A recent ruling out of Alberta may not have made big headlines but if the appeal had not reversed an earlier ruling, it could have affected professional regulators such as the Human Resources Professionals Association (HRPA) in Ontario or the Ordre des resources humaines agréés in Quebec (CRHA).
The Court of Queen’s Bench of Alberta reversed a 2014 ruling by the province’s human rights tribunal that found the Association of Professional Engineers and Geoscientists of Alberta (APEGA) discriminated against a foreign-trained man who wanted to work as an engineer. Ladislav Mihaly felt the regulator’s request that he write confirmatory examinations discriminated against him based on his place of origin, the Slovak Republic.
The recent decision is a massive relief for regulators, said James Casey, managing partner at Field Law in Edmonton who represented APEGA in the recent decision.
“It’s a return to common sense and recognizes the important role of regulators in ensuring public safety. We all want internationally trained professionals with entry-level qualifications to get registered and recognized in Canada but, at the same time, regulators cannot be hamstrung in ensuring that they have the entry-level qualifications.”
The tribunal over-reached a bit in its 2009 ruling, said Claude Balthazard, vice-president of regulatory affairs and registrar at HRPA in Toronto.
“The reason (this decision) made so much noise was that it was so far out there and would, if it had held, would have had fair implications for all professional regulators.”
The case called into doubt whether regulators could use systems of standardized testing to determine whether internationally trained professionals have entry-level competence, said Casey.
“The best way to facilitate the recognition of foreign-trained professionals’ qualifications in Canada is to develop standardized tests that are accessible and at a reasonable cost… so it’s very important to regulators that the Court of Queen’s Bench did not find that process to be objectionable and found it to be non-discriminatory.”
The decision reaffirmed that having different registration requirements for Canadian-trained applicants and non-Canadian-trained applicants isn’t in itself discriminatory — as long as the distinctions are justified, said Rebecca Durcan, a partner at Steinecke Maciura LeBlanc in Toronto and HRPA’s regulatory counsel.
“And that’s going to be key — every regulator is going to have to say, ‘OK, if we are asking for different requirements, we have to explain why we’re doing this, why is this necessary.’ If it’s simply based on assumptions, ‘Oh, well, we don’t think they are as good as Canada,’ that’s not going to hold water because that’s not fair to an applicant from a non-Canadian jurisdiction.”
The court’s decision confirms that APEGA’s registration processes are fair, equitable and transparent, said Philip Mulder, director of communications at APEGA.
And if the tribunal’s decision had stuck, “it had the potential to have a significant impact in a number of areas, including budgetary but also human resources and I think our ability to act as a regulator, would have been significantly affected,” he said.
Mihaly applied to APEGA for registration as a professional engineer in 1999. But the association said he had to write a National Professional Practice Exam (NPPE) and, upon passing, three confirmatory exams along with taking a course or an equivalent exam.
Over the next couple of years, Mihaly failed three times at passing the NPPE while continuing to press for greater recognition of his credentials and experience.
In looking at all the evidence and hearing from witnesses, the Human Rights Tribunals of Alberta determined “certain requirements for licensure made of Mr. Mihaly perpetuated disadvantage, thus constituting substantive discrimination.”
In looking at the approved foreign degree list used by APEGA, the tribunal said it was “a poor substitute for directly assessing the education of IEGs (internatinoal engineering graduates) who come from many different countries.”
As for the exams, they take a one-size-fits-all approach, said the tribunal, which does not usually comment on its cases, according to Ritu Khullar, managing partner at Chivers Carpenter in Edmonton, who represented the commission in this case.
In the end, the tribunal felt the association should explore other ways to evaluate IEGs that are less discriminatory and put a priority on accommodation, rather than placing barriers.
In addition to $10,000 awarded in general damages for Mihaly, the court made several orders, including directing APEGA to review his transcripts and experience in direct consultation with the Czech schools, establish a committee to explore individual assessment options and match Mihaly with a mentor.
Appeal reverses decision
But the Alberta court found the findings of discrimination were not supported by the evidence.
“The distinction between accredited or equivalent programs and other programs is not based on assumptions but on knowledge about the programs. When APEGA distinguishes between graduates of known and tested engineering programs as compared with graduates of relatively unknown programs, it is not assuming that the latter have inferior academic qualifications. Equally, it is not assuming that they have a substantially equivalent education. It simply does not have the information to know.”
As for being more proactive in negotiating agreements with other institutions in other countries, “this endeavour would be well beyond the capacity of most professional regulatory bodies,” said the court.
While the tribunal concluded the process used by APEGA was based on a presumption that engineering programs from eastern European countries were not as vigorous as Canadian programs, such presumption was completely unwarranted, said Casey.
“The tribunal had great sympathy for immigrants who struggle to… get their qualifications recognized in Canada and that sympathy, in my view, overrode the recognition of the role of regulators.”
The orders by the human rights tribunal were entirely unreasonable, he said, and required APEGA to go far beyond what a regulator would typically be required to do. And while the tribunal said there was an insufficient individualized approach used by APEGA in assessing the credentials, this wasn’t true, said Casey.
“There was an individualized assessment of his education and experience to determine if APEGA had enough knowledge about his program to grant him registration with no testing, so it is important to have that individualized assessment to see how much level of comfort do you have with respect to the applicant’s professional abilities.”
The mentor recommendation is one most regulators would have said is too much, said Balthazard.
“There’s a duty to make sure that your requirements are justifiable and reasonable but to then sort of take the next step where you’re actually doing remedial work to assist individuals who don’t meet the requirements to then meet the requirements… that’s beyond the mandate, the core mandate of regulators. So that was a big concern,” he said. “If we all of a sudden now had to supply mentoring or we had to develop individualized assessment procedures for everyone who doesn’t fit the mold, that would be very onerous.”
If APEGA stuck in its original form, it would have made the job of regulators too cumbersome and frustrated their ability to regulate, to discipline, to ensure continuing competence, said Curcan.
“These are sophisticated organizations that have a lot of different tentacles and if there were this requirement to expend an inordinate amount of resources — whether it be human resources or financial resources — to applicants and, again, on areas I would allege weren’t being discriminatory in the first place, you would have seen cuts somewhere and that’s not in the interest of the public.”
And everything drives from public interest, she said.
“The point of APEGA, the point of HRPA, the point of PEO (Professional Engineers Ontario)… is to protect the public. Now HRPA is a little different obviously because you can still practise human resources in Ontario without being a member but if… you’re going to let someone into HRPA and use the designation, the public places a lot of value on that and HRPA and other regulators, CPA, the Ontario Association of Architects, they recognize this, and this is why you have these registration requirements that are somewhat vigorous.”
Now that it has its public act and more fulsome regulatory powers, HRPA falls under the power of Ontario’s Office of the Fairness Commissioner, said Durcan. And the office would look at whether the requirements for internationally trained applicants, while different, are fair. And if they are different, are they justifiably different?
“If a regulator can look to its requirements, whether it’s for domestically trained or internationally trained applicants, the regulator would be much more held accountable properly to ensure they’re not creating unnecessary hurdles, that if there’s a requirement, there is a rational justification for that requirement,” she said.
“So the public can be more reassured, members can be reassured, applicants can be reassured that what they’re seeing is fair, that when they go through process, their skin colour, their education, their place of origin, shouldn’t matter as long as they meet these objective criteria.”
But there is a growing trend for internationally educated graduates to take their fight for recognition into the forum of human rights commissions, said Casey.
“It’s a way of putting pressure on regulators and governments, and it’s a way of getting a sympathetic hearing about the challenges that they face,” he said. “It presents challenges for regulators who are having to come and explain their systems to tribunals who have not really dealt with these sorts of issues in the professional regulation field — it’s all part of the process.”
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