Date: 20071016
Docket: T-1818-06
Citation: 2007 FC 1061
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
TERRY BUFFETT and
THE CANADIAN HUMAN RIGHTS TRIBUNAL
Respondents
REASONS FOR ORDER
HARRINGTON J.
[1]
This
judicial review of a decision of the Canadian Human Rights Tribunal deals with
the very essence of life itself: the ability to procreate. Warrant Officer Buffett
is infertile; but not sterile. The only realistic chance he had to father a
child was by in vitro fertilization with intra-cytoplasmic sperm
injection. The Canadian Forces refused to fund this procedure. He claims he was
denied an employment benefit which constituted adverse differential treatment
based on his disability, his sex, and his family status, the whole in breach of
the Canadian Human Rights Act. He compared himself to female members of
the Canadian Forces afflicted with certain infertility problems who are
entitled to in vitro fertilization at public expense.
[2]
The
matter worked its way through the Canadian Forces redress of grievance process to
the Canadian Human Rights Commission, and then to the Canadian Human Rights
Tribunal.
[3]
The
Tribunal held that his complaint was well-founded.
BACKGROUND
[4]
Terry
and his wife Rhonda met in 1984 and married the next year. It was their desire
to have children, perhaps three. It was not to be. After four miscarriages in
the first six years, their dream remained elusive. A battery of tests and even
surgery were performed on Rhonda. She was found to be fertile. Then Terry was
tested. He was found to have a low sperm count, with below normal motility
(mobility) and below normal morphology (form).
[5]
His
urologist, Dr. Mark Nigro, thought that a medical procedure known as varicocele
embolization might help. Mr. Buffett consented but unfortunately a follow-up
analysis showed only a mild, but insufficient, improvement.
[6]
Come
1996, Dr. Nigro, an expert in male-factor infertility, recommended in vitro infertilization
(IVF) with intra-cytoplasmic sperm injection (ICSI) as the next step. He
ruled out another possibility, a male fertility drug, Clomid, as not being
suitable in Mr. Buffett’s case. His twin recommendations have not been
contested.
[7]
The
IVF and ICSI treatment is expensive. The Buffetts decided they could not afford
it.
[8]
IVF
is a process by which a woman’s eggs are removed, fertilized with normal sperm
in a Petri dish and then placed in her uterus. It begins with a series of
injections over a number of days which are designed to stimulate her ovaries
and mature several of her egg sacs (follicles). When at least 3 follicles of a
certain size are developed, another drug is injected which causes the eggs to
advance to a final stage of maturation. Then a needle is passed into an ovary
and the eggs are removed from the follicles. They are combined with sperm,
about 6,500, and allowed to fertilize naturally. If fertilization occurs, a
catheter is used to place the fertilized eggs into the woman’s uterus.
[9]
However
IVF alone has had very little success and is not recommended when there are
abnormalities in the sperm. In ICSI, normal looking active sperm are isolated
from the sample provided. Using a microscope and a delicate micromanipulation
needle, one of these sperm is injected directly into the egg. When the experts
testified before the Tribunal in late 2005 and early 2006, the cost of one
cycle of IVF was some $5,500 to $6,000. ICSI costs up to an additional $1,500.
Current medical opinion is that if pregnancy does not occur within three cycles
the process should be discontinued.
[10]
The
pregnancy rate when using ICSI on poor quality sperm has now reached about the
same level of success as that for standard IVF with normal sperm, 30% or more per
cycle.
THE CANADIAN FORCES, HEALTH
CARE AND THE CONSTITUTION
[11]
As
a general proposition, health care falls within provincial jurisdiction.
However, the Federal Government contributes to the cost of providing health
services in every province by virtue of the Canada Health Act. It is a
requirement of that funding that each province, and the three territories,
provide or “insure” minimum health care. However, the provinces may provide
additional benefits so that coverage is not quite uniform across the country.
[12]
National
Defence is a federal matter. The Canada Health Act specifically provides
that members of the Canadian Forces are not eligible to receive health care
under any of the provincial health care plans. However, what was taken away was
immediately given back. Chapter 34 of the Queen’s Regulations and Orders
issued pursuant to the National Defence Act requires the Canadian Forces
to provide medical care, at public expense, to its members. The Canadian Forces
insure a degree of health care comparable with, and probably better, than that
to which members would be entitled as civilians under provincial plans. There
is also a “company doctor” aspect to the service in order to ensure that the
Canadian Forces are as fit as can be expected in order to perform what are
often hazardous and dangerous duties.
[13]
With
a few exceptions, which are not relevant to the present case, the health care
provided by the Canadian Forces does not extend to family members, in this case
Mrs. Buffett. Mrs. Buffett was covered under the health services insured
through the province in which she resided, in this case British Columbia and
then New
Brunswick.
In addition, family members are eligible for supplemental third party insurance
coverage through the Public Service Health Care Plan which is funded by contributions
from the employer and the Canadian Forces members. It provides additional
coverage for services not covered under provincial plans. Mr. Buffett took out
this coverage for his wife.
[14]
The
Canadian Forces working premise is that if any province covers a particular
procedure, so will they. However, this policy is not cast in stone. For instance,
in the mid-1990s, Quebec was the only province which covered reversal of
vasectomies and tubal ligation, and the Canadian Forces followed suit. They
later delisted that coverage on the basis that the medical condition arose from
a deliberate act of will of the member. They apparently have recently modified
their position, taking into account the desire by a couple to undo procedures
voluntarily undertaken preventing them from having children after the subsequent
death of a child.
[15]
In
the years immediately preceding Mr. Buffett’s grievance, the only province that
funded IVF was Ontario, but only if the infertility was the result of double
fallopian tube obstruction. Furthermore, funding was limited to a maximum of
three cycles. Ontario had earlier
funded IVF in other instances as well, but restricted coverage following the finding
of a Royal Commission in 1993 that IVF was only useful if the infertility
resulted from fallopian tube obstruction. That finding may well be out of date.
[16]
Neither
Ontario nor any
other province or territory has ever funded ICSI treatment.
[17]
Until
1997, the Canadian Forces Health Care Plan did not fund IVF, with or without
ICSI. That policy changed following a successful grievance by a female member
of the Forces who was resident in Ontario, and whose infertility
resulted from fallopian tube obstruction. The decision was then made to follow
Ontario’s lead in
order to avoid the possibility that a member would lose the right to health
services which would have been available to her in her province of residence if
she were a civilian. Since this new policy is uniform throughout, female
members not ordinarily resident in Ontario are also entitled to
IVF.
[18]
Although
the first memos reflecting the change of policy were not crisp, it was always
clear that the funding was only available to members of the Canadian Forces, and
not to their dependants, spouses or partners. By 1998, the policy was codified
in a Spectrum of Care document so as to match Ontario. The Public
Service Health Care Plan offers the same coverage to Mrs. Buffett, subject to
co-insurance and other modalities.
[19]
When
Mr. Buffett came to learn of this policy change, he made a formal request for
funding. He was refused. His redress of grievance worked its way through
various levels to the Canadian Forces Grievance Board. The Board’s mandate is
to review and provide findings and recommendations to the Chief of Defence
Staff, who has the final decision. Although the Board found that the lack of
coverage might be discriminatory under the Canadian Charter of Rights and
Freedoms, it was also of the view that restricted funding was justified under
section 1 thereof as being a reasonable limit prescribed by law, demonstrably
justified in a free and democratic society. Therefore, it recommended that the
grievance be denied. The Chief of Defence Staff, General Henault, accepted that
recommendation.
[20]
Thereafter,
Mr. Buffett filed a complaint with the Canadian Human Rights Commission. The
complaint was not based on the Charter, but rather on sections 7 and 10 of the Canadian
Human Rights Act.
THE DECISION UNDER
REVIEW
[21]
The
member of the Tribunal, after stating the facts with clarity, and after a most
careful review of the law, found that Mr. Buffett and the Canadian Human Rights
Commission had established a prima face case which, unless rebutted,
justified a decision in his favour (O’Malley v. Simpson-Sears Ltd.,
[1985] 2 S.C.R. 536). Section 7 of the Canadian Human Rights Act
provides:
|
7. It is a discriminatory practice, directly or
indirectly,
(a) to refuse to employ or
continue to employ any individual, or
(b) in the course of
employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
|
7. Constitue
un acte discriminatoire, s’il est fondé sur un motif de distinction illicite,
le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer d’employer un individu;
b) de le défavoriser en cours d’emploi.
|
Prohibited grounds of discrimination include
sex, marital status, family status and disability.
[22]
Section
10(a) of the Canadian Human Rights Act goes on to provide that it is a
discriminatory practice for an employer to establish or pursue a policy or
practice that deprives or tends to deprive an individual or class of individuals
of any employment opportunity on a prohibited ground of discrimination.
[23]
The
Tribunal found that a prima face case of discrimination had been
established. An adverse comparison was made between Mr. Buffett and his female
Canadian Forces colleagues on the basis of sex and on male-factor infertility
(disability). The allegation of discrimination on the basis of family status
was not substantiated.
[24]
The
next step was for the employer to rebut the prima face case by establishing
that its refusal to fund was based on a bona fide occupational
requirement under section 15(1) (a) of the Canadian Human Rights Act.
More particularly, the Canadian Forces had to establish that accommodation of
Mr. Buffett’s needs or those of a similar class of affected individuals would
impose undue hardship on them, considering health safety and cost.
[25]
In
this regard, the Tribunal accepted that the Canadian Forces policy was
rationally connected to the goal of providing publicly funded health care to
its members equal to the level of health care available under provincial health
care plans, and that they had adopted their standard in good faith. However, he
was not satisfied with their additional cost analysis. He considered their estimate
of ten million dollars per annum to cover expanded IVF treatment and an additional
$2.25 million for ICSI to be exaggerated, but even on those figures he was not
satisfied that this cost would be so high as to impose undue hardship.
[26]
By
way of remedy it ordered:
a.
if
the Buffetts’ specialist continued to recommend IVF with ICSI, the Canadian
Forces were to fund the treatments to a maximum of three cycles;
b.
payment
of $7,500 to Mr. Buffett in compensation for his pain and suffering, with
interest; and
c.
the
Canadian Forces to take measures in consultation with the Canadian Human Rights
Commission to amend their policy for the funding of IVF treatments so that
members with male-factor infertility receive substantially equal benefits as
members with double fallopian tube obstruction, or all female members, as the
case may be.
[27]
In
the light of these findings and orders, the Tribunal considered it was not
necessary to deal with the alleged discriminatory practice under section 10 of
the Act.
[28]
The
cost of funding IVF and ICSI for the Buffetts is no longer in issue. Mr. Buffett
sought funding some ten years ago. During the hearing before me, he stated that
since both he and his wife are now over 45, it has been recommended that they
no longer seek this treatment. They have accepted that recommendation.
[29]
The
Attorney General, on behalf of the Canadian Forces, no longer takes the
position that the funding of IVF and ICSI would constitute an undue hardship in
accordance with section 15 of the Canadian Human Rights Act. Indeed,
there is no real contestation of the Tribunal’s findings of fact, but rather on
how benefits under the health plan were characterized. One of the keys to the Tribunal’s
decision was its view that “…a distinction can be drawn between procedures that
reverse infertility and those that induce or assist conception.”
Procedures intended to reverse infertility are performed exclusively on one
person, such as surgery to reconstruct a woman’s fallopian tubes or the varicocele
embolization procedure that Mr. Buffett underwent.
[30]
The
next few paragraphs of the Tribunal’s reasons are crucial:
[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.
ISSUES
[31]
This
application by the Attorney General on behalf of the Canadian Forces raises a
number of issues. The first is the proper standard of review of the Tribunal’s
decision. Another way of putting it is to identify the degree of deference to
be afforded the Tribunal.
[32]
The
next issue is to determine whether the health services of the Canadian Forces
constitute an employment benefit within the meaning of section 7 of the Canadian
Human Rights Act. The Attorney General takes the position that the supply
of health services to Warrant Officer Buffett by the Federal Government was
simply one of many methods by which health care to Canadian residents is
funded. If it is not an employment benefit, then the Canadian Human Rights
Tribunal is without jurisdiction.
[33]
Did
the Tribunal err in defining the benefit available to female members of the
Canadian Forces as the opportunity to conceive a child, as opposed to treatment
of female infertility? Put another way, are benefits limited to individuals, or
do they extend beyond, in this case to a married couple, or at least to a man
and a woman?
[34]
In
concluding that Warrant Officer Buffett was discriminated against, did the
Tribunal err in comparing him to female members of the Canadian Forces, rather
than to members of the Canadian Forces who are seeking funding for medical
procedures to be performed on their spouse?
[35]
Did
the Tribunal err in finding that the Canadian Forces offered benefits in a
discriminatory manner?
[36]
Did
the Tribunal err in ordering the Canadian Forces to fund medical treatments
which are not covered under the plan for an individual who is not a member of
the Canadian Forces?
STANDARD OF REVIEW
[37]
The
functional and pragmatic analysis, which forms the basis of judicial review,
was summarized by the Supreme Court in such cases as Dr. Q. v.
College of Physicians and Surgeons of British Columbia, 2003 SCC
19, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan,
2003 SCC 20, [2003] 1 S.C.R. 247. The following four factors are at the
forefront: a) the presence or absence of a privative clause or statutory right
of appeal; b) the expertise of the Tribunal relative to that of the reviewing
court; c) the purposes of the legislation and the particular sections; and
d) the nature of the question: law, fact, or mixed fact and law.
[38]
As
applied to the Canadian Human Rights Tribunal, the Federal Court of Appeal has
made it clear that questions of law are reviewable on a standard of
correctness, questions of fact on the basis of patent unreasonableness, and
mixed questions of fact and law on reasonableness simpliciter (Morris
v. Canada (Canadian Armed Forces), 2005 FCA 154, [2005] F.C.J. No. 731 and Lincoln
v. Bay Ferries Ltd., 2004 FCA 204, 322 N.R. 50).
EMPLOYMENT BENEFIT
[39]
For
the vast majority of Canadians, including those in the Federal Public Service,
basic health care derives from operation of law; the Canada Health Act
and the various provincial and territorial plans. Parliament deprived Warrant
Officer Buffett of this right which comes from the fact of Canadian residency.
What it took away, however, it more than gave back through his employment.
Leaving aside some provisions for veterans, Warrant Officer Buffett reverts
back to provincial health plans when he leaves the Canadian Forces.
[40]
I
cannot accept the position of the Attorney General that infertility treatment
was not, to use the language of section 7 of the Act, offered “in relation to
an employee”. While it is true that it is not part of Warrant Officer Buffett’s
employment duties to father children, the same as with any employee in the
private sector, Parliament could have chosen only to deprive him of those
provincial health benefits that relate to his duties as a soldier, leaving
other matters, including infertility treatments, to the provincial health
plans. Instead it made it a condition of his employment that he be deprived of
access to provincial health care plans. The corresponding health care services,
as reflected in the Spectrum of Care Policy, can only be considered as benefits
in the course of his employment.
[41]
While
members of the Canadian Forces are not considered employees in other contexts,
they are employees within the meaning of the Act (Rosin v. Canada (Canadian
Forces), [1991] 1 F.C. 391, 131 N.R. 295).
ESSENTIAL FACTS
[42]
The
other issues raised by the Attorney General are very much intertwined, and
arise from the following basic facts which are not in controversy.
[43]
The
recommendations of Mr. Buffett’s urologist that he be treated by IVF and ICSI,
and that he not take fertility drugs, have never been contested.
[44]
ICSI
is not covered by the Canadian Forces Health Care Plan, by any publicly funded
provincial plan or by any third party insurance coverage such as that available
through the Public Service Health Care Plan.
[45]
The
Canadian Forces Health Care Plan, like the Ontario Plan (OHIP), funds IVF for
women, but only if they have blocked fallopian tubes and for only up to three cycles.
This funding is also available through the Public Service Health Care Plan,
subject to employee contributions, and deductible and co-insurance provisions.
None of these plans provides funding with respect to the donor sperm. Medical
procedures may be necessary to extract the sperm from the male and the sperm
itself may be subject to treatment such as analysis, washing and freezing.
[46]
As
she is not a member of the Canadian Forces, Mrs. Buffett is not covered by the
Canadian Forces Health Care Plan, but she is a beneficiary of the Public
Service Health Care Plan. However, at the material time she was fertile, and
more particularly did not have blocked fallopian tubes.
[47]
Men
and woman have different body parts when it comes to reproduction. Men do not
have fallopian tubes. Thus, there are different infertility treatments for
males and females. For instance, in this case, Mrs. Buffett was provided with
medication to deal with her progesterone level and had a hysteroscopy. Funding
came through the British Columbia Health Plan, the province in which she
resided at the time. Likewise, Mr. Buffett was subjected to various tests, and
analyses, as well as a varicocele embolization. All that was paid for through
the Canadian Forces Health Care Plan.
DISPOSITION
[48]
This
brings me to the crux of the case which is the Tribunal’s opinion that IVF and
ICSI are completely different in nature from infertility treatments, in that
they do not reverse infertility but rather “…offer the couple the opportunity
to conceive and have a child that is biologically theirs, irrespective of who
has the infertility problem.” I cannot agree with that characterization. It is not
enough to simply say that I disagree. The issue is the degree of deference to
which the Tribunal is entitled.
[49]
In
my opinion, the characterization of benefits which flow from the Canada
Health Act, the National Defence Act, the Queen’s Regulations and
Orders, and the Spectrum of Care Policy, is a matter of law, an issue on
which the Court must not defer but must make up its own mind. At paragraph 94
of C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29,
[2003] 1 S.C.R. 539. Mr. Justice Binnie quoted from Lord Reid in Padfield
v. Minister of Agriculture, Fisheries and Food, [1968] AC 997 (H.L.) who
said at page 1030: “The policy and objects of the Act must be determined by
construing the Act as a whole and construction is always a matter of law for
the court.” Many other authorities were cited in C.U.P.E. to the same
effect. There is nothing in the Canada Health Act, the National
Defence Act, the Queen’s Regulations and Orders, or provincial
health plans which detracts from the fact that health services are provided to
patients; to individuals. This is not simply a bookkeeping entry issue.
Bookeeping records only reflect the reality of the plans.
[50]
Indeed,
the interpretation section of the Canada Health Act, section 2, is most telling.
“Insured health services” are provided to “insured persons” who are not, among
other things, “a member of the Canadian Forces.”
[51]
Chapter
34 of the Queen’s Regulations and Orders also makes it perfectly clear
that medical care is to be provided at public expense to a member of the
regular, special or reserve forces. There are instances when the family is involved,
such as in the treatment of a member for substance abuse. However the focus is
on the Canadian Forces member, and not his or her family. There are also
instances in which medical services are provided to family members, such as in
remote areas or overseas. However those exceptions have no application here.
[52]
Another
question of law is the identification of the group to which Mr. Buffett should
be compared. Although the equality guarantee in section 15(1) of the Charter
requires a much more complex analysis, discrimination always involves a
comparison. As Mr. Justice Iacobucci stated in Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497, at paragraphs 56 and 57:
56 […] Ultimately, a court must
identify differential treatment as compared to one or more other persons
or groups.[…]
57 To locate the appropriate
comparator, we must consider a variety of factors, including the subject-matter
of the legislation. The object of a s. 15(1) analysis is not to determine
equality in the abstract; it is to determine whether the impugned legislation
creates differential treatment between the claimant and others on the basis of
enumerated or analogous grounds, which results in discrimination. Both the
purpose and the effect of the legislation must be considered in determining the
appropriate comparison group or groups. Other contextual factors may also be
relevant. The biological, historical, and sociological similarities or
dissimilarities may be relevant in establishing the relevant comparator in
particular, and whether the legislation effects discrimination in a substantive
sense more generally: see Weatherall [v. Canada (Attorney General),
[1993] 2 S.C.R. 872].
[53]
I
agree with the Tribunal that Mr. Buffett should have been compared to female
members of the Canadian Forces. In certain circumstances, they are entitled to
IVF for up to three cycles. Costs relating thereto are covered under the
Canadian Forces Health Care Spectrum of Care Policy. Costs related to the sperm
are not. The female member of the Canadian Forces need not be part of a
“couple”, heterosexual or homosexual. The donor may be anonymous. The point is
that costs related to the sperm are not covered.
[54]
Although
a male member of the Canadian Forces may not have difficulty in providing sperm,
that is not always the case. Major Chris Weisgerberg who had an adjudicative
position in the Directorate of Health Services Delivery for Spectrum of Care
requests, pointed out that the treatment available to men based on the
physiological differences included impotency (erectile dysfunction) or prostate
disease, both of which can contribute to fertility issues. Dr. Arthur Leader, an
expert in both male and female infertility, testified that in some cases if the
man cannot provide the sperm sample a biopsy is carried out. Apart from a biopsy,
some men who are diabetic ejaculate sperm into the bladder, which requires a
catheter to remove it. Some men may be required to take medication because of
hormone problems. These are costs covered by the Canadian Forces Health Care
Plan if the male is a member of the Canadian Forces.
[55]
I
see no basis for the Tribunal’s characterization of IVF and ICSI as not
constituting a cure, but rather as offering an “opportunity to conceive”. The
goal of all infertility treatments is to remove roadblocks to conception. A
member might not take advantage of successful medical treatment. A woman can
always say no, even after successful fertilization in a Petri dish. Viagra and
the insertion of the catheter into the bladder do not constitute cures.
[56]
Nevertheless,
I agree that Warrant Officer Buffett has been discriminated against within the
meaning of section 7 of the Canadian Human Rights Act. However, that
discrimination is much narrower in scope than that enunciated by the Tribunal.
Consistent with the statutes, regulations and policies, the Canadian Forces
Health Care Plan should only cover the ICSI aspect of the procedure, not the
IVF portion. In the case of a female member of the forces, the IVF portion is
covered, but not the ICSI portion. The fact that IVF is more expensive than ICSI
is neither here nor there. It arises from a biological reality. One cannot
claim discrimination because one treatment may cost more than another. For
instance, if the costs of treating ovarian and prostate cancers are not equal,
no one has cause for complaint.
[57]
The
Attorney General relied heavily on the equality cases decided under section
15(1) of the Charter, recently reviewed by the Federal Court of Appeal in Tomasson
v. Canada (Attorney
General),
2007 FCA 265, [2007] F.C.J. No. 1084. The issue in that case was whether the
provisions of the Employment Insurance Act which granted maternity
benefits to biological mothers discriminated against adoptive mothers in
violation of their equality rights under the Charter.
[58]
Section
15(1) thereof provides:
|
15.
(1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
|
15.
(1) La loi ne fait acception de personne et s'applique également à tous, et
tous ont droit à la même protection et au même bénéfice de la loi,
indépendamment de toute discrimination, notamment des discriminations fondées
sur la race, l'origine nationale ou ethnique, la couleur, la religion, le
sexe, l'âge ou les déficiences mentales ou physiques
|
[59]
Mr.
Justice Nadon held that Ms. Tomasson’s equality rights were not violated. He
agreed with the earlier decision of the Ontario Court of Appeal in Schafer
v. Canada (Attorney General), (1997), 149 D.L.R. (4th) 705, 35 O.R. (3d) 1,
and also with the decision of the British Columbia Court of Appeal in British
Columbia Government and Service Employees’ Union v. British Columbia (Public
Service Employee Relations Committee), 2002 BCCA 476, 216 D.L.R. (4th) 322,
which dealt with the same issue but within the context of a collective
agreement.
[60]
More
particularly, the decision of the Ontario Court of Appeal in Schafer survived
the subsequent decision of the Supreme Court in Law, supra. As Mr.
Justice Nadon noted, the section 15 test set out in Law was summarized
by the Supreme Court in Auton (Guardian ad litem of) v. British Columbia
(Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at paragraph 22 as
requiring: “(1) differential treatment under the law; (2) on the basis of an
enumerated or analogous ground; (3) which constitutes discrimination”.
[61]
I
fail to see how Tomasson, above, assists the Attorney General. At
paragraph 47, Mr. Justice Nadon referred to Andrews v. Law Society (British
Columbia), [1989] 1 S.C.R. 143 at page 169 where Mr.
Justice MacIntyre said: “for the accommodation of differences, which is the
essence of true equality, it will frequently be necessary to make
distinctions.” The distinction in Tomasson was childbirth as opposed to
no childbirth. In this case, the issue is infertility which comes about in
different ways in men and women.
[62]
Parliament
has left it to the Director General, Health Services, subject to Ministerial
control, to decide on the range of health services to be included or excluded
in the Spectrum of Care Policy. It is not for the Court to second guess that
policy decision. However, having decided to give female members of the Canadian
Forces benefit of IVF, male members cannot be denied ICSI. The reality is that
the female provides the egg and the womb, and the male the sperm. In the case
of female members, the Spectrum of Care Policy covers matters relating to the
egg and the womb, but not the sperm. It follows that in the case of a male
member of the Canadian Forces suffering from infertility, if the circumstances
warrant ICSI, the costs related to his sperm should be covered, but the cost related
to the egg and womb should not.
[63]
Having
come to this conclusion, it is not necessary to consider section 10 of the Act,
and as aforesaid the Attorney General is no longer pursuing the argument that
accommodation of Mr. Buffett’s needs, or those of a similar class of affected individuals,
will pose undue hardship, considering health, safety and costs in accordance
with section 15 of the Canadian Human Rights Act.
[64]
If
this were an appeal, unlike the Tribunal I would have ordered the Canadian
Forces to fund the ICSI portion of Mr. Buffett’s treatment to a maximum of
three cycles. However, that point is now moot. I would also have ordered the
Canadian Forces to take measures in consultation with Canadian Human Rights
Commission to amend their policy for the funding of ICSI treatments. There is
no reason to disturb the order that Mr. Buffett be paid $7,500 in compensation
for his pain and suffering with interest. However, as this is a case of
judicial review, and not a case in appeal, the remedy is to set the decision aside
and to refer it back for redetermination, with or without directions. I direct the
Attorney General, in consultation with the other parties, to submit a draft
order within 14 days hereof. If the parties cannot agree on appropriate
wording, each shall make comments within the same delay. Thereafter, the Court
will determine if a further hearing is needed. As success has been mixed, there
shall be no order as to costs.
“Sean Harrington”
Ottawa,
Ontario
October
16, 2007
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