Up in Smoke: Awards for Medical Marijuana in Personal Injury Cases

If someone is injured in a car accident, under part 7 of the Insurance (Vehicle) Act, ICBC is required to pay all reasonable expenses for necessary medical, surgical, dental, hospital, ambulance or professional nursing services. Where does this leave medical marijuana users?

According to surveys commissioned by Health Canada, there are roughly 500,000 medical cannabis users in Canada over the age of 25. Despite recent inroads made by supporters of legalization and the proliferation of compassionate clubs and dispensaries, the only legal means through which Canadians can obtain access to marijuana for medical purposes is through the support of their physician and Health Canada via the Marijuana for Medical Purposes Regulations (MMPR). Currently there are 35,000 to 40,000 patients enrolled in Health Canada’s medical marijuana program, representing a fraction of the total medical users. The effect is that despite having a medical prescription and purchasing marijuana products at a dispensary many users of medical marijuana are obtaining the drug outside the legal framework. The changing dynamic of the marijuana regulatory framework has resulted in some notable recent decisions on whether damages can be awarded for the medical use of marijuana.

In Amini v. Mondragaon, 2014 BCSC 1590, the plaintiff was injured as a result of a rear-end collision. After the accident, the plaintiff suffered chronic pain in her right shoulder and severe headaches, which limited her ability to do house work. Her doctor recommended that she be put on the Medical Marijuana Program to receive topical ointment to apply to painful areas while working on rehabilitation and strengthening for six months. The plaintiff was awarded $6,500 for the medical marijuana program and $1,500 for physiotherapy based on her doctor’s recommendation.

In Joinson v. Heran, 2011 BCSC 727 (CanLII) a plaintiff suffered health complications as a result of an unnecessary surgery and negligence on the part of a surgeon. Due to the difficulty in obtaining marijuana through Health Canada, the patient was purchasing through another dispensary. Despite asking for $822,000 in compensation for a lifetime supply the court awarded the plaintiff $30,000 for the cost of medical marijuana based on the maximum allowed by Health Canada, and priced as if purchased from a Health Canada legally authorized source, or at the cost of the medically equivalent amount of a synthetic substitute. In the opinion of Justice the evidence supported a finding that compensation for some medical marijuana was reasonably necessary. Despite the fact that the plaintiff had been purchasing his marijuana outside the legal regime, he was still able to receive an award for medical marijuana based on the recommended dosage and cost set out in the Health Canada regulations.

However, the court was reluctant in Torchia v. Siegrist, 2015 BCSC 57 (CanLII) and in Datoc v. Raj, 2013 BCSC 308 (CanLII) to make any awards for medical marijuana for a plaintiff injured in a car accident based on the lack of evidence from doctors establishing the marijuana to be medically necessary.