'Requiring Canadian experience is by default discriminatory and can only be used in limited circumstances'
An Ontario government department didn’t discriminate against a registered nurse when it didn’t consider her years of experience and training in another country when setting her salary level, the Ontario Human Rights Tribunal has ruled.
The worker was a nurse in China, where she received her primary nursing education and worked for 12 years as a registered nurse (RN).
The worker immigrated to Canada in 2005 and had to pass the Canadian Registered Nurse Examination and a language test before she could register as an RN with the College of Nurses of Ontario. She also took bridging courses for internationally educated nurses and worked as a registered practical nurse (RPN) to ease herself into the profession in Ontario.
In 2010, the College of Nurses informed the worker that the nursing programs she completed in China weren’t equivalent to an Ontario baccalaureate degree in nursing, so she would have to complete additional nursing education to qualify as an RN.
The worker completed the necessary educational requirements and successfully registered as an RN in 2012. She started working as an RN at a hospital shortly thereafter.
Registered nurse position
In May 2016, the worker was hired by the Ontario Ministry of the Solicitor General to be an RN at a correctional institution on an on-call basis. The collective agreement for nurses at the institution had a nine-step pay scale and management had discretion to place a new employee at the step it determined was appropriate. The institution started the worker at the fourth step of the scale based on her four years of RN experience in Ontario, which was less than what she had been paid at the hospital. However, she agreed to and signed the offer.
In February 2017, the worker learned that some new RNs with less overall nursing experience and no previous experience with the ministry were hired at a higher wage rate. However, she didn’t raise the issue because she was applying for a full-time RN position with the ministry.
The worker was offered the full-time position and accepted it on April 3. However, her offer letter indicated that she would continue to be paid at the fourth step of the pay scale, so she asked why she was being paid less than some RNs with less experience. The manager said the ministry didn’t include her experience in China when determining her place on the scale.
In early 2018, a colleague told the worker that she approached her manager a few years earlier to ask for her experience as an RN in England to be considered for a higher wage rate. Her request was granted and she received the raise. They went together to speak to the manager about the worker’s experience as a nurse in China being considered, but the manager refused to grant a wage increase.
The worker filed a human rights application in March alleging that the ministry’s failure to consider her Chinese work experience and training when determining her pay level was discriminatory, maintaining that her experience in China should be treated as a proxy for the protected ground of place of origin under the Ontario Human Rights Code.
Wage rate
The ministry argued that the requirements to become an RN in Ontario include a baccalaureate degree at an approved Canadian university or equivalent and the collective agreement required employees to be paid at the minimum rate of the salary range of the class to which they were assigned – and historically wages negotiated by the union for nurses in correctional institutions were lower than that at a hospital.
The ministry also said that the hiring manager looked at the worker’s resumé and application in determining her place on the wage grid, which included her experience working as an RN and RPN licensed in Ontario but not her qualification process with the College of Nurses. Since the resumé also stated that the worker took bridging courses, the hiring manager took that to mean her prior education and experience didn’t meet the standards to become licensed as an RN in Ontario. As a result, the worker’s placement on the wage scale was based on her four years of RN experience she was licensed as an RN in Ontario, the ministry said.
“The worker’s experience and education that she brought from China wasn’t equivalent to meet the standards to become licensed as an RN in Ontario, and that assessment wasn't based on any stereotypes or bias about the worker’s Chinese education and experience - rather, it wasn’t determined to be equivalent,” says Ozlem Yucel, an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.
In addition, the ministry pointed out that there was no provision in the collective agreement allowing an employee to renegotiate their salary. The opportunity to do that was when they were hired, and once they were on the wage scale they proceeded up the ladder.
“The ministry’s policy and the collective agreement stated that new employees were to be paid at the minimum rate of the salary range for the position, and the ministry ultimately placed her at level four, which was three levels higher than the default starting point,” says Yucel. “The tribunal found that the ministry's decision-making was within the bounds of the collective agreement and their policy, so placing the worker at level four was appropriate given that she had four years of RN experience licensed by the College of Nurses in Ontario - that wasn’t discriminatory because it was justifiable and evidence-based.”
Place of origin
The tribunal found that the worker’s place of work experience couldn’t stand as a proxy for place of origin, as the evidence indicated that the ministry didn’t make any assumptions about her place of origin in setting her place on the wage scale. The hiring manager understood that the worker’s education and experience in China weren’t equivalent to meet the licensing standards in Ontario, based on the fact that she took bridging courses and worked as an RPN before becoming an RN, the tribunal said, adding that the College of Nurses had determined that the worker’s nursing education in China wasn’t equivalent to an Ontario baccalaureate in nursing.
The tribunal referred to an Ontario Court of Appeal decision, Jamorski v. Ontario (Attorney General), 1988 CanLII 4738, which recognized that the practice of medicine and medical education is highly regulated and regulatory authorities in Ontario have the power to treat graduates of an educational system that isn’t known or monitored by them differently than graduates of the system that they have monitored and carefully assessed.
“On the basis of Jamorksi, the tribunal found that the College of Nurses had the power to determine the regulatory requirements and the worker’s education and experience didn't meet those requirements,” says Yucel. “That's why she had to complete a bridging program and work as an RPN first, and there was a justifiable reason to distinguish between those two types of experience.”
As for the colleague who said her experience in England was considered to allow her to ask for a pay adjustment, there was no documentation supporting that claim and it would have been a different manager some years earlier, when the pay structure and collective agreement might have been different, tribunal said.
The tribunal determined that the ministry didn’t discriminate against the worker in determining her pay level, finding that her work experience in China couldn’t stand as a proxy for the protected ground of place of origin.
The application was dismissed.
Prima facie discrimination
Yucel notes that the decision is interesting in the context of the Ontario Human Rights Commission’s 2013 policy guideline – and soon to be in force Ontario legislation - that says an employer disregarding international experience and requiring Canadian experience was prima facie discriminatory.
“Requiring Canadian experience is by default discriminatory and can only be used in very limited circumstances, such as when it's demonstrated to be a bona fide occupational requirement,” says Yucel. “But I think what led the tribunal its conclusion in this case was that it found the employer’s assessment was evidence-based, or there was some rational justification for it.”
“But tribunals and courts will likely continue to require that type of assessment to be made, so employers should be establishing and relying on objective and standardized criteria when recruiting and selecting job applicants, ensuring that those criteria are not only standardized but applied consistently - that's going to minimize the chances of discriminatory attitudes, bias, and stereotypes bleeding into their decision-making,” she adds.
Employers should also ensure that their decision-making process is transparent, says Yucel.
“Set job requirements for skills and work experience that are actually based on the position, with job ads that clearly state what those requirements are, and apply those requirements in a way that gives foreign job applicants an opportunity to demonstrate how they meet those requirements and allows the employer to properly assess the value of foreign education, experience, and skills,” she says. “Generally, an employer should take a flexible approach to the assessment of a foreign-trained applicant wherever possible.”
