’interpréter et être appliquée d’une manière large et libérale, mais pas au point de faire des exceptions discrétionnaires arbitraires pour satisfaire selon son bon plaisir telle ou telle demande d’indemnisation. »
Will the SAAQ act similarly the CNESST one day? Stay tuned!
The information contained in this newsletter may be of juridical nature, but does not constitute legal advice.