In October 2018, Bill C-45, the Cannabis Act is set to come into effect, legalizing the use of recreational marijuana in Canada. While medical marijuana has been legal for some time, the legalization of recreational marijuana will likely increase both therapeutic and non-therapeutic uses by the public. Presumably, this will result in an increase in the number of claims for the future costs of marijuana treatment for personal injury claims.
Under the current regulatory scheme, in order to be approved under the Access to Cannabis for Medical Purposes Regulations, patients are required to have a diagnosis of an approved condition made within the 5 years prior to applying and are required to be regularly followed by a physician for a minimum of 1 year prior to applying. There are also limits on the amount of marijuana that can be possessed as well as considerations of past criminal history. To date, Courts would only consider claims for medical marijuana after the onerous medical requirements were already completed and plaintiffs obtained a medical certificate. There are a number of cases which dealt with cost of future care after the plaintiffs had already received a medical certificate.
The leading case arising out of the British Columbia Superior Court is Joinson v Heran, 2011 BCSC 727. In that case the plaintiff was claiming damages for medical negligence against Dr. Heran. Dr. Heran contested the plaintiff's damages which included a claim for $822,000 for the future costs of medical marijuana for pain. In reviewing the general principles for cost of future care, the Court concluded that the claim for medical marijuana must be reasonable and justified by the medical evidence, stating that the claimant must show that the marijuana is reasonably necessary. The Court reviewed medical literature and expert opinions regarding medical marijuana and concluded that the evidence supported a finding that compensation for medical marijuana was reasonably necessary for the plaintiff. However, the Court was careful to emphasize that any order for future costs of marijuana must remain in compliance with federal regulations. The Plaintiff was awarded $30,000 for future costs of marijuana based on the maximum daily dosage and costs set by Health Canada.
As alluded to above, once marijuana becomes legal, plaintiffs will not need to fulfil these onerous medical requirements in advance of seeking compensation for costs of care. As a result, there will likely be an increase in the number of claims for the cost of marijuana. Interestingly, a plaintiff this year in British Columbia attempted to claim for marijuana without having a prescription from a doctor (Murphy v Hofer, 2018 BCSC 869). The Court concluded that because the legislation had not come into effect at the time of the decision, the plaintiff's claim for marijuana had to be denied.
While Courts will likely continue to use the reasonably necessary and medically justified tests after the Bill comes into effect, it will become increasingly important to scrutinize the plaintiff's application, as the onerous requirements will no longer be a given. For example, plaintiffs who have been prescribed pain medication may prefer the use of marijuana as an alternative to medication. Courts and Counsel will need to focus on factors such as the type of medical practitioner recommending marijuana, their qualifications, the amount recommended, previous recreational use, and whether marijuana use is contra-indicated as a result of any pre-existing conditions, such as prior drug or alcohol abuse. Similarly, the cost to defendants for a plaintiff's anxiety caused by the defendant's negligence may also increase. While anxiety was commonly considered under general damages, the cost of future care to manage anxiety with marijuana may be added to claims going forward.
These are only a few possible examples of how the cost of future care could be impacted by the legalization of recreational marijuana. However, the likely increase in use has the potential of reshaping how courts view alternatives to common cost of future care claims.
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