Engineer ruling sparks foreign credential debate

Human rights decision could set unwelcome precedent for associations
By Liz Bernier
|Canadian HR Reporter|Last Updated: 03/24/2014

It’s a case surrounded by thorny issues: A foreign-trained engineer with two master’s degrees is unable to meet the requirements to practise engineering in Canada, leaving him underemployed and unable to use his training.

Ladislav Mihaly — who trained as an engineer in Czechoslovakia — was assigned a set of technical confirmatory exams to confirm his education. He refused to write them on the grounds engineers from countries such as Ireland and France are typically exempt from confirmatory exams.

Mihaly was also assigned the National Professional Practice Exam, which all engineers — even Canadian-trained ones — are required to write. He took the exam three times but was unable to pass.

After hearing a discrimination complaint by Mihaly, Alberta’s human rights tribunal, in a decision by chair Moosa Jiwaji, ordered Alberta’s engineering licensing body to pay Mihaly $10,000 and implement a number of new measures in reassessing his case.

The extent of the remedy that was issued is surprising, said Timothy Mitchell, partner at Norton Rose Fulbright in Calgary.

“It places a very high obligation on self-regulated professional bodies to take significant positive steps,” he said. “(It sets out) a very high threshold.”

Appeal possible

Alberta’s licensing body for engineers — the Association of Professional Engineers and Geoscientists of Alberta (APEGA) — has appealed the tribunal decision. But if the decision stands, APEGA will face a number of remedies.

Aside from the $10,000 in general damages to be paid to Mihaly, APEGA was ordered to consult Mihaly’s educational institutions to review his transcripts, allow him to challenge specific examinations where he is not granted an exemption and establish a committee of foreign-trained engineers to assess Mihaly’s case.

The association was also ordered to assign Mihaly a mentor and direct him to professional resources and community resources to increase his English-language proficiency.

“Foreign-trained engineers face difficulties when seeking employment in Canada because they do not have any prior Canadian experience,” wrote Jiwaji in the decision.

“It potentially lends to the exploitation of these foreign professionals who, under pressure to obtain an income to provide for their families, usually end up accepting low-paying jobs in engineering firms or elsewhere to make ends meet and trying to satisfy APEGA’s requirements.”

The sheer extent of these remedies marks a departure from previous decisions in regards to self-regulated professions, said Mitchell.

“I would say that the extent to which they went here is far further than I’ve ever seen in any decision involving an association before.”

The decision has certainly captured the attention of other self-regulated professions in the province, including the Law Society of Alberta and the College of Physicians and Surgeons of Alberta. Both organizations said they will be watching the appeals process closely.

Licensing process

APEGA has a complex process in place for evaluating foreign-trained engineering credentials, according to Edmonton-based APEGA registrar Carol Moen — and that process is there for a reason.

“With dozens of different countries and thousands of different institutions, there is a fairly elaborate process for how we do review all the academics,” she said. “After you look at academics, you always look at experience as well.”

In many cases, foreign-trained engineers will not have to take any confirmatory exams if they are covered by a mutual recognition agreement (MRA), as with countries such as France, Australia, the United States, Hong Kong, Japan and numerous others.

“We review those academics with the intention of always looking to exempt them from exams,” said Moen, adding 50 to 60 per cent of foreign-trained engineers are licensed without having to take additional exams.

Experience is also a major factor in waiving exams. Confirmatory exams are generally only assigned when APEGA is not familiar with the school or degree and wishes to confirm the applicant’s education is sufficient.

“But there are cases where we don’t see a high level of quality experience such that we are comfortable to verify their technical knowledge and simply ‘let them go’ relative to practising engineering in the province,” said Moen.

“(We must) ensure that only qualified, capable and ethical individuals are practising engineering or geo-science in the province… on a day-to-day basis, they’re making decisions that can absolutely impact our citizens.”

It really is a thorny issue, said Mitchell.

“While I feel for Mihaly, I balance that with APEGA’s obligation… to ensure that there’s a minimum standard in place,” he said.

“They have to set reasonable standards and, in so doing, ensuring the safety of Albertans.”

Implications

Whether the engineering association is successful in its appeal remains to be seen. But should the decision stand, it could create a precedent for self-regulated professions’ licensing requirements, said Mitchell.

“It has huge precedential possibility — for lawyers, for doctors, chiropractors, any of the (self-regulated) professions which require their applicants for membership to take equivalency exams and to pass certain examinations,” he said.

“It’s going to have significant implications to those organizations as far as how far they have to go in accommodating those people that seek to gain membership… The issue really in this case is more about the right of these associations to set these equivalency exams, and to (set) certain steps and hurdles before you have the right to take those national exams.”

Safety concerns

If self-regulated professions are forced to accommodate foreign workers beyond a certain point, it could create a public safety issue, according to John Gamble, president of the Association of Consulting Engineering Companies, based in Ottawa.

“Canada has one of the best regulatory regimes in the world and, by design, has very rigorous standards,” he said.

“It’s very troubling that somebody can come in and not only not feel that they should have to justify their qualifications but to actually take the exams and fail them… it’s very troubling that a quasi-judiciary process could make a decision that, taken to the extreme, could actually put Canadian lives in danger.”

Engineers in particular have “the luxury of being invisible,” said Gamble — you don’t think much about their work because mishaps are so extraordinarily rare.

But that’s because of Canada’s regime of high regulatory standards — which could be threatened by the decision, he said.

“I would hate for that regime to be weakened or even jeopardized.”

If the decision is upheld, employers may have to do more due diligence to ensure they are hiring the most qualified candidates, said Mitchell.

“The takeaway for employers is, if this decision stands... they’re going to have to more carefully look at their positions that they have, their job descriptions and what is required by those positions, rather than simply assuming that somebody who has met the requirements to become an engineer has all the necessary requirements,” he said.

“They’re going to have to be more thoughtful in their examination of the particular aspects of the job to ensure that they have the best-qualified applicant filling those positions.”

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