Buffett v. Canadian Forces

Buffett v. Canadian Forces
Collection
Canadian Human Rights Tribunal
Date
2006-09-15
Neutral citation
2006 CHRT 39
File number(s)
T976/9604
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
TERRY BUFFETT
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADIAN FORCES
Respondent
REASONS FOR DECISION
2006 CHRT 39 2006/09/15
MEMBER: Athanasios D. Hadjis
I. FACTS
A. Mr. Buffett's complaint
B. Why did Mr. Buffett require funding for the reproductive procedure?
C. What are IVF and ICSI?
D. Do provincial health care plans fund IVF and IVF with ICSI treatments?
E. The CF's health care plan
F. Does the CF provide any health services to persons like Rhonda Buffett, who are family members of CF members?
G. Does the CF's health care plan fund IVF or IVF with ICSI treatments for CF members?
H. What steps did Mr. Buffett take when he learned of the change in CF's policy?
II. ANALYSIS
A. What must Mr. Buffett demonstrate to establish discrimination in this case?
B. Has a prima facie case of discrimination based on sex pursuant to s. 7 of the Act been established?
(i) Mr. Buffett's and the Commission's position
(ii) The CF's position
(iii) A comparative analysis
C. Does the CF have a reasonable explanation for its otherwise discriminatory practice?
(i) Did the CF adopt its policy for a purpose or goal rationally connected to the job or function being performed?
(ii) Did the CF adopt its standard in good faith?
(iii) Is the standard reasonably necessary to accomplish its goal such that the CF cannot accommodate Mr. Buffett and other CF members with male factor infertility without incurring undue hardship?
a) The evidence of Major Weisgerber
b) The evidence of BGen. Jaegar
c) Will the additional cost impose undue hardship?
D. Has a discriminatory practice based on disability been established, pursuant to s. 7?
E. Allegation of discrimination on the basis of family status
F. The Section 10 complaint
G. What remedial orders are Mr. Buffett and the Commission seeking?
(i) An order that the employment benefit be provided to Mr. Buffett
(ii) Compensation for pain and suffering - s. 53(2)(e) of the Act
(iii) Interest
(iv) An order that the CF cease its discriminatory practice
(v) Sensitivity training
I. FACTS A. Mr. Buffett's complaint [1] The Complainant, Terry Buffett, is a member of the Canadian Forces (CF). He holds the rank of Warrant Officer. He alleges that the CF denied him an employment benefit by refusing to grant him funding for a reproductive medical procedure (in vitro fertilization). He claims that this refusal constituted adverse differential treatment based on his disability (male factor infertility), his sex, and his family status, in breach of s. 7 of the Canadian Human Rights Act. He also alleges that the CF's refusal was made in furtherance of a discriminatory policy, contrary to s. 10 of the Act.
[2] The CF, for its part, contends that discrimination was not a factor in its decision to refuse funding. The CF provides publicly funded health care coverage to its members only. The medical procedure in question would have to be performed on Mr. Buffett's wife, who is not a member of the CF. He is therefore not entitled to receive funding for this procedure under the CF's health plan.
[3] For the reasons set out below, I find that Mr. Buffett's complaint is substantiated.
B. Why did Mr. Buffett require funding for the reproductive procedure? [4] Mr. Buffett is 44 years of age. He enrolled in the CF in 1979. He has been married to his wife, Rhonda Buffett, since 1985. She is now 45 years old. The couple had problems conceiving, so they sought the assistance of professionals in the field of fertility. In 1995, Mr. Buffett was diagnosed with male factor infertility. He was found to have a low sperm count with below normal motility in the sperm. The morphology (i.e. the form and structure) of the sperm was also determined to be well below normal.
[5] Mr. Buffett underwent a medical procedure known as varicocele embolization in July 1995 in an effort to improve the sperm quality. The procedure is intended to treat a dilated vein around the testicle, the presence of which may affect sperm parameters. Follow-up semen analyses of Mr. Buffett, however, showed only mild improvement in sperm motility, morphology and count. In February 1996, Dr. Mark Nigro, who is Mr. Buffett's urologist and an expert in male factor infertility, recommended the use of advanced reproductive technologies, namely in vitro fertilization (IVF) and intra-cytoplasmic sperm injection (ICSI), as the next logical step in the couple's efforts at conceiving a child.
C. What are IVF and ICSI? [6] IVF is the process by which a woman's eggs are fertilized in a dish and then placed in her uterus. The first stage of the process (or cycle) involves the woman giving herself injections of a medication, over a period of 10 days, to stimulate her ovaries and mature several of her eggs and egg sacs (follicles). An ultrasound is conducted every 2 to 3 days to monitor the growth of the eggs in her ovaries. When at least three follicles of a certain size develop, the woman self-injects a drug that causes the eggs to advance to a final stage of maturation. Thirty-six hours later, the woman undergoes a procedure known as transvaginal egg recovery. The woman is sedated, and a needle is passed into the ovary. The eggs are removed from the follicles. The eggs are then combined with the sperm (comprised of about 6,500 individual sperm) in an incubated dish. They are allowed to join (fertilize) naturally. The eggs are checked daily and if fertilization occurs, a catheter is used to place the resulting embryos into the woman's uterus three to five days after the fertilization. If menstruation does not occur within 17 days thereafter, a pregnancy test is conducted.
[7] When the sperm used contains too few normal, motile sperm, IVF has proven to have very little success, ranging from 4 to 6 percent. Dr. Nigro testified that reproductive endocrinologists do not recommend IVF alone where there are abnormalities in the sperm. In these cases, a combination of IVF and ICSI is the preferred course. In this procedure, normal-looking, active sperm are isolated from the sample provided by the man. Using a microscope and a delicate micromanipulation needle, one of these isolated sperm is injected directly into the egg. Thereafter, the same IVF process of incubation and transfer of embryos to the woman's body is employed.
[8] Dr. Arthur Leader, a professor of obstetrics, gynaecology and medicine (endocrinology) at the University of Ottawa, testified as an expert in reproductive endocrinology and infertility. He explained that it takes a team of up to 30 people to conduct one cycle of IVF treatment. The cost is therefore not insignificant. Dr. Leader estimates the current cost for IVF at about $5,500-$6,000 per cycle, and an additional $1,100 to $1,300 per cycle if ICSI is also used. He noted that the cost in 1997, shortly after the procedure was first recommended to the Buffets, was about $3,000 per cycle of IVF and an additional $1,500 per cycle of IVF with ICSI. Dr. Nigro's estimates of current costs for the procedures were similar to Dr. Leader's ($6,000 per cycle of IVF and an additional $1,500 per cycle of IVF with ICSI).
[9] Dr. Leader does not generally recommend more than three cycles of IVF or IVF with ICSI treatment for his female patients, who are on average 35 years of age. With women who are well into their 30's or older, research has shown that unless pregnancy is achieved within three attempts, it is unlikely the procedure will ever be successful.
[10] According to Dr. Leader, with the introduction of ICSI, the pregnancy rate when using poor quality sperm has now reached the same level as that for standard IVF performed with normal quality sperm, about 30% per cycle.
[11] A child is born in about 30% of cases where an embryo is implanted in the woman. This rate drops as the age of the woman, or the man who provides the sperm, increases, due to an increased risk of miscarriage, particularly after age 40. Dr. Leader indicated that IVF and IVF with ICSI are not recommended for women over 42. He testified that there are no recorded instances of women over age 43 undergoing a successful treatment.
D. Do provincial health care plans fund IVF and IVF with ICSI treatments? [12] When Dr. Nigro made his recommendation for the IVF with ICSI treatment, Mr. Buffett was stationed at Canadian Forces Station Aldergrove in British Columbia. The Buffetts were therefore residing in that province at the time. In 1996, Mr. Buffett was transferred to the CF base in Gagetown, New Brunswick, where the couple took up new residence. The government-run health care plans of both British Columbia and New Brunswick did not pay for the cost of IVF treatments. In fact, none of Canada's provincial health plans have ever funded IVF treatments, with the sole exception of Ontario.
[13] Until 1993, the Ontario Health Insurance Plan (OHIP) paid for the cost of IVF treatment for women, irrespective of the cause of the infertility necessitating its use. In 1993, Ontario de-listed IVF as an insured service except in situations where both of the woman's fallopian tubes were obstructed, known as bilateral fallopian tube obstruction.
[14] No provincial plan has ever paid for the cost of IVF with ICSI. However, all provinces cover the cost of testing in relation to fertility issues.
[15] Thus, any persons seeking IVF and IVF with ICSI treatments who reside outside Ontario, and any Ontarians seeking these treatments other than persons with bilateral fallopian tube obstruction, will be required to pay for these fertility procedures. Dr. Leader testified that the procedures are usually conducted in private clinics, of which there are 24 across the country.
E. The CF's health care plan [16] Canada's system of publicly funded health insurance is, by virtue of the Constitution Act, 1867, a matter of provincial jurisdiction. The Government of Canada contributes, however, to the cost of providing health services in every province, subject to certain criteria and conditions, as set out in the Canada Health Act, R.S.C., 1985, c. C-6. One of these conditions is that any resident of a province shall be considered an insured person under that province's health plan, with the exception of certain designated classes of persons. Members of the Canadian Forces form one of these exempt classes of persons (s. 2). Accordingly, they do not receive health care coverage under any of Canada's provincial health care plans.
[17] To ensure that its members are not deprived of publicly funded health care coverage, the CF has assumed the responsibility of providing health care to its members. According to Chapter 34 of the Queen's Regulations and Orders (QR&O), issued pursuant to s. 12(2) of the National Defence Act, R.S.C., 1985, c. N-5, the CF must provide medical care, at public expense, to its members. The medical care provided encompasses medical and surgical treatment, diagnostic and investigative procedures, hospitalization, preventive medicine procedures, patient transportation, and the supply and maintenance of prosthetic appliances (art. 34.01 of the QR&O). In effect, the CF provides health care to its members on a scale similar to provincial health care plans. The scope of coverage under the CF's plan could be viewed as being even broader than that typically found under provincial plans. For instance, the CF provides full pharmaceutical coverage, as well as coverage for physiotherapy, social work and dental care. The plan is so comprehensive that some have described it as the 14th health services plan of Canada, after those of the ten provinces and three territories.
[18] The Canadian Forces Health Services (CFHS) is a group operating within the CF as the designated provider of medical services to CF members. The CFHS has developed a large infrastructure for the delivery of services inside and outside Canada. The CFHS contains a core of uniformed medical professionals, including general physicians, specialists, nurses, pharmacists, administrators, social workers, medical assistants, and medical technicians. In addition, the CF employs a number of civilian medical experts on a contractual basis to provide care for its members.
[19] Where it is necessary for a CF member to utilize the services of a civilian medical professional, the civilian health care provider submits an invoice to the CF for payment of the services provided. Thus, for instance, in Mr. Buffett's case, a CF physician employed at the Base Hospital located at Canadian Forces Base Chilliwack referred him to Dr. Nigro, who is a Vancouver-based specialist. Dr. Nigro is not employed by the CF. He billed the CF for his professional services, including the costs relating to Mr. Buffett's treatment and testing.
[20] Brigadier-General Hillary Frances Jaeger testified at the hearing with respect to the CF's health care plan. She is the CF's Surgeon-General, with responsibilities that include looking after professional standards and ethics, assigning duties amongst medical staff, and developing clinical policy. She described her role as being analogous to that of a Chief of Medical Staff of a typical civilian hospital. She explained in her testimony that the CF's health plan has two principal goals. The first is to provide a degree of health care to CF members that is roughly comparable to that to which they would have been entitled were they not CF members. The second goal is to ensure that members are as operationally fit as they can be, in order to perform their duties at the level expected of them by the CF.
F. Does the CF provide any health services to persons like Rhonda Buffett, who are family members of CF members? [21] The CF does not generally provide publicly funded health care to families of CF members. Pursuant to art. 34.23 of the QR&O, medical services may be provided to dependents of CF members (i.e. their spouses or children) in certain exceptional circumstances, such as in the case of an emergency, or where the dependents accompany the CF member to locations where adequate civilian medical facilities are unavailable, like Goose Bay, in Newfoundland and Labrador, for example. Given the relatively small size of that community and its geographic isolation, the dependents of CF members stationed there routinely receive health care from the CFHS. These family members are residents of Newfoundland and Labrador while living at the base, so the CF bills the cost of the health services provided to them directly to the province's health care plan.
[22] Aside from these exceptional circumstances, dependents of CF members must access insured health services through the provincial government of the province in which they reside. Family members of CF members are, however, eligible for supplemental third party insurance coverage through the Public Service Health Care Plan (PSCHP). The PSHCP is an employer sponsored medical insurance plan that all CF members are eligible to join, and which offers additional coverage of medical services for their family members. The plan is funded through contributions from the employer and the CF Members. The plan provides additional partial insured coverage for services not covered under provincial health care plans, such as prescription drugs, dental work and eyeglasses. Mr. Buffett has purchased this coverage for Ms. Buffett.
G. Does the CF's health care plan fund IVF or IVF with ICSI treatments for CF members? [23] Until 1997, the CF's health care plan did not fund IVF and IVF with ICSI treatments. This policy changed in September 1997. A female CF member stationed in Ontario had requested reimbursement for the cost of her IVF treatment, claiming that as a civilian residing in Ontario, she would have been entitled to have the procedure paid for at public expense. She argued that it was unfair for the CF's health care plan to have a policy that was more restrictive than that applied by the corresponding provincial health care plan, namely OHIP.
[24] The CF member's funding request was initially turned down, so she filed a grievance, which was ultimately successful. The funding was awarded to her. Thereafter, the CF expanded its list of insured procedures to include IVF treatments. The CF takes several factors into account before expanding its list of insured services to add a particular health service. One of these factors consists of the availability of funding under provincial health plans for the service in question. As BGen. Jaeger explained, this is to ensure that members of the CF do not become disentitled to health services that would otherwise be available to them, merely because they happened to join the CF.
[25] According to BGen. Jaeger, this factor was a principal reason for the CF's decision to add IVF treatment to its list of insured services. The grievance brought to the fore the fact that OHIP was already funding this treatment in certain specific circumstances (bilateral fallopian tube obstruction). The CF amended its policy to provide equal coverage to its members.
[26] Details about this change in the CF's policy were made known to health care providers in the CF, by way of a message in writing that was circulated by the Chief of Health Services at National Defence Headquarters, on September 15, 1997. The message stated that IVF procedures were now authorized and could be approved at unit level if IVF had been recommended by a reproductive technology specialist. A maximum of three sessions would be funded, which accords with OHIP's policy as well. Interestingly, the message did not specify whether funding of the treatments would be restricted to patients with bilateral fallopian tube obstruction, as was the case under OHIP's post-1993 policy.
H. What steps did Mr. Buffett take when he learned of the change in CF's policy? [27] Shortly after Dr. Nigro suggested, in February 1996, that the option of IVF treatment with ICSI be explored, Mr. Buffett met with a CF physician to discuss the matter. The CF physician informed Mr. Buffett that the CF's health plan did not provide any funding for this procedure. At the time, the Buffets were residing in British Columbia. Later that year, they moved to New Brunswick. Since the provincial health plans of both provinces did not fund the procedure, the couple could only have obtained it by paying for it themselves. They decided that they just could not afford the expense and resigned themselves to the likelihood that they would never have any biologically related children.
[28] Their expectations changed dramatically, however, when one of Mr. Buffett's acquaintances, who was a CF medic serving at CFB Gagetown, forwarded to Mr. Buffett a copy of the message that National Defence Headquarters had circulated in September 1997, announcing the change in policy regarding funding for IVF treatments. With this news in hand, Mr. Buffett contacted a CF physician on the base and made a formal request for funding. The request was forwarded to the base surgeon, who refused to grant it. The grounds given for the refusal were that IVF is only provided in one province (i.e. Ontario), and that the funding was available only with respect to bilateral tubal obstruction.
[29] On November 10, 1998, Mr. Buffett filed a grievance contesting this decision. He noted that the original message from National Defence Headquarters announcing the change in policy did not mention that coverage was restricted to patients with bilateral fallopian tube obstruction. He argued that this restriction was discriminatory, based on gender. Male CF members were being effectively denied benefits that female members were receiving, since men could not physiologically have tubal diseases.
[30] In accordance with CF procedure, Mr. Buffett's grievance was reviewed and commented upon by his superior officers at various levels. The authority to grant the redress being sought, however, ultimately rested with the Chief of Defence Staff. Some of Mr. Buffett's superior officers who reviewed his grievance endorsed his claim. His commanding officer, Lieutenant-Colonel J.M. Duhamel wrote, on November 30, 1998, that Mr. Buffett's argument had merit, adding that basing eligibility for publicly funded IVF on a condition applicable solely to female soldiers amounts to excluding male soldiers on the basis of gender.
[31] A similar position was adopted by BGen. D.W. Foster, Commander of Land Force Atlantic Area, in his subsequent review of the grievance. He found that Mr. Buffett's point of dual standards is well-taken, adding that he believed in all fairness that IVF should be offered to Mr. Buffett as it would to a female member's family.
[32] Others disagreed. Lieutenant-General W.C. Leach, Chief of Land Staff, for instance, did not view the issue as being a matter of gender equality, but rather simply a medical reality that only women can have fallopian tube obstruction. In his opinion, the purpose of the CF policy of funding IVF for servicewomen was to address that condition and nothing else.
[33] While the review of Mr. Buffett's grievance was progressing up through each of the various levels, a noteworthy development took place regarding the CF's health care policy. Until December of 1998, the only way to determine if a given medical procedure was covered by the CF's health plan was to consult the numerous messages that were sent from National Defence Headquarters, like the one circulated in September 1997 regarding IVF treatments. Some medical officers had taken to organizing the messages in binders, in order to assist them in making such determinations. To better enable CF members to understand the scope of the coverage to which they were entitled, the CF released its Spectrum of Care policy on December 21, 1998. The Spectrum of Care was essentially a compilation, in a single document, of the various health services decisions and messages issued over the years.
[34] In the process of putting together the Spectrum of Care, the CF took the opportunity to clarify certain ambiguities regarding the services covered. BGen. Jaegar acknowledged in her evidence that there may have existed some ambiguity in the message that National Defence Headquarters had circulated in September 1997 setting out the restrictions associated with the funding of IVF treatments. Therefore, the Spectrum of Care now explicitly stated that funding for IVF treatments would only be provided,
if the infertility was the result of fallopian tube obstruction, for a maximum of three cycles, and to serving members of the CF, not to their civilian dependents, spouses or partners.
These requirements had not been mentioned in the September 1997 message. BGen. Jaegar hastened to add in her evidence, however, that while the original message that was circulated may have lacked these details, one aspect of the policy was always clear: Pursuant to Chapter 34 of the QR&O, only serving CF members are entitled to CF's health care benefits. She pointed out that this is an order set down from the highest level (i.e. the QR&Os), which trumps all others.
[35] In June 2000, Mr. Buffett's grievance was referred to the Canadian Forces Grievance Board (CFGB) to review and provide findings and recommendations to the Chief of Defence Staff, in accordance with art. 7.12 of the QR&O. The CFGB released its findings and recommendations on April 4, 2001. It recommended that the grievance be denied, noting that dependents of CF Members are not generally covered under the CF's health policy and that the refusal of Mr. Buffett's IVF funding request was in accordance with the policy. The CFGB found that the lack of access to IVF coverage for most members of groups other than those specified [in the policy] may be discriminatory under the Canadian Charter of Rights and Freedoms. But the CFGB went on to find that the restricted access to funding in this area was justified as a reasonable limit, under s. 1 of the Charter.
[36] On January 30, 2002, the Chief of Defence Staff, General R.R. Henault, issued his findings regarding Mr. Buffett's grievance. Gen. Henault stated that he concurred with the essence of the CFGB's findings and that therefore, he did not support Mr. Buffett's application for redress.
[37] On May 23, 2002, Mr. Buffett filed his human rights complaint in which he alleged that he had been discriminated against, under s. 7 of the Act. He amended his complaint on February 3, 2004, to add the allegation that the CF had applied a discriminatory policy, within the meaning of s. 10 of the Act.
II. ANALYSIS A. What must Mr. Buffett demonstrate to establish discrimination in this case? [38] Complainants in human rights cases must first establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent (Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley)). In the present case, the Commission and the Complainant must establish that:
in denying him funding for the IVF treatment, the CF differentiated adversely in relation to Mr. Buffett on a prohibited ground, in the course of his employment (s. 7), or in deciding not to fund this treatment, the CF established or pursued a policy or practice that deprived or tended to deprive Mr. Buffett or a class of individuals, of an employment opportunity on a prohibited ground (s. 10).
For the purposes of the Act, members of the CF are deemed to be employed by the Crown (s. 64).
[39] Once the prima facie case is established, it is incumbent upon the respondent to provide a reasonable explanation for the otherwise discriminatory practice (Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 18). An employer's conduct will not be considered discriminatory if it can establish that its refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is based on a bona fide occupational requirement (BFOR) (s. 15(1)(a) of the Act). For any practice to be considered a BFOR, it must be established that accommodation of the needs of the individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (s. 15(2) of the Act).
B. Has a prima facie case of discrimination based on sex pursuant to s. 7 of the Act been established?
(i) Mr. Buffett's and the Commission's position [40] According to Mr. Buffett and the Commission, it is clear that the CF's health care plan adversely differentiates against him and other men with male factor infertility who are members of the CF, on the basis of sex. The plan provides coverage for IVF treatments to its female members with bilateral obstruction of their fallopian tubes, a uniquely female form of infertility. At the same time, the plan denies coverage to Mr. Buffett, a male CF member with male factor infertility.
[41] The Commission and Mr. Buffett submit that the medical services provided under the CF's health care plan constitute an employment benefit for CF members, which must be offered to all members in a substantively equal and non-discriminatory manner. As was stated by the Supreme Court in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at para. 34, once an employer decides to provide an employee benefit package, it cannot make exclusions from such schemes in a discriminatory fashion.
(ii) The CF's position [42] The CF contends that the benefit in question is, in fact, provided in a non-discriminatory fashion to its members. Since CF members are excluded from coverage under provincial and territorial health care plans, the CF has established its own program to provide publicly funded health care to its members only, not to their families. The CF does not have a legislative mandate to provide medical coverage for non-members and, pursuant to art. 34.23 of the QR&O, medical services may be provided to dependents (spouses and children) but only under certain exceptional circumstances, such as in emergencies or at remote locations. These services are eventually billed back to the non-members' provincial or territorial health care plans. Thus, they are not truly funded by the CF.
[43] The CF points out that IVF and IVF with ICSI are medical procedures that enable a woman to become pregnant. Aside from the sperm that is provided by the male partner, the procedure solely involves the woman. OHIP (the only provincial health care plan that funds the procedure) bills the treatment against the woman's health insurance number, not the male partner's. In Mr. Buffett's case, when it became evident that IVF treatment with ICSI was the next available option for the couple, Mr. Buffett's urologist, Dr. Nigro, ceased dealing with the matter. Instead, Dr. Nigro advised the couple to consult with Ms. Buffett's reproductive endocrinologist about the possibility of obtaining IVF treatment with ICSI. Mr. Buffett acknowledged in his testimony that although he accompanied his wife on her visits to her endocrinologist, he was never that physician's patient.
[44] Dr. Leader testified that before commencing treatments, he usually meets with both partners. He needs to be familiar with any allergies that the male partner may have. He must also test the man's semen. It could be infected, in which case he would have to prescribe treatment before proceeding any further. Dr. Leader referred to infertility as a couple problem. He noted, however, that despite the male partner's participation, it is ultimately only the woman's consent that is required before initiating the treatments.
[45] The CF therefore argues that the evidence is clear: IVF treatment, with or without ICSI, is a medical service that is received exclusively by a woman. In the present case, the woman who would be receiving the medical service being sought by Mr. Buffett is his wife, who is not a member of the CF. As a non-member, she is not eligible under the CF's health care program for coverage of her treatment. The distinction being made in the provision of the medical service is based on whether or not the recipient is a member of the CF, not on the basis of his or her sex.
(iii) A comparative analysis [46] The CF submits that in assessing whether a discriminatory practice has taken place, within the meaning of s. 7, a comparative analysis should be conducted, the outcome of which must demonstrate differential treatment compared to another relevant group.
[47] I am prepared to accept that in the context of this complaint and the manner in which the allegations have been framed, conducting a comparison between relevant individuals or groups is helpful in determining whether a prima facie case of adverse differential treatment has been established. As the Federal Court of Appeal noted in Morris v. Canada (Canadian Armed Forces), 2005 FCA 154 at paras. 23 et ss., the legal test for establishing a prima facie case of discrimination is flexible and will vary depending on the fact patterns of each case. In the present case, Mr. Buffett has alleged that the CF treated him differently than female CF members who have a form of female-factor infertility. Accordingly, a comparison between him and his female colleagues would be appropriate and instructive.
[48] It is necessary to identify the appropriate comparator in order to be able to determine the existence of any differential treatment, as well as the grounds for the distinction (McAllister-Windsor v. Canada (Human Resources Development) (2001), 40 C.H.R.R. 48 at para. 40 (C.H.R.T.)). In defining the comparator group, one must take into account the purpose of the scheme that confers the benefit in issue (Battlefords and District Co-operative Ltd. v. Gibbs, 1996 S.C.R. 566 at para. 33).
[49] According to the CF, the purpose of its health care plan is to provide medical care to CF members. The CF suggests that Mr. Buffett should be compared to female members who would be seeking fertility treatments for their non-member spouses or, in the alternative, to male and female members seeking treatment for their spouses with respect to non-fertility related conditions. In either case, the outcome of the comparison would be the same; the non-member spouses would not be entitled, under any circumstances, to receive publicly funded medical services from the CF. Regardless of the gender of the spouse, the nature of the condition, or the type of treatment sought, coverage for medical treatment of spouses is not permitted. Mr. Buffett was therefore not treated any differently under the health plan than any other CF members, male or female. The distinction in coverage is made on the basis of membership in the CF, which is not a prohibited ground under the Act.
[50] The CF contends, in addition, that if any distinction is being made between men and women under its health care plan, it is a distinction based solely on biological differences between the two sexes. It is only a woman who is physically able to become pregnant. Therefore, providing funding to women only, for a treatment that causes pregnancy, cannot be discriminatory. Conversely, the CF health plan funds comparable fertility treatments for men in accordance with their physiological realities. An example from the present case would be the CF's funding of Mr. Buffett's varicocele embolization, which would have reversed his male factor infertility, had it been successful. The CF submits, therefore, that the limitation it has set on funding for IVF recognizes the biological reality that only women can receive the treatment and become pregnant. The policy is not, as a result, discriminatory.
[51] I disagree. In my view, a distinction can be drawn between procedures that reverse infertility and procedures that induce or assist conception. Procedures that are intended to reverse a person's infertility are clearly medical procedures that are performed exclusively on that person. This would include, for instance, surgery to reconstruct a woman's obstructed fallopian tubes. According to Dr. Leader, this was a procedure that was opted for quite readily in the past, prior to the development of advanced reproductive technologies. The varicocele embolization procedure that Mr. Buffett underwent would constitute another example of these types of medical procedures.
[52] IVF and ICSI, on the other hand, are entirely different in nature. These treatments do not reverse the patient's male or female factor infertility. Instead, the treatments offer the couple the opportunity to conceive and have a child that is biologically theirs, irrespective of who has the infertility problem. As Dr. Nigro stated in his evidence, you don't use IVF unless you want a baby. In my view, the CF has construed the facts of this case too narrowly. The CF takes the position that since nearly all aspects of the IVF and IVF with ICSI treatments involve the woman, they are medical procedures that only relate to her. But this fails to take into account the fact that assisted conception procedures are different from all other medical procedures, including procedures to reverse infertility, in that by biological necessity, two individuals must be involved.
[53] The CF's health care policy is structured in such a way as to provide the female member who has a form of female factor infertility with a publicly funded service that will afford her the opportunity to have a child. Physiologically, this procedure can only be completed with the contribution of a person of the opposite gender. The CF funds the service for the female member, even if the opposite-gender contribution comes from a non-member of the CF. On the other hand, the CF does not provide the equal benefit to a male member with male factor infertility, merely because the contribution from the opposite-gender non-member is much more medically complex. And yet, the same physiological reality exists that conception can only occur with the participation of both partners.
[54] This reality is a key factor in making an appropriate comparison in this case. The fact is that IVF is not merely a medical procedure that is being offered to female CF members. These women are being given a real opportunity to have a child. That is the essential purpose of this treatment. In my view, given this context, the proper comparative question to pose is, does the CF offer the same benefit to its male members with infertility problems that it is offering to its female members with infertility problems?
[55] The answer is clearly no. It does not matter that the CF's original motivation for adding IVF treatment to its list of medical services for its female members who have a certain medical condition, was so as to ensure that the coverage provided under its health care plan was equal to that of a provincial scheme (in this case, OHIP). Considering the policy's true purpose and its effect, the result is that Mr. Buffett is denied a benefit that is at the same time being provided to female CF members, i.e. access to assisted conception by IVF. As such, the treatment is unequal.
[56] The CF points out that since Mr. Buffett cannot benefit from the standard IVF procedure, he cannot claim to have received unequal treatment from the CF. While standard IVF will assist women with bilateral fallopian tube obstruction to become pregnant and have children, IVF alone would be of virtually no assistance to men like Mr. Buffett who have severe male factor infertility. The pregnancy rate in these instances is no higher than 6%. Dr. Nigro and Dr. Leader both testified that standard IVF is not recommended in such cases. Consequently, the CF contends that its female members with bilateral fallopian tube obstruction are not receiving a benefit that is being unfairly denied to male members. These men would not stand to gain any benefit from standard IVF treatment, so they are not being denied anything in effect.
[57] Mr. Buffett indicated to the Tribunal at the hearing that he was willing to accept funding for standard IVF treatment for himself and his wife, even if it afforded them only a minimal possibility of achieving a pregnancy. In my view, however, this assertion does not help to advance the analysis of this case. While Mr. Buffett may be willing to accept any attempt made in the hope of having a child, the medical evidence before me is clear; IVF alone is medically impractical at achieving this result for a person with his condition. Both experts said that they would not recommend the treatment in Mr. Buffett's case. It would be a futile effort.
[58] Mr. Buffett could only achieve the result he seeks through treatments of IVF with ICSI. According to the CF, if these treatments are to be funded, Mr. Buffett would in effect receive an additional benefit that is not available to any other CF members, whether male or female. Indeed, not a single publicly funded health plan in the country offers coverage for IVF with ICSI. If Mr. Buffett was successful in his claim, therefore, he would be obtaining coverage that is more than equal to that which is available to women CF members.
[59] However, equal treatment does not always mean identical treatment (see Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872). Occasionally, a different treatment may be called for in order to achieve substantive equality between the comparator groups. Dr. Leader's testimony is very instructive in this respect. He noted that until the ICSI technique was developed, there existed a wide gap in the effectiveness of IVF between cases of female factor and