Certification authority for Alberta engineers created obstacles for international candidates: Tribunal
Human rights legislation outlines protected grounds such as race, colour, gender, place of origin and religion, among others. And much of what can constitute discrimination is obvious for employers and other organizations relating to employment.
However, sometimes discrimination is not as obvious and what an employer might believe are legitimate standards for everyone are in fact discriminatory against certain groups.
While some employers may believe they are doing what they can to accommodate individuals who are subject to protection under human rights legislation, sometimes the line of undue hardship isn’t quite what they though. This can also apply not only to employers, but also to professional organizations responsible for assessing the credentials of applicants for professional certification — especially when those applicants come from outside Canada.
An Alberta professional association’s equivalency and testing requirements for an applicant with educational degrees from countries outside of Canada were discriminatory and required accommodation efforts, the Alberta Human Rights Tribunal has ruled.
Ladislav Mihaly was an engineer from the former country of Czechoslovakia, with two Masters degrees from universities there — a master’s degree in technology of fuels and thermal energy from the Slovak University of Technology and a certificate in corrosion engineering from the Institute of Chemical Technology.
In May 1999, Mihaly applied to the Association of Professional Engineers and Geoscientists of Alberta (APEGGA) to be registered as a professional engineer in that province. APEGGA advised him he had to write the National Professional Practice Exam (NPPE).
APEGGA later informed Mihaly that in addition to the NPPE, he had to write three confirmatory exams and take a course or exam in engineering economics. This was because one of his degrees was on the Canadian Council of Professional Engineers’ foreign degree list of institutions whose education met APEGGA’s standards, but the other did not.
APEGGA considered international qualifications in different ways. There were international agreements with certain countries that accepted qualifications at par. The Canadian Engineering Accreditation Board reviewed certain institutions in other countries to determine if their programs were “substantially equivalent” to programs in Canada, and APEGGA accepted these programs as well. However, while the Slovak Technical University was on the list, the Czech Institute of Chemical Technology had not applied to be assessed and neither the current nations of the Czech Republic or Slovakia were in an equivalency agreement with Canada.
Mihaly failed the NPPE and applied to write it a second time in October 2000, but he failed to show up. APEGGA withdrew his application for registration as a professional engineer.
Applicant felt his international qualifications should be good enough
In May 2002, Mihaly asked APEGGA to reactivate his application so he could write the NPPE again. APEGGA reminded him of the three confirmatory exams and the engineering economics exam he was required to write.
Mihaly claimed he was surprised as APEGGA hadn’t previously notified him that his degrees and 12 years of international experience didn’t meet Alberta requirements, since before he came to Canada he had his qualifications assessed by the Canadian Council of Engineers. The association responded that it had never advised him that his education was considered equal to Canadian engineering education.
Mihaly wrote the NPPE again in July 2002, but failed. A year later, APEGGA withdrew his application because he hadn’t written the confirmatory exams or passed the NPPE.
In August 2006, Mihaly complained to APEGGA about its refusal to recognize his academic qualifications and the need for him to write the confirmatory exams. APEGGA reactivated his file two months later and asked him for an updated resumé. It included the name of a professional engineer he had worked with for more than a year, along with a gas company owner and co-worker.
In August 2007, APEGGA once again determined Mihaly had to complete three confirmatory exams and the engineering economics exam. He was also required to obtain one year of experience in North American professional engineering at a level higher than that he had worked at with his references — one year of such experience was required of any applicants who only had international experience, because APEGGA wanted applicants to be able to understand Canadian codes and how be familiar with how engineering is practiced in Canada.
Mihaly refused to write the exams and filed a complaint with the Alberta Human Rights Commission in August 2008. Mihaly claimed APEGGA discriminated against him on the basis of his place of origin in the provision of services, in employment practices and in exclusion of membership in a trade organization — all areas protected in Alberta’s Human Rights Act.
Mihaly said there were international agreements with certain countries to accept their credentials, so not accepting credentials from his country of origin was discriminatory. He argued that since he worked for 25 years as an engineer in the former Czechoslovakia and could have continued working there, he expected his skills and qualifications should be enough to enter the engineering profession in Alberta.
Mihaly also indicated he suffered from discrimination as he was forced to work in low-paying jobs or be unemployed, causing difficulty in supporting his family. The exams he was required to take also had fees, which caused additional financial hardship — the NPPE cost about $50 at the time of Mihaly’s first application and the confirmatory exams cost about $80 each.
Tribunal chair Moosa Jiwaji noted that applicants from universities with the “substantially equivalent” assessment or in countries with international agreements met APEGGA’s academic requirement and weren’t required to take additional exams. Also, the one year of Canadian experience required of international candidates was not mandated by statue but rather was an APEGGA policy.
Foreign candidates face hurdles: Tribunal
Jiwaji found Mihaly was treated as a foreign candidate because of the origin of his credentials, which was essentially the same as place of origin for purposes under the Human Rights Act. He also found Mihaly felt an adverse impact because of that place of origin. Mihaly and any other candidates who weren’t from countries or institutions with agreements faced disadvantages simply because those countries or institutions hadn’t entered into such agreements. This created a prima facie case of discrimination, Jiwaji said.
“The initial assumption by APEGGA, underlying the examination and experience requirements is that engineers with qualifications from foreign countries with which APEGGA has no (equivalency agreements), have qualifications which are not at par with Canadian engineering accreditation standards. Foreign engineering graduates have a barrier they have to overcome before they are granted membership by APEGGA,” said Jiwaji.
Jiwaji found APEGGA’s standards for writing confirmatory exams and one year of Canadian experience were rationally connected to the association’s purpose of assessing the qualifications of engineers to “competently and safely practice engineering. It also adopted the standards in good faith as part of its statutory responsibility for certification of the engineering profession. However, where the test faltered was when determining whether the standards were reasonably necessary to accomplish APEGGA’s purpose, said Jiwaji.
Jiwaji found the “substantially equivalent” list was created with “open source” information that was publicly available. As a result, an institution’s inclusion on the list depended on what information was available and not direct consultation. In addition, the information wasn’t updated once it was on the list, so it could easily be out-of-date. As a result, APEGGA failed to show it explored options and alternatives to this process — such as directly contacting the institutions that granted Mihaly his degrees — to accommodate him to the point of undue hardship, said Jiwaji.
The tribunal chair also found APEGGA’s examination requirement was a “one size fits all” approach that didn’t take into account candidates’ actual background, knowledge and experience. In addition, the assessment of an engineer’s skills and experience with his references and resumé wasn’t an individualized assessment to correct an academic deficiency, but rather was mainly to review what engineering discipline the candidate fell under.
Jiwaji found APEGGA’s assessment and testing process did not put a priority on accommodation, but rather placed barriers that international candidates had to overcome before practicing engineering in Alberta. In Mihaly’s case, no one tried to individually assess his credentials or provide specific direction in writing the NPPE and other exams, something that would have helped someone from another country trying to navigate the process.
It was determined APEGGA’s assessment and examination standard and its requirement of Canadian experience were discrimination. APEGGA was ordered to pay Mihaly $10,000 for its failure to explore options for accommodating his credentials within the assessment process. The association was also ordered to review Mihaly’s transcripts and experience with direct consultation with the institutions he attended to “better identify Mr. Mihaly’s skills and qualifications and to identify core areas of engineering from which (he) could be exempted.”
Additionally, APEGGA was required to establish a committee to investigate options to individually assess any academic deficiencies for Mihaly, allow him to challenge specific exam requirements, and provide him with a mentor to guide his application and integration into the engineering profession.
For more information see:
• Mihaly v. The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1 (Alta. Human Rights Trib.).
