Terry Buffett v. Canadian Forces

2006 CHRT 39
Download Judgment: English

Terry Buffet, a male service member in the Canadian Armed Forces wanted to use his employment benefit for in vitro fertilization (IVF) because of reasons of his infertility. The Canadian Forces (CF) provided insurance for military members, but not for their family members. CF did, however, provide coverage of IVF to female military members. Upon realizing that IVF was necessary for him and his wife to have a biological child and because they were not financially stable enough to afford this procedure on their own, Buffet petitioned CF’s insurance arm for coverage of their IVF. This was denied, and Buffet followed up with a grievance, which was also denied. Thereafter, he brought this case.

The Court held that there was discrimination against Buffet based on sex because women service members were covered by employment benefits even if the opposite-sex contribution of semen was from a non-service member, but men service members were not covered by insurance when they contributed to the IVF of a non-service member. The Court held this was discrimination because CF does not provide the same benefit to male members with infertility problems as it does to its female members with infertility problems.

The Court held that CF’s policy was rationally connected to its goal of health care for its members, since it followed the foundation of provincial health care plans, and that it did this in good faith. However, the Court held that CF would not suffer undue hardship to accommodate Buffet’s request because CF failed to show reliable estimates of the cost and that the cost would be an undue hardship. For that reasons, the Court held that Buffet’s claim of adverse differentiation on the basis of sex was substantiated.

The court also held that Buffet’s male factor infertility is a disability, which gives rise to a finding of discrimination on the basis of disability as well as sex since the benefit of IVF coverage is afforded to women with bilateral fallopian tube obstruction (a form of infertility in women) but not men with male factor infertility. The court further held that an allegation of discrimination on the basis of family status wasn’t substantiated because there was no evidence presented by the complainant on the matter.

Finally, the court held that if the Buffets’ fertility specialist continues to recommend that they obtain IVF treatments (bearing in mind their advanced age), and if they opt to do so, the CF must fund those treatments to a maximum of three cycles of treatment. The CF must “provide employment benefits to its employees in a substantively equal and non-discriminatory manner,” and that is what women are currently entitled to. The Court awarded Buffet compensation for the pain and suffering endured from CF denying him funding for IVF in a discriminatory manner in the amount of $7,500. Furthermore, the Court ordered CF to amend its current policy to provide coverage for IVF treatments in a non-discriminatory manner if it continues to provide them. The Court denied Buffet’s request for sensitivity training to be required by CF for lack of sufficient cause.

“A handicap or disability, within the meaning of human rights legislation, may be the result of a physical limitation, an ailment, a social construct, a perceived limitation, or a combination of all of these.” (Para 103)

“Treating people’s infertility is a necessary component of health care . . . there is also a significant psychological impact on both the male and female partner when they are unable to achieve pregnancy.” (Para 104)

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